Dingman v. Boyle

• Decision Date: 21 October 1918
• Docket Number: No. 12109.,12109.
• Citation: 285 Ill. 144,120 N.E. 487
• Parties: DINGMAN v. BOYLE.
• Court: Illinois Supreme Court

285 Ill. 144

120 N.E. 487

DINGMAN

v.BOYLE.

No. 12109.

Supreme Court of Illinois.

Oct. 21, 1918.

Error to Appellate Court, First District, on Appeal from Municipal Court of Chicago; Sheridan E. Fry, Judge.

Action by George W. Dingman against Lawrence P. Boyle. Judgment for plaintiff was affirmed by Appellate Court, and defendant brings certiorari. Reversed and remanded.Lambert & Mayer, of Chicago, for plaintiff in error.

John M. Sweeney and Charles P. R. Macaulay, both of Chicago, for defendant in error.

CARTER, J.

The municipal court of Chicago entered judgment in favor of defendant in error, George W. Dingman, against plaintiff in error, Lawrence P. Boyle, for $1,500, for commissions on a real estate transaction. The Appellate Court for the First District affirmed that judgment, and the case has been brought to this court by petition for certiorari.

On May 15, 1916, the estate of George A. Springer was the owner of certain real estate on Forest avenue, in Chicago, improved with eight residences, and plaintiff in error, Boyle, was the owner of a building used for apartments, stores, and offices at the corner of Estes avenue and North Clark street, in Chicago. Through the medium of defendant in error, Dingman, a written contract was entered into between certain trustees of said estate and Boyle for the exchange of these properties. Among other things, this contract contained this provision:

‘Springer estate to pay no commission. Lawrence P. Boyle agrees to pay a brokerage commission of $1,500 to George W. Dingman.’

By reason of various matters which came up thereafter between the representatives of the Springer estate and Boyle, apparently the deeds to the properties were never exchanged.

Plaintiff in error relies upon the following grounds as justifying him in the refusal to apy commissions to defendant in error: First, that the contract entered into between Boyle and the representatives of the Springer estate was invalidand unenforceable as a contract for exchange of properties; second, that the alleged contract with the plaintiff in error was unenforceable because Dingman had failed to procure a broker's license under a city ordinance of Chicago; third, that the contract sued upon was not the contract of Boyle; and, fourth, that Dingman had failed to procure for Boyle a loan of $16,000, in violation of a promise made in a separate paper which was a material part of the original contract.

The evidence shows that the contract entered into by Boyle and the representatives of the Springer estate was executed by the parties in the following manner:

‘Edward L. Springer, [Seal] Frank G. Springer, [Seal] Ada E. Springer, [Seal] Simeon Loudenback, [Seal]. As trustees under the will of George A. Springer, Dec'd. Lawrence P. Boyle. [Seal.]’

A certified copy of the will of George A. Springer, deceased, was introduced in evidence. The said will, among other things, bequeathed certain real and personal property to Frank G. Springer, Charles E. Springer, Edward L. Springer and Ada E. Springer, ‘to have and to hold the same upon the following express trusts,’ stating at some length the provisions with reference to carrying out said trusts. The will then further provided:

‘In case of the death, resignation or refusal to act of either of my said trustees before named, I direct that when a vacancy is thereby created, my son-in-law, Simeon Loudenback, shall be the trustee in his or her stead when the first vacancy occurs, upon the same terms and conditions and with the same bond as is required of each of the four trustees originally appointed hereunder. * * * Said trustees shall meet and confer together with reference to the discharge of their duties and the management of said estate from time to time, at intervals of not more than one month apart; and I direct the active duties of said trustees shall be assumed in the first instance by the said Frank G. Springer, Charles E. Springer, Edward L. Springer and Ada E. Springer, and they shall continue to so exercise the same during good behavior, or until their removal as such trustees by a court of competent jurisdiction, or until their death or resignation as such trustees. Whenever they shall cease to be such active trustees, Simeon Loudenback shall supply any vacancy that may exist.’

Charles E. Springer, while named as an active trustee in the will, does not appear among the signers of the contract. Simeon Loudenback signed the contract as trustee of the estate. Edward L. Springer, one of the trustees, testified on the trial and was shown the contract. He said in answer to a question:

‘I know the signatures of the trustees on plaintiff's Exhibit 1. They are Edward F., Frank G., Ada E., and Charles E. Springer, and Mr. Loudenback.’

It is clear from reading his testimony that he was not testifying as to who were the trustees, but only as to the signatures; and it is obvious that his testimony is not strictly accurate, because Charles E. Springer did not sign the contract and Loudenback did. It is obvious, also, under the provisions of the will above quoted, that Loudenback would have no right to sign if all the other four trustees named in the will were still acting as trustees.

It is earnestly argued by counsel for plaintiff in error that the will did not authorize the executors or trustees of the George A. Springer estate to make this trade. In view of the conclusion we have reached on another branch of this case it is unnecessary for us to consider or decide that question. ‘Where there are several cotrustees, they all form, as it were, one collective trustee, therefore they must perform their duties in their joint capacity even in making a purchase. In law there is no such person as an acting trustee apart from his...