Carson Pirie Scott & Co. v. Parrett
| Decision Date | 08 December 1931 |
| Docket Number | No. 20892.,20892. |
| Citation | 178 N.E. 498,346 Ill. 252 |
| Court | Illinois Supreme Court |
| Parties | CARSON PIRIE SCOTT & CO. v. PARRETT et al. |
OPINION TEXT STARTS HERE
Suit by Carson Pirie Scott & Co., against John H. Harrison and another. Defendant M. J. Wolford died, and the cause proceeded against the defendant John H. Harrison. Defendant last named later died, and W. J. Parrett and others, as executors, were substituted as parties defendant. Judgment for the defendants was reversed by the Appellate Court (261 Ill. App. 200), and judgment entered for the plaintiffs and an appeal granted to the Supreme Court on a certificate of importance.
Judgment of the Appellate Court affirmed.Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Vermilion County; S. Murray Clark, Judge.
Acton, Acton & Baldwin and Gunn, Penwell & Lindley, all of Danville (William M. Acton, Walter T. Gunn, and James C. Woodbury, all of Danville, of counsel), for appellants.
Whitman, Miller & Coon, of Chicago, and Green & Palmer, of Urbana (Henry G. Miller and Claude H. Coon, both of Chicago, and William G. Palmer and Oris Barth, both of Urbana, of counsel), for appellee.
This cause is here on appeal from the Appellate Court for the Third District on certificate of importance. The suit was filed in Vermilion county against John H. Harrison and M. J. Wolford on a certain contract entered into between them and Caldwell & Co., a Tennessee corporation. Appellee, Carson Pirie Scott & Co., a corporation, filed suit as a third party benefited by the contract. A demurrer was filed to the declaration attacking the right of appellee to sue on the contract, and the demurrer was by the trial court sustained and judgment for defendants entered. On appeal, the Appellate Court reversed the judgment of the trial court, and, instead of remanding the cause, it, pursuant to a stipulation of the parties, entered judgment for the amount of the claim, plus interest at 5 per cent., and granted an appeal to this court. The amount of the judgment is $3,956.64. The sole question involved on this appeal is the right of appellee to sue on the contract involved. During the pendency of the suit Wolford died and the cause proceeded against Harrison. Harrison having later died, his death was suggested, and appellants, as his executors, were substituted as parties defendant.
The facts as set out in the declaration are these: On November 24, 1926, appellants' testator, Harrison, was president and Wolford was treasurer of the Danville Hotel Company, an Illinois corporation organized for the purpose of constructing, and then engaged in the construction and furnishing of, a hotel in the city of Danville known as the Hotel Wolford. The hotel company had issued its bonds in the sum of $700,000 under date of February 13, 1926, and had entered into an agreement with Caldwell & Co., by which the latter was to underwrite and dispose of the bonds, the funds to be used in the construction and furnishing of the hotel. To secure these bonds the hotel company executed and delivered a real estate mortgage on the property and also its chattel mortgage on all furnishings and chattels installed in the hotel. This mortgage and the trust deed ran to the Liberty Central Trust Company and one Miller as trustees. In the trust deed the hotel company agreed that it would promptly furnish all moneys necessary to furnish the hotel and would have the same promptly completed and furnished. On November 24, 1926, the hotel company not having sufficient funds to furnish the hotel in accordance with the requirements of the trust deed and Caldwell & Co., having in its custody certain of the proceeds of the sale of the bonds and refusing to make further disbursement of such proceeds until the hotel company had in its possession sufficient funds to furnish the hotel, or until assurances should be given that the furnishings would be installed free of lien or incumbrance, Harrison and Wolford on that day entered into a contract with Caldwell & Co., as follows:
‘Memoranda of agreement made this 24th day of November, 1926, by and between John H. Harrison and M. J. Wolford of Danville, Illinois, parties of the first part, and Caldwell & Co., a Tennessee corporation, with its principal office at Nashville, Tennessee, party of the second part, witnesseth:
‘Whereas, John H. Harrison is president of the Danville Hotel Company and M. J. Wolford is treasurer and interested in said Danville Hotel Company, which is now erecting and preparing to furnish the Hotel Wolford at Danville, Illinois; and
‘Whereas, the said Danville Hotel Company entered into an agreement with the partyof the second part to underwrite and dispose of its 1033 bonds, aggregating $700,000 in total principal amount, dated March 1, 1926, same being secured by a mortgage or deed of trust upon the hotel realty in Danville, Illinois, and by a chattel mortgage upon the furniture, furnishings, crockery, glass and silverware, carpets, utensils, screens, window shades, beds, vacuum cleaners and all other chattels of every description to be located in said hotel and used in connection therewith, except chattels held for sale or consumable in their use, and to said deed of trust, of record in book 287, pages 127 et seq., in the office of the recorder of deeds in the county of Vermilion, State of Illinois, and to said chattel mortgage, of record in volume 156 of chattel mortgages, page 428, in the office of the recorder of deeds in the county of Vermilion, State of Illinois, specific reference is hereby made and same are made a part hereof as fully as though set forth verbatim herein; and
‘Whereas, the aforesaid mortgage or deed of trust on realty provides among other things: ‘Said owner further covenants and agrees that it will promptly furnish all moneys necessary in addition to, and prior to, the use of the proceeds of this bond issue, to complete and furnish the Wolford Hotel, now being erected on said property in accordance with the plans and specifications heretofore made by Hall, Lawrence, Rippel & Ratcliffe, architects, and that it will have same promptly completed and furnished without interruption or delay in the work, and immediately upon completion that it will commence, or have commenced, the operation of said hotel;’ and
‘Whereas, the said Danville Hotel Company has on hand moneys estimated as sufficient, in addition to the proceeds of the bonds to complete the hotel building but has not now on hand moneys sufficient to furnish the hotel; and
‘Whereas, the said underwriter, under the terms of the underwriting agreement of date February 13, 1926, which is hereby referred to and made a part hereof as fully as though set forth verbatim herein, is the custodian of the proceeds of said bond issue and is advised that it should not further make disbursement of said proceeds on the erection of said hotel unless and until the Danville Hotel Company has in hand sufficient moneys to furnish the hotel building or assurance is given that the furnishings will be absolutely installed free of lien; and
‘Whereas, the parties of the first part acquiesce in the correctness of that advice and are willing to guarantee the installation of said furnishings:
‘Now, therefore, in consideration of the premises and the mutual promises and covenants of the parties hereinafter set forth, it is agreed:
‘1. That the parties of the first part do hereby guarantee the installation in the Wolford Hotel at Danville, Illinois, on or before December 15, 1926, by Arthur A. Marer & Co., of Chicago, Illinois, of the furniture, of the price or value of $115,000, mentioned in contract of date October 9, 1926, and exhibit thereto, between the said Arthur A. Marer & Co., which written contract and exhibit are hereby referred to and made a part hereof, agreeing, if the hotel company does not promptly pay, to pay for said hotel company all of the payments therein required to be made before installation is completed, when said payments are due.
‘2. That the parties of the first part will also have installed on or before December 15, 1926, in the Wolford Hotel, free of lien and subject to the lien of the chattel mortgage of the Liberty Central Trust Company and Miller, trustees under the mortgage securing the aforesaid bond issue, the following character of furniture or equipment by the following parties, or by other parties satisfactory to the party of the second part and in approximately the following amounts:
+---------------------------------------------+
¦China-Arthur Schiller & Sons, ¦ ¦
+----------------------------------+----------¦
¦50% cash, balance six months ¦$ 3,007.90¦
+----------------------------------+----------¦
¦Silver-Rogers Bros., International¦ ¦
+----------------------------------+----------¦
¦Silver Company ¦2,488.79 ¦
+----------------------------------+----------¦
¦Kitchen equipment-Wm. F. ¦ ¦
+----------------------------------+----------¦
¦Traub Range Company ¦15,680.69 ¦
+----------------------------------+----------¦
¦Waste baskets-Marshal Field ¦ ¦
+----------------------------------+----------¦
¦Company ¦180.00 ¦
+----------------------------------+----------¦
¦Linens-Carson Pirie Scott Company,¦ ¦
+----------------------------------+----------¦
¦Marshal Field Company ¦6,763.25 ¦
+----------------------------------+----------¦
¦Refrigerators-Dry-Kold ¦ ¦
+----------------------------------+----------¦
¦Refrigerator Company ¦5,800.00 ¦
+----------------------------------+----------¦
¦Portrait-Arvid Nyholm ¦1,500.00 ¦
+----------------------------------+----------¦
¦Drapes-Albert Pick ¦10,000.00 ¦
+----------------------------------+----------¦
¦Shades - National Window ¦ ¦...To continue reading
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