| Ill. | May 19, 1884
delivered the opinion of the Court:
We think the Superior Court of the county of Cook erred in refusing instruction No. 1, asked by appellant, and in giving instruction No. 2, asked by the appellee, and for that cause the Appellate Court erred in affirming the judgment.
There is some discussion as to the legal effect of the supposed sale of these securities by Bisbee to the bank, and to Loomis. Without determining what effect is to be attributed to the proceedings connected with that supposed sale, it is clear that either the sale was entirely inoperative, and produced no change in the status of these securities; or the sale passed the absolute ownership of these securities to «the bank and Loomis, as joint owners, freed from "all trusts, to^be used by the purchasers for their own profit, without reference to the debts and liabilities for which Bisbee had before that held them, the purchasers taking the same rights which strangers purchasing would have taken had they bid and paid the $1500, and received a written transfer of the same to them from Bisbee; or the sale vested such ownership in the bank and Loomis jointly, as trustees, to realize the most that might be had for such securities by these trustees, by the exercise of reasonable judgment, care and diligence to that end, for the benefit, first, of Loomis, in relieving him from his liabilities as guarantor, or otherwise, in relation to the three debts for which he was personally bound; second, for the benefit of the bank, in procuring the payment of the $2420 note, for which Loomis was not personally liable; and third, for the benefit of whomsoever might be entitled to the surplus, if any; and the proofs tend to show that in such case this surplus, if any had been realized, would have belonged, in equity, one-half to the bank, and one-half to Cozzens and Ten Broeke, or one of them.
On the first hypothesis these securities remained, after the sale, vested in Bisbee, as trustee, with full power of sale, and no consent of the bank or of Lcewenthal was at all necessary to the sale if Bisbee thought best to sell to the railroad companies, and neither Lcewenthal nor the bank was under any obligations or duty to assume any responsibility in the matter, and neither was bound to give consent, even if good judgment required the sale to be made to the railroad companies on the terms offered.
On the second hypothesis, the bank, being an absolute joint owner with Loomis, had the absolute right to refuse to sell its interest, or to sell the same, as it might choose, and the other joint owner had no rights which could lawfully limit the exercise of that choice.
On the third and last hypothesis, the bank and Loomis being joint trustees, and Loomis being one of the beneficiaries, he had a right to demand of the bank fidelity in the exercise of the trust, and so had Cozzens and TenBroeke, who were interested with the bank in the surplus which might remain after relieving Loomis from his personal liability on the first three debts, and after paying the $2420 note held by the bank. The proof tends to show that when the offer of $11,000 was made for these securities it was generally thought that the decision of the Supreme Court of the United States would declare the validity of the same, and there is not one word of proof tending to show that Lcewenthal, at the time when he refused to give the consent of the bank to the proposed sale for $11,000, had not good reason to believe, or did not believe, that a larger amount could and ought to be realized from the sale. If, in good faith, as a trustee, he exercised his honest judgment in so refusing, and acted, as he supposed, for the best interests of all concerned,—unless that judgment was grossly erroneous, with the lights he had,—he surely can not be charged with wronging any one by acting upon his judgment. The mere fact that it turned out after-wards that he was mistaken, does not charge him with a wrong done to any one.
We think the proofs do not tend to support the exact hypothesis assumed in the second instruction given at request of appellee. That hypothesis varies from the third hypothesis, supra, in this only, that it would give the entire surplus to Cozzens, after fulfilling the supposed trusts. But even if the proofs tended to support that hypothesis, the reasoning, supra, as to the third hypothesis applies thereto with more cogency. Upon the hypothesis stated in the instruction, had the decision of the Supreme Court affirmed the validity of the patent, and of Cozzens’ claim against the railroad companies, and had Lcewenthal consented to the sale for $11,000, Cozzens, who also was a mere surety, might, for aught shown in these proofs, have justly complained that his securities had been wantonly and foolishly sacrificed, and in such ease the bank might (if a trustee be a guarantor of his own wisdom,) have well been called to an account by Cozzens for consenting to a sale of these securities for $11,000.
The judgment of the Appellate Court is therefore reversed, and the cause remanded, that the judgment of the Superior Court may be reversed, and a new trial had.
Judgment reversed.