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newspaper of general circulation at least 20 | cure a purchaser, or to obtain money to pay days before the date of sale. The decree also the judgment, or to purchase the premises, provided that the master report the salé, and and by the sale was thus deprived of her upon confirmation of the same by the court equity in the premises. (5) That, if the rethat a deed be delivered to the purchaser. port of sale be not approved and the premNo redemption was made within the 15 ises be again offered for sale, the resale months' period, and the master in chancery would bring at least $6,000, and that she has who had issued the certificate of indebted- a purchaser ready, able, and willing to pay ness was appointed by the court as a spe- $6,000 cash for the premises, and submits cial commissioner to conduct the sale; his a written offer by such proposed purchaser, commission as master in chancery hav- who is financially responsible, that she preing expired. The time, place, and terms of sents to the court a certified check for $1,the sale were advertised as provided by the 500, signed by the proposed purchaser as decree. At the time and place so designated a guaranty that he will bid $6,000 if the the special commissioner appeared and of- premises be again offered for sale. She therefered the premises for sale. The complain- fore prayed that the report be not approv ant bid the amount of the debt and costs, ed, and that the premises be reoffered for and appellant, Samuel Mayer Haimowitz, sale. Samuel Mayer Haimowitz, the highthen bid the sum of $575, and being the best est bidder at the sale, thereupon filed his pebidder was pronounced the purchaser. Nei- tition to be made a party of record in the ther appellee nor her attorney attended the cause, and in his petition prayed that the sale. The special commissioner made his report of sale of the special commissioner be report to the court that Haimowitz had paid approved and the commissioner ordered to to him the amount of his bid, $575, and that make to him a deed to the premises. such amount was sufficient to pay the certificate of indebtedness issued to complainant and the commissioner's fees and expenses, and that there remained a balance of $2.34, and that upon the approval of his report of sale by the court he was prepared to deliver a deed to the purchaser.

The record contains a letter signed by A. B. Galbraith, the proposed purchaser, addressed to the attorneys for appellee, in which he states that in case the report of sale be not confirmed by the court and the premises be again offered for sale, "I offer and guarantee that at such sale I will bid for the premises $6,000, and as a guarantee that I will so bid I attach and inclose certified check for $1,500 to my order, and by me indorsed to the order of said special commissioner." The check so drawn and indorsed, dated December 7, 1922, and directed to the Northern Trust Company, accompanied the letter.

Upon a hearing upon the report of sale the court disapproved the report of sale and ordered the premises resold, after duly advertising the same as required in the former decree for sale. Haimowitz excepted, and has perfected this appeal.

The appellee, Emma Miller, filed the following objections to the report of sale, verified by her affidavit: (1) That the premises constitute her entire and sole estate. (2) That she is now living separate and apart from her husband, who many years ago deserted her, and for many years has contributed nothing to her support, and she has no means of support or income, except from the renting of two small flats in the premises. (3) That the premises are fairly and reasonably worth in the open market, and were so worth when sold by the commissioner the sum of $9,000, and that they were sold by the commissioner for not more than one-eighth of the fair cash market value of the premises, and if the sale be confirmed she will be left penniless, and without means of support. (4) That several weeks prior to the sale of the premises, in order to arrange to protect her rights and interests in the premises at the time of sale, she called upon one of complainant's solicitors, and stated to him that she desired to make arrangements at the time of the proposed sale to raise the money to purchase the premises or to have friends purchase the same for her, and asked him to notify her when sale would take place; that he stated to her that he would do so and afford her ample time in which to arrange to pay the judgment or pur-ported to the court, and that upon confirmachase the premises; that she failed to receive any notice whatever, either from him or from any other source, of the time and place of sale; and that as a result made no

[1-3] Although there is no statutory provision requiring the confirmation of a sale by the court, and such confirmation is not necessary, yet it is a good and safe practice for the court to make such requirement in its decree of sale. Miller v. McMannis, 104 Ill. 421. Even in the absence of any such provision in the decree it would be the duty of the court, on proper complaint made, to set aside the sale for fraud or any gross irregularity in the sale, as the owner of the equity is entitled to have the sale conducted according to law and free from fraud whereby he might be deprived of valuable rights. The circuit court in this case by its decree of sale expressly ordered that the sale be re

tion by it a deed be delivered to the purchaser. This decree was the authority for the sale, and its provisions were mandatory upon the officers conducting the sale. Its pro

(146 N.E.)

missioner, and the sale was not consummat- the sale will be set aside. Rorer on Judicial ed until confirmed by the court. All the parties were bound by the decree of the court ordering the sale, and the order of the court determined the character and manner of the sale.

[4-7] The chancellor has a broad discretion in the matter of approving or disapproving a sale made by the master in chancery, where there is no right of redemption from the sale, and where the deed is by the terms of the sale not to be made by the master to the purchaser until after confirmation of the sale by the court. Where the sale has been conducted in accordance with the order of the court and the purchaser is a stranger to the order of sale, as in this case, mere inadequacy of price will not justify a court in not confirming the sale and depriving the purchaser of the benefits of his bargain, unless the inadequacy is such as to amount to fraud. Where inadequacy of price is relied upon as a ground for disturbing the sale, and the claim is that the price is so inadequate as to amount to fraud, there must exist the further fact that there is no right of redemption from the sale. Skakel v. Cycle Trade Publishing Co., 237 Ill. 482, 86 N. E. 1058; Rader v. Bussey, 313 Ill. 226, 145 N. E. 192. In this case there is no right of redemption from the sale, as the 15 months' period given by the statute for redemption had expired before sale. In the case of Rader v. Bussey, just cited, the rule is laid down that, where the bid at a judicial sale is so inadequate as to shock the conscience of the court or to amount to sufficient evidence of fraud in law, the sale will be set aside on that ground alone. In determining this question no definite rule is laid down as to what per cent. of the value of the property must be bid at the sale in order to amount to such gross inadequacy as to be evidence of a legal fraud, but each case must be determined by its own circumstances. In this case the property is shown to be worth at least $6,000, or $5,425 more than was bid for it. The record contains a sufficient guaranty that the property will sell for $6,000 or more if resold, or more than 10 times as much as appellant bid for it. While the record contains no evidence of misconduct whatever on the part of the commissioner or on the part of appellant, the purchaser, still the amount bid by the purchaser was so inadequate as to amount to a legal fraud on appellee, if such sale should be confirmed.

[8] There is another reason for sustaining the order of the circuit court in disapproving the report of sale. The rule has often been announced that if in addition to the inadequacy of price there be any appearance of unfairness, or any circumstance, accident, or occurrence in relation to the sale of a character tending to cause such inadequacy, then

Sales, p. 234. In this case appellee was promised by the solicitor for complainant in the foreclosure suit that he would notify her of the time and place of the sale. This he failed to do. It does not appear from the record that there was any intentional misconduct on the part of the solicitor, yet appellee relied upon that promise to her prejudice. She had a right to rely on such statement. She not only received no notice from the solicitor but received no notice from any source, as the record shows. This circumstance, coupled with the gross inadequacy of price, clearly entitled her to the right to have the sale set aside.

The order of the circuit court disapproving the report of sale and ordering a resale is affirmed.

Order affirmed.

(315 Ill. 521)

THOMSON v. THOMSON et al. (No. 15453.) (Supreme Court of Illinois. Feb. 17, 1925.) I. Brokers 15-Broker entering Into absolute and unconditional contract for principal is liable for damages resulting from cancellation without principal's consent, notwithstanding broker and his contractee act under rules of Board of Trade of which they are members.

Broker, who as agent enters into absolute and unconditional contract for purchase and delivery of goods to his principal, and thereafter without principal's knowledge or consent releases seller is liable to principal for damages, and it is no defense in action to recover such damages that such parties and those with whom they contracted were members of a board of trade, and that cancellation of contracts was required by regulations of board, fense against board incurring severe penalties. 2. Sales 172-Difficulty or even impossibility of performance of contract for sale and delivery of grain is not defense to action for its breach, in absence of limitations of liability in such respect.

or that failure to cancel would constitute of

That compliance with absolute and unconditional contract for purchase and delivery of grain would, by reason of exigencies of war demands, entail great hardship and become extremely difficult or even impossible of performance, is not defense to a suit for damages arising from such breach, where contract contains no limitation of liability in respect to such contingencies.

3. Brokers 36-Purchaser of corn through

broker, who ratified contract made subject to regulations of Board of Trade, held bound by contract, though not absolute and unconditional in accordance with instructions to broker.

Plaintiff for whom, as undisclosed principal, corn was purchased by broker under contracts

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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made subject to rules and regulations of Board of Trade of City of Chicago, who ratified and sued upon such contracts, though not absolute and unconditional in accordance with his original instructions, held bound by terms and conditions contained in them.

4. Brokers 15-Contract for purchase of! corn subject to rules and regulations of Board of Trade held not absolute and unconditional. Contracts for purchase of corn made by member of Chicago Board of Trade for undisclosed principal "subject to rules, regulations, and customs of the Board of Trade, and the rules, regulations, and requirements of its board of directors and all amendments that are made thereto," held not absolute and unconditional as affecting broker's right to make settlement in accordance with regulations of board without consent of principal; the conditions being an integral part of it.

5. Brokers 38 (4)-Resolution of directors

of Chicago Board of Trade held admissible as affecting terms of contract in action against broker for damages for alleged unlawful settlement.

In action by purchaser of corn against brokers, members of Chicago Board of Trade, who had negotiated such purchase, for damages for alleged unlawful release of persons from whom they had purchased such corn, where contract of purchase was made subject to regulations of Board of Trade and requirements of board of resolution of board fixing settlement price of contracts such as one involved was not only properly but necessarily admitted in evidence to establish true terms of contract.

directors and amendments thereto, held, that

6. Brokers 36-Person notified that contract made for him has been made subject to certain rules, and regulations may not avoid effect of such regulations by denying notice or knowledge of them.

Purchaser of corn, notified by his brokers that contracts made in his behalf were made in accordance with rules, regulations, by-laws, and requirements of Chicago Board of Trade, is charged with duty to ascertain such rules, regulations, etc., and cannot avoid their effect by denying notice or knowledge of them.

7. Brokers 15-Broker making settlement of contract for undisclosed principal on basis fixed by resolution of Board of Trade subject to which contract was made held not liable to principal.

Broker, member of Chicago Board of Trade, who had purchased corn for undisclosed principal under contract made subject to rules and regulations of Chicago Board of Trade, and to rules and requirements of its board of directors and amendments thereto, held not liable to such principal for unauthorized settlement of such contract on a basis fixed by resolution of board of directors in an effort to meet conditions arising out of World War.

Dunn, Stone, and Thompson, JJ., dissenting.

Error to First Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge.

Action by W. A. Thomson against Alexander W. Thomson and others. Judgment for plaintiff was affirmed by the Appellate Court (229 Ill. App. 629), and defendants bring certiorari. Reversed and remanded.

Henry S. Robbins and Winston, Strawn & Shaw, all of Chicago (Silas H. Strawn and Walter H. Jacobs, both of Chicago, of counsel), for plaintiffs in error.

Keith L. Bullitt, of Seattle, Wash., and King, Brower & Hurbut, of Chicago, for defendant in error.

HEARD, J. Defendant in error, W. A. Thomson (hereinafter called plaintiff) brought suit in the municipal court of Chicago against plaintiffs in error, partners under the firm name and style of Thomson & McKinnon (hereinafter called defendants), to recover damages for alleged breaches of contracts of agency with reference to the purchase and delivery of grain. The court directed a verdict for defendants, and plaintiff appealed to this court on the ground that his constitutional right had been violated by the impairment of the obligation of the contracts. This court finding that no constitutional question was involved, transferred the case to the Appellate Court for the First District. The Appellate Court being of the opinion that the municipal court erred in directing a verdict for defendants, reversed the judgment and remanded the cause to the municipal court for another trial. The cause was reinstated in the municipal court, and upon being retried the court instructed the jury to return a verdict for plaintiff for $15,588.50, and judgment was entered accordingly. Defendants appealed to the Appellate Court, where the judgment was affirmed. This court allowed a petition for a writ of certiorari to the Appellate Court, and the record is now under review.

The statement of the claim in the munic ipal court, with its amendments, alleged that plaintiff was a dealer in grain at Louisville, Ky., selling the same to his customers and purchasing the same for such sale from divers brokers, warehousemen, and producers; that on or about May 23, 1917, plaintiff employed Williams & Monroe, brokers at Louisville, Ky., to purchase for him 10,000 bushels of corn at $1.57% per bushel, and on or about June 12, 1917, he employed said brokers to purchase for him 10,000 bushels of corn at the price of $1.58 per bushel; that on or about May 23, 1917, Williams & Monroe employed defendants, who were brokers in the city of Chicago and members of the Board of Trade of the City of Chicago, to purchase 10,000 bushels of corn at $1.57% per bushel on behalf of their undisclosed principal, plaintiff; that on or about June 12, 1917, Williams & Monroe employed defendants to purchase for an undisclosed principal, plain

(146 N.E.)

of directors provided that after July 5, 1917, all trading by members of the exchange in corn for delivery by grade, alone, in Chicago for the month of July should cease, and a committee was appointed to fix the true commercial value of contract grades of corn on that day; that the committee found the true commercial value to be $1.65 per bushel; that the resolution provided that any member so trading after said day should be deemed to have committed a grave offense against the good name of the association; that the plaintiff knew of a similar action previously taken respecting other grain; that after the passing of the resolution on July 9, 1917, the sellers of the corn to defendants notified defendants of their intention to settle the contracts on the basis of the settlement price of $1.65 per bushel, in accordance with the resolution; that defendants immediately notified Williams & Monroe, who then first informed defendants that the purchases were made for the account of plaintiff, and Williams & Monroe protested against the settlement; that defendants and the persons from whom they had purchased such corn were members of the Board of Trade of the city of Chicago, and each of them was bound by its rules, regulations, bylaws, and requirements. The affidavit of merits also set out a copy of the charter of the Board of Trade and a portion of the rules, regulations, and by-laws for the management of the business of its members and the mode in which it should be conducted. The statement of claim and affidavit of merits formed the issue tried in the municipal court.

tiff, 10,000 bushels of corn at $1.58 per bushel; | lawful authority, by resolution of the board that said two orders, for 10,000 bushels each, were first contracted for by defendants with Ware & Leland and Lamson Bros., respective ly; that said firms were both then members of the Chicago Board of Trade; that by agreement between defendants, Ware & Leland, and Lamson Bros., the firm of ClementCurtis & Co. was substituted to deliver both of said orders for 10,000 bushels of corn; that defendants in buying the corn provided for the delivery thereof to defendants at Chicago at said price during the month of July, 1917, on any day which the sellers might elect; that by means of the employment of defendants by plaintiff, defendants became the agents of plaintiff for the purpose of effecting said purchases and obtaining the delivery of the corn; that defendants were bound and undertook to exercise their skill, diligence, zeal, and fidelity for the interests of plaintiff which were created by the contracts of purchase; that defendants violated their undertaking, and before the persons from whom they had purchased the corn had offered to deliver the same, defendants, without the authority of plaintiff and without informing him of their action in that respect, released the persons from whom they had purchased the corn from their obligation to deliver the same; that plaintiff, on or about the 31st day of July, 1917, not having received delivery or tender of the corn, made tender to defendants of the sum of $31,512.50, the full amount of the purchase price of said 20,000 bushels of corn, and demanded that defendants deliver to plaintiff said 20,000 bushels of corn, which tender defendants refused, and refused to deliver any part of the corn upon the ground that the contracts for the delivery thereof had been canceled; that on July 31, 1917, the market price at Chicago of said corn was $2.40 per bushel.

The amended affidavit of merits admitted the receipt of the orders from Williams & Monroe for the purchase of the corn and the contracts with Clement-Curtis & Co. for such purchases, and alleged that upon making each contract for the purchase of corn they sent to Williams & Monroe a statement confirming the transaction, stating that it was made in accordance with and subject to the rules, regulations, and customs of the Board of Trade of the City of Chicago and the rules, regulations, and requirements of its board of directors and all amendments that are made thereto; that Williams & Monroe, upon receiving each of said statements, sent a like statement to the plaintiff; that on account of the declaration of war against Germany on April 6, 1917, and unusual conditions resulting and sure to result in the future in abnormally high prices, which would have enabled purchasers to compel sellers to settle their contracts at extortionate prices, the Board of Trade, in the exercise of its

Two principal questions arise upon this record: First, what were the terms of the contracts between plaintiff and defendants? Second, was there a breach of such contracts?

[1] If plaintiff employed defendants to purchase corn for plaintiff, and defendants, as such agents, entered into absolute and unconditional contracts for the purchase and delivery of the corn to plaintiff, and thereafter, without plaintiff's knowledge or consent, released and canceled said contracts, then defendants are liable to plaintiff for such damages as he may have sustained, if any, as the proximate result of such unauthorized action, and it would be no defense in an action to recover such damages if the agents and the parties with whom they made the contracts were members of the Board of Trade, and that such action in so canceling such contracts was required of them by the rules and regulations of the Board of Trade, and that their failure to comply with such rules would render them guilty of a grave offense against the good name of the Board of Trade and subject them to severe penalties for such offense.

[2] An agent who makes a contract in his

"We have the pleasure of confirming the following transactions made for your account and risk this day. All purchases and sales made by us for you are made in accordance with and subject to the rules, regulations and customs of the Board of Trade of the City of Chicago and the rules, regulations and requirements of its board of directors and all amendments that

are made thereto."

Each contract for purchase was confirmed by Williams & Monroe with this statement: "All orders for the purchase and sale of any article are received and executed with the distinct understanding that actual delivery is contemplated and in accordance with and subject to the rules, regulations and customs of the exchange upon which the order is to be executed and the requirement of its board of directors and all amendments that are made thereto, and that the party giving the order so understands and agrees."

own name for an undisclosed principal has, export. He gave orders for the purchase of no power to destroy the contract without the corn in question to Williams & Monroe, the principal's consent (Samuels v. Northrup members of the Chicago Board of Trade operNat. Bank, 234 Ill. 9, 84 N. E. 721), and a ating in Louisville, and the orders were transbroker making a contract for the sale of mitted to defendants. Contracts were made property for another has no right to rescind by defendants accordingly and reported to the contract without the knowledge or con- Williams & Monroe with the following statesent of his principal unless the commercial ment: usage was such at the place where the sale was made (Saladin v. Mitchell, 45 Ill. 79). If the words of the contract are plain and unambiguous, the contract must be so construed as to give effect to the plain and obvious import of the language used. Bearss v. Ford, 108 Ill. 16; Kansas City v. Public Service Com., 276 Mo. 539, 210 S. W. 381. When the parties are competent to contract, with the wisdom or folly of their contracts, made for a consideration and without fraud, courts of law have no concern. Florida Ass'n v. Stevens, 61 Fla. 598, 55 So. 981; Mizell Live Stock Co. v. McCaskill Co., 59 Fla. 322, 51 So. 547. One who contracts cannot be relieved from the obligation of his contract which binds him to perform his agreement, and he cannot be deprived of the benefit of his lawful contract, and the rights which it confers upon him, without his consent, and in every case the question is what the contract was and what obligation it created. A After the country had entered into the party to a contract has no right to impose a World War there was a great increase in the condition not provided for in the contract price of grain and the future market was itself. Illinois Conference Female College v. oversold, so that more grain had been sold Cooper, 25 Ill. 148. Neither would it be any on the Board of Trade for future delivery defense in such case that by reason of the than was possible to obtain or deliver. The declaration of war against Germany on April sales of corn exceeded the entire product 6, 1917, and the unusual conditions result- available for delivery, so that purchasers ing, and sure to result in the future, in compelled sellers to settle their contracts abnormally high prices, which would have at extortionate prices. On July 5, 1917, enabled purchasers to compel sellers to settle corn for delivery in July had reached a price their contracts at extortionate prices, the of approximately $1.63 per bushel, and the Board of Trade, by resolution of the board unusual and abnormal conditions, were sure of directors, provided that after July 5, to cause, and did cause, great future ad1917, settlements of the contract in ques- vances, as shown by the fact that on July tion should be made in the manner in which 31, 1917, the price of cash corn was $2.40 a they were made. Neither would it be any bushel. For the purpose of stopping the defense to a suit for damages resulting from speculative trading in corn, which it was a breach of such contract that a compliance certain would have disastrous results, the with such contract would entail great hard- board of directors adopted a resolution that ship upon defendants or that by reason of the after July 5, 1917, all trading by members exigencies of the World War the fulfillment of the board in corn for future delivery, by of the contract would be rendered extremely grade alone, in July, either for immediate difficult, or even impossible, where defendant or future delivery, should cease, and a comhas failed to limit in the contract his lia-mittee of three was appointed to fix a price bility in respect to such contingencies. Illinois Central Railroad Co. v. McClellan, 54 Ill. 58, 5 Am. Rep. 83; Illinois Central Railroad Co. v. Cobb, Christy & Co., 64 Ill. 128; Toledo, Wabash & Western Railway Co. v. Lockhart, 71 Ill. 627; Phelps v. Illinois Central Railroad Co., 94 Ill. 548.

The facts in the case were not disputed. Plaintiff, during the time of the transactions in question, was buying and selling grain at Louisville, Ky. He bought corn in different states and furnished it to parties in various

which should be a basis of settlement of all contracts for July open at the close of business that day, except such open contracts as should be performed by delivery or settled by agreement of the parties. On July 9, 1917, Clement-Curtis & Co. notified defendants of their purpose to settle their contracts at $1.65 per bushel, and upon notifying Williams & Monroe, defendants were first informed that the purchases were for the account of plaintiff.

[3, 4] While plaintiff's orders for the pur

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