176 Ill. 34 | Ill. | 1898
delivered the opinion of the court:
The appellant, in support of its alleged several errors, charges the assignee with fraud and mismanagement. We have read the voluminous evidence carefully and do not find the charges sustained. Errors of judgment, and mistakes, have doubtless occurred, and it may be that other persons might have managed the affairs of the insolvents to better advantage, for the assignee had never had any experience in business'of the kind carried on by the insolvents, but we find no sufficient evidence in the record to sustain this charge against him. The original inventory of stock on hand footed up over §60,000, part of which, however, was afterwards turned over, by order of the court, to other parties. This stock was stored on three floors and in the basement of a large three-story building and in several other basements and sheds. It had accumulated for several years, and a large portion of it was in bad order. A large number of articles were stored “knocked down,”—that is, in parts, not set up complete, and the different parts were stored in various places and on different floors, some in different buildings. In taking the inventory the different articles were not all handled, and no effort was made to ascertain whether all the articles that were “knocked down” and inventoried as complete were really complete in all their parts. In some lines, notably the harness department, the inventory was taken from tags on the outside of boxes and packages, without examining the contents. Appellee contends that in all these cases the inventory was incorrect, and when they put together the “knocked down” articles and opened the boxes preparatory to a sale many pieces were found to be missing and some of the boxes which had been inventoried were empty. Some of the parts were inventoried separately when they had already been counted in the complete vehicle or article. The assignee was compelled, by the circumstances, to employ the servants of his assignors, as they were the only persons familiar with the stock and the books and accounts. The books had not been balanced for a long time and were over §30,000 out of balance. The assignors had paid large salaries to some of their emplojmes, and they would not work for the assignee for any less.
Appellant seeks to charge appellee with what is called a shortage in his accounts of the articles sold. This shortage was obtained by taking the list of articles in the inventory and comparing it with those sold, as reported by the assignee. As has already been seen, the inventory was not reliable, and any statement based on such a calculation would have been an incorrect one, especially as it seems that part oí the statement was not made from definite data, but was estimated and drawn from other sources than the inventory and the sales list. We think the Appellate Court was right in disallowing all charges against the assignee based on the alleged discrepancy between the inventory and the sales list. The assignee declared on oath that he had sold all the goods that came to his hands, and had accounted for them as either sold or on hand, and his statement is uncontradicted by competent evidence.
Appellant alleges that certain auction ' sales were fraudulently made, especially the final or closing-out sale, and insists that appellee should be charged with the difference between what the sales actually realized and the inventory appraisement. The closing-out sale seems to have been perfectly fair and thoroughly advertised, and there is no evidence to the contrary. We find no sufficient evidence to impeach any of the auction sales. Mere inadequacy of price, where it is not gross, is not sufficient.
It is claimed that appellee employed too many persons in his service and paid them unreasonable salaries. The county court charged him with part of the salary paid Henning and part of that paid Stewart. The Appellate Court held these proper credits for the assignee. We concur in this view. While the salaries of some of the men were high, still, in view of the nature of the business and their knowledge of it, their services were necessary for appellee to have. We think, also, it was proper to allow Stewart’s salary up to the time of making the supplemental report.
Complaint is made that the amount paid Mills & Keeler for professional services was excessive, and that the charge should not be allowed for the further reason that, as attorneys, they represented interests antagonistic to the assignee. This contention is not sustained. As to the value of their services appellant offered no evidence, and the appellee testified that it was a reasonable amount. The county court disallowed part of it, and the Appellate Court restored the whole amount of fees as a credit. The credit was proper under the evidence.
Complaint is also made of the commission allowed the auctioneer. lío evidence was offered by appellant on the subject, and neither the county court nor the Appellate Court has reduced the amount paid on that ground. It is conceded, however, by appellee that the auctioneer has been over-paid, and this over-payment should be charged to-appellee. '
It is further contended that the appellee-is chargeable with the amount of duty he paid on the wheels he took out of bond. There were nearly two hundred bicycles in bond at the custom house in Peoria which had been .shipped to the insolvents by Bonnick & Co., of England, and which had been partly paid for. There is no merit in this contention. The wheels could not be made available by the assignee without paying the duty on them. There was no error in allowing this credit. That the wheels did not realize all they cost, as contended by the appellant, was unfortunate, but we cannot say that the assignee, in the exercise of his best judgment in the matter, acted in such a way as to make him chargeable with the resultant loss, if any there was.
As to the separate items of interest charged against the assignee by the county court, that is not before us on this appeal. The principles upon which a trustee should be charged with profits or interest arising from the lending or use by him of the trust funds for his personal gain are well settled and have been frequently stated by this court. Ogden v. Larrabee, 571 Ill. 389; Asay v. Allen, 124 id. 391;. Lehman v. Rothbarth, 159 id. 270.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
