Bonte v. Cooper

• Decision Date: 30 September 1878
• Citation: 1878 WL 10181,90 Ill. 440
• Parties: ALBERT P. C. BONTEv.THOMAS J. COOPER et al.
• Court: Illinois Supreme Court

90 Ill. 440

1878 WL 10181 (Ill.)

ALBERT P. C. BONTE

v.THOMAS J. COOPER et al.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

This was a creditor's bill filed by Albert P. C. Bonte, who was a judgment creditor of one Benjamin P. Hinman, to reach certain moneys in the hands of appellees, Uhlich & Muehlke and Thomas J. Cooper, which appellant claims belonged to Hinman.

It appears, from the evidence introduced on the hearing, that in March, 1873, John Peters, Henry Frenz and John Ganzer each entered into a contract in writing with appellee Cooper, for the sale of three farms which they owned, in Cook county, consisting of 120 acres of land, for the purchase price of $280 per acre, payable in four equal installments; the first payable ten days after abstract of title of the premises should be brought down, the remaining payments payable in one, two and three years, with eight per cent interest.

The contract contained this clause: “Time is hereby made an essential part of this agreement, and if the said party of the second part shall fail to make any of the payments or to perform any of the covenants hereinbefore specified by him to be performed, at the time and in the manner specified, then, and in that case, all moneys paid shall be forfeited to the said party of the first part, his heirs or assigns, as the consideration paid for this agreement, and the party of the first part shall be absolutely and forever discharged from any liability under the conditions of this contract, which shall immediately become null and void at the option of the said party of the first part.”

It also appears, that on the same day these three contracts were made, Cooper entered into a contract with Hinman for the sale and conveyance of the premises, which was similar in all respects with the contracts he held. Cooper paid on the three contracts $150. It also appears, that Cooper, in making the contracts of purchase, was not acting for himself but as agent of Hinman, and that Hinman assumed and undertook to carry out the contract of Cooper.

During the summer of 1873, Hinman sent Cooper $4000 to be paid over to Peters, Ganzer and Frenz. The money was not, however, paid over by Cooper, but retained by him in payment of commissions which he claimed Hinman owed him.

It also appears, that in June, 1874, Hinman sent appellees Uhlich & Muehlke, who were agents of Peters, Ganzer and Frenz, a check or draft for $7900. This was protested, but finally Hinman paid off the check at the Mechanics' National Bank, Chicago, and deposited the money in the name of Muehlke, and turned over to him the certificate of deposit. This, in connection with the $4000 paid, is the only amount Hinman ever paid on the land, and when the creditor's bill was filed the amounts so paid were still in the hands of Cooper and Muehlke & Uhlich.

Mr. JOSIAH H. BISSELL, Mr. GEO. GARDNER, and Mr. FRANK H. COLLIER, for the appellant.

Mr. E. W. RUSSELL, for the appellee Cooper.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

As we understand the facts presented by the record, there is but one question to be determined, and that is, whether the money which had been paid by Hinman to Cooper and that which Hinman had paid to Muehlke & Uhlich belonged to Hinman...