Lewis v. Braun
| Decision Date | 08 June 1934 |
| Docket Number | No. 22252.,22252. |
| Citation | 191 N.E. 56,356 Ill. 467 |
| Parties | LEWIS v. BRAUN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Michael Feinberg, Judge.
Suit by James Hamilton Lewis against Mary A. Braun, individually and as administratrix of the estate of Jacob G. Braun, deceased, and others. To review a judgment of the appellate court affirming a decree dismissing the bill, complainant brings certiorari.
Reversed and remanded, with directions.
DE YOUNG and STONE, JJ., dissenting.Andrew R. Sherriff, of Chicago (Richard S. Folsom and Thomas James Norton, both of Chicago, of counsel), for plaintiff in error.
Cassels, Potter & Bentley and Richard H. Merrick, all of Chicago (Edwin H. Cassels and Richard Bentley, both of Chicago, of counsel), for defendant in error Canadian Pac. Ry. Co.
Ellis D. Whipp, of Chicago (Edmund S. Cummings, of Chicago, of counsel), for other defendant in error Mary A. Braun.
On March 30, 1931, James Hamilton Lewis, plaintiff in error (herein called complainant)', filed his amended bill of complaint in the circuit court of Cook county against Mary A. Braun, individually and as administratrix of the estate of Jacob G. Braun, deceased, the Foreman-State Trust & Savings Bank, an Illinois corporation, and the Canadian Pacific Railway Company, a Canadian corporation, as defendants. Mrs. Braun and the railway company filed general demurrers and the bank filed its answer. The chancellor sustained the demurrers, and when complainant elected to stand on his amended bill a decree was entered dismissing the bill, with costs against complainant. On appeal to the Appellate Court for the First District the decree was affirmed. A writ of certiorari brings the case here.
The amended bill alleges that complainant, an attorney at law, on July 17, 1920, entered into the following written contract:
‘In the event of my death, should such occur, and the collection of money or the transfer of shares be had after my death, then the said Jas. Hamilton Lewis is to take such course and action with the shares and money as my will would provide or any directionsI may have given to my wife or any other person in writing as to my property.
‘[Signed] Jacob G. Braun.
‘I approve of the above and to the extent of my own interest authorize Jas. Hamilton Lewis for the same purposes as authorized by my husband.
‘[Signed] Mary A. Braun,
‘Wife of Jacob G. Braun.
‘I accept the above named commission and contract of services, leaving the matter of fees and payments for services to be arranged at such time as shall be proper.
‘[Signed] Jas. Hamilton Lewis.’
The bill further alleges that complainant thereafter ‘pursued the performance of the aforesaid contract,’ and on November 27, 1920, entered into a further written agreement ‘supplemental to the foregoing,’ as follows:
‘Referring to the instrument made by and between James Hamilton Lewis and Jacob G. Braun on July 17th, 1920, (bearing the written approval of Mary A. Braun) providing for the recovery of the shares of stock in the Canadian Pacific Railway Company, and the accumulated dividends thereon, as in said instrument mentioned, the matter of fees and payments for services in connection therewith is hereby agreed upon as follows:
‘[Signed] Jacob G. Braun.
‘[Signed] O. K., Mary A. Braun
‘[Signed] James Hamilton Lewis
‘By Andrew R. Sherriff.’
The bill further alleges that complainant has at all times, by himself and his associates, ‘diligently and fully performed said contract on his part, that the same is in full force and effect, and that this amended bill is brought in due course of the performance thereof and in pursuit of the relief, remedies and recoveries thereby contemplated’; that the subject-matter of the contract consists of 470 shares of common stock of the railway company of the par value of $100 per share, represented by 48 certificates purchased by Jacob G. Braun in the open market at the current market price, with all the unpaid dividends thereon; that he presented the certificates at the proper transfer and registration agencies of the defendant railway company requesting their transfer to and registration in his name, but it refused to make such transfer and registration or to issue new certificates in lieu thereof, as requested; that Braun also demanded of the defendant railway company the payment to him of all unpaid dividends which had been declared on the shares after July, 1914, but was likewise refused; that Braun was a resident of Chicago and died there, intestate, in February, 1921; that Mary A. Braun was appointed administratrix of his estate and still continues as such; that the certificates are held by the defendant bank as agent and custodianfor the administratrix and the estate of Braun, ‘subject to the right of your orator to have possession of same for all proper uses and purposes in accordance with the above described contract and supplemental agreement, and for the recovery of all rights, benefits and emoluments pertaining thereto, and for the purposes of this suit.’
The bill further asserts, in part, that by virtue of the agreement, and because of the subsequent acts and course of conduct of the parties pursuant thereto, and the pecuniary expenses necessarily incurred by complainant in course of his performance thereof, he is in equity the assignee of a specific portion of and has an equitable lien upon the certificates and shares of stock, ‘being in themselves the cause of action and subject matter of said contract, and upon all claims, demands and causes of action held or claimed against the said defendant, Canadian Pacific Railway Company, by or for said Jacob G. Braun in his lifetime, and since then by or for any of his heirs or legal representatives'; that complainant has served due notice upon the defendant railway company of his rights by virtue of the contract; that the present value represented by the certificates, exclusive of dividends, is about $94,000; that there is now due from said company, on account of dividends withheld, the sum of $75,000; that the excuses given by the company for refusing to transfer the shares and for refusing to pay over the accumulated dividends thereon were, that the stock had been subjected to adverse claims asserted against it by the custodian of enemy property of Canada growing out of proceedings had in Canada during the World War on the supposition that they belonged to the then foreign enemies of Canada, but that, as a matter of fact and law, all such adverse claims were and are groundless and void and were not lawful grounds for depriving Braun or his heirs, next of kin, or legal representatives, or complainant, of any of the shares of stock and dividends thereon.
The bill further alleges that after the death of her husband, Mary A. Braun, in her individual right and as administratrix of the estate, ‘fully recognized the existence and binding force of said contract and supplemental agreement, and expressly elected to continue, and did continue, in the performance thereof on her part with your orator for a long period of time’; that after making the contract, complainant diligently endeavored to prevail on the custodian of enemy property of Canada to abandon his claims or to pay and settle for the stock on reasonable terms in money; that in January, 1925, this official offered to pay to complainant the sum of $58,750 in cash, a larger sum than Jacob G. Braun paid for the certificates, but defendant Mrs. Braun refused to accept this offer, and thereafter, through other persons, she hindered and embarrassed the continued negotiations by complainant to secure better terms in settlement, with the result that the custodian, because of such interference, refused to negotiate further and it became necessary to resort to litigation against the railway company for recovery of the shares and dividends; that complainant, acting under authority of the contract, in June, 1925, instituted a suit in equity in the District Court of the United States in the name of himself and Mrs. Braun, individually and as administratrix, as complainants, against the railway company to compel the transfer of the shares and the payment of the accumulated dividends thereon; that complainant devoted a great amount of time and professional skill and labor to the prosecution of this suit, but that Mrs. Braun the coplaintiff there, by interposing repeated objections to her joinder as coplaintiff and by demanding her release therefrom, all in violation of her contract and the rights of complain...
To continue reading
Request your trial
-
State v. Coleman
...51 Cal.2d 759, 336 P.2d 521 (1959), rev'd on other grounds, 362 U.S. 628, 80 S.Ct. 1050, 4 L.Ed.2d 1002 (1960). See also Lewis v. Braun, 356 Ill. 467, 191 N.E. 56 (1934); Home Ins. Co. of New York v. Northern Pac. Ry. Co., 18 Wash.2d 798, 140 P.2d 507, 147 A.L.R. 849 (1943); State ex rel. S......
-
People v. Turner
...are entitled to respect, they are not binding upon this court except in cases of estoppel by verdict or res judicata. (Lewis v. Braun, 356 Ill. 467, 474, 475, 191 N.E. 56.) However, in the case before us the controversy depends solely upon construction of a federal statute as regards use of......
-
McKee-Berger-Mansueto, Inc. v. Board of Educ. of City of Chicago, KEE-BERGER-MANSUET
...of the fund, or of some designated part, proportion or percentage of it, to act as an equitable assignment." Lewis v. Braun, 356 Ill. 467, 477-78, 191 N.E. 56 (1934) (citations omitted). In considering claims to equitable liens based on contingent fee agreements, the Illinois courts have dr......
-
Lewsader v. Wal-Mart Stores, Inc.
...part, proportion or percentage of it, to act as an equitable assignment.' " McKee, 691 F.2d at 836, quoting Lewis v. Braun, 356 Ill. 467, 477-78, 191 N.E. 56, 61 (1934). As this court has stated previously, an equitable lien may arise in two "First, the lien arises where the parties express......