Conrad v. Beaubien

• Decision Date: 20 April 1948
• Docket Number: Gen. No. 10206.
• Citation: 78 N.E.2d 846,334 Ill.App. 198
• Parties: CONRAD v. BEAUBIEN.
• Court: United States Appellate Court of Illinois

334 Ill.App. 198

78 N.E.2d 846

CONRAD

v.BEAUBIEN.

Gen. No. 10206.

Appellate Court of Illinois, Second District.

April 20, 1948.

Appeal from Circuit Court, Lake County; Wm. M. Carroll, Judge.

Action by Nellie Conrad against A. F. Beaubien for an accounting. From summary judgment for defendant, the plaintiff appeals.

Reversed and remanded.

Vogel & Bunge, of Chicago, for appellant.

Werner W. Schroeder and Theo. W. Schroeder, both of Chicago, and A. F. Beaubien, of Waukegan, for appellee.

WOLFE, Presiding Justice.

On March 20, 1945, the plaintiff, Nellie Conrad, filed her complaint against the defendant, A. F. Beaubien, for an accounting in the Circuit Court of Lake County. The defendant filed an answer to which the plaintiff did not file a reply. On January 30, 1947, the defendant made a motion, supported by his affidavit, with many exhibits attached thereto, for summary judgment in his favor, under Section 57 of the Civil Practice Act, Ill.Rev.Stat.1947, c. 110, § 181. Defendant also filed a supplementary affidavit. The plaintiff filed her affidavit in opposition to the motion and affidavit of the defendant. Thereafter, the plaintiff took the deposition of the defendant before a notary public and then filed her supplementary affidavit. On August 22, 1947, the Court rendered a decree solely on the pleadings, and the affidavits of the parties. The plaintiff has appealed and contends that the Court erred in sustaining the motion for summary judgment as a matter of law, and also in finding that the defendant has fully and completely accounted to the plaintiff, as to all matters and things alleged in subparagraphs b, c, d, and e of paragraph 7 of the complaint.

A summary of the complaint follows. The defendant is an attorney at law with offices in Waukegan. That plaintiff is a daughter of Robert Dady; that shortly after the death of Robert Dady, on June 10, 1919, plaintiff engaged defendant as her attorney to represent her in connection with the estate of her father, and plaintiff was appointed administratrix of his estate; that the defendant advised and made investments for plaintiff, both individually and as such administratrix. There is a charge in the complaint that the defendant retained in his possession all the personal assets and property constituting the plaintiff's distributive share of the estate of Robert Dady, deceased; that after the death of Robert Dady, on June 10, 1919, and until approximately the year 1933, defendant acted as attorney and agent for plaintiff, and plaintiff from time to time paid large sums of money to the defendant, at the defendant's suggestion and request, to be invested by the defendant for, and on behalf of the plaintiff; and also from time to the delivered securities to the defendant, at his suggestion and request, for management, collection, or reinvestment on plaintiff's behalf; that the moneys and securities so paid and delivered to the defendant by the plaintiff, include:

(Paragraph 7): (a) List of 31 payments to the defendant between November 22, 1922, and October 18, 1928, totalling $140,671.89.

(b) Holly notes, aggregating $18,500 in principal amount, delivered to the defendant for collection on or about December 15, 1925.

(c) The sum of $18,000 paid to the defendant by plaintiff in approximately the year 1932, for investment on plaintiff's behalf in McHenry County, Illinois.

(d) The sum of $8,000 for investment by the defendant on plaintiff's behalf in the so-called Glendale lots, paid to defendant on to-wit, July 13, 1923.

(e) The sum of $4,504.50 paid to the defendant by the plaintiff for investment in the so-called Kolar-Edwards Street property, on to-wit, April 11, 1924.

That the defendant invested, reinvested and collected the proceeds, avails and income of, and from the money and securities so paid and delivered to him by the plaintiff, the amount and nature of which are unknown to the plaintiff, but which in equity belong to, and are the property of, the plaintiff; that during all the time mentioned in the complaint and until the year 1944, plaintiff reposed trust and confidence in the defendant, and relied upon him as her agent and attorney to advise, and to handle and manage the aforesaid moneys and investments in her interest and for her benefit, and to pay and turn over the proceeds, profits and avails thereof, when and as the same accrue and became available; that defendant, from time to time during said period, paid plaintiff various sums of money and delivered various securities, and verbally stated and represented to plaintiff, that the sums and securities so paid and turned over to plaintiff constituted all of the proceeds, returns, avails, income and profits to which she was entitled; that defendant never rendered any accounting to plaintiff of, or for any such moneys or securities, but plaintiff belived and relied upon such statements and representations until the year 1944, when she requested an accounting from the defendant of all money and property turned over to him, that defendant has failed and refused to account therefor.

That plaintiff, reposing trust and confidence in, and relying upon the defendant, kept no record of the moneys and securities paid and turned over to the defendant by her, and received by her from defendant, and therefore cannot now state the dates, amounts and details of the individual transactions between her and defendant, except as set forth, but that plaintiff is informed and believes, and so states, that the aforesaid statements and representations of the defendant that he has paid, and turned over to plaintiff everything that has accrued and is due plaintiff on account of the moneys and securities so paid and delivered to the defendant, and the income, proceeds, profits, and avails thereof, are false and untrue; that the money and securities received by defendant from plaintiff during the period aforesaid to be invested, collected or managed for plaintiff, and the income, profits, proceeds and avails thereof, so received and realized by the defendant exceed the value of moneys and securities so received by the plaintiff from defendant by more than $100,000, and that defendant has withheld and now withholds moneys, securities and properties belonging to plaintiff of the value of more than $100,000, as a proper accounting would show.

The complaint prays that defendant account for all his acts as agent and attorney for plaintiff referred to in the complaint, and for all moneys, securities paid to, or received by him by, for, or on behalf of plaintiff from, and after June 1, 1919, together with all income, proceeds, profits and avails thereof; that decree be entered against defendant for all sums found on accounting to be due from him to plaintiff.

The defendant attached to his affidavit for summary judgment a photostatic copy of the receipt of the plaintiff, filed in the probate court of Lake County, for her distributive share of the estate of Robert Dady, deceased. The plaintiff does not contest the validity, or the conclusiveness of this receipt, and the charge in the complaint that the defendant did not receive her distributive share of her father's estate has been abandoned by the plaintiff.

The decree sustains the motion for summary judgment, as to the thirty-one claims listed in subparagraph 7a of the complaint and dismisses them as being without equity. This part of the decree is not contested on this appeal. (The plaintiff dropped, or abandoned, such claims after the defendant, it is conceded by the plaintiff, truly accounted in his affidavit for all sums allegedly paid to him by the plaintiff under the thirty-one claims.)

The decree further finds that the claims made in subparagraphs b, and c of the complaint are without equity.

The decree is on condition that the defendant, within thirty days after the entry of the decree: (1) Pay the plaintiff $794.92 to be in full settlement of all sums due from the defendant to the plaintiff; (2) convey by quitclaim deed to the plaintiff an undivided one-half interest in Lot 6 in Block 1 of Glendale Subdivision; (3) quitclaim to the plaintiff an undivided one-half interest in the so-called Kolar-Edwards Street property not sold by the defendant before the entry of the decree.

The condition of the decree that the defendant pay the plaintiff $794.92 disposes of all money demands made by the plaintiff in her complaint after allowing the defendant set-offs stated in his affidavit for summary judgment. Conditions of the decree numbered (2) and (3) dispose of all the claims made in subparagraphs d and e of the complaint.

Section 57 of the Civil Practice Act consists of two subdivisions. The pertinent parts of subdivision 1 of the section are as follows: ‘Subject to rules, if, in any action (including counterclaim) at law or in equity, (a) upon a contract, express or implied; or (b) upon a judgment or decree for the payment of money; or (c) to recover possession of land, with or without rent mesne profits; or (d) to recover possession of specific chattels, the claimant shall file an affidavit or affidavits, on affiant's personal knowledge * * *.’

Subdivision 2 of the section is as follows: ‘A party against whom any of the actions at law or suits in equity enumerated in subdivision (1) of this section is asserted may move...