Chicago Daily News Co. v. Siegel

• Decision Date: 22 December 1904
• Citation: 212 Ill. 617,72 N.E. 810
• Parties: CHICAGO DAILY NEWS CO. et al. v. SIEGEL et al.
• Court: Illinois Supreme Court

212 Ill. 617

72 N.E. 810

CHICAGO DAILY NEWS CO. et al.

v.SIEGEL et al.

Supreme Court of Illinois.

Dec. 22, 1904.

Error to Appellate Court, First District.

Bill by the Chicago Daily News Company and others against Ferdinand Siegel, the Simmons Company, and others. From a judgment of the Appellate Court reversing the circuit court and affirming the findings of a master, complainants bring error. Affirmed.Theron Durham, for plaintiffs in error.

Binswanger & Jackson, for defendants in error.

This is a creditors' bill, filed on October 12, 1899, in the circuit court of Cook county, by the Chicago Daily News Company, an Illinois corporation, and Victor F. Lawson individually, and Edwin S. Osgood and Frederick S. Osgood as copartners under the firm name of Osgood & Co., against the Simmons Company, and Ferdinand Siegel and Joseph Siegel, of the firm of F. Siegel & Bros., setting up the recovery of judgments in favor of the complainants against the Simmons Company, the issuance of executions thereon, and the returns of said executions unsatisfied-the judgment in favor of the Chicago Daily News Company having been rendered on June 22, 1898, for the sum of $3,921.50 and costs; the judgment in favor of Victor F. Lawson having been rendered on November 29, 1898, for the sum of $184 and costs before a justice of the peace of Cook county, a transcript whereof was filed in said circuit court on December 15, 1898; and the judgment in favor of Osgood & Co. having been rendered on December 7, 1898, for the sum of $718.40 and costs. A joint and several answer was filed by Ferdinand and Joseph Siegel, to which a replication was filed by the complainants. The cause was referred to a master in chancery to take the testimony and report his conclusions. The master made a report adversely to the claims of the complainants below, plaintiffs in error here, and recommended that the bill be dismissed. Upon the coming in of the master's report and the hearing upon execptions thereto, the chancellor sustained the exceptions, and rendered a decree in favor of plaintiffs in error against the defendants in error, Ferdinand Siegel and Joseph Siegel, for the sum of $4,361.05 and costs. Upon appeal to the Appellate Court, the Appellate Court reversed the decree of the circuit court, and remanded the cause to that court, with directions to it to affirm the master's report and enter a decree dismissing the bill for want of equity. The present writ of error is sued out for the purpose of reviewing the judgment so entered by the Appellate Court.

The bill charged upon information and belief that Ferdinand and Joseph Siegel, doing business under the firm name of F. Siegel & Bros., in Chicago, were largely indebted to the Simmons Company in the sum of, to wit, $11,000, or in goods to the value of $11,000.

The material facts are substantially as follows: The Simmons Company was engaged in 1897 in the mercantile business in the city of Chicago, and Ferdinand Siegel and Joseph Siegel were doing business in that city under the firm name of F. Siegel & Bros. The Siegels were the principal stockholders in a corporation conducting a department store at the corner of State and Adams streets, in Chicago, and during the year 1896 and in the beginning of the year 1897 negotiated with William A. Simmons for the sale of the business of the concern known as The Grand to said Simmons, or to a corporation which was to be organized by him. The Siegels owned a majority of the capital stock of the corporation known as The Grand, so engaged in business at the corner of State and Adams streets, in Chicago, and the remaining shares of stock therein were owned by Maximilian Philipsborn, who was then, and had been for a number of years, manager of The Grand. The corporation so formed by said Simmons was the defendant the Simmons Company, and all of the stock in it was owned by William A. Simmons, except one share, which was held by his son, Howard P. Simmons, and one share, which was held by his attorney, John C. Stetson. In pursuance of said negotiations a contract was entered into on January 20, 1897, between Howard P. Simmons and the corporation known as The Grand, through its president, F. Siegel, and its secretary, M. Philipsborn, by the terms of which contract all of the merchandise, leasehold interests, good will, and property of The Grand was to be sold to the corporation so to be organized by W. A. Simmons. The property was to be taken in the name of Howard P. Simmons from The Grand as a matter of convenience, until the new corporation, the Simmons Company, should be organized. When the corporation known as the Simmons Company was organized, all of the assets and property which by the contract between Howard P. Simmons and The Grand were to be turned over to Howard P. Simmons were turned over and vested in the Simmons Company, and all rights under the contract became the rights and property of the Simmons Company, and the said contract became a part of the assets of that company.

By the terms of the contract Howard P. Simmons and wife were to execute a deed to The Grand of sublot 8 in subdivision of lot 71 in the east part of Ellis' Addition to Chicago, together with the improvements thereon, known as the ‘Cambridge Apartment Building,’ and the household furniture therein contained, subject to a trust deed for $75,000, together with a bill of sale of the furniture therein, and the rentals to accrue therefrom from January 20, 1897, and also a certain block 44 in Cornell, subject to an incumbrance of about $5,500 thereon; and was to pay to The Grand a certain sum of money, and execute a certain number of notes, and was also to pay the Siegels for leases of the premises on which the business of The Grand was conducted, known as 202 and 204 State street, and 64 Adams street, and 66 to 72 Adams street, and to pay the rents for said premises according to the terms of said leases; and The Grand agreed to deliver a bill of sale of all the merchandise upon said premises, belonging to it, at cost price, and at such price such other merchandise as should be billed to The Grand from its stores in Kansas City, Mo., St. Louis, Mo., and Detroit, Mich., all of which merchandise was to be delivered to The Grand on or before February 1, 1897, and to aggregate in amount as per invoices the sum of $75,000, exclusive of fixtures and improvements; and an additional amount of stock, as per invoices from F. Siegel & Bros., was to be delivered by F. Siegel & Bros. at said store in an amount of $20,000, which said merchandise was to be delivered by F. Siegel & Bros. on or before May 1, 1897.

In addition to said contract between the Simmons Company and Howard P. Simmons, a supplemental agreement of the same date, to wit, January 20, 1897, was made between F. Siegel & Bros. and Howard P. Simmons, by the terms of which Siegel & Bros. agreed to deliver to the Simmons Company or Howard P. Simmons $20,000 in merchandise, referred to in the contract between The Grand and Simmons, to be selected by M. Philipsborn; but it was therein provided that, in case the merchandise in The Grand should be in excess of $75,000, then the merchandise to be delivered by Siegel & Bros. should be reduced in amount by the same amount The Grand merchandise should be in excess of $75,000, as Siegel & Bros. were not to deliver any more goods than was sufficient to make up the stock to $95,000, and if the said stock should inventory over $75,000, then the Siegels were to deliver so much less on their $20,000 contract.

On January 30, 1897, a paper was executed by The Grand, by its president, Ferdinand Siegel, and its secretary, M. Philipsborn, wherein, after referring to the contract between The Grand and Howard P. Simmons bearing date January 20, 1897, whereby The Grand agreed to make a bill of sale to Howard P. Simmons of the merchandise then in its premises and other merchandise from the places above named, it was recited that The Grand thereby executed and delivered a bill of sale for all merchandise contained in its premises, and other merchandise, in compliance with the contract of January 20, 1897, placed in the said Grand, or delivered to said Howard P. Simmons; an itemized account of which merchandise, according to the inventory, amounted to $70,638.95, leaving an amount of merchandise yet to be delivered under said contract to be called for by Howard P. Simmons of the sum of $4,361.05, as per bills to be delivered by F. Siegel & Bros., etc.

On May 10, 1897, W. A. Simmons, by H. P. Simmons, his attorney in fact, and H. P. Simmons executed the following receipt, to wit: ‘For one dollar and other good and valuable considerations the obligation of F. Siegel & Bros. to furnish further goods under their original contract with W. A. and H. P. Simmons is herewith canceled and annulled.’

On October 10, 1897, the Simmons Company executed two chattel mortgages to the defendants Siegel for indebtedness then existing from the Simmons Company to said defendants, one of the said mortgages being for the sum of $41,118.32, and the other for $1,666.66, aggregating $42,784.98.

MAGRUDER, J. (after stating the facts).

The plaintiffs in error, by their creditors' bill, seek to reach an alleged indebtedness, amounting to $11,748.18, charged to have been due from the defendants in error, Ferdinand Siegel and Joseph Siegel, to the judgment debtor, the Simmons Company. Of this amount the sum of $4,361.05 is alleged to be due from the Siegels to the Simmons Company under the contract of January 20, 1897, between Howard P. Simmons and The Grand for the undelivered balance of the goods, amounting to $75,000, which were to be delivered by The Grand by the terms of that contract. The remainder of the sum of $11,748.18, to wit, the sum of $7,387.13, is the amount alleged to be due from the Siegels to the Simmons Company under the contract for $20,000 set forth in the statement preceding this opinion. In other words, it is...