Law v. Ware

• Decision Date: 19 February 1909
• Citation: 87 N.E. 308,238 Ill. 360
• Parties: LAW v. WARE.
• Court: Illinois Supreme Court

238 Ill. 360

87 N.E. 308

LAW

v.WARE.

Supreme Court of Illinois.

Feb. 19, 1909.

Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Willard M. McEwen, Judge.

Bill by Robert H. Law against Elisha C. Ware. From a judgment of the Appellate Court reversing a decre of the superior court for complainant and remanding the cause with directions to enter a decree for complainant in a less amount, defendant appeals. Reversed and remanded, with directions.Barker, Church & Shepard (William T. Church, of counsel), for appellant.

Horton & Miller (O. H. Horton, of counsel), for appellee.

CARTWRIGHT, C. J.

Robert H. Law, appellee, filed his bill in equity in the superior court of Cook county against Elisha C. Ware, appellant, for an accounting of the profits of a purchase and sale by said parties of a tract of land and to compel appellant to pay over a balance claimed to be due, and also to compel appellant to account for and pay over commissions received, while acting as agent for appellee, from the other party to an exchange of real estate. The superior court approved the report of a special commissioner, and entered a money decree against appellant for $5,112.48, with interest from the date of the commissioner's report. Appellant removed the cause by appeal to the Appellate Court for the First District, and the branch of that court reversed the decree and remanded the cause to the superior court, with directions to enter a decree in favor of appellee for $3,112.48, with interest from the date of the commissioner's report to the date of such decree. A further appeal was prosecuted to this court.

It is first contended that the superior court erred in granting any relief, for the reason that the complainant had a complete remedy at law. The defendant did not demur to the bill, but at the conclusion of his answer prayed the same right and advantage of the answer as if he had especially pleaded or demurred to the bill. If the subject-matter of a bill of complaint is wholly foreign to the jurisdiction of a court of chancery, such as a claim of damages for slander, assault, and battery or personal injury, the court is incompetent to grant the relief sought for, and it will be denied, although the defendant has submitted himself to the jurisdiction of the court; but, if the subject-matter belongs to that class of which a court will take jurisdiction when the facts create some equitable right or the relation of the parties renders the exercise of such jurisdiction proper, an objection that there is an adequate remedy at law should be taken at the earliest opportunity. Stout v. Cook, 41 Ill. 447. The objection is properly taken by demurrer, and, if so taken, the demurrer may be general for want of equity. All matters which go to the jurisdiction of the court may be taken advantage of by demurrer, whether especially pointed out in the demurrer or not, and the objection may be called to the attention of the court on the argument of the demurrer. Winkler v. Winkler, 40 Ill. 179;Wangelin v. Goe, 50 Ill. 459;Gage v. Abbott, 99 Ill. 366;Gage v. Griffin, 103 Ill. 41; Wetherell v. Eberle, 123 Ill. 666, 14 N. E. 675,5 Am. St. Rep. 574. If the objection is not made by demurrer, the defendant may still insist in his answer that the case made by the bill is not brought within the class of cases in which courts of equity assume jurisdiction for the reason that the complainant has an adequate remedy at law (1 Ency. of Pl. & Pr. 883); but if the court is able to grant the relief asked for, and defendant submits himself to the jurisdiction of the court without specifically pointing out the objection in the answer, it will be regarded as waived. An objection that the court ought not to assume jurisdiction because there is an adequate remedy at law comes too late after filing an answer in which the objection is not affirmatively set out and relied on. Nelson v. First Nat. Bank of Chicago, 48 Ill. 36, 95 Am. Dec. 510;Ryan v. Duncan, 88 Ill. 144;Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372, 36 N. E. 88;Kaufman v. Wiener, 169 Ill. 596, 48 N. E. 479;Black v. Miller, 173 Ill. 489, 50 N. E. 1009. Although defendant in his answer claimed the same right and advantage as if he had especially demurred to the bill, he did not point out or rely upon the objection now made, and, the court being competent to grant the relief asked for, the objection comes too late and will not be considered.

There were two transactions between the complainant and the defendant. The first was in February, 1900, when they agreed to buy 140.8 acres of land at Ravinia, in Cook counyt, at $300 per acre, and to divide the profits growing out of the purchase equally. They were both engaged in the real estate business, but the defendant attended to the matter personally. There was to be a first payment of $10,000, each putting in $5,000, and $32,240 was to be secured by mortgage on the land. Each of the parties put up $500 which was paid down, and called earnest money. The defendant and Charles S. Read were equal partners in the real estate broker's business under the name of E. C. Ware & Co., and the land was conveyed to a person connected with that firm, who made notes and a mortgage for $32,240, the deferred portion of the purchase money. The transaction was to be finally closed in March, and before that time the defendant found a purchaser in Walter C. Nelson at $400 per acre. The two transactions were closed up at the same time, when Nelson assumed the mortgage for $32,240 and gave his note for $7,000, secured by a second mortgage on the property, and paid the balance in cash. The price complainant and defendant were to pay was $42,240 and the sale to Nelson $56,320, so that there was a good profit in the transaction. Afterward the defendant negotiated with a man named Lytton for the sale of the land by Nelson to him, and, to induce Lytton to make the purchase, the defendant gave his note for $2,500 for an option to buy the land within 90 days for $100,000. He did not avail himself of the option, but paid the note. The defendant paid to the complainant $5,836.23, and the superior court made a further charge against him of $1,312.48. The defendant, as a partner with Charles S. Read, received one-half of the commission paid by the seller on the original purchase, and the court charged him with one-half of the money so received, being $151.50. He also received in like manner one-half of a commission on the sase to Nelson,and the court charged him with one-half of that, being $350. The defendant also made a charge of $600 as having been paid to the person connected with his firm who received the conveyance and made the mortgage, which was claimed to be a charge for performing that service, and the court charged him with one-half of that sum. These items, with the $500 advanced by the complainant for the cash payment and a small balance of account, made up the sum of $1,312.48. The principal claim of the defendant was that he gave the note for $2,500 for the option to secure payment of the second mortgage for $7,000; that Nelson's circumstances became straitened, and the $7,000 would be lost unless the property was sold to some responsible person so that the incumbrances would be paid. The complainant knew nothing about the giving of the note or the option, and he was not given any opportunity to avail himself of its benefits. The evidence fairly justifies the conclusion that the option was a personal scheme of defendant, and that he was not entitled to charge one-half of the money that he lost on the option. The person who received the conveyance and made the notes and mortgage was not paid...