« ForrigeFortsett »
lection. After giving up the business they 2. ABATEMENT-PENDENCY OF OTHER ACTION. could not claim commissions, under the con
In an action to recover possession of cor tract, on interest notes not then due and
porate stock held by defendant to secure the
payment of notes given for the purchase price thereafter to be collected.
by plaintiff to the seller of the stock, the penBut if it were otherwise, there is another dency of an action by plaintiff against defend reason why the plaintiffs in error are not
ant, commenced some time before plaintiff had entitled to these commissions. The evidence
paid the notes, was no bar. shows that they collected moneys belonging
3. EQUITY-REFERENCE TO MASTER-APPROV
AL OF MASTER'S CONCLUSIONS. to the defendant in error, but retained the Under Hurd's Rev. St. 1903, c. 22, § 39, same without making report thereof, and providing that the court may upon default or that they represented certain mortgage loans upon issue being joined refer the cause to a as still outstanding when in fact they had
master to take and report evidence with or with
out his conclusions, and chapter 90, § 6, probeen fully paid to the firm. The course thus
viding that it shall be the duty of the master pursued was in gross violation of the duties in chancery to perform all other duties which owed to defendant in error. The law is
according to law and the practice of courts of that the agent is entitled to his commission
chancery appertain to the office, the fact that
a master's conclusions are approved by the only upon a due and faithful performance chancellor, and a decree entered in conformity of all the duties of his agency in regard to
therewith does not show that the master exerhis principal. Hafner V. Herron, 165 Ill.
cised judicial power or render the reference
erroneous. 242, 46 N. E. 211; Prescott v. White, 18 Ill. App. 322. "If the agent does not perform Appeal from Appellate Court, First Dis. his appropriate duties, or if he is guilty of trict. gross negligence or gross misconduct or gross Action by Edward B. Leigh against Henry unskillfulness in the business of his agency, D. Laughlin. From a judgment of the Aphe will not only become liable to his prin- pellate Court affirming a decree for plaintiff, cipal for any damages which he may sustain defendant appeals. Affirmed. thereby, but he will also forfeit all his com
This is an appeal from a judgment of the missions." Story on Agency, $ 331; 1 Am. &
Appellate Court for the First District affirmEng. Ency. of Law (2d Ed.) 1101. "If the
ing a decree of the superior court of Cook agent receives moneys and willfully suffers
county finding appellee to be the owner of his principal for a long time to remain in ig.
and entitled to the possession of 845 shares norance that the debtor has paid, it is but
of the National Hollow Brake Beam Comequitable that the agent should be charged
pany, which are in the possession and name with interest, as in this case there is a clear
of appellant. This case is a branch of the default and breach of duty.” 1 Am. & Eng.
litigation growing out of the case of Leigh Ency. of Law (2d Ed.) 1094; Bedell v. Jan
v. Laughlin, lately before this court (211 Ill. ney, 4 Gilman, 193. "In the application of
192, 71 N. E. 881), and the statement of facts this rule it makes no difference whether the result of the agent's conduct is injurious to
in that case is complete, and it will therefore
be unnecessary to restate all of the facts inthe principal or not; in such case the miscon
volved in the issues of this and that case. duct of the agent affects the contract from
From the evidence it appears that in 1890 considerations of public policy rather than of injury to the principal.” Hafner v. Her
appellee purchased of Sarah Hein the stock
involved in this controversy and gave his note ron, supra; Young v. Hughes, 32 N. J. Eq.
for $3,000 payable to her order, and that of 372. Under the facts disclosed by this record
H. C. Buhoup for the same amount, payable the plaintiffs in error were not entitled to
to appellee's order and by him indorsed to the commissions in question, and the same
her, in payment therefor, and it was agreed
that the stock so purchased was to be held were properly disallowed. There being no error in the record, the
by appellant in trust to secure the payment judgment of the Appellate Court is affirmed.
of said notes. For many years thereafter apJudgment affirmed.
pellee received the dividends on the said stock, and in their dealings together, which were extensive and complicated, appellee and
appellant always treated said stock as the (222 Ill. 265)
property of appellee. In 1898 the agreement LEIGH V. LAUGHLIN.
involved in the case of Leigh v. Laughlin, (Supreme Court of Illinois. June 14, 1906. supra, was claimed to have been made. A
Rehearing Denied October 10, 1906.) breach in the business relations between ap1. PARTIES-PERSONS INTERESTED IN RESULT. pellee and appellant, which prior to that
Where, in an action to recover possession date had been confidential and harmonious, of shares of corporate stock held by defendant
took place in 1900, and appellee brought suit as security for the payment of certain notes given by plaintiff to a third person for the pur
against appellant, which suit was finally dechase price of the stock, there was no claim termined in this court in favor of appellee, as that the notes had not been paid, and defend
above noted. Some months after the comant's refusal to surrender the stock was not based on that ground, but on the ground that
mencement of that suit appellee paid the he had an interest in the stock, the seller of
Hein notes, and called upon the appellant to the stock was not a necessary party.
surrender the stock held in trust to secure
their payment, exhibiting to him the notes ant; but all such statements and expressions and a letter from Mrs. Hein's husband stat were clearly insufficient to establish an agreeing that the debt had been paid and authoriz ment that the defendant was to have one-half ing the surrender of the stock. Appellant re of the shares of stock of the brake beam comquested time to advise with his attorney in pany. We do not think that the contract althe matter and finally refused to deliver the leged by defendant was proved, and we agree stock, contending that it was within the agree in the conclusion reached by the Appellate ment involved in the suit then pending and Court." From a careful examination of the that he had a personal interest in the stock. evidence in this case we are unable to see Appellee endeavored to agree with appellant that the appellant has made any stronger or that said 845 shares of stock be incorporated more conclusive case as to the ownership of in the suit then pending, by stipulation, which this stock than he did in that case. While appellant refused to do, and this suit was this stock was not there involved, the right thereupon brought. Upon the hearing before to retain it is based by appellant upon the the master the issues were found in favor of same facts proved by him in that case, and if appellee, and the chancellor, upon argument the facts proved were insufficient in that of exceptions to the master's report, approved case to sustain his contention, nothing in this the master's findings and entered a decree in record in any way justifies a change in the favor of appellee.
decision arrived at in that case. The following grounds of reversal are As to the necessity of making Mrs. Hein a urged in this court: First, that appellant has party to this suit, it is not claimed that the a legal or equitable interest in the stock in notes held by her were not paid by appellee question and is entitled to hold the same for or that she has any interest in this suit. It his protection; second, that Mrs. Hein is not is merely insisted in support of appellant's a party to the suit, and that appellant cannot second contention, that appellee's proof was safely turn over the stock to appellee until not sufficient to justify appellant in surrenher rights therein are fixed by the court; dering the stock. Appellant did not base his third, that the rights of appellee in and to refusal to surrender the stock on the ground said stock were litigated in the case of Leigh the Hein notes had not been paid, but on the v. Laughlin; and, fourth, that the chancellor ground he had an interest in the stock. The erred in referring this case to the master in possession of the notes in controversy by the chancery to take the proofs and report his appellee was prima facie evidence of their conclusions.
payment (Cassem v. Heustis, 201 Ill. 208, 66 John P. Ahrens and David S. Geer, for
N. E. 283, 94 Am. St. Rep. 160), and appelappellant. Shope, Mathis, Zane & Weber,
lant's contention that Mrs. Hein should have and Eddy, Haley & Wetten, for appellee.
been made a party to the suit is without
force. HAND, J. (after stating the facts). From
As to the third contention, the suit of the evidence it appears conclusively that the
Leigh v. Laughlin was commenced a number 845 shares of stock in controversy came into
of months prior to the payment of the notes appellant's possession at the time of the Hein in question. Appellee had no right to the deal; that he held the same merely in trust possession of and was not entitled to receive for the purpose of securing the payment of
the stock until the notes were paid, and the the two notes, aggregating $6,000, given by
question of the ownership of said stock thereappellee to Mrs. Hein in payment for the
fore could not have been, and was not, instock, and that the stock was treated by both
volved in that suit. Upon the refusal of apparties as the property of appellee in all of pellant to surrender said stock to appellee, the transactions between them until their appellee made an effort to have appellant disagreement in 1900. Appellant's evidence stipulate that the controversy as to this in this case consisted chiefly of the evidence stock be disposed of in the case then pendtaken on the trial of the case of Leigh v.
ing in the circuit court of Cook county, but Laughlin, 211 Ill. 192, 71 N. E. 881, and there appellant declined to so stipulate. The stock fore the facts here are the same as relied here in controversy was not involved in the on in that case for the purpose of establish case heretofore disposed of by this court, and ing the fact that appellant had an interest in the pendency of that suit was not a bar to the stock involved in that suit. In that case this suit. this court said, in passing upon such facts As to the last point, it is provided by sec(page 199 of 211 Ill., page 884 of 71 N. E.): tion 39 of chapter 22 of the Revised Statutes “There was no evidence of any definite state (Hurd's Rev. St. 1903, p. 229), that “the court ment or admission that there was such a may, upon default, or upon issue being contract or interest as claimed by the defend- | joined, refer the cause to a master in chan. ant. The parties were intimate friends, and cery, or special commissioner, to take and rethe complainant said that it had always been port evidence, with or without his conclusions his doctrine that they should divide every dol thereupon"; and section 6 of chapter 90 (page lar they made as a result of any transaction, 1229) provides, among other things, that it and he also indulged in many extravagant ex shall be the duty of masters in chancery to pressions of personal regard for the defend "perform all other duties which, according to
the laws of this state and the practice of in the improvement of appellant's property courts of chancery, appertain to the office.” and were to share the proceeds equally, and It does not follow that because the chancel that the property involved in this suit was lor approved the conclusion of the master and the result of their joint efforts in pursuance entered a decree in conformity therewith, of said agreement. that the master exercised judicial powers or The divorce issue was tried before Judge that appellant was deprived of a hearing be Brentano and a jury and a verdict was renfore the chancellor. The record shows that dered finding the appellee guilty of extreme objections were filed to the master's report, and repeated cruelty, as alleged in the bill. and, when overruled, that exceptions were
A decree of divorce was rendered accordingly, filed and argued before the chancellor. It and the court retained jurisdiction to hear was not error to refer this case to the master and determine the property rights between to take the evidence and report his conclu the parties. Subsequently the appellee filed sions. Harding v. Harding, 180 Ill. 481, 54 a cross-bill, alleging substantially the same N. E. 587.
facts set forth in his answer to the origina! There appearing to be no error in this rec bill, claiming a half interest in the premises ord which requires a reversal of the decree by virtue of said agreement; also that the entered in the lower court, the judgment of
deed mentioned in the original bill was exthe Appellate Court affirming the decree of ecuted in confirmation of his rights under that court will be affirmed.
said agreement, and praying for a partition Judgment affirmed.
and division of the premises. Lilly Arndt, the daughter of appellant, was made a party
and filed a disclaimer to any interest in the (222 Ill. 248)
property by virtue of the deed, adopted the HINTZ V. HINTZ.
answer filed by her mother to the cross-bill, (Supreme Court of Illinois. June 14, 1906. and asked that the premises be restored to Rehearing Denied October 11, 1906.)
her mother. Upon the bill, cross-bill, and DEEDS-VALIDITY-DURESS.
answers, before Judge Joseph E. Gary, on Where a husband and wife quarreled concerning the husband's interest in a building
November 27, 1905, a decree was rendered, being erected on land standing in the name of
which found that, during all of the transacthe wife, and an encounter ensued in which the tions and business connections in making wife was cruelly treated, and immediately after
various improvements and managing the wards she visited a notary and executed a deed conveying to the husband such an interest as
property standing in the wife's name, the he had claimed, but the husband was not appellant and appellee advised and conpresent at the time the deed was drawn, his sulted with each other, and that the premconduct did not amount to duress or undue in
ises described were the result of their joint fluence.
efforts, money, enterprise, and industry; Appeal from Superior Court, Cook Coun
that appellee constructed buildings for other ty; Joseph E. Gary, Judge.
parties when not employed in the common Suit by Lilly Hintz against Adolph G. enterprise, and earned money which he deHintz. From a decree in favor of defend
voted to the payment of bills in the various ant on his cross-bill and answer, complain- improvements of the property owned by himant appeals. Affirmed.
self and wife, and also to the support of his Appellant, Lilly Hintz, filed her bill for family. The decree further found that they divorce in the superior court of Cook county were owners, as tenants in common, of the against her husband, the appellee, Adolph premises in question, and that the deed exG. Hintz, on the ground of extreme and re ecuted by appellant to appellee and her peated cruelty. She also alleged that on daughter was not obtained by fraud and November 21, 1899, she executed a deed of duress, without consideration, but was exconveyance for a 50-foot lot on Evanston ecuted and delivered by appellant as her free avenue, in the city of Chicago, to her daugh and voluntary act and with full knowledge of ter, Lilly Arndt, and the appellee, and that its purport and legal effect, and that it was the execution of said deed was procured by
her intention and will to deliver said deed, duress, fraud, and undue influence, was
which constituted a good conveyance, to never delivered, and subsequently was de appellee. To reverse this decree an appeal stroyed; also that appellee had filed a bill has been prosecuted to this court. for partition of said real estate, claiming R. Wilson More (Lyman, Busby & Lyman, an interest in the same under said deed, and
of counsel), for appellant. A. C. Noble that the proceedings and claim of title by
(Quin O'Brien, of counsel,) for appellee. appellee constituted a cloud upon her title, which she asked to have removed. Appel WILKIN, J. (after stating the facts). No lee answered the bill, denying the allega- question is here raised as to the proceeding tions of cruelty, and alleging, in substance, for divorce. Many errors are assigned on that he was the equitable owner entitled to the decree settling the property rights bea one-half interest in the real estate men tween the parties, but the only one insisted tioned in the bill by virtue of an agreement upon is that the decree is not sustained by entered into between himself and the appel the law and the evidence. Our inquiry, lant, by which they were to work together in this condition of the record, must be
whether the facts proved are sufficient, under the law, to entitle appellee to the relief granted him.
The record is voluminous, containing the evidence both on the bill for divorce and the cross-bill of appellee. We will consider only such parts of it as in our opinion are necessary and proper in the decision of the foregoing question. It shows that appellant is of German descent and has been twice married. She lived with her first husband 11 years. Upon his death he left her some insurance money, which she invested in a piece of property on Baxter street, in the city of Chicago. After remaining a widow 7 years she married appellee. At the time of this marriage she owned the property on Baxter street, which was of the value of $2,000, subject to an incumbrance of about $500. Appellee had about $580 in money and owned some land in South Dakota, which he subsequently sold for $300. He was a carpenter by trade, and also drew plans, as an architect, for the construction of buildings. After the marriage the property on Baxter street was improved by their joint efforts and sold; both joining in the conveyance. They then bought and improved various other pieces of real estate, until that on Evanston avenue, now in controversy, was purchased. It was of the probable value of $6,250, and soon after the purchase was improved by the erection of a three-story brick and stone flat building of six apartments, and a six-room cottage in the rear. In the improvement of the various pieces of property owned by the parties after their marriage the appellee drew the plans and specifications, superintended the work, and at times worked himself. He drew the plans and specifications for the improvement on the Evanston avenue lot and assisted in making arrangements for a loan of $12,500 for the erection of the building. All of the deeds to the various pieces of property had been taken in the name of appellant. Appellee sold his South Dakota land, and claims he put the money derived from it, together with the cash which he had at the time of his marriage, into the various pieces of property acquired. There was no serious disagreement, controversy, or trouble between the parties until the time the Evanston property was about half completed, when a controversy arose as to the share or interest of appellee in that property. He claimed to be a tenant in common with his wife, which claim was disputed by her. A question arose with those who were to loan the money, with reference to certain liens or claims upon the property and the building certificate issued by appellee. These parties sent for appellant and informed her that if a change was not made they would loan no more money. On her return home a quarrel arose between her and her husband about his claim to an interest in the property. He informed her he would not do any.
thing more towards superintending the building and would perform no work himself until his right was recognized by her in the form of a deed or some other conveyance. This demand brought on a personal encounter, in which she claims he knocked her down, used violent language towards her, seized her by the wrists and twisted them until they bled, and otherwise cruelly treated her. Immediately afterwards she went to the office of a notary public near by, and after some conversation with him executed the deed above mentioned, conveying onehalf of the premises to her husband and the other half to her daughter. She returned to the house and gave the deed to him, and he placed it in a drawer with other papers belonging to him. The execution of the deed did not, however, bring about a reconciliation, and they continued to disagree and quarrel with each other, even engaging at times in personal encounters. In about six weeks the appellant went to the drawer where the deed had been placed and took possession of and destroyed it. The husband subsequently.filed a bill for partition, which was dismissed, and then appellant commenced the present suit.
The only question for determination is whether these facts are sufficient to entitle appellant to the relief prayed. The allegation of her bill is that the execution of the deed was procured by duress, fraud, and undue influence. The undue influence which will justify the setting aside of a deed must be of such a character as to deprive the grantor of free agency. Shea v. Murphy, 164 Ill. 614, 45 N. E. 1021, 56 Am. St. Rep. 215. To justify the setting aside of a deed on the ground of duress the grantor must at the time of its execution have been in such fear of his or her life or of bodily harm in case of refusal as to so affect the mind that the execution of the deed was not his voluntary act. Hagan v. Waldo, 168 Ill. 646, 48 N. E. 89. Mere vexation, annoyance, and threats of personal injury, or of imprisonment for which there is no ground, or threats of criminal prosecution, do not constitute duress, where no proceeding has been commenced and no warrant issued. We have held that showing the grantor a pistol, and slapping him, to induce him to sign a deed, which acts took place some time before the actual signing, did not constitute duress, where it appeared the grantor did not conclude to sign the instrument until after deliberation and taking advice. Rendleman v. Rendleman, 156 Ill. 568, 41 N. E. 223. Under these rules of law it is clear the evidence in this record does not sustain the allegations of complainant's bill.
It cannot be denied that at the time of the marriage the husband had almost as much property as the wife. After that they made considerable money by buying, trading, selling, and improving property. He assisted in this work, and was probably entitled to as
v. J. W. REEDY ELEVATOR MFG.
much credit for the success as she was. even after the corporation complied with the During that time they had apparently no
statute. serious controversies, disputes, or personal
[Ed. Note.-For cases in point, see vol. 12,
Cent. Dig. Corporations, $ 2544.] encounters. Under such circumstances it would appear to be but equitable and just Appeal from Appellate Court, First Disthat he should share in the property so ac
trict. quired, and this right seems to have been Action by the United Lead Company recognized by the wife in executing and de against the J. W. Reedy Elevator Manulivering the deed to him. Suspicion arose facturing Company. From a judgment of in his mind that she was not intending to the Appellate Court affirming a judgment in treat him fairly, culminating in a quarrel
favor of defendant, plaintiff appeals. Afand personal violence to her shortly before
firmed. the deed was executed. His conduct at that The Appellate Court for the First Distime was reprehensible, and he was certainly trict affirmed the judgment of the circuit guilty of acts and the use of language which court of Cook county, which was in favor cannot be too strongly condemned, but the of appellee, in a suit in assumpsit brought record is silent as to any act of fraud or in the latter court by appellant against apcoercion on his part at the time of the execu pellee. A certificate of importance having tion of the instrument or its delivery. The been obtained, the cause is brought here duress and undue influence complained of by further appeal. The following statement consisted in threats which he is alleged to of the facts is that of the Appellate Court: have made against her, and acts of violence, "September 8, 1904, appellant, a New Jertogether with the use of indecent and ob sey corporation, doing business in the state scene language in her presence, prior to the of Illinois, brought suit for goods sold and execution of the deed, at which time it is delivered, against appellee. On December admitted she went of her own accord to the 7, 1904, appellee moved to dismiss upon the notary public and told him what she wanted ground that appellant, at the time of bringto do. Appellee was not present at the time, ing suit and when the motion was made, and in fact it does not appear from the vas and is a foreign corporation doing busievidence that he even knew she intended ness in Illinois, and had not filed with the to execute the deed. The threats, abuse, and Secretary of State its articles or certificate assaults were not to compel her to make the of incorporation and was not authorized to conveyance, and in law did not amount to do business in Illinois. This motion was supduress or undue influence. She was sui juris, ported by an affidavit. Upon the hearing possessed of all her natural faculties and on this motion it was denied and appellee acted voluntarily, being in no way compelled was given leave to file pleas instanter. In to make the conveyance. She could have obedience to this order appellee filed the genabandoned him on account of his cruel treat eral issue and a special plea, which is, in ment, and in her bill for divorce, by proper substance, as follows: 'And for a further allegations, obtained a decree for alimony. plea, by leave of court, defendant says that Instead of pursuing that course she volun plaintiff is organized for profit, is not a tarily made the deed and must abide the railroad or telegraph company, nor in the consequences. She may have acted unwise- insurance, banking or money loaning business; ly-perhaps did—but courts cannot arbitrari. that the merchandise for which suit is ly grant relief against acts of indiscretion brought was sold to defendant and by it and folly.
brought within the state of Illinois since JanWe are unable, after a painstaking con uary 1, 1902; plaintiff had not at the comsideration of the voluminous evidence in this mencement of this suit, as by the statute record, to say that the chancellor committed provided, filed with the Secretary of State error in his decree, and the same will ac its articles or certificate of incorporation, cordingly be affirmed.
statement of capital stock represented in IlDecree affirmed.
linois, nor designated officer on whom service could be had; nor had the Secretary of State,
at commencement of suit, issued certificate (222 Ill. 199)
entitling plaintiff to do business in Illinois UNITED LEAD CO. v. J. W. REEDY ELE
as provided by statute; nor had plaintiff, VATOR MFG. CO.
prior to or at the commencement of suit,
been licensed to do business in Illinois as (Supreme Court of Illinois. June 14, 1906. Rehearing Denied October 10, 1906.)
by statute provided; plaintiff at the time of
commencement of suit had no certificate of CORPORATIONS - FOREIGN
FOREIGN CORPORATIONS FAILURE TO COMPLY WITH STAUTORY RE
authority, nor had any ever been issued to QUIREMENTS_PENALTY-VOID CONTRACT.
it, to do business in Illinois as provided by Where a foreign corporation made a con
the statutes of said state. Wherefore, by tract in the state at a time when it had not force of the statute in such case made and complied with Hurd's Rev. St. 1903, c. 32, whereby such corporation could maintain no
provided, the plaintiff cannot maintain its action on any demand, the contract was void,
aforesaid action. And this defendant is and no action could be maintained thereon, ready to verify. Therefore, it prays judg.