First Trust & Sav. Bank of Kankakee v. Powers

• Decision Date: 30 April 1945
• Docket Number: Gen. No. 9901.
• Citation: 325 Ill.App. 600,60 N.E.2d 582
• Parties: FIRST TRUST & SAVINGS BANK OF KANKAKEE et al. v. POWERS.
• Court: United States Appellate Court of Illinois

325 Ill.App. 600

60 N.E.2d 582

FIRST TRUST & SAVINGS BANK OF KANKAKEE et al.

v.POWERS.

Gen. No. 9901.

Appellate Court of Illinois, Second District.

Feb. 8, 1945.

Rehearing Denied April 30, 1945.

Appeal from Circuit Court, Kankakee County; Roscoe C. South, Judge.

Suit by First Trust & Savings Bank of Kankakee, Illinois, as administrator de bonis non with the will of Frank Belleau annexed, and another, against Arthur N. Powers for an accounting as trustee under an alleged contract, wherein defendant filed counterclaim. Decree for plaintiffs, and defendant appeals.

Reversed.John A. Mayhew and John H. Beckers, both of Kankakee, and Floyd E. Thompson, of Chicago, for appellant.

Len H. Small and Samuel H. Shapiro, both of Kankakee and Werner W. Schroeder, of Chicago, for appellees.

PER CURIAM.

The appeal in this case is prosecuted from a decree of the circuit court of Kankakee County entering judgment against appellant in favor of First Trust and Savings Bank of Kankakee, Illinois, as administrator de bonis non with the will of Frank Belleau annexed, in a proceeding against appellant for accounting as trustee under an alleged contract dated July 1, 1929, between appellant and Frank Bellau in his lifetime. The judgment is for the face amount of the instrument, $25,000, plus interest from its date at 6% per annum, aggregating $45,095.68, less $1,954.15, the amount of a counterclaim filed by appellant, making the net amount of the judgment $43,141.53.

The instrument sued on reads as follows:

‘Memorandum of agreement made and entered into this first day of July, A. D. 1929, by and between Frank Belleau of the City of Bradley, County of Kankakee, and State of Illinois, and Arthur N. Powers of the City and County of Kankakee, State of Illinois, hereinafter referred to as parties of the first and second part, respectively:-- ‘Witnesseth, that, --

‘Whereas, said first party desires to deposit with said second party the sum of twenty-five thousand dollars ($25,000.00) for investment, and said second party, as Vice President of the Illinois Light and Power Company, has purchased and will hereafter purchase certain acreage of real property required in connection with the hydro-electric power project of said Power Company bordering upon the Kankakee River and in connection with the purchase of property actually required for said project, said second party has purchased and will be able to purchase additional lands which may later be sold at a good profit above present cost, in which profit, said first party desires to share and said second party is willing that said first party now deposit said sum of twenty-five thousand dollars ($25,000.00) and receive the proportionate share of the profits to be made in connection with the purchases to be made by said second party and the parties hereto have reached an understanding which they desire reduced to writing.

‘Now, Therefore, for and in consideration of the premises and the sum of one dollar ($1.00) and other good and valuable considerations, each to the other in hand paid, the receipt of which is hereby mutually acknowledged, and in consideration of the mutual covenants hereinafter set forth, the parties hereto agree and contract with each other as follows:

‘1. Said first party has this day paid over to said second party the sum of twenty-five thousand dollars ($25,000.00) which said second party hereby acknowledges having received and which said sum of money is to draw interest at the rate of six per cent per annum from date hereof.

‘2. Said second party will continue to purchase property for said hydro-electric power project and in connection therewith will purchase from time to time other lands abutting said lands acquired for such project-which in the opinion of said second party will become valuable and may later be sold as and when said hydro-electric power project shall have been completed at a price in excess of the sum now paid therefor.

‘3. It is understood and agreed by the parties hereto that all such contemplated purchases shall be made by said second party because of the knowledge he has of said project and property values; also by reason of the fact that said party knows the most attractive parcels to be acquired with respect to their later sale and use for home sites and that each purchase will be made at the lowest possible price to be paid therefor.

‘4. It is understood and agreed that all such property so purchased by said party will be held and not sold until (a) either said hydro-electric power project has been completed ready for operation, or (b) said property will not be sold until the price obtainable therefor has increased approximately five (5) times its original cost, in either of which events, said second party shall have the sale thereof and shall divide the proportionate profits thereof as hereinafter provided.

‘5. It is understood and agreed by and between the parties hereto that as and when such property is ultimately sold, there shall first be paid to said first party the entire sum of money now deposited with said second party, to which shall be added and likewise paid to said first party a sum of money equal to six per cent interest per annum from the date of this agreement to the date of payment; and that after said sums are paid to said first party, the proceeds of any sale then made-to the extent of the proportionate share of funds so deposited by said first party shall be thereafter divided equally and one-half paid to said first party and one-half be retained by said second party.

‘In Witness Whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.

‘Arthur N. Powers (Seal)

‘Frank Belleau (Seal)’

From the stipulation between the parties it appears that Frank Belleau and his wife, Mary, executed a joint will on May 3, 1932. Mr. Belleau died on October 28, 1933, and the will, as to his estate, was admitted to probate on January 9, 1934. The surviving widow died on November 5, 1935. It further appears from the briefs of the parties, that she was appointed executrix of the will; that nothing was done in her husband's estate until appellee bank was appointed administrator de bonis non with the will annexed on July 8, 1939, and that nothing was done towards the administration of Mrs. Belleau's estate until July 14, 1939, when Claude M. Granger was appointed administrator to collect. The inventory in Frank Belleau's estate, filed August 2, 1941, shows real estate in Kankakee County, subject to a trust deed dated December 8, 1939, and which, at the time the inventory was filed, had been foreclosed; 18 shares of common stock of the Common-wealth Edison Company, par value $25 per share, valued at $450; cash on hand, $139.50; notes and accounts, none. No mention of the alleged contract sued on is made in the inventory.

Appellant filed a claim in the county court against the estate of Mr. Belleau on October 9, 1941, for $1,954.15, based on an account between them extending from March 24, 1928 to February 1, 1934. From the stipulation between the parties, it appears that during the hearing on the claim, counsel for the administrator advised the court that he had just been informed of the document in controversy, which he wished to file as a counterclaim, and, permission to do so was granted. It further appears from the stipulation that instead of filing a counterclaim, counsel for appellees filed a motion praying for leave to commence legal action on the instrument in the circuit court, which motion was granted; and that the administrator did not file nor introduce the instrument in evidence, nor offer any evidence at the hearing on appellant's claim, in the county court.

Appellant filed a motion in the circuit court to dismiss the complaint, on the ground that jurisdiction lay exclusively with the county court, and assigns for error the denial of his motion. Section 196, article XVII, of the Probate Act (Ill.Rev.Stat.1943, chap. 3, par. 348) provides that a claim or a counterclaim may be filed in favor of the estate and against any claimant named in the claim. Section 199 (par. 351) provides for judgment over only in cases where the counterclaim is heard in the county court. Sec. 207 (par. 359) provides that the provisions of article XVII relating to the jurisdiction of the probate court over claims against estates shall not be construed to exclude the jurisdiction of other courts. Manifestly, a counterclaim is not pending in court until it is filed therein. In the case at bar a counterclaim was not filed in the county court, and no evidence in support of it was ever presented in that court. It is apparent that the proposed counterclaim was never a pending matter in the county court, and that the jurisdiction of that court, if any, never attached. Cases cited by appellant to the effect that the court first obtaining jurisdiction of a matter retains it to the exclusion of all other courts have no application here. A statute providing that a counterclaim may be filed is permissive only and not mandatory. A defendant may file his cross-action by way of set-off or counterclaim or he may bring his original suit. Morton v. Bailey, 1 Scam. 213,2 Ill. 213, 214, 215,27 Am.Dec. 767;Quick v. Lemon, 105 Ill. 578, 585;Chicago, Danville & Vincennes Railroad Co. v. Field, 86 Ill. 270, 272; cited in 8 A.L.R. 695. We are of the opinion that the circuit court did not err in denying the motion to dismiss the complaint for the reason assigned.

The complaint alleges the filing of appellant's claim against the estate, and that the plaintiff bank, as administrator as aforesaid, ‘in and about the conduct of its defense of the estate of Frank Belleau against the claim so asserted, discovered the existence of an agreement dated July 1, 1929, between the said Frank Belleau, deceased, and Arthur N. Powers, a true copy of which said agreement is attached hereto marked ‘Exhibit A’ and by reference made a part...