Donovan v. Purtell

• Decision Date: 24 October 1905
• Citation: 75 N.E. 334,216 Ill. 629
• Parties: DONOVAN v. PURTELL.
• Court: Illinois Supreme Court

216 Ill. 629

75 N.E. 334

DONOVAN

v.PURTELL.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, Fourth District.

Action by Julia Purtell against Joseph T. Donovan. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Louden & Crow, for appellant.

James M. Dill and W. F. Smith, for appellee.

This is an action in assumpsit, begun by appellee against appellant on November 24, 1903, by attachment in the circuit court of St. Clair county. The writ of attachment was levied on appellant's interest in certain land situated in that county. Before the trial, to wit, on March 23, 1904, by agreement of the parties, an order was entered releasing the real estate levied upon under the writ of attachment upon the execution and filing by appellant of an indemnity bond. The declaration consists of the common counts for money lent by appellee to defendant at his request, for money paid out and expended by appellee for the use of appellant at his request, for money received by appellant for the use of appellee, for money for interest on divers sums of money forborne by appellee to appellant at his request, etc. A bill of particulars was filed, which, besides the items for money loaned and due in 1901, contains items for money lent by appellee to appellant in the name of the Fidelity Realty Company in 1901, and for money lent to appellant by appellee and promised to be paid by him in the name of the J. T. Donovan Real Estate Company in 1901. The general issue was filed to the declaration.A trial was had before the court and jury, resulting in a verdict in favor of appellee against appellant for the sum of $1,430, from which the plaintiff remitted the sum of $71.80, making the amount of the verdict $1,358.20, which remittitur was approved by the court. Motion for new trial was overruled, and judgment rendered on the verdict in favor of appellee against appellant for $1,358.20 and costs. An appeal was taken to the Appellate Court, where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance. Upon the trial of the cause, at the close of the evidence of appellee, plaintiff below, plaintiff's counsel tendered to the defendant the notes and trust deed, dated January 19, 1901, hereinafter referred to, and also the written guaranty hereinafter described, which counsel for the defendant refused to accept. The notes, trust deed, and guaranty were then tendered into the care of the court for the use of the appellant, the defendant below. At the close of the appellee's evidence the appellant asked the court to give a written instruction to the jury to find the issues for the defendant below, which instruction the court refused, and such refusal was excepted to. At the close of all the evidence the defendant below again asked of the court a written instruction to the jury to find the issues for the defendant, which instruction was refused, and such refusal was excepted to.

The facts of this case, as stated by the Appellate Court in their opinion, are as follows:

‘Appellee for many years worked for her living in St. Louis, Mo., doing housework. Some time prior to this suit, having accumulated the sum of $1,200, she placed it at interest on real estate security, and the note representing the loan came due in January, 1901. At that time appellant was engaged in the real estate and loan business in the city of St. Louis. He was president of the J. T. Donovan Real Estate Company, of which his son, Joseph M. Donovan, was vice president. The latter was also president of the Fidelity Realty Company, which did business in the same room with the other company, and in which appellant was likewise interested. Shortly after her note became due, appellee took it, and the trust deed by which it was secured, to appellant's place of business, for the purpose of having him collect the money due and reinvest it for her; but at the office she made arrangements to that end with Joseph M. Donovan, whom, she testified, she considered a clerk. In June, 1901, she left the city and did not return until the following October. In the meantime she made arrangements with a friend, Miss Slaterly, to attend to her business. During her absence the note owned by her was collected, and a new one for a like amount secured by deed of trust was given Miss Slaterly, who afterwards turned the papers over to appellee. The new note was made by the Fidelity Realty Company, by J. M. Donovan, its president, and was payable to the order of George M. Cooper, a clerk in appellant's office, who indorsed the same without recourse. It was secured by a deed of trust upon a 25-foot lot on San Francisco avenue in the city of St. Louis, made by the Fidelity Realty Company to appellant, as trustee. The note and trust deed were dated January 19, 1901, but were not delivered to Miss Slaterly until the following August. With these papers there was also delivered to Miss Slaterly a written guaranty, executed by J. T. Donovan Real Estate Company, by J. T. Donovan, its president, which, after reciting the assignment to appellee of the note and securities in question, proceeded as follows: ‘And whereas, there is being erected on said lot of ground certain improvements, which may not yet be fully completed and paid for: Now, therefore, in consideration of said sum of $1,200, we hereby promise and agree to cause said improvements to be fully completed and paid for, and to hold the said Miss Julia Purtell harmless from all loss or damage on account of mechanics' liens, or on account of the failure of the said Fidelity Realty Company to fully complete said improvements, and to pay for the same. For the consideration aforesaid, we further obligate ourselves to hold Miss Julia Purtell and her assigns harmless from all loss on account of said investment, principal or interest.’ The guaranty also contains an undertaking on the part of the maker to pay the interest notes in case of default in the payment thereof for a longer period than 30 days, and to purchase the principal at its face value, with interest added, within 6 months after default in the payment of the same. Some time after appellee received the last-named papers she ascertained that the lot described in the deed of trust was vacant, that no improvements were being made, and that it was worth only about $150. She thereupon called upon J. M. Donovan, the president of the Fidelity Realty Company, who offered to give her in exchange other securities, which, on examination, she found to be entirely inadequate to properly secure the debt. She then made a similar demand of appellant, and he offered her to substitute some other piece of property for that which appellee had; but, upon an examination of the properties named, appellee refused to accept any of them on the ground that the security was wholly insufficient. While negotiations were pending, two of the interest notes were paid by appellant. Appellee testified that, when she asked appellant what security he could give on said notes, he said he could not give her money, but offered to pay her in 18 months, and told her she would not be at any loss; but this appellant denies. Afterwards negotiations ceased, and this suit was brought. Upon the trial the appellant * * * introduced the evidence of himself and Joseph M. Donovan. * * * These witnesses were corroborated to some extent by the securities held by appellee, purporting to have been executed by the two corporations above named. On the contrary, appellee * * * testified that she dealt with appellant on account of the confidence she had in him; that his boys, several of whom were in the office, acted just as other clerks. She said: ‘I paid all the confidence to Mr. Donovan I could. I would not pay as much to my brothers as I paid to Mr. Donovan, because he was a Catholic and a member of my church and a good living man, as I supposed.’ The manner of transacting business at the Donovan office was fully explained by Lydia M. Cooper, who was appellant's stenographer and typewriter from October, 1897, to April, 1903. She testified that the office was a long, narrow room, about 20 feet wide and 60 to 75 feet long; that there was a partition in the front, like a banking counter, and in the rear there was a place about 10 feet square, where a number of different companies, known as the J. T. Donovan Real Estate Company, the Fidelity Realty Company, the Cunliff Realty Company, the Fenimore Realty Company, the Cappa Realty Company, and the McKinley Company, had headquarters; that the different corporations had different presidents, but that appellant was really the man who ran the whole thing; that there were three sons of appellant in the office, and several other clerks; that J. T. Donovan controlled the business of the Fidelity Realty Company; that there was a bookkeeper and cashier in the office; that over the door there was the sign, ‘J. T. Donovan Real Estate Company’; that J. M. Donovan ‘never made any transaction without J. T. Donovan sanctioned it’; that the Fidelity Realty Company did not have any financial standing, but was simply gotten up to keep the property out of judgment, so that the property could be sold and transferred without the judgment being paid off; that she had heard appellant say so himself; that ‘he said there were judgments against these different companies, and he would get up another company and put the property in the name of the new company, in order that it could be transferred, so that there would be no judgment against it’; that he used the property of the companies indiscriminately; that he would settle the debts of the J. T. Donovan Real Estate Company with those properties, no matter to which company they belonged; that the stock of the J. T. Donovan Real Estate Company was all held by members of the family; that Mr. Donovan got the property named in the deed of trust in question for...