161 N.E. 62 | Ill. | 1928
The Equitable Trust Company of Chicago obtained a judgment in the circuit court of Cook county in an action of assumpsit for $1160 against L.R. Taylor, who appealed to the Appellate Court, where the judgment was reversed, and by writ ofcertiorari issued upon the petition of the plaintiff the record has been brought before us for review.
The action was originally begun against J.P. O'Brien, Albert W. Swan and L.R. Taylor, trustees for William Goyette, and the declaration filed consisted of the common counts. The action was dismissed as to O'Brien and Swan and an amended declaration was filed against Taylor alone, individually, consisting of two counts, the first alleging that Taylor, O'Brien and Swan were appointed trustees for Goyette for the purpose of carrying on his business and paying his debts; that the declaration of trust gave them power to sign his name to any promissory note, draft or other paper but without power to Taylor alone to bind the trust estate by his contracts; that on June 24, 1922, Taylor alone, as trustee, executed a promissory note for $1000, payable to the Equitable Trust Company, and in so doing exceeded his authority as trustee and became personally liable on the note; and the second count being the consolidated common counts. To this declaration the defendant filed three pleas: The first, the general issue; the second, a denial of the execution of the note; and the third, that under *44 the terms of the trust the defendant was not to be personally bound for carrying out its provisions. An additional count was filed alleging that Taylor executed the note describing himself as William Goyette, per L.R. Taylor, trustee, to which the defendant filed the general issue, a plea denying the execution of the note, and a third plea alleging that the defendant executed the note under a provision of the declaration of trust, of which plaintiff had full notice, that defendant was not to be personally liable thereon. The cause was heard by the court. Errors were assigned in the Appellate Court on the action of the trial court in admitting evidence, in holding and refusing propositions of law, and on the sufficiency of the pleadings and evidence to support the judgment.
The facts are not in dispute. The only witnesses were Taylor, the defendant, and William A. Nichol, the cashier of the plaintiff. On May 4, 1922, William Goyette assigned all his property to J. P. O'Brien, Albert W. Swan and L.R. Taylor by an instrument which recited that Goyette owed debts to divers persons he was unable to pay, that he was desirous of providing for the payment of them by an assignment of all his property, and in consideration thereof conveyed all his property of every kind to O'Brien, Swan and Taylor, to be held in trust upon condition that Goyette was to complete all his contracts, all checks should be signed by him and countersigned by Gill L. Taylor, he was to receive a salary of $55 a week and to continue his present business, but all contracts were to be approved by the trustees; that he was personally to attend to the collection of all accounts covered by the agreement and deliver the proceeds to the trustees. The creditors were to get a dividend of ten per cent under certain specified conditions. The trustees were to keep on hand a fund to be used in emergencies and were to have charge of the pay-roll and business, but it was expressly understood and agreed that they should in no way assume or be obligated personally in carrying out any *45 provision of the agreement. Goyette agreed to assign all his contracts to the trustees, and the trust was to continue for a period of one year unless canceled by mutual agreement, with a provision that the agreement might be extended under certain terms and conditions. It was further provided that the trustees should take possession of the property assigned and as soon as conveniently possible dispose of it, convert it into money and make payment to creditors. The following was the fourth paragraph: "And the said party of the first part [Goyette] does hereby authorize the said parties of the second part to sign the name of the said party of the first part to any check, draft, promissory note, or other instrument in writing, which is payable to the order of the said party of the first part, or to sign the name of the party of the first part to any instrument in writing whenever it shall be necessary so to do to carry into effect the object, design and purpose of this trust." The agreement was executed by O'Brien, Swan, Taylor and Goyette. On June 24, 1922, Taylor, who was a depositor of the plaintiff in error, applied to the cashier for a loan of $1000 and presented to him a copy of the trust agreement, on the strength of which the loan was made, for which Taylor executed a promissory note for $1000, payable on demand to the Equitable Trust Company of Chicago, with interest at the rate of six per cent per annum, which he signed, "William Goyette, per L.R. Taylor, trustee." The money was credited to "William Goyette, per L.R. Taylor, trustee," and all checks on that account bore that signature. All of the money was drawn out by checks so drawn by Taylor and used by him.
The instrument which is the foundation of the plaintiff's claim is an ordinary promissory note purporting to be executed by William Goyette, per L.R. Taylor, trustee. It does not purport to make the trust estate liable to the plaintiff and the declaration does not claim any such liability exists. The note purports to be the note of Goyette, and the *46
alleged liability of the plaintiff on it is based on the allegation of the declaration that in executing the note alone Taylor exceeded his authority as trustee and was personally liable. The plaintiff in error does not place this liability on an implied warranty of Taylor of his authority to execute the note in the name of Goyette, but upon the ground that the trustee has the legal title and has no principal and is personally liable on his contracts when they concern the trust estate. A trustee cannot create a lien on the trust estate, even by his contract, without express authority given by the instrument creating the trust. (Johnson v. Leman,
The judgment of the Appellate Court is affirmed.
Judgment affirmed. *48