Kingsbury v. Powers

• Citation: 22 N.E. 479,131 Ill. 182
• Parties: KINGSBURY v. POWERS.
• Decision Date: 31 October 1889
• Court: Supreme Court of Illinois

131 Ill. 182

22 N.E. 479

KINGSBURY

v.POWERS.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, first district.

On rehearing. For former opinion, see 20 N. E. Rep. 3.Wilson & Moore

, for appellant.

R. W. Pike, for appellee.

BAKER, J.

In regard to many of the questions at issue in this case, we have adopted the views expressed and the language used by Mr. Justice SCHOLFIELD in the opinion prepared by him prior to the rehearing.

Heman G. Powers, having filed his final account as guardian of Henry W. Kingsbury, a minor, in the probate court of Cook county, asked for an order of that court approving his account, and discharging him from further liability as guardian. Upon objections being urged against the account by John V. Le Moyne, subsequent guardian of Henry W. Kingsbury, the court ordered that ‘the account of Heman G. Powers, covering his transactions as guardian from February 1, 1876, to February 1, 1887, and his account from February 1, 1887, to the termination of his guardianship, be consolidated;’ and the record thereafter recites: ‘And, such consolidated accounts being presented to the court, the court finds that from the 1st day of February, A. D. 1876, to the termination of said guardianship, the receipts of the said former guardian have been $179,102.26, and the disbursements for the same time have been $183,626.11; leaving a balance due from the said ward to the said former guardian amounting to $4,523.85.’ Both parties appealed from the order of the probate court to the circuit court of Cook county; and the appeals were, by order of that court, consolidated and heard as one case. The court thereafter referred the case to the master in chancery to take evidence, and to state and report the account between the guardian and his ward; and, pending the making of that report, Henry W. Kingsbury, having arrived at the age of 21 years, was substituted on the record as a party in the place and stead of John V. Le Moyne, guardian. The master thereafter filed his report, and exceptions were filed thereto by both Powers and Kingsbury. Many of the exceptions were allowed; and from the final decree of the court Kingsbury alone appealed to the appellate court of the first district, and assigned errors presenting the questions hereafter to be considered. A judgment of affirmance in that court was followed by a further appeal by Kingsbury. Cross-errors were also assigned in the appellate court, and have been assigned in this court, by Powers; but, inasmuch as he prosecuted no appeal from the decision of the circuit court, they cannot be considered any further than they may relate to the portion of the record brought up by the appeal of Kingsbury. Millard v. Harris, 119 Ill. 185, 10 N. E. Rep. 387. Kingsbury's objections to the decree of the circuit court are thus stated in his argument: ‘(1) The charge of water-rents, which objection was partially allowed by the master, and wholly denied by the court; (2) the costs and attorney's fees paid by the guardian arising out of the case of Fanning v. Sperry; (3) employment of G. W. Adams, D. J. Hubbard, etc.; (4) attorney's fees paid by the guardian, and charged in his accounts; (5) attorney's fees and costs in litigating the accounts; (6) payments to the United States Mortgage Company.’ In considering these objections, we will, for convenience, take them up not altogether in the order in which they are thus presented.

The first contention of Kingsbury is that the guardian paid water-taxes, when the tenant himself had assumed that burden by virtue of the following clause in the several leases: ‘And the said party of the second part, for himself, his executors, administrators, and assigns, agrees further to pay (in addition to the rents above specified) all water-rents taxed, levied, or charged on said premises for and during the time for which this lease is granted, and save said premises and said party of the first part harmless therefrom; and provided that said party of the first part shall pay for any water-rent, or for repairs of hydrants, supply, or wastepipes or sewers on said premises which may be ordered by the board of public works.’ This manifestly contemplates a rate levied against the leased property as a public charge, such, for instance, as is contemplated by section 171, c. 24, Rev. St. 1874, and which would be a lien upon the particular property leased. There is no evidence proving the existence or levy of any such rate. The evidence is that the water-tax assessment was in bulk against the Kingsbury Block, and that there was no way of assessing it to each separate room. We do not think that this evidence shows any loss, on this account, to the ward; and the evidence fails to show that less was received on account of these leases for rent than should have been received.

Anson Sperry, a former guardian of Kingsbury, was authorized by an order of the Cook county court, then exercising probate jurisdiction, to contract for the building of business houses on the ground of his ward, where the former business houses had been destroyed by fire; and he accordingly made contracts for that purpose, one of them being with Patrick Fanning for the furnishing of cut stone to the amount of $19,504. Before the buildings were entirely completed, at the instance of Mrs. Lawrence, the mother of Kingsbury, Sperry resigned as guardian, and she was appointed his successor. Sperry claimed, before his resignation, that the estate of his ward was injured in consequence of delay by Fanning in performing his contract; and, when the buildings were completed, Mrs. Lawrence refused to pay the balance claimed by Fanning to be due on his contract, because of injury to her ward's estate resulting from his delay in performing such contract. Fanning thereupon brought suit against Sperry in the superior court of Cook county on his contract, and also for extras claimed to have been furnished by him beyond the terms of his contract. Sperry employed Messrs. Isham & Lincoln, attorneys at law, to defend for him. Fanning claimed $5,887.21 as due on the contract, and for extras, and also interest thereon. Sperry interposed two defenses: First, that the damages sustained by the failure of Fanning to furnish the cut stone within the time required by the contract, resulting in a postponement of a completion of the buildings, were equal to the amount due to Fanning, and should be set off by the court; second, that a personal judgment could in no event be rendered against him (Sperry) on the contract. Judgment was rendered against Sperry for $4,574.57. Sperry sued out of this court a writ of error upon that judgment, and we rendered a judgment of affirmance therein at our September term, 1875. A petition for a rehearing of the case was presented to us, and considered and denied at our March term, 1876. See Sperry v. Fanning, 80 Ill. 371. The same counsel represented Sperry in this court that represented him in the trial court, and, after the petition for rehearing was denied, they succeeded in obtaining a compromise with Fanning whereby he accepted $4,000 in satisfaction of his judgment. Mrs. Lawrence had before that time resigned her guardianship, and was succeeded by Powers, who paid the judgment against Sperry, and the bill for attorney's fees and costs. That the attorney's fees are reasonable in amount is not denied, and is clearly proved. The contention of appellant is that, inasmuch as the suit was defended to protect Sperry from a personal judgment, the estate ought not to bear the expense of its defense. In Sperry v. Fanning, supra, we said, quoting from Parsons on Contracts: ‘A guardian cannot, by his own contract, bind the person or estate of his ward; but if he promised, on a sufficient consideration, to pay the debt of his ward, he is personally bound by his promise, although he expressly promises as guardian. And it is a sufficient consideration if such promise discharge the debt of the ward; and a guardian who thus discharges the debt of his ward may lawfully indemnify himself out of the ward's estate; or, if he be discharged from his guardianship, he may have an action against the ward for money paid for his use.’ The contract with Fanning was for the benefit of the ward, and the liability of the guardian personally affects merely the form of the remedy, and not the primary sources of liability, unless the guardian has been guilty of such negligence or willful malice, causing the suit to be brought, as renders it equitable that he should be entitled to be reimbursed from the estate of his ward. A guardian is required to observe that care and diligence, in the performance of his duties, that a good and conscientious business man exercises in his own affairs under like circumstances. Whart. Neg. (1st Ed.) §§ 517, 518. He may not, therefore, willfully or recklessly incur costs and expenses in litigation, where he knows, or where by the exercise of ordinary prudence and caution he would have known, there is no necessity for litigation; but if he have reason to believe, and does believe, that the claim made against the estate is unjust and illegal, or for too large an amount, it is his duty to refuse its payment, and resist litigation brought to coerce payment, unless it shall appear that he knew, or by the exercise of ordinary prudence and caution would have known, the expense of resistance would greatly exceed any probable benefits resulting therefrom. See Smith v. Bean, 8 N. H. 15. The result of Sperry's resisting the claim made by Fanning is shown by the evidence to have been beneficial to the estate. The difference between the amount of $4,000, which Fanning finally accepted on the compromise after the litigation, and $5,887.21, the amount he claimed, it will be observed is considerably in excess of $1,095, the amount of attorney's fees and costs paid in making the defense, saying nothing of interest upon the amount claimed by Fanning. It is true,...