Risser v. Patton

Mr. Chief Justice Hand delivered the opinion of the court: It is first contended that the bill is multifarious. The defendant filed a demurrer to said bill on the ground it was multifarious, which demurrer was overruled, whereupon he filed an answer to the bill. If the defendant desired to raise the question of multifariousness in this court he should have stood by his demurrer. By answering the bill the defendant waived the defense of multifariousness, if such a defense existed, and that defense cannot now be raised in this court. Labadie v. Hewitt, 85 Ill. 341; Bird v. Bird, 218 id. 158; Gilmore v. Sapp, 100 id. 297; Ring v. Lawless, 190 id. 520. It is next contended that the complainants have a complete remedy at law. The question whether the defendant held the title to the Electric Park property in trust for the benefit of all the stockholders of the Kankakee Electric Railway Company was a question clearly cognizable in a court of equity, and a court of equity having assumed jurisdiction of the subject matter of the controversy between the parties with reference to said Electric Park property, and that property having been established to be trust property, and the acquisition of that property having been connected with the acquisition of the title to the stock of the Kankakee Electric Railway Company, and the persons for whom the Electric Park property is held in trust being the stockholders of said Kankakee Electric Railway Company, we think the court properly retained jurisdiction of the entire subject matter growing out of the purchase of the stock of said Kankakee Electric Railway Company and said Electric Park property from Emory Cobb, to the end that all questions pertaining to the acquisition, payment for and ownership of said properties might be settled and complete justice be done between the parties in one suit. Sherlock v. Village of Winnetka, 59 Ill. 389; Pool v. Docker, 92 id. 501; School Directors v. School Directors, 135 id. 464; Longshore v. Longshore, 200 id. 470; Wehrheim v. Smith, 226 id. 346. It is finally contended that the proof does not support the decree. The main controverted questions of fact in this case are:' First, was C. O. Patton entitled to all of the $2000 commission which Emory Cobb allowed- the purchasers at the time of the purchase of the stock of said Kankakee Electric Railway Company and the Electric Park property; and second, was the Texas land conveyed to Rollins as security for the re-payment of Patton’s proportion of the option money put up by Risser at the time said option contract was made with Cobb, or was said Texas property conveyed to Rollins in payment in full of a one-fourth interest, in the properties purchased of Emory Cobb. The evidence is conflicting, and a correct decision upon the facts depends largely upon whether credence is to be given to the testimony of Risser and McCracken, who testified that said Texas land was conveyed to Rollins as security for Patton’s share of said option money, or to the testimony of Patton, who testified that said Texas land was conveyed to Rollins in full payment of a one-fourth interest in said properties purchased of Cobb. While the evidence shows Patton was the originator of the scheme to purchase said properties from Cobb, it further appears therefrom that Risser, McCracken and Rollins were the men who furnished the money to purchase said properties, and at the time the option money was paid it was doubtless thought the money to carry through the purchase could be obtained from bonding the railway company, and that the $10,000 put up on May 29, 1905, would soon be returned to Risser and McCracken, and that the $10,000 option money would be all of the funds that the parties would need to use of their own money to carry the deal through. It turned out, however, that the parties could not sell the bonds of said Kankakee Electric Railway Company which they proposed to issue on said property. It was therefore found necessary to make arrangements, other than by bonding the railway company, to get funds with which to pay Cobb and save the option money which had been put up on the 29th day of May, 1905. This was done by paying $33,000 in cash and by turning over to Cobb $65,000 in bonds and mortgages secured upon the property purchased from him. Of the cash payment Patton only paid $1000, which he testified was a loan to Risser. We think, when the entire evidence found in this record is considered, it is unreasonable to suppose that Risser would agree to accept a deed to three hundred and seventy-four acres of wild land in Texas, which he had never seen, and which did not exceed in value $10 per acre, subject to mortgages aggregating $1500, in full payment for property which he was then purchasing of Cobb for $8250 in cash; and as to the $2000 commission, in the written contract made between Risser and McCracken and Patton, bearing date May 29, 1905, it is stated, “Charles O. Patton has claimed commission of Emory Cobb (for the benefit of all the parties to this contract) amounting to $2000,” and both Risser and McCracken testified that the commission was to be deducted from the purchase price of the properties purchased from Cobb, and that all the parties to the. contract of purchase were to receive the benefit of said commission in proportion to the amount of stock which they held in the Kankakee Electric Railway Company, and Charles H. Risser testified Patt.on informed him that all the purchasers of said properties were to receive the benefit of said commission. From a careful examination of this record we are of the opinion that the findings of the chancellor, as incorporated in the decree, are supported by the great weight of the testimony and that they should be sustained. The decree of the circuit court will therefore be affirmed. Decree affirmed.