Bouton v. Cameron

• Decision Date: 26 October 1903
• Citation: 205 Ill. 50,68 N.E. 800
• Parties: BOUTON et al. v. CAMERON et al.
• Court: Illinois Supreme Court

205 Ill. 50

68 N.E. 800

BOUTON et al.

v.CAMERON et al. ^*

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Suit by Christopher Bouton and others against Robert Cameron, James G. Wright, and others, in which defendant Wright filed a cross-bill. From a decree of the appellate court (99 Ill. App. 600) affirming a decree granting insufficient relief to plaintiffs and no relief to defendant Wright, plaintiffs and defendant Wright appeal. Affirmed.Heckman, Elsdon & Shaw, for appellants.

Matz, Fisher & Boyden, for appellees.

February 4, 1895, appellant Christopher Bouton began suit in the circuit court of Cook county to foreclose a trust deed executed by appellees. Various other parties supposed to have some interest in the premises were made defendants, and among them was appellant James G. Wright, who is the only one of the other defendants it is necessary for us to consider in this appeal. Wright answered, and also filed a cross-bill setting up the rights he claimed to have. The trial court decided the cause in favor of appellant Bouton and the cross-complainant Wright as to the property mentioned in the trust deed in the name of Robert Cameron, but dismissed the bill and cross-bill as to the property in the name of Mrs. Cameron. From that decree a writ of error was sued out from the Appellate Court by Robert Cameron. When the cause came before the Appellate Court the decree of the circuit court was reversed except as to the dismissal of the bills with reference to Mrs. Cameron, in which particular the decree was neither reversed nor affirmed, on the ground that Mrs. Cameron was not a party to the writ of error, either by service or appearance, and the cause was remanded to the circuit court. The decision of the Appellate Court is reported in 72 Ill. App. 264. The cause being reinstated in the circuit court and trial had, a decree was entered denying all relief to appellant Wright, and denying relief to appellant Bouton except foreclosure to the amount of $100 and interest, amounting in all to $193.39, and $15.47 solicitor's fees. From that decree separate appeals were taken by the present appellants to the Appellate Court, where, for the purpose of review there, the appeals were consolidated. The Appellate Court affirmed the decree of the lower court, and from the judgments entered in that court appeals were prayed by each of the appellants to this court, where the cases will again be considered together.

In order to make plain the views we entertain of the matters thus brought before us, it will be necessary to set out at some length the facts, as we understand them, that are presented by the record and evidence transmitted to this court.

In the summer of 1892 appellee Robert Cameron became desirous of purchasing certain property on Barry avenue, in the city of Chicago. The title to this property was in two minors by the name of Bruschke, subject to a mortgage held by one William Troost. For the purpose of accomplishing the purchase Cameron applied to Arthur C. Gehr, a real estate agent in Chicago. The father of this man Gehr had long been the confidential friend and adviser of the Camerons, the appellees, and since the death of the elder Gehr, some years previous, Arthur C. retained the same relation with appellees heretofore held by the father, transacting business for them, and keeping various of their papers in his office. Gehr informed Cameron that he could not purchase the property through the administrator, and that the best way to obtain title would be by means of a foreclosure of the Troost mortgage. This mortgage debt amounted, in round numbers, to about $5,000, including costs, etc., but it was arranged that Cameron was to pay $10,000 for the property. Thus the minors would realize about $5,000. Gehr informed Cameron that he (Gehr) would attend the foreclosure sale and bid in the property for him (Cameron), and that Cameron would not need to be present at the sale. Gehr did attend the sale and bought the property, but in his own name. At the same time Gehr entered into a written contract with the guardian of the minors, which recited that Gehr had attended the said sale and bought in the property for $10,000 on the condition that he would pay the sum found to be due on the mortgage debt by the master, together with costs, etc., amounting to $4,918.43, to be paid in cash on or before the day of expiration of the time for redemption if said property should not be redeemed, and that he would pay the balance of said $10,000, being $5,081.57, into circuit court, provided that certain allowances be made for interest, taxes, etc. Said sale occurred on March 2, 1893, and the next day a certificate of sale was issued to Gehr, who, upon receipt of the same about two weeks later, assigned and sold the same to James G. Wright. On May 2, 1893, Gehr assigned to Cameron the contract made with the guardian, by writing, in the following words:

‘For value received I hereby sell, assign, transfer and set over to Robert Cameron, of Chicago, Illinois, all my right, title and interest in and to the within contract of sale, and for myself, heirs, executors, administrators and assigns, I agree that upon delivery of the within mentioned master's deed to sell and convey said land to said Robert Cameron, who has delivered to me his note for $11,000, secured by trust deed upon land in Cook county, Illinois.

‘Arthur C. Gehr. [Seal.]’

Cameron claims that he was informed by Gehr that he (Gehr) had advanced the money at the master's sale, and that he held the certificate, and that he did not learn until about 14 months afterwards that Gehr had sold the certificate to Wright.

On April 1, 1893, about a month after Gehr had bought the Barry avenue property at the foreclosure sale, and about two weeks after he had sold the certificate to Wright and received the money therefor, when, it appears from the evidence, Cameron believed that Gehr had purchased for him (Cameron) and had in his possession the master's certificate of sale, appellees went to the office of Gehr, and executed the deed of trust sought to be foreclosed, to secure Cameron's note for $11,000, payable in one year to his order, and indorsed by him in blank. Cameron and his wife both testified that at the time the deed of trust was signed Gehr assured them that it did not contain the piece of property owned by Mrs. Cameron, but only that owned by appellee Robert Cameron. It is admitted that Cameron cannot, read, and both Mrs. and Mr. Cameron deny that the instrument was read to them at the time of signing it. The purpose of the execution of this note and trust deed is stated thus by Gehr: ‘About early in April, 1893, after I made this contract with Mr. Kriewitz (the guardian of the minors), I suggested to Mr. Cameron that in case of his death that he should give me security for my being obligated to carry out this contract with Mr. Kriewitz for property that I was not buying for myself and did not want. He thought that was a proper thing to do.’ In regard to it Robert Cameron testified: ‘The $11,000 note was given to secure Gehr against loss in case I might die, so as this property would not be left on his hands, and it was made out $11,000 in place of $10,000. There was $1,000 to be spent on the house after I got possession of the property.’ In the writing of May 3d, hereinafter referred to and set out, the purpose is still further declared as follows: ‘The said note was deposited with you (Gehr) to secure you from loss by reason of your having signed a contract for the purchase of the property on Barry avenue for my benefit.’

April 20, 1893, Cameron and wife borrowed of Gehr $1,000, for the purpose, as they state, of buying furniture. Of this loan $900 was subsequently paid back at different intervals, the last payment of $50 being made May 7, 1894.

On May 3, 1893, Gehr obtained from Cameron and wife the following writing, referred to above:

‘Chicago, May 3, 1893.

‘Arthur C. Gehr, 114 Dearborn Street: You are hereby authorized to borrow such an amount upon my note for $11,000, dated April 1, 1893, secured by a deed of trust, as you may require. The said note was deposited with you to secure you from loss by reason of your having signed a contract for the purchase of the property on Barry avenue for my benefit. I have received the sum of $1,000 on account of said note, and in giving you my consent to raising additional amounts on said note I rely upon you to see that such amounts are paid promptly, though legally I authorize you to use said note for your benefit and accommodation at its face value, at your discretion.

Robert Cameron.

‘Sarah F. Cameron.’

The Camerons testified with reference to the purpose and intention of this paper as follows:

Mr. Cameron testified: ‘Gehr told me that he wanted to know if I would do him a little favor that morning, and I said I would if I could, and he said he would like to use that note and the mortgage of mine for $1,500 for ninety days, and just about that time Mrs. Cameron came in, and I told her what Gehr wanted,-wanted to use the note and mortgage for $1,500 for ninety days,-and I says: ‘You know Mr. Gehr better than I do; if you say it is all right, I am satisfied;’ and Mr. Gehr spoke up, and he says, ‘It would be quite an accommodation for me, Mrs. Cameron, if Mr. Cameron would let me use that note for ninety days for $1,500;’ and she says, ‘Well, Mr. Gehr, we owe you $1,000 now, and that would be only $500 more than what we owe you, and I certainly think that you are good for $500.’ ‘Well,’ I says, ‘You are the doctor, and if you say so I am satisfied.’ And then he spoke something about that there were some taxes and interest, or both, on the Lake View property of Walker's and his, and then he told Mrs. Cameron, after that was all talked about a little, that he had brought the contract up, and showed it to her; he had brought the contract up for the Barry avenue...