Hilyard v. Krisolofsky
| Decision Date | 05 February 1930 |
| Docket Number | No. 19599.,19599. |
| Citation | 337 Ill. 584,169 N.E. 765 |
| Parties | HILYARD v. KRISOLOFSKY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Commissioner's Opinion.
Error to Second Branch, Appellate Court, First District, on Appeal from Municipal Court of Chicago; Theodore F. Ehler, Judge.
Suit by J. Iva Hilyard against Benjamin Krisolofsky and wife and B. B. Redfield. Judgment entered against the two defendants first-named was affirmed by the Appellate Court, and they bring certiorari.
Reversed.
Epstein, Feiwell, Arvey & Sachs, of Chicago (Louis M. Mantynband and Norman Asher, both of Chicago, of counsel), for plaintiffs in error.
Harry A. Biossat and Nels H. Olson, both of Chicago, for defendant in error.
Defendant in error, J. Iva Hilyare, entered into a written contract with plaintiffs in error, Benjamin Krisolofsky and Anna Krisolofsky, his wife, for the purchase of certain real estate in Chicago for $26,000. Five hundred dollars was paid to bind the contract, and it was agreed that the contract and money should be held by B. B. Redfield, a real estate broker, for the mutual benefit of the parties concerned until the deal was closed. It was claimed by defendant in error that a survey of the property showed that the building on the premises encroached upon the adjacent street and sidewalk. The defect was not cured, and defendant in error rescinded the contract. She brought suit in the municipal court of Chicago against plaintiffs in error and Redfield for $500. There was a trial by the court. After all the evidence was heard defendant in error dismissed the suit as to Redfield. Judgment was entered against plaintiffs in error for $500. They appealed to the Appellate Court for the First District, where the judgment was affirmed, and the case comes to this court upon a writ of certiorari.
The Appellate Court held that, while Redfield was not a party to the contract, nevertheless the defendant in error had a right of action against him, not upon the theory that there was a contractual relation between him and defendant in error, but upon the principle that Redfield had money in his possession which, ex aequo et bono, he had no right to retain and which belonged to defendant in error; that the mere fact that defendant in error had a right of action against Redfield was of no importance in determining the question as to whether defendant in error could recover against plaintiffs in error in this case, and it was held that there could be a recovery against them.
It is insisted by plaintiffs in error that, where money is deposited with a third person by two contracting parties, to be held by the third party until the performance of certain conditions by both parties and then turned over to the parties entitled thereto, the third party is deemed to be the agent of both parties and becomes liable for the delivery of the fund to the persons entitled thereto in accordance with the terms of the contract; that an escrowee is deemed to be a trustee for both parties to a contract, and he, alone, is liable for breach of the trust, and the vendor, in whom title to the money is not vested, is not liable for the return thereof.
It is conceded that defendant in error could have sued Redfield, and, assuming his liability, the question, therefore, is whether the cause of action against him was exclusive or whether defendant in error also had a cause of action against plaintiffs in error. If defendant in error also had a cause of action against plaintiffs in error, then the judgment should be affirmed. No authorities are cited in support of this contention, and it is claimed that no cases can be found where this question has been determined. In Gronewold v. Gronewold, 304 Ill. 11, 136 N. E. 489, 491, it was said: ‘The law is that ‘It is essential to an escrow that the instrument must be delivered to a stranger or third person, and the phrase ‘stranger’ or ‘third person,’ as used in the definitions of escrow, means a stranger to the instrument, as not being a party to it, or a person so free from any personal or legal identity with the parties to the instrument as to leave him free to discharge his duty as a depositary...
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Filosa v. Pecora
... ... (See Hilyard v. Krisolofsky (1929), 337 Ill. 584, 169 N.E. 765; Franks v. N. Shore Farms, Inc. (1969), 115 Ill.App.2d 57, 253 N.E.2d 45.) An escrow deposit of ... ...
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