222 Ill. 265 | Ill. | 1906
delivered the opinion of the court:
From the evidence it appears conclusively that the eight hundred and forty-five shares of stock in controversy came into appellant’s possession at the time of the Hein deal; that he held the same merely in trust for the purpose of securing the payment of the two notes, aggregating $6000, given by appellee to Mrs. Hein in payment for the stock and that the stock was treated by both parties as the property of appellee in all of the transactions between them until their disagreement, in 1900. Appellant’s evidence in this case consisted chiefly of the evidence taken on the trial of the case of Leigh v. Laughlin, supra, and therefore the facts here are the same as relied on in that case for the purpose of establishing the fact that appellant had an interest in the stock involved in that suit. In that case this court said, in passing upon such facts (p. 199) : “There was no evidence of any definite statement or admission that there was such a contract or interest as claimed by the defendant. The parties were intimate friends, and the complainant said that it' had always been his doctrine that they should divide every dollar they made as a result of any transaction, and he also ihdulged in many extravagant expressions of personal regard for the defendant; but all such statements and expressions were clearly insufficient to establish an agreement that the defendant was to have one-half of the shares of stock of the brake-beam company. We do not think that the contract alleged by defendant was proved, and we agree in the conclusion reached by the Appellate Court.” From a careful examination of the evidence in this case we are unable to see that the appellant has made any stronger or more conclusive case as to the ownership of this stock than he did in that case. While this stock was not there involved, the right to retain it is based by appellant upon the same facts proved by him in that case, and if the facts proved were insufficient in that case to sustain his contention, nothing in this record in any way justifies a change in the decision arrived at in that case.
As to the necessity of making Mrs. Hein a party to this suit, it is not claimed that the notes held by her were not paid by appellee or that she has any interest in this suit. It is merely insisted in support of appellant’s second contention, that appellee’s proof was not sufficient to justify appellant in surrendering the stock. Appellant did not base his refusal to surrender the stock on the ground the Hein notes had not been paid, but on the ground he had an interest in the stock. The possession of the notes in controversy by the appellee was prima facie evidence of their payment, (Cassem v. Heustis, 201 Ill. 208,) and appellant’s contention that Mrs. Hein should have been máde a party to the suit is without force.
As to the third contention, the suit of Leigh v. Laughlin was commenced a number of months prior to the payment of the notes in question. Appellee had no right to the possession of and was not entitled to receive the stock until the notes were paid, and the question of the ownership of said stock therefore could not have been, and was not, involved in that suit. Upon the refusal of appellant to surrender said stock to appellee, appellee made an effort to have appellant stipulate that the controversy as to this stock be disposed of in the case then pending in the circuit court of Cook county, but appellant declined to so stipulate. The stock here in controversy was not involved in the case heretofore disposed of by this court, and the pendency of that suit was not a bar to this suit.
As to the last point, it is provided by section 39 of chapter 22 of the Revised Statutes (Hurd’s Stat. 1903, p. 229,) that “the court may, upon default, or upon issue being joined, refer the cause to a master in chancery, or special commissioner, to take and report evidence, with or without his conclusions thereuponand section 6 of chapter 90 (p. 1229) provides, among other things, that it shall be the duty of masters in chancery to “perform all other duties which, according to the laws of .this State and the practice of courts of chancery, appertain to the office.” It does not follow that because the chancellor approved the conclusion of the master and entered a decree in conformity therewith, that the master exercised judicial powers or that appellant was deprived of a hearing before the chancellor. The record shows that objections were filed to the master’s report, • and, when overruled, that exceptions were filed and argued before the chancellor. It was not error to refer this case to the master to take the evidence and report his conclusions. Harding v. Harding, 180 Ill. 481.
There appearing to be no error in this record which requires a reversal of the decree entered in the lower court, the judgment of the Appellate Court affirming the decree of that court will be affirmed. Judgment affirmed.