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he did not testify to sufficient facts on which to base an account. The evidence shows that money was paid out for rent, for a porter, a prescription clerk, and various other expenses, none of which went into the account. No books were kept during the time defendant in error was in charge, and no books were produced for the period after he left the partnership. There are findings in the decree that plaintiffs in error failed to produce books after they were ordered to do so, and that they did everything in their power to defeat an accounting. The fact that plaintiffs in error did what they could to obstruct an accounting did not relieve defendant in error of the burden of proving his case by the preponderance of the evidence. He did not prove his case by the preponderance of the evidence by merely showing that during the period he was in charge $2,000 profit was made upon the sale of whisky. The account is based entirely upon that one item. It cannot reasonably be contended that a partner who files a bill for an accounting has proved his case by merely proving a profit on one article of merchandise sold, without any evidence as to profits and losses on other items sold or the payment of the necessary expenses of the business. The evidence fails to prove the allegations of the bill; it does not form any basis from which an account can be stated; it does not establish any liability for any amount against plaintiffs in error; and the chancellor was in error in decreeing that defendant in error was entitled to $1,000 on the sale of liquor.

The decree of the superior court and the judgment of the Appellate Court will be reversed, and the cause remanded for a new hearing.

PER CURIAM. The foregoing opinion reported by Mr. Commissioner PARTLOW is hereby adopted as the opinion of the court, and judgment is rendered in accordance therewith.

Reversed and remanded.

(329 111. 514)

of

PEOPLE v. LEGGIO. (No. 18658.) Supreme Court of Illinois. April 21, 1928. 1. Criminal law 1043(3)-Admission court reporter's testimony from stenographic notes as to interrogation of defendant by assistant state's attorney held not error.

In prosecution for larceny, admission of testimony of court reporter, who read from stenographic notes, as to what happened in state's attorney's office when defendant was in

terrogated by assistant state's attorney in presence of deputy sheriff shortly after arrest, but almost two and one-half years after alleged theft had been committed, held not error, where

there was no claim in trial court that defendant had not been advised of his rights, nor that statements were made involuntarily or under any promise or hope of immunity.

2. Larceny 15(1)—Garage employee held not bailee, and theft of automobile constituted common-law larceny, and not larceny as bailee.

Proof that employee of garage stole automobile from garage held not to constitute variance from indictment at common law for larceny, on ground that proof showed larceny as bailee, since car, while in garage, was in possession of garage owner, and defendant merely had property in his custody, so that there was no relationship of bailor and bailee applicable to him.

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FARMER, J. An indictment was returned by a grand jury at the October term, 1927, of the circuit court of Winnebago county, charging Andrew Leggio (hereafter referred to as defendant) with the larceny on December 8, 1924, in the city of Rockford, of one Stephens sedan automobile, the property of Del Rhodes. A trial was had at the same term of court before a jury, and a verdict was rendered finding defendant guilty as charged in the indict

ment. Motions for new trial and in arrest were overruled, and the court entered judgment upon the verdict, sentencing defendant

(161 N.E.)

to the Pontiac Reformatory for a period of from one to ten years. The case has been brought here by writ of error to review the judgment.

There was no evidence presented on the trial in behalf of the defendant. The state's evidence consisted of the testimony of Sidney Warshawsky, the owner of the public garage in Rockford where the automobile was in storage at the time of the theft; of a court reporter who took stenographic notes of questions, and the answers thereto, as propounded to defendant by an assistant State's attorney in the latter's office in Winnebago county on or about May 6, 1927, which was shortly after defendant had been brought back to Rockford after being arrested in Houston, Tex.; and of the deputy sheriff who arrested the defendant. The proof disclosed the following material facts: Warshawsky purchased a public garage in Rockford during 1923, which he operated under the name of Warshawsky Auto Supply and Midway Garage. He carried on the usual garage business, doing repair work, selling gas and oil, and taking care of day and night storage of cars as well as storage by the week and month. Del Rhodes, the proprietor of the Blackhawk Hotel, had kept his Stephens sedan automobile at the Warshawsky garage for about 6 or 7 months, driving it in and taking it out from time to time whenever he or his son cared to do so. The account for the storage of the car, which was on the books of the garage in the name of Rhodes, was paid by him, and the car at the time was worth $600 or $700.

Defendant was employed at the garage when Warshawsky bought the business, and his services as night man were continued. His duties were to take care of the storage of cars, do repair work, sell gasoline, etc. He left the garage during the night of December 7, 1924, and was not again seen in Rockford until returned there by a deputy sheriff in May, 1927. The Stephens sedan was also missing from the garage after defendant left. From the admissions made by defendant in 1927, as testified to by the court reporter from her stenographic notes, it appears that he was then 21 years of age; that he left the garage during the early hours of December 8, 1924, taking with him the Stephens sedan, which he drove to Chicago; that from there he drove it to New Orleans, where he sold it; that he then went on to Houston, Tex., where he stayed until he was arrested, during the latter part of April or early part of May, 1927.

The brief of defendant states that a short time prior to the time of the trial the owner of the stolen car removed to the state of Indiana, and his testimony was not available on the trial. Counsel for defendant volunteered the statement that, after his arrest and return to Rockford, he paid or settled for the stolen car, and further state the ownership

of the car alleged to have been stolen was not properly proven.

The errors assigned are, that the court erred (1) in the admission of improper testimony on behalf of the state; (2) in refusing to grant a new trial because of a variance between the indictment and proof, in that the indictment was a common law for larceny and the proof showed larceny as bailee; and (3) in giving the fourth, fifth, and sixth instructions for the state.

[1] The testimony of the court reporter, as disclosed by the abstract, was composed entirely of what happened in the office of the state's attorney of Winnebago county on May 6, 1927, which was almost 2 years after the alleged theft had been committed, but just a short time after defendant had been arrested and brought back to Rockford. The assistant state's attorney interrogated defendant at that time in the presence of a deputy sheriff. It is contended that no showing was made that the witness could not remember what took place at the time, and hence there was no occasion for her to read from her stenographic notes; that the examination was conducted as if to impeach a witness who had already testified; that many questions were leading and suggestive; that defendant had not been advised of his rights before making any of the alleged admissions, and his constitutional rights had therefore been infringed upon. While testimony of the alleged admissions might have been introduced without any reference to the stenographic notes, yet, if the notes are authentic and as originally taken, there would, in any case, be less likelihood of error in the evidence given by the witness. There was no claim made in the trial court that defendant had not been advised of his rights or did not know what his rights were, neither was there any objection to the introduction of the testimony on the ground that the statements were made involuntarily or under any promise or hope of immunity. In the absence of any such showing, defendant's rights could not have been seriously prejudiced.

[2] There was no variance between the indictment and proof. The facts show defendant was a night employee at the garage, and it was Warshawsky, the proprietor, who had the arrangement with, and who received the pay from, Rhodes for the storage of the latter's car. The car, while in the garage, was in the possession of the garage owner, and the defendant, when on duty at night as an employee, merely had the property in his care or custody; hence there could have been no relationship of bailor and bailee applicable to defendant.

[3] Objection is made to the fourth, fifth, and sixth instructions given on behalf of the people. It is unnecessary to set out the instructions in detail. The fifth instruction was one attempting to more clearly define the

term "reasonable doubt." It was not a long instruction, nor did it contain language as objectionable as some instructions upon the same subject, and which have been condemned by this court. However, there was no need of such an instruction being given in this case or any other case. This court has well said in People v. Johnson, 317 Ill. 430, 148 N. E. 255: "It is difficult to find a plainer or more explicit definition of reasonable doubt than the words themselves, and efforts to do so usually result merely in an elaboration of language without any corresponding amplification of the idea."

[4] The fourth instruction is said to assume the ownership of the car to have been in Del Rhodes, and the sixth instruction is complained of chiefly because it assumes to place upon defendant the burden of proving, beyond

a reasonable doubt, the ownership of the automobile stolen. We do not think either instruction subject to the objections made. The proof offered was that the car had been in storage at the garage for some 6 or 7 months prior to its theft; that it was brought into the garage from time to time and driven out again by either Rhodes or his son, and the bill for storage on the car was paid for by Rhodes. There was no evidence contradicting Rhodes' right of possession or ownership of the automobile. The exact state of the title of stolen property is of no particular concern to the thief, except that it must have been in some one else; hence evidence of possession is ordinarily sufficient proof of ownership. 17 R. C. L. par. 72, p. 67. Possession, with general acts of ownership, is sufficient to warrant a verdict, where there is no evidence presented questioning the right of property. Barnes v. People, 18 Ill. 52, 65 Am. Dec. 699. In Quinn v. People, 123 Ill. 333, 15 N. E. 46, it was held that the mere taker of an estray animal is a sufficient owner from whom the animal could be stolen.

The record contains no errors of a serious nature whereby the rights of defendant have been affected, and the judgment of the trial court will therefore be affirmed. Judgment affirmed.

(330 Ill. 42)

EQUITABLE TRUST CO. OF CHICAGO v. TAYLOR. (No. 18499.)

Supreme Court of Illinois. April 21, 1928.

1. Assignments for benefit of creditors 220 -Trustee cannot create lien on trust estate without express authority.

A trustee under assignment for benefit of creditors cannot create a lien on the trust estate even by his contract without express authority given by the instrument creating the trust.

2. Assignments for benefit of creditors —253— Assignee for creditors is personally liable on his contracts for estate, in absence of express contrary agreement.

An assignee for benefit of creditors, though he continues the insolvent's business by order of the court, is personally liable on contracts made by him for the estate in the absence of express contrary agreement, and this personal liability does not depend on whether the charge would be a proper one against the fund or estate or whether he should be allowed reimbursement for the money paid.

3. Assignments for benefit of creditors ~262 -Trustee is personally liable for his or his agent's torts in performing duties.

A trustee, under assignment for benefit of creditors, is personally liable for torts committed by him or by his agents or servants in the performance of his duties, but he is not liable in his representative capacity, as the law will not allow trust property to be impaired through trustee's negligence or permit him to create any new or additional liabilities against trust property.

4. Trusts 210-Trustee, making contract in own name for benefit of trust estate, is personally liable thereon.

If a trustee makes a contract in his own name for the benefit of the trust estate, he is liable on it personally and not in his representative capacity, whether he describes himself as trustee or not.

5. Trusts 250-Action at law is not maintainable against trustee in his representative capacity.

An action against a trustee in his representative capacity is unknown to a court of law, for the law takes no cognizance of trust relation.

6. Assignments for benefit of creditors ~253 -Trustee held not personally liable on note in assignor's name per himself as trustee on theory that he exceeded his authority in executing it, where trust agreement was shown to lender.

Where one of three trustees under assignment for benefit of creditors authorizing trustees to sign assignor's name to notes or other instruments necessary to carry out purpose of trust, and providing that trustees should not be personally obligated in carrying out agreement, borrowed money from trust company on note signed in name of his assignor, per himself as trustee, he was not liable on the note on theory that he had exceeded his authority in signing it alone; trust agreement having been submitted to trust company. 7. Principal and agent 148(4)-Neither principal nor agent is liable for agent's contracts in excess of authority with party having knowledge of facts.

Where one purports to act as agent of another in making contract, an implication may arise of an assertion by the other party of agent's authority to execute contract, but, where contract is made in good faith, and both parties are fully cognizant of fact as to agent's authority, principal is not liable because agent

(161 N.E.)

had no lawful authority to make contract, and agent cannot be held liable either ex contractu or ex delicto.

253

8. Assignments for benefit of creditors -Lender's erroneous assumption that trust agreement made trustee or trust estate liable on note executed by trustee held a legal mistake.

Where one of three trustees under assignment for benefit of creditors authorizing trustees to sign assignor's name to notes or other instruments necessary to carry out purpose of trust, and providing that trustees should not be personally obligated in carrying out agreement, borrowed money from trust company on note signed in name of his assignor, per himself as trustee, held, that trust company's erroneous assumption that note was binding on trustee or on trust estate was a legal mistake, and trustee could not be held liable.

Error to the Second Branch, Appellate Court, First District, on appeal from Circuit Court, Cook County; D. M. Brothers, Judge.

Action by the Equitable Trust Company of Chicago against L. R. Taylor. Judgment for plaintiff was reversed by the Appellate Court (244 Ill. App. 345), and plaintiff brings certiorari. Affirmed.

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 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 refusof the pleadings and evidence to support the ing propositions of law, and on the sufficiency

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

Winston, Strawn & Shaw, of Chicago (John D. Black and Harold A. Smith, both of Chicago, of counsel), for plaintiff in error. D. W. Parker, of Chicago, for defendant in by an assignment of all his property, and in

error.

DUNN, J. The Equitable Trust Company of Chicago obtained a judgment in the eircuit court of Cook county in an action of assumpsit for $1,160 against L. R. Taylor, who appealed to the Appellate Court (244 Ill. App. 345), where the judgment was reversed, and by writ of certiorari 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 $1,000, 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

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 10 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 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 [Goy. ette] does hereby authorize the said parties

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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 $1,000, 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 $1,000, payable on demand to the Equitable Trust Company of Chicago, with interest at the rate of 6 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.

[1, 2] 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 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, 131 Ill. 609, 23 N. E. 435, 7 L. R. A. 656, 19 Am. St. Rep. 63. An assignee for the benefit of creditors, though he continues the insolvent's business by order of the court, is personally liable on contracts made by him for the estate, in the absence of express contrary agreement, and this personal liability does not depend upon whether the charge would be a proper one against the fund or estate or whether he should be allowed reimbursement for the money paid. Bradner Smith & Co. v. Williams, 178 Ill. 420, 53 N. E. 358.

[3-5] A trustee is personally liable for torts committed by him or by his agents or servants in the performance of his duties, but he is not liable in his representative capacity, as the law will not allow trust property to be

tee or permit him to create any new or addi tional liabilities against the trust property. The trust estate can make no contract and commit no tort, and, if a trustee binds himself for the benefit of the trust estate, the contract is his personal contract. Though he describes himself as trustee, he is personally liable for its breach, and a personal judgment against him. An action against a trustee in is the only judgment which can be rendered his representative capacity is unknown to a court of law, for the law takes no cognizance of the trust relation. Wahl v. Schmidt, 307 Ill. 331, 138 N. E. 604. If a trustee makes a contract in his own name for the benefit of the trust estate, he is liable on it personally and not in his representative capacity, whether he describes himself as trustee or not.

[6-8] In this case, however, Taylor did not purport to bind himself for the repayment of the money, either personally or out of the trust fund. He applied for the loan, and produced the instrument by which he and his two associates were made trustees. No deceit was practiced on the plaintiff in error. Nichol was as fully advised of Taylor's authority as Taylor himself, and consented to make the loan. The note was executed in the name of Goyette, whether at Nichol's suggestion or not, at least with his knowledge. It did not bind Goyette, because he had not authorized it. It did not bind Taylor, because it contained no words of obligation as to him. There was no implied warranty of his authority to execute it, because the only authority upon which he purported to act was contained in the trust agreement, which was submitted to Nichol, and was acted upon by him in making the loan. Whatever authority Taylor had was expressed in that agreement, and where there is an express agreement none can be implied. Where one person purports to act as the agent of another in making a contract in the name of another as his principal, an implication may arise of an assertion by the other party of the authority of the agent to execute the contract, but, where the contract is made in good faith, and both parties are fully cognizant of the facts as to the agent's authority, the result is to exonerate the principal from liability because the agent had no lawful authority to make the contract, and the agent cannot be held liable either ex contractu or ex delicto. Seeberger v. McCormick, 178 Ill. 404, 53 N. E. 340. Whether Nichol accepted the note in the belief that it was authorized by Goyette, or in the belief that it was not so authorized, and that Taylor was bound by it personally, or that the trust estate was bound, he was mistaken as to the effect of the instrument. This was a legal mistake, and Taylor cannot be held liable.

The judgment of the Appellate Court is affirmed.

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