Equitable Trust Co. of Chicago v. Taylor
| Decision Date | 21 April 1928 |
| Docket Number | No. 18499.,18499. |
| Parties | EQUITABLE TRUST CO. OF CHICAGO v. TAYLOR. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to the Second Branch, Appellate Court, First District, on appeal from Circuit Court, Cook County; D. M. Brothers, Judge.
Action by the Equitable Trust Company of Chicago against L. R. Taylor. Judgment for plaintiff was reversed by the Appellate Court (244 Ill. App. 345), and plaintiff brings certiorari.
Affirmed.Winston, Strawn & Shaw, of Chicago (John D. Black and Harold A. Smith, both of Chicago, of counsel), for plaintiff in error.
D. W. Parker, of Chicago, for defendant in error.
The Equitable Trust Company of Chicago obtained a judgment in the circuit court of Cook county in an action of assumpsit for $1,160 against L. R. Taylor, who appealed to the Appellate Court (244 Ill. App. 345), where the judgment was reversed, and by writ of certiorari issued upon the petition of the plaintiff the record has been brought before us for review.
The action was originally begun against J. P. O'Brien, Albert W. Swan, and L. R. Taylor, trustees for William Goyette, and the declaration filed consisted of the common counts. The action was dismissed as to O'Brien and Swan, and an amended declaration was filed against Taylor alone, individually, consisting of two counts, the first alleging that Taylor, O'Brien, and Swan were appointed trustees for Goyette for the purpose of carrying on his business and paying his debts; that the declaration of trust gave them power to sign his name to any promissory note, draft, or other paper, but without power to Taylor alone to bind the trust estate by his contracts; that on June 24, 1922, Taylor alone, as trustee, executed a promissory note for $1,000, payable to the Equitable Trust Company, and in so doing exceeded his authority as trustee, and became personally liable on the note; and the second count being the consolidated common counts. To this declaration the defendant filed three pleas: The first, the general issue; the second, a denial of the execution of the note; and the third, that under the terms of the trust the defendant was not to be personally bound for carrying out its provisions. An additional count was filed alleging that Taylor executed the note describing himself as William Goyette, per L. R. Taylor, trustee, to which the defendant filed the general issue, a plea denying the execution of the note, and a third plea alleging that the defendant executed the note under a provision of the declaration of trust, of which plaintiff had full notice, that defendant was not to be personally liable thereon. The cause was heard by the court. Errors were assigned in the Appellate Court on the action of the trial court in admitting evidence, in holding and refusing propositions of law, and on the sufficiency of the pleadings and evidence to support the judgment.
The facts are not in dispute. The only witnesses were Taylor, the defendant, and William A. Nichol, the cashier of the plaintiff. On May 4, 1922, William Goyette assigned all his property to J. P. O'Brien, Albert W. Swan, and L. R. Taylor by an instrument which recited that Goyette owed debts to divers persons he was unable to pay; that he was desirous of providing for the payment of them by an assignment of all his property, and in consideration thereof conveyed all his property of every kind to O'Brien, Swan, and Taylor, to be held in trust upon condition that Goyette was to complete all his contracts, all checks should be signed by him and countersigned by Gill L. Taylor, he was to receive a salary of $55 a week, and to continue his present business, but all contracts were to be approved by the trustees; that he was personally to attend to the collection of all accounts covered by the agreement and deliver the proceeds to the trustees. The creditors were to get a dividend of 10 per cent. under certain specified conditions. The trustees were to keep on hand a fund to be used in emergencies, and were to have charge of the pay roll and business, but it was expressly understood and agreed that they should in no way assume or be obligated personally in carrying out any provision of the agreement. Goyette agreed to assign all his contracts to the trustees, and the trust was to continue for a period of one year, unless canceled by mutual agreement, with a provision that the agreement might be extended under certain terms and conditions. It was further provided that the trustees should take possession of the property assigned, and as soon as conveniently possible dispose of it, convert it into money, and make payment to creditors. The following was the fourth paragraph:
‘And the said party of the first part [Goyette] does hereby authorize the said parties of the second part to sign the name of the said party of the first part to any check, draft, promissory note, or other instrument in writing, which is payable to the order of the said party of the first part, or to sign the name of the party of the first part to any...
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