*1 East Peoria Elevator Company, v. Plaintiff-Appellant, Co.,

Geo. W. Cole Grain and Margaret Wrigley, B. Executor of the Will of Bernard Wrigley, E. Deceased, Defendants-Appellees.

Gen. No. 11,109. District,

Second First Division.

September 1958. Rehearing denied 20, 1958. October publication Released for 1958. October *2 Morgan, Morgan, (John & Pendarvis of Peoria M. counsel) appellant. Jr., of Niehons, Kavanagh, McLaughlin (E. & Peoria D. Bond, of McLaughlin, counsel) appellee. opinion

PRESIDING JUSTICE delivered the DOVE court. *3 complaint February in case this on filed by corpora- Company, the East Peoria Elevator a against George Company, tion, the W. a corporation, Margaret Wrigley, and B. as executor of Wrigley, the ofWill Bernard E. deceased. February complaint 4, 1955, the

On was amended plaintiff sought judg- and, as the to recover a amended, against Company requiring ment the it to moneys’ account to the for all received grain storage space plaintiff’s for rental of elevator plain- judgment for and the amount due for found the upon accounting. complaint tiff such The amended sought accounting money judgment against also an and Margaret Wrigley, B. as executor of the of Ber- Will Wrigley, moneys paid by deceased, nard E. for all storage space grain of elevator lessees for Ber- which was intended and which allegedly wrongfully nard diverted others. replies After answers and were filed issues thus special a made were referred to master. The cause was special upon heard master the evidence offered respective parties upon stipulation a of special facts. The master recommended that a decree dismissing complaint be entered as amended for Objections report equity. want of were filed to this special and overruled master and a hear- ing upon exceptions spe- before chancellor to the report, exceptions cial master’s all were overruled, report approved, dismissing the and a decree rendered complaint equity amended at the want costs plaintiff appeals. To reverse that decree appears stipulation It from the evidence and the parties corporation, the having anis Illinois principal Illi- Peoria, office and elevator in operated public solely designed nois. It a warehouse storage, handling, drying of treatment and receipt delivery grain by and for the rail- capacity road. Its warehouse of 905,000 had bushels soybeans operator of corn, oats, wheat and public subject of a class “B” it was warehouse, regu- Public Act Warehouse and also to rules lations Illinois Commerce Commission. George

Defendant, W. Cole Grain also corporation, principal an Illinois with its office and place Building of business in the of Trade at Board During period question Illinois. Peoria, company doing grain brokerage business as a or house and held a on the Peoria Board commission seat bought types of Trade and and sold all regu- account and its customers and also its own *4 larly storage space plaintiff rented of the and from storage space time to time had annual contracts for plaintiff. with the president principal Wrigley E.

Bernard was and operated it owner of the Grain and he Cole country He and several elevators located Illinois. daily buying selling’ grain active in the and was companies and their customers. The of the his offices

85 Grain Cole inwere the Board of Trade Build- ing in Peoria and Mr. handled the business company affairs of that from those offices.

From 1940 until his which occurred on March death, manager 31, 1950 Bernard assistant plaintiff and treasurer of the and from 1944 until his vice-president. death he was its He was the active sole manager day day of the affairs of the and handled all its business affairs his office at the offices the Board of Trade Building in Peoria. Herring many years,

Della M. was for cashier upon Wrigley’s Mr. death in 1950, she was elected to succeed him treasurer of the directly Wrigley’s super- She had also worked under bookkeeper vision as cashier or for the Cole Grain way Wrigley and was familiar with the Mr. conducted business and the business Company. of Cole Grain At various times the Cole Wrigley, individually and also Mr. ad- money running vanced a account companies kept by Wrigley. between these two Mr. many years

For the Elevator had entered specified into contracts with various customers storage amounts of based an annual rate established tariffs. Elevator’s While record storage space does not the amount of show leased to Company prior July it does show 1,1949, early that as as 1933it had entered into such contracts with from 1940it had entered into similar contracts Terminal Grain July On 1949 the Elevator 100,000 entered into a contract for storage. July 29, 1949,

bushels On the amount was to 150,000 8, 1949, increased bushels and on October July was increased to 225,000 27, 1949, bushels. On *5 storage contract was entered 100,000 bushel similar by and the Terminal Grain into 21,1949, on the amount of stor- and October age for was increased Terminal pay- provided bushels. These contracts for 140,000 storage tariff annual which ment of the Elevator’s for contained this for bushels and also $12,000 200,000 party space of the second clause: “Said shall be used part (lessee) only storage grain owned for the part party it not use such stor- of the second and shall space, any part storage grain age for of thereof, or directly, indirectly, or others, owned and shall operate storage a warehouse business of others.” part during the latter

The record discloses that entered into con- June, 1946, July Products Refin- 1,1946, tract effective ing Corn largest one of cus- which had been designated contract since 1918. This tomers “Buyer” Refining as It recited that the contract was as “Seller.” expressly purpose storing at one

made for time a maximum of grains bushels corn or other 200,000 belonging Refining Products Com- Corn pany in the elevator of the had leased of the This

Cole contract plaintiff acted ware- also recited that the period seller; not the houseman and under this contract covered years beginning July two provided charge a minimum rental of in payable semi-annually space per year $18,000 July beginning The contract obli- also 1,1946. advance pay gated Products Corn drying prescribed and for treat- established rates for other elevator services. This ment of on behalf of Com- contract was executed president, Wrigley, pany by was its then who *6 Herring, secretary Della M. its then and a rider was consenting attached thereto execution, to its signed, rider was E. “East Peoria B. Elevator, Wrigley, Treas.”

Under this contract between Grain Cole Refining Company and Corn Products aggregating issued $39,636.65 checks in var- ious at amounts and different times between June 29, April 1948. Pour each checks, of these storage” $9,000 and each marked “for and one check for $2,036.60marked for elevation” were “excess payable Company. made order of Grain Cole aggregate These five checks The four $38,036.60. by Wrigley $9,000 checks each for credited to the account of were and and endorsed the Cole Grain Wrigley endorsed the it $2,036.60check and was cred- Company. ited to the account of Terminal Grain represents The balance of $1,600.05,which the differ- $38,036.60 ence between $39,636.65and said sum of aggregate the fining Company amount of five Re- checks issued payable Company. Elevator aggregating Two of these checks and marked $741.72 “drying” storage,” respectively, and “excess were de- posited Company. to the credit of the Elevator aggregating other three checks were endorsed $858.33 to the account credited Grain Cole To recapitulate: by Wrigley of the $39,636.65 received from Products Corn under its con- Company, tract with the $36,858.33 went Company; the credit of the placed $741.72 to the credit of the placed $2,036.60 Company. to the credit of Terminal Grain part As a of the same transaction drew a check on the account for placed $15,224.02 and this was to the credit of the ultimately Terminal Grain so that Terminal Company received $17,260.62, the Cole Grain the Elevator $21,634.31 and $741.72. the amended com- reference to this transaction

With plaint charged plaintiff, leased to Elevator, had Company storage space sufficient grain time for an 225,000 contain at one bushels agreed annual rental of and had also leased $13,500 space Company storage suf- to the Terminal Grain agreed for an ficient to contain 150,000bushels per year; annual that these leases con- $9,000 rental tained the precluded covenant above forth which restrictive set using from leased

the lessees had belonging *7 Wrigley, one the that of lessees; other than on behalf agreement the into an entered Company storage Products Corn of elevator for 200,000 bushels of years beginning, July charge two an annual 1,1946, at per year, payable semi-annually $18,000 of in advance; that caused a rider to be attached to said agreement which of recited: “For and consideration good and other and valuable consideration in $1.00 hand paid, receipt hereby acknowledged, whereof is hereby agrees East Peoria Elevator and consents to the foregoing agreement” signed; and that said rider was Wrigley, “East that B. E. Treas.”; Peoria Elevator Company agreement Grain this between Cole Refining Company and the Products violated Corn Ele- covenant in the contract between the restrictive that vator Grain not authorize the Elevator did complaint execute consent. The amended then con- Wrigley, manager that an officer cluded as as reposed the confidence abused position managing officer, in him and used his moneys should have received to divert the use of the and demanded the Cole Grain and the executor of the Will Wrigiey of Bernard E. should account to paid all sums under this contract n July which became effective on 1, 1946. provisions

The of the contract between the Cole differ ma- terially provisions from the standard of the annual storage between contracts and the Cole storage contracts between the plaintiff and its lessee do assume that the lessee space storage would use the leased same grain during* full term of the lease. These contracts contemplate grain originally stored will be replaced by grain during removed and other the term provide of the lease and that the Elevator would trans- i. fer, e., load in and out of elevator, four times the storage any amounts the authorized annual without charge, additional and that for such “transfer” in ex- charge cess of that an amount, additional of one half per grain, paid. cent on bushel, merchantable would be Each of these form annual standard con- provided part tracts further that no of the annual charge any would be refunded if the lessee fails use part during at time the leased the term provision lease. Such is not contained in the agreement between the Cole Grain and the Refining Company. pro- That contract, does however, *8 vide that for the “elevation” of more than 200,000 grain during the term bushels of of the the contract, Buyer pay to the an will Seller additional sum of one- per half cent bushel for the 200,000 first bushels of per grain any excess and handled, one-cent bushel for grain by Buyer. additional the handled Seller the provision clearly indemnify This was intended to any against Grain additional rental Cole charges plaintiff, might it incur to the under the plaintiff, provisions with the if of its leases the “trans- 90 plaintiff, by a grain result of made fer” of Refining Company of exceeded amount contract, con- annual rental authorized its the “transfers” agreement between The tracts with Company Refining fur- Grain necessary provided expressly if it became ther Refining purchased by grain Com- that pany plaintiff’s conditioned elevator, in be and stored pay plaintiff, it would also conditioning grain. charges regular such tariff Refining Company was a con- The Products Corn grain. large quantities effec- of Its contract of sumer July made that the contract was recited 1, 1946, tive storing expressly purpose maximum of a for the plain- grain in under lease in 200,000bushels elevator to the Cole Grain tiff’s Refining keeping privilege would have the grain quantity at all in in said elevator store Refining during contract. The the life of the

times designated “Buyer” contract and Pay- referred to as “Seller.” Buyer by grain Seller ment for plaintiff’s sold against delivery to made elevator was be receipt Company’s the Elevator warehouse receipts Buyer agreed grains all covered such coverage. carry full insurance operate right

The had no Cole warehouse but it did have the buy public authority to public storage space grain in a and to lease sell Refining Company contract warehouse. Its any intention to act as a warehouseman but disclaims agree all elevator, to hold in store, did until ordered into store Refining Company gave the Cole storage, loading while in instructions. bought by the whether purchased by or whether some other *9 supplier property Refining Company was the company Company and that and the Cole Crain had a right to enter into such a contract had it not been provision Company in the contract the Elevator Company had with the Cole Crain effect Company leased the Elevator to the Cole Company only Crain grain should be used

owned the Cole Crain Mr. When executed the Crain Elevator-Cole Company Company contract on behalf of the Elevator agent. executing he acted as In the same contract Company acting on behalf of Cole Crain he was as its agent and when he executed contract on behalf Company Refining Company of the Cole Crain with the agent Company he was of the Cole Crain when he appended to the bottom of that contract the consent Company agreement of the Elevator to that he was acting agent an and officer of the Elevator Com- pany. provisions

The restrictive in the contract between Company the Elevator and the Cole Crain. provisions

were violated the Cole Crain of the contract between Refining Company. and the public utility. The Elevator awas It could Refining not have entered into contract with the Company containing or the Crain provisions which were embraced en- contract tered into Crain and the Refin- ing Company. required That contract pay Crain $12,000 more required pay than it would have been the Elevator Company under its scheduled tariffs the same space. storage space The Cole Crain received $36,000 it $24,000. Mr. cost managing the active officer of the company and because of his connection with that he was able to assure that the re- *10 quired storage space Company purchased for Cole G-rain Refining Company would plaintiff’s Wrigley’s position he available in in the Elevator elevator. Refining was such relying would he warranted in as- this surance. stipulated upon hearing

It was that officer, no employee Company except director or of the Elevator Herring any payment and Della M. knew of receipt by, to, or retention the Cole Crain any money storage of grain sums of on account of the plaintiff’s in elevator shortly prior pro- until to the commencement of this ceeding stipulated and it was further that officer, no employee Company except director or of the Elevator Herring any and Della M. knew of contract between the Cole Crain and the in elevator shortly prior until to the commencement of action. this specific Adams v. Larson, 279 Ill. awas suit for performance brought by against John F. Adams Annie appeared Finley Larson. It that Paul was a real estate agent and he was contacted A. John Adams who buying dwelling was interested in house owned and occupied by Finley Mrs. Larson. contacted Mrs. Larson who told him she not would take than $10,000 less property premises and wished to remain on the April negotia- until rent free. After considerable signed prepared by tions Mrs. Larson the contract Finley previously signed by which had been Adams accepted a check of Mr. Adams as a first $250 payment. It was insisted counsel for Mrs. Larson Finley agent parties that acted as for both without her consent and therefore she could rescind the contract affirming superior for that In reason. the decree specific performance court which directed of the con- Supreme (p. 297) Finley tract the Court said: “While represented parties causing that he both admitted appear have executed, contract to be does paid being a commission that he was been the sense no other clear that there was each of them. It is through parties agent that acted in the matter and both place, Finley price her on him. Larson fixed Mrs. after Adams, Adams, the offer to communicated accepted figure negotiations, her considerable any cannot see on basis. We was drawn contract thing Finley acted that shows in this record *11 appellant duty the way toward with his inconsistent anything her. is known Where or concealed parties agent and there is no acts for both the that proof misrepresentation, tending or to show falsehood party reason to all that either has is service such 1592.) Agency, (1 expect. on 3rd ed.—sec. Mechem agency that where the dual is settled well The law is may agent principal, the act for both to the disclosed (Aiple questioned agency Hemmelmann cannot be the Spelbrink, (Mo.) 14 Am. v.Co. Cas. al Estate Re parties 652). of the two do not interests the Where loyalty to the one is not a where breach conflict may parties.” agent duty an act for both the other Agency in 3 on J. the article C. S. author of Sec. general pp. that as a rule it 55 is a 54, states loyalty principal good his faith an breach subject agency with the exists, deal agent, the while profit to make a out of it for him- thereof so matter compensation lawful and, of his if he excess in self may compelled may trustee and as a be be held he does, profits principal acquired by for all to his account performance dealings bim whether of or in in such principal unless the con- duties, has of his violation knowing transaction the bene- ratified to or sented agent. profit had accrued to the accrue or would or fit application text, the “is rule,” continues of this “The principal did the fact that not affected dealings.” agents any injury by of the reason suffer page Daily, at 161 Ill. 379 T. Hair v. In James Co. principal to the full entitled 386 it is is said agent profit derived of whatever benefit profits principal and if of the his course business of principal were made in the course of business should have benefit.

In and directors of the instant case officers Wrigley principal knew that was the stock- managing holder and active officer of Cole Crain Herring other than and Della but, none of the other officers of the had concerning, knowledge information the contract of, or Crain had with the Com- pany concerning payments or made Refin- ing Company shortly to the until Cole Crain prior commencement this suit. by plaintiff

never authorized consent, behalf, to the execution he, of this contract. on behalf When Crain entered into its contract Refining Company, provisions with the he violated the contract with He Cole Crain authority acted without when he assented on behalf of *12 plaintiff Company to the contract of the Crain Refining Company. Wrigley with also concealed Company from the the fact Crain actually receiving annually was $18,000 for the same amount of elevator for which Cole paying plaintiff annually. Crain $12,000 agent Bernard E. was the of and acted for the Elevator and was authorized board directors to transact all the business of the plaintiff. specifically He was authorized to endorse deposit checks for to the elevator’s account and while the record that the discloses has received the all full amount due for services which it rendered Refining also shows that addition to the Refining Company aggre- cheeks issued gating payable $36,000 to the Cole Grain aggregating also received three checks $858.33 payable These three were en- checks by Wrigley dorsed and credited to the Cole Grain Com- pany. any explaining In the absence of evidence procedure should account proceeds of these checks, viz.: one February April dated 3, 1948for one $755.74, dated April 1948, for and one dated 25, 1948, for $15.59 $87 together respective with interest from these dates. 5% Wrigley’s Mr. connection with the Cole Grain was known to Wrigley’s plain knew of connection with the required Wrigley good tiff. The law to act in entire principals faith toward his and he could not use his position agent company any for either to obtain companies benefit for one of his which were, in rights manner, detrimental to the and interests of the company. appearing other Under facts in this rec ord the Elevator is entitled to recover from Margaret Wrigley, the defendants, B. executor of the Wrigley, Will of Bernard E. deceased and the Cole the sum of with interest as $858.33 above indicated and in addition the sum of with $3,000 computed July interest from 5% with 1946; $3,000 computed January interest from 14, 1947; $3,000 5% computed July with interest from 3, 1947 and the 5% computed further $3,000 sum of interest 5% January being respective these 8,1948, dates dates paid by these several were amounts Com pany placed by Wrigley to the credit of the Cole complaint charged money Wrig- ley received from and which he paid over to the Terminal Grain in- plaintiff. Wrigley tended for the did receive a check

96 by bnt $2,036.60 drawn Company not payable Grain to the Cole was Company. Wrigley of the on behalf did, place of the the credit payee, it to it and endorse Company. Wrigley also on behalf Terminal Grain $15,224.02 a check issued Grain Cole placed Com- of Terminal Grain the credit he which party a pany. not is The Terminal Grain sought against it and proceeding and no relief is this against seeking relief no is Refining Com- and the Terminal the pany any seeking party proceeding or is not relief. Refining to the all rendered

For services full received has the record shows charge payment no there is pay the rentals and failed to ever provisions charges annual of its

all it under the due part appear contracts. Nor does it placed the credit of of the amount proper or that not the Terminal Grain any portion of it was intended nothing in the record which there

While finding any amount received warrant a would retained from the personally the law is use, own him or converted his agent advantage gained profits an that all in the made and principal belong agency execution profit or advan such it does not matter whether and tage gained performance or of the of the the result be duty agent, fruit if it of the be violation of principal agent agency. liable to his An is also properly that come for all funds account if he does into agency, during agent course hands as his it re because is liable by Wrigley wrongfully diverted ceived funds wrongful knowledge diversion. of such *14 (1 agency, Ill. Practice, Law and title secs. 75 77.) and

THE COMMODITY CREDIT CORPORATION TRANSACTION complaint alleged during The as amended that the years Commodity Corpora- the 1949 and 1950 Credit quantities plaintiff’s grain tion stored of elevator payment and in for said issued its checks plaintiff payments for said $149,628.97; that all of plaintiff plaintiff were intended the but actually only alleged received It $59,173.49. was then "Wrigleywrongfully that in blank the endorsed several Commodity Corporation checks the issued Credit deposited were intended the and such bank checks to the account of the Cole Grain Com- pany or delivered the same the Terminal answer of admitted defendants that Commodity Corporation quantities large Credit stored grain elevator and admitted that cer- portions Commodity tain of checks from the received Corporation payable and Credit were de- livered to the and that certain portions of said cheeks were to the delivered Terminal Company. The answer denied, that however, payments wrongful such transfers or were and averred they payment money that made in were sums of actually owing due and Cole Grain the Terminal and denied that payments owing due from Corporation Commodity were Credit received plaintiff. retained

Upon hearing stipulated during it was that plaintiff operated years and 1950 1949 elevator as government a warehouse and that Corporation, government agency, entered into Credit storage, plain- agreements quantity an unknown elevator of tiff’s specified periods, specified these at and that rates, agreements were executed or either Herring behalf It Della M. on stipulated pursuant contracts these further shipped by large quantities were Com- plaintiff by freight modity col- grain the the arrival of said lect; acting paid freight, weigh- by Wrigley, *15 inspection belonging ing charges funds to the and by Company; checks were issued Grain that when Cole Corporation Commodity for the reimbursement Credit inspection weighing, freight, and these insurance, payable plaintiff and checks were to were re- made Herring Wrigley or M. en- ceived either Della who proceeds dorsed on behalf of the and the them placed were the credit of Grain and Cole Company. It was retained the Grain further storage Cole stipulated payment checks for Corporation that the in charges Commodity issued the Credit Herring by Wrigley M. who en- were received or Della they placed and were to the credit of the dorsed them stipulation Company. that then states Grain Cole proceeds storage payment in “the of the checks among George charges apportioned were W. Cole Company, East Terminal and Grain Grain by endorsing Company either de- Peoria Elevator and positing credit East checks to bank Peoria endorsing delivering or and by endorsing checks Terminal or delivering George and the checks credit W. retaining that and either credit distributing in full or Elevator some or all of it to East Peoria Company.”

Company Terminal Grain or period stipulated during It further be- ending July ginning July 1950 the Corporation Commodity sixteen issued checks Credit payable aggregating $123,545.- all

.99 totaling two 54; of these checks $18,654.02 were de- posited by Wrigley plaintiff; account of the remaining aggregating fourteen checks $104,891.52 by Wrigley Herring were endorsed Della or M. deposited credit of the Of paid plaintiff this amount Cole Grain paid $19,750.44 and the Terminal Grain $37,177.18. Of the total amount of $123,545.54received by Wrigley plaintiff Commodity Corporation, from the Credit

eventually received $38,404.46, Terminal Grain Company received and the $37,177.18 $47,963.90.

received stipulated period during It was further purchased from the ele- vator amount and that $43,604.37 the Cole paid Grain space rental its contract period during the sum of $20,481.44and the same Company paid Terminal Grain as rental contract $23,499.68. sum of stipulated May It was further that between 19, 1949, July Company paid 6, 1950, the Cole Grain one *16 eighty hundred behalf of the different items or accounts and on

plaintiff aggregating $181,044.50. These payments repaid by plain- or advancements were tiff to the Grain All the transactions companies by Wrigley. were handled of on behalf both stipulated was It further that between October 15,1947, and March 31,1950, the advanced plaintiff aggregating cash on eleven occasions repaid by plaintiff which was $21,750, amount between August 30,1949, 1,1950. December insist that was Counsel company rendered all of the services storage Commodity Corpo- furnished the to the Credit every in ration connection with this transaction; that Commodity Corporation issued check Credit plaintiff; Wrigley payable had of was order authority endorse them checks, to receive these plaintiff; place these credit of the them to the aggregated amount and of this checks plaintiff’s $123,545.54 leav- $38,404.46,

account was credited way ing the stipulation says its into which never found $85,141.08, which the hands of the but apportioned storage payment Termi- in nal and the receiving and the $37,177.18

Terminal Grain receiving $47,963.90. Counsel to recover contend, therefore, that is entitled proceeding in is con- this so far as this transaction together with interest cerned said sum of $85,141.08 thereon. position defendants, stated their coun- great duty is that

sel, owed as a to the Cole Company; as he owed the Elevator government obliged was not under its con- keep grain except storage day tract to in day compelled pay storage while other lessees were year portions though for a full even of the government got not used for weeks or months; that special pay regular a rate and did not contract year a $6,000 rate on a 100,000 bushel contract; that during pany month June 1950 Cole Grain Com-

only grain had 2,000 bushels of the Terminal Grain had not to exceed 28,600 part nothing bushels and of the month had storage. The contracts of these two firms, however, plus Commodity Corporation Credit period, during from 837,432 varied bushels to 956,594 bushels. then did do “What when sud- denly quantities great these of dumped were him?” in- *17 quires counsel, and this is their answer: “First of all, money paid he took of the Cole Grain and

101 freight inspection charges grain as these cars of plaintiff money arrived. The had neither or credit pay charges. with which to these Between 15, October paid Wrigley 1949, and March 31, 1950, ont of the fnnds of pay the Cole Grain to meet the roll plaintiff May of the $21,750and between Wrigley June 13, 1950, took funds of the Company amounting pay incoming to $181,044.50 to freight inspection charges. Why did he this? do early stages In the Wrigley of these transactions saw opportunity gaining plaintiff— of business for the it had no funds —it had no credit—but the defendant corporation had both. managing corpora-

“As the head sole of defendant plaintiff, right proper tion and also of the he it felt to loan funds of this defendant for the benefit possibility and this he did. There was no profit early stages in the of this transaction. judgment. thought right,

exercised his own He it was proper plain- fair and to make these advances thought repayment tiff and he the chance of from the Commodity good. Credit He was not thinking any profit corporation, for the defendant quantities only but Later as these continued, increased and it became evident that accept except could not storage space utilizing Terminal and the defend- corporation. space ant When he went out of free he frankly went to Terminal and asked it to release or part lease back a of its so that it quantities sup- grain being could take care of the plied by Corporation. Very naturally why could the Terminal see no reason solely should release the its contract arrangement by asked because it to. Some negotiation out; had to be worked and it resulted in an arrangement whereby Terminal had a chance to make *18 dependent space, profit on its lease-back Corporation Commodity length left time the grain in warehouse. Commodity quantities grain Credit of the

“As the necessary for Corporation roll it was in, continued to space part from the de- Wrigley back of the to take corporation. for it fair to fendant Was just compensation space give without to back Cole right help that the the Plaintiff? Or corporation on from the defendant lease-back should by negotiation worked out that had been the same basis similarity net amounts in the The with Terminal? these checks retained out of which Terminal and Cole paid the rate the conclusion that substantiates paid Terminal. as that was the same the lease-back corporation profit made a defendant It is true that the im- unreasonable or dishonest, was it on that deal but proper? Commodity Corporation

“Why Credit weren’t plaintiff’s deposited account? is checks very possibly speak but himself; cannot dead and large freight and had advanced it was because Cole Corporation charges inspection Credit illegal would have been which it proper hardly for such would seem It to advance. appear charges of the on the books every proves dime to received that the record legally charge; it could or which it was entitled which that amply proven loyalty Wrigley’s money large he advanced sums of corporation keep plain- defendant funds accept to enable it to Commod- tiff ity business profit and make a there- Credit corporation profit also made a That the defendant on. injury plaintiff.” no worked the transaction on special adopted by argument master This Company and Terminal who found had each surrendered to the Commodi- ty Corporation portions companies plain- elevator which these had leased of the payments tiff and that these to the Cole Grain Com- pany and the Terminal Grain were intended *19 companies to reimburse these for the of loss the use space plaintiff’s they of in elevator which were entitled provisions to use under the of their annual contracts plaintiff' nothing with the and that there was in the showing evidence that the distribution of the checks Commodity Corporation Credit was in not strict rights parties accordance with the action, of the to the trans- although the master stated that no evidence was offered to show the terms which either the Company Company Cole Grain or the Terminal Grain storage space plaintiff’s their surrendered leased elevator to the in order to enable it use to space Commodity such of the Corporation. Credit

With reference to the Products Corn Com- pany special transaction the master found that there nothing stipulation was in the evidence or which dis- part proceeds why any closed of the of that contract paid should have been to the Terminal Grain payments suggested but the fact were so made (1) that the Cole Grain found it to be neces- sary space to use elevator then under discharge lease to terminal Grain to its obli- gation under its contract; (2) agreement or that there was some with the Termi- Company authorizing space nal Grain such use of such by (3) which is not shown the evidence; or part proceeds used a of the discharge obligation such contract some other Company. simply Terminal Grain These are surmises. absolutely nothing The fact that there is in the evi- why any part proceeds dence which shows Corporation money Commodity received from Credit paid to either Grain should have been Cole Terminal or Grain stipulated parties from time to time was indebted to the made the Cole Grain

advances stipulation such indebted that all but the sup paid. opinion In the record does ness port our Commodity finding that the checks drawn Corporation delivered Credit placed him the credit of the reim

and Terminal were intended to space plain companies these use of burse loss of excep record that with the tiff’s elevator. The shows ample space days during a few tion of there was period proceeding, plain involved in this available in tiff’s elevator to store untouched the leased leave Company and to Terminal *20 Wrigley they if exceeded were, Even authority delivering endorsing them to these

his and very companies he when it is shown that did this and proving legality thing trans the the burden require action is defendants. To meet this cast appellees Wrig fact counsel “The ment state: payable ley checks made endorsed certain deposited bank to credit them in the the corporation the or endorsed and delivered defendant awas mere mat them to the Terminal Grain proceeds the distribution the form, ter of since money received all to which it was the thereof, agree. justly legally or entitled.” doWe seriously just contended that was How can it be to of form for who authorized matter Company, principal, Elevator his receive checks for place princi- them to the credit his them and endorse pal, receive aggregating payable

fourteen checks his $104,891.52, principal, endorse those checks cause them not to deposited principal, payee be credit of his corporation, but therein, to the defendant Cole Grain Company? proceeds any part

If the of these checks or belonged thereof were intended for either or Cole Grain or the Terminal Grain placed Wrigley could have them to the credit of the Elevator as he was authorized to do and discharge then drawn checks on account and thus obligation valid due from the to either or Cole Grain Terminal Grain complete there would then have been a full record reflecting equity the transaction. It is true that looks to the substance and not form of a transaction but just what in connection did with the transac proceeding stipulated. tions involved in this Of presumption course there no that he violated the reposed by trust and confidence in the in him the but light per of the facts revealed record his representative sonal and the must principal, be held to account his might It further be observed that record Herring discloses that Della ants as a witness. was called the defend complete charge had had She bookkeeping both and period Company during covered transactions herein referred to but she was not asked any questions any light upon which threw the material presented No issues this record. one connected with theory Terminal Grain testified. The ad *21 support vanced counsel defendants of their supported by is the evidence contentions not found in are clear and record. facts not controverted. Wrigley in connection we said about Mr. with What ap- Refining Company Products transaction Corn

106 plies equally with the to Ms transaction personally did not He transaction. proceeds any nor he convert the the funds did retain the au- He did exceed own use. check to his principal Elevator thority him his vested proceeds checks, of fourteen He diverted in turn to the $104,891.52, paid plaintiff leaving with in- $85,141.08 $19,750.44 should account thereon for which defendants terest to the County is Peoria circuit court of

The decree court is that and this cause remanded reversed in favor enter a decree directions to against the views consistent with the defendants expressed herein. and remanded with directions.

Reversed concur. SPIVEY, JJ., McNEAL Rehearing.

On Petition petition rehearing suggested appellees’ In agent of that E. inasmuch as Bernard was and was author- and acted for the Elevator company the ized transact the of this court business erroneously authority he did have concluded on of the Elevator to consent behalf provisions of the Cole Grain contract with Refining Company. urged Products It is also the Corn requiring the and the Estate account storage charge for the difference in which collected from Grain and Company paid amount which permits the court

to the Elevator the Eleva- charges to collect tor in excess of its legal tariff.

Mr. authorized transact busi Company for the author ness Elevator he was not but Company a ized to lease substantial Cole Grain storage space legal amount in the Elevator for acting Company tariff and then for the Cole Grain space Company a lease same higher legal substantial amount than the tariff. The Company fact a that as result the Elevator thereof storage charges pub will now receive in excess of its lished tariff is not matter either Company personal representative Grain Wrigley or the complain. can

Estate permit Company It also stated Elevator Commodity Corporation to collect from Credit space for the others use of under lease to Terminal Company space for the use of under lease permitting Cole Grain will the Ele- result companies vator to collect from two space. same then Counsel “If continues: East Peoria storage space Elevator used which was under lease to Cole Grain or Terminal Grain Com- pany, permission either or without with, of such lessees, then such lessee is entitled be reimbursed arrangement in accordance with its with the Elevator quantum on a meruit basis and it therefore duty became the to reimburse Cole Grain and Terminal Grain for the use space.” of such These conclusions are based assumption used leased the to Termi- nal adhere to our and to We holding evidence this record not warrant does these conclusions.

Rehearing denied. SPIVEY, JJ., concur.

McNEAL and