Chisholm v. McDonald

Gary, J. This case is so largely made up of parol and contradictory evidence, the recital of which would he of no benefit, unless tó satisfy the parties that the court knew what it was about, that only results and not the processes by which they are reached will be stated in this opinion. There are decrees in favor of A. II. Holden and Caroline Green, intervening petitioners, of which nobody complains, and they are affirmed; also that portion of the decree dissolving the injunction against Melville E. Dayton, and directing him what to do with the patent and application for patent assigned to him, is affirmed. From the record it appears that appellee, McDonald, was the president of and j>robably the whole corporation called the Circulating Boiler Company. The company had a contract to furnish a boiler for the price of §1,000, but had no money. December 16, 1886, appellant entered into arrangements with the company and McDonald to advance §1,200, or so much thereof as might be necessary to put in the boiler, and at the same time there was a further agreement between appellant and McDonald separately, for further business arrangements if the boiler proved a success. Patents were assigned to Dayton as security for appellant’s advances, and by the formal agreement between the appellant of the first part, and the company and McDonald of the second part, appellant was to have the promissory judgment note, joint and several, of the company and McDonald for §1,200 to secure his advance. The note was made with a warrant of attorney on the same paper to confess judgment at any time after the date of the note, but the note itself was payable ninety days after date, January 11, 1887, as the note says, though the date of the transaction in fact is in dispute; another note was given by the company and McDonald to appellant for $800 on sixty days time, with a warrant of attorney on the same paper to confess judgment at any time after date. There is dispute as to the regularity of both of these notes with the warrants, but both of them have the corporate seal, and there is as much parol evidence in their favor as against them, so that prim,a facie they are valid. Joliet Electric Light Co. v. Ingalls, 23 Ill. App. 45, per Baker, P. J., and cases there cited. January 13, 1887, appellant entered judgment upon his notes, which judgment still stands; no effort has been made to set it aside. Upon this state of facts, upon the bill filed by the company and McDonald, they are entitled only to such relief, if any, as equity and good conscience require. They had no right to require that the proceeds of the property levied upon should be diverted from paying appellant’s execution, to the extent of all the money he had advanced. The warrants of attorney attached to the notes left to his discretion the time at which judgment should be entered, though the note had not matured. Adam v. Arnold, 86 Ill. 185. And it is very probable that his only prospect of securing anything laid in entering judgment when he did. On the whole record it is clear that the appellee Bell has no beneficial interest in the judgment entered in his name. It belongs to the Park ¡National Bank, as the note did, before it was indorsed to him, merely that judgment might be entered in his name. Bell has,' therefore, no standing as complainant in a court of equity, and no title to any affirmative relief based upon the judgment in his name. Oakey v. Bend, 3 Edw. Ch. 482; Field v. Maghee, 5 Paige, 539; Sedgwick v. Cleveland, 7 Paige, 287. It is true that in Hutchinson v. Crane, 100 Ill. 269, the Supreme Court declined to reverse where there appeared to be a misjoinder of a party without interest, but that is not authority that he alone could have sued. But even if he had such interest, the evidence as to any agreement by appellant with the bank, by which his rights are postponed to those claimed by Bell, it is too loose, vague and unsatisfactory to have any such effect. As, upon the showing made, the rights which appellant had acquired by the levy of his execution ought not to have been disturbed, none of the expenses of this litigation should be charged upon him. The decree of the Superior Court as to the disposition of all the money derived from the property levied upon under the execution of the appellant must be reversed and the cause remanded to the Superior Court, with directions to ascertain the amount that the appellant has paid, either before he entered judgment, or since, upon his then liabilities for the company, and apply the money last referred to, to the reimbursement of the appellant for such payments, and to dismiss the bills, original and amended, of McDonald and the company, and the cross-bill of Bell, and tax all the cost of the receivership against Bell and the residue of the costs against McDonald and the company. If, after paying appellant the costs taxed against McDonald and the eompiany, there shall be any money left of this fund, it belongs and should be piaid to the company. Affirmed in fart and reversed in fart and remanded.