People v. Brand

• Decision Date: 20 May 1953
• Docket Number: No. 32374,32374
• Citation: 114 N.E.2d 370,415 Ill. 329
• Parties: PEOPLE v. BRAND et al.
• Court: Illinois Supreme Court

Page 370

114 N.E.2d 370

415 Ill. 329

PEOPLE v. BRAND et al.

No. 32374.

Supreme Court of Illinois.

May 20, 1953.

Rehearing Denied Sept. 21, 1953.

Arthur Frankel, of Chicago (Herbert M. Wetzel, Chicago, of counsel), for plaintiffs in error.

Latham Castle, Atty. Gen., and John Gutknecht, State's Atty., of Chicago (Abbey

Blattberg, John T. Gallagher, Rudolph L. Janega, and Arthur Manning, all of Chicago, of counsel), for the People.

DAILY, Justice.

Plaintiffs in error, Joseph G. Brand and Anton A. Morvay, whom we shall refer to as defendants, were found guilty by a jury in the criminal court of Cook County of the crime of obtaining money by use and means of a confidence game. They bring this cause here for review on writ of error assigning numerous errors in their trial.

The defendant Brand was president and principal stockholder of an Illinois corporation called Industrial Exchange, Inc., whose principal business was that of barter and exchange. The defendant Morvay was president of an Illinois corporation called Morvay & Company, which was apparently engaged in the construction business. Morvay & Company had offices at 39 S. La Salle Street, in Chicago, where it employed as many as twenty-five persons, including draftsmen who occupied a suite of offices in the same building but not adjacent to the general office of the corporation. Industrial Exchange, Inc., in June of 1949, had an office at 30 S. La Salle Street, Chicago, but some time thereafter moved into the same building as Morvay & Company.

The complaining witness, Herbert Bomar, a man of about thirty-five years of age, was employed by Brunswick Balke-Collender Company in the promotion department. In June, 1949, after conversations over the telephone, he called at Brand's office to discuss the sale to Brand of lot he owned. The testimony as to which party first contacted the other is in direct conflict. Bomar testified that Mrs. Brand telephoned his wife and expressed a desire to buy the Bomar property. Brand testified that the situation was just the opposite. During the conversation Brand invited Bomar to accompany him to 39 S. La Salle Street to look at a suite of offices which he planned to move into. They stopped at the coffee shop in the building, and Brand introduced Bomar to the defendant Morvay. During the conversation which ensued Brand talked about a bowling alley building which he was going to build for Bomar to operate. However, Bomar stated that he was only interested in selling his lot. Brand inquired as to why Bomar did not build a home on his lot, and Bomar informed him the costs were too high.

Subsequent to that meeting, Bomar received a notice to vacate the apartment, in which his family lived, within sixty or ninety days. A few days later Brand called at Bomar's office with a book of plans and home designs, and stated that he could build a house for as little as $1000 down. Brand told Bomar to take the plans home and show them to his wife. The plans consisted of a printed book containing some eighty pages, entitled 'Designs for Convenient Living,' distributed by Home Planners, Inc., and had a price printed on the cover of the book of $1.50. The plan book can be purchased at various stores throughout the country.

Bomar and wife studied the book for several days, and on July 21, 1949, called at Brand's office, which was then located at 39 S. La Salle Street, where they met one Addison Brown, a Mr. Lauren and Brand. The Bomars told Brand that they were interested in design No. 17 in the book of plans, and Brand sent for Morvay. Morvay came into the office with a cardboard model of design No. 17, and told them that the house would be constructed with lannen stone and would cost around $12,000 to construct on their lot. Bomar testified that he inquired of Morvay how they could build a house for that price, and that he was told that they owned their own rock quarry, their own mill and own lumberyard and had various trading powers by which they could get the materials cheaper than competitors. These statements were denied by the testimony of Brand, Brown and Lauren. Plans were shown to the Bomars and a few minor changes agreed upon. Contracts and papers were brought out and Morvay asked for a $4000 down payment. Brand spoke up and said that the Bomars would only have to make a $1000 down payment, and that they could sign a note to him for $3000. Bomar wrote a check for $1000 payable to the Industrial Exchange, Inc., and gave it to Brand. Other papers were signed at this time, including a building contract, all of which were delivered to Brand. Within a day or two after the meeting other papers were forwarded to the Bomars by mail who signed them and returned them. They included a trust deed for $12,200, which was recorded in the recorder's office of Cook County, and a note in the sum of $3000 payable to Brand.

Bomar testified that Brand and Morvay both told him that the house would be started within a week or ten days and would be finished within four or five months, and Brand admitted that he told Bomar that the house would be started in October and completed by Christmas, 1949. When work was not started on the home by the latter part of July, Bomar made repeated calls to Brand and Morvay to find out when they were going to start, and received numerous excuses. Finally he went to the courthouse and discovered that none of the permits had been applied for, and he himself obtained all of the necessary permits excepting a building permit. After two months had elapsed, Morvay finally told Bomar that Brand had never given him the $3000 for the second mortgage and that he needed that money before he could start. When Bomar confronted Brand with this he explained that he had a $3000 credit with Morvay & Company which he had acquired by paying some of their bills, and that he had assigned this credit to Bomar in exchange for the $3000 note, and suggested that Bomar see Morvay about it. On September 21, 1949, the Bomars called Morvay's office and met a Colonel Warren who stated that he had nothing to do with the transaction, but recommended that Bomar write out a check to Morvay for the $3000 and go ahead with the deal.

When Morvay came into the office he said, 'Let's start over,' and tore up the old contract and papers and had the Bomars sign a new building contract which called for a building to be commenced on October 1, 1949, on Bomar's lot and aknowledged receipt of a $4000 down payment, which included a $3000 check that the Bomars gave to Morvay on that date. The contract specified that the total price was to be $16,200, of which the $4000 down payment was a part, and the balance was to be paid by a $12,200 mortgage which was previously recorded. The Bomars insisted on and received a release from Brand of the $3000 note which they had previously executed and delivered to him. Morvay agreed to immediately start construction on the home, but even though building permits were finally obtained no work was done other than having the lot staked out.

In October, Bomar demanded that his money be refunded, and Morvay took Bomar to a builder whom he claimed was looking over the Morvay projects. The builder, however, denied this. Bomar was then taken to one Hicks, an employee of the Equitable Life Assurance Society, who told him that he was trying to arrange for a loan to handle the papers of Morvay & Company. However, this was denied by Thomas J. Murray who testified that he was sales supervisor for residential mortgages for the states of Illinois and Wisconsin for the Equitable Life Assurance Society of the United States, and that the company would not finance the construction of a home, and further that James Hicks was employed by the Company as a life insurance agent who worked on commission with one of the agencies in Chicago, and had no authority to make any commitments for mortgages. Subsequently, and before the trial of this case, Bomar received $500 from Morvay and $450 from Brand.

The defendants contend that they operated legitimate businesses as legitimate business men, and that they operated according to accepted business practice procedures, but that in the course of their business they became unable to meet their obligations and commitments.

Although the defendant Morvay elected to remain silent, the defendant Brand testified that he had been engaged in the business of barter and exchange which he explained was sometimes called reciprocity with various corporations. He further explained that his method of operation was to acquire a credit with some company by selling their produce for a commission consisting of the credit, and then in turn selling the credit which he had established to a third person who wished to do business with the original company. In the instant case, he established a credit with Morvay & Company by paying some indebtedness of the defendant Morvay and of one Donald Lynn, an officer of Morvay & Company, who is under indictment and is now a fugitive from justice. It was not established how a credit with Morvay & Company could be obtained by paying the indebtedness of two of the officers of the corporation. Brand further testified that he sold the complaining witness a $4000 credit with Morvay & Company on July 21, 1949, for which he received the sum of $1000 paid to him on that date, and claimed that Bomar owed him the sum of $3000 until September 28, when he claimed to have first received the Bomar note. He contends that that indebtedness continued to exist until the note was paid at the time Bomar entered into a new contract with Morvay & Company.

Plaintiffs in error are represented in this appeal by other counsel than participated in the proceeding in the trial court, and throughout his brief and argument he has asserted that the failure to lay the proper foundation for our consideration of numerous points on appeal lay in the incompetency of the trial counsel. We have carefully examined the...