the 18th day of October, 1882, appointed H. necessary to make the equitable levy' perN. Hibbard receiver of the firm's assets. At fect? In Storm v. Waddell, 2 Sandf. Ch. 544, the time the bill in this case was filed, the re- the court (page 582) emphasizes the point that ceiver was proceeding with the duties of his the lien was acquired by the commencement office, and was in possession of the partner- of the suit, and not by the order for a reship effects. The purpose of the creditor's ceiver or his appointment.' And on pages bill was to reach King's interest in the firm's 564, 565, it is said: Without regard to the assets, whatever it might appear to be on injunction, the property of the defendant is final adjustment, and other equitable assets subjected to the suit, wherever it may be, if for the payment of said judgment. The re- the receiver can lay hold of it, or the comceiver was made a defendant to the creditor's plainant can reach it by the decree. *** A bill without leave of the superior court. He receiver is a convenient and important, but not demurred to the bill, and his demurrer was indispensable, part of the proceeding. *** sustained, October 18, 1883. King and wife No voluntary assignment of the debtor can answered, admitting the copartnership, and impair the complainant's right, nor any instating, among other things, that Claude B. tervening claim of other creditors. I speak King had no property, or interest in any, ex- in this outline of equitable interests and cept his interest as copartner in the assets of things in action.' In Roberts v. Railroad Co., the Montello Granite Company, in the hands 25 Barb. 662, the court said: 'As soon as the of said receiver. Replication to the answer judgment creditors' suit was instituted, the was filed October 25, 1883. On November plaintiffs in that suit obtained a lien on all 11, 1884, Claude B. King died, leaving his the choses in action of Rutter. All the title wife surviving. His death was suggested he had was subject to that lien; all that he of record May 25, 1885. His wife, having could pass was subject to it. When the rebeen appointed administratrix of his estate ceiver was appointed, (whether Kutter asby the probate court of Cook county, filed signed to him or not,) he acquired the title her answer as administratrix on July 8, to those choses in action which Rutter had 1885, stating the death of her husband; her when the action was commenced. In conappointment and qualification as administra- templation of law, the title vested in the court trix; that the deceased left no estate except when the action was commenced, and passed that involved in the litigation with his part- as from that date to the receiver.' In Brown ner, Anderson; that all of said property is in v. Nichols, 42 N. Y. 26, it was held that the the custody of the law, in the hands of a re- lien upon equitable assets, acquired by the ceiver; that it was probable that said estate commencement of an action in the nature of will be insolvent; and that there would not a creditor's bill, is not extinguished by the be more property than enough to pay pre-death of defendant before the appointment of ferred claims. By her supplemental answer, a receiver, but survives against such assets filed March 12, 1888, she states that the in the hands of the administrator. The suwhole personal estate of said Claude B. King preme court of this state, in Bank v. Gage, had been appraised, and the appraisal ap- supra, cites the cases of Storm v. Waddell proved by the probate court of Cook county, and Brown v. Nichols with approval, and at $277; that the estate is insolvent; that her state the law to be that the filing of a creditwidow's award had been fixed at $1,975, or's bill, or at least the service of process, which she claims should be allowed to her gives the complainant a lien upon the propout of any funds in the receiver's hands com-erty of the judgment debtor by placing it uning to the estate, in preference to the claim der the control of the court, which will not of appellant. On the 6th of November, 1885, suffer it to be withdrawn so as to defeat the the receiver was made a party defendant to object of the bill by any subsequent act or the bill by leave of the court, and filed his title. 'As respects equitable interests and answer, November 17, 1885, alleging, in sub-things in action, the rule appears to be that stance, that he was unable to determine the the lien is fixed by the commencement of the amount of King's interest in the assets of suit.' Page 175. Admitting that the rethe Montello Granite Company. Replications were filed to the answers. It appeared on the hearing that the amount in the receiver's hands coming to King's estate is something over $1,500, and that the widow's award had been fixed at $1,975. The court below dismissed the bill for want of equity. 6 "The general rule is that the filing of a creditor's bill, and service of process, create a lien on the equitable assets of the judgment debtor. It has been aptly termed an equitable levy.' Wait, Fraud. Conv. § 68; 2' Wait, Act. & Def. 428; Bank v. Gage, 93 Ill. 172; Lynch v. Johnson, 48 N. Y. 27; Miller v. Sherry, 2 Wall. 237; Adsit v. Butler, 87 N. Y. 585. In the case at bar, no injunction was issued or receiver appointed. Was either ceiver must be considered as no party to the suit at or before the death of King, still the situation is not changed. King had an equitable interest in the fund sought to be reached, and, as he was a party to the suit, the lien survived his death, and holds good against all claiming under him. A decree against him would have been valid against his administratrix, although the receiver was not a party. Bennitt v. Mining Co., 119 Ill. 9, 7 N. E. Rep. 498. That the interest of King in the firm assets was uncertain at the time the creditor's bill was filed is no barrier to complainant's suit. Otherwise, any undivided equitable interest, whose amount or value cannot be ascertained except upon an accounting, or reduction of the fund to money, is secure against the attack of creditors. The widow's claim to her award is against the estate of her deceased husband. Sections 70, 75, c. 3, Rev. St. If there is no estate, she has nothing to rely on for the payment of the award. If the estate is incumbered by a valid lien, the award does not set aside the lien. She only has a claim on so much as may be left after satisfying the lien. In this case there is no estate to pay the widow's award until the lien acquired by the creditor's bill is discharged. The receiver is a quasi trustee, holding the fund for the benefit of whoever may eventually establish title thereto. High, Rec. § 1. If, therefore, a creditor's bill can only be maintained in cases of fraud and trust, as contended by appellee, the facts of this case are such that the jurisdiction attaches. The question of superior diligence only arises between creditors contending for priority of lien, and has no application here. The publicity with which a debtor's estate is surrounded by a trust which defies all the assaults of the ordinary process of law cannot be relied on as a protection against the equitable remedy of a creditor's bill. The decree of the superior court is reversed, and the cause remanded, with directions to enter a decree in conformity with this opinion." If the defendants Claude B. and Anna King, or Anna King as administratrix, desired to raise the question as to the receiver being a necessary party to the bill, they should have done so by demurrer. Wait, Fraud. Conv. § 133, and cases cited. The judgment of the appellate court is affirmed. (130 Ill. 582) AMES v. MOIR et al. (Supreme Court of Illinois. Oct. 31, 1889.) CONTRACT IN WRITING-FRAUDULENT DEBT-DIS CHARGE IN BANKRUPTCY. 1. A writing stating that one person has bought goods from another, describing the goods and giving the price and the conditions of the sale, though signed only by the purchaser, is a "simple contract in writing," within the meaning of the statute of limitations, (Gross, St. Ill., Ed. 1869, p. 430,) on which suit may be commenced within 16 years. 2. Where a seller replevies the goods sold because of failure to pay on delivery, and is defeated in his suit because the goods have been sold to an innocent third party, the replevin suit, not being a rescission of the contract of sale, is no bar to an action for the price of the goods. 3. Where the purchaser of goods obtains possession with intent to ship them away without paying for them, this fact is sufficient to justify a finding that the transaction was fraudulent, within the meaning of Rev. St. U. S. § 5117, which provides that no debt created by fraud shall be discharged by proceedings in bankruptcy. ing, which was as follows: "Chicago, June 9, 1870. Contract. I have this day bought of Robert Moir & Co. one hundred (100) barrels high wines, iron bound,' at one dollar seven cents ($1.07) per proof gallon. The conditions of sale are as follows: The buyer can call from 1st July to 20th of same month by giving three days' notice, and, if not called for by the 20th July, the seller has the privilege of delivering up to the end of July by giving three days' notice; to be delivered in fifty barrel lots. To insure the fulfillment of this contract, a margin of three hundred dollars will be put up by both parties. WILSON AMES." This instrument of writing, after it was executed by Ames on the day it bears date, was at once delivered to the agents of Moir & Co., and accepted by them. On the same day a margin of $300 was put up by each party as provided in the agreement. It also appears that on the 15th day of July, 1870, Ames notified the agents of Moir & Co. to deliver the high wines. Upon receipt of the notice the high wines were on July 18th delivered by Moir & Co., and accepted by Ames, but Ames has never paid for the goods. This action was not commenced until the 13th day of January, 1886, and the first question presented by the record is whether the action is barred by the statute of limitations. The statute in force at the time the agreement was executed was the act of November 5, 1849, sections 1 and 2 of which are as follows: "Sec. 1. All actions founded upon any promissory note, simple contract in writing, bond, judgment, or other evidence of indebtedness in writing, made, caused, or entered into after the passage of this act, shall be commenced within sixteen years after the cause of action accrued, and not thereafter. Sec. 2. All actions founded upon accounts, bills of exchange, orders, or upon promises not in writing, express or implied. made after the passage of this act, shall be commenced within five years next after the cause of action shall have accrued, and not thereafter." Gross, St. Ill. (Ed. 1869) p. 430. It is strenuously insisted in the argument that the paper executed by Ames is not a simple contract in writing, within the meaning of the first section of the act of 1849. The action was commenced before the expiration of sixteen years after the cause of action accrued, and if the agreement executed by Ames is a simple contract in writing, within the meaning of section 1 of the act, then the action is not barred. If, on the other hand, section 2 is to control, then the action is barred. Bish. Cont. (enlarged Ed.) § 163, defines a written contract as follows: "A written contract is one which in all its terms is in writing." In Abrams v. Pomeroy, 13 CRAIG, J. This was an action of assump- Ill. 133, a contract of guaranty executed only sit brought by Robert Moir & Co. in the su- by the grantor was held to be a written conperior court of Cook county against Wilson tract, and that it could not be varied by parol Ames, to recover the price of 100 barrels of evidence. In Railroad Co. v. Johnson, 34 high wines sold by the plaintiffs to the de- Ill. 393, an agreement executed by the agent fendant on the 9th day of June, 1870. The of the railroad company binding it to transaction was brought upon a contract in writ-port and deliver certain goods was held to be Appeal from appellate court, first district. John G. Reid and Wm. H. Barnum, for appellant. Edsall & Edsall, for appellees. a written contract, within the purview of the | which drafts he discounted at the National Bank of Commerce on the security of the bills of lading. The replevin suits were defended by the National Bank of Commerce, and the defense interposed that the bank was the pledgee of the high wines from Ames in good faith, and without notice of Moir & Co.'s rights, was in the end sustained, (see Railroad Co. v. Phillips, 60 Ill. 190;) and the money realized on the sale of the high wines to Shufeldt & Co. was turned over to the National Bank of Commerce in payment of the drafts. In view of the fact that the wines were thus replevied and sold by the agents of Moir & Co., it is insisted that Moir & Co. elected to rescind the contract under which the high wines were sold to Ames, and, having so elected, they cannot now maintain an action upon it. It may be conceded that a contract for the sale of goods cannot be rescinded, and at the same time an action be maintained upon it for the contract price of the goods. But we do not understand that the contract in this case was rescinded, or that any effort whatever was made to rescind the contract. When the wines were delivered, Moir & Co. were entitled to payment. The delivery and payment were concurrent acts, and Moir & Co. were not bound to part with the absolute possession of the goods until they received the price named in the contract. In other words, they had a lien on the goods for the purchase money, which they were under no obligations to relinquish until payment was made. In Bank v. McCrea, 106 III. 298, this court held that when goods are placed by the vendor in the hands of the purchaser, in After the high wines had been delivered, expectation that he will immediately pay the late in the afternoon of July 18th, Ames ab- price, and he fails to do so, the vendor is at sented himself from his place of business, and liberty to regard the delivery as conditional, could not be found by the agents of Moir & and may at once reclaim the goods. But by Co. to make a demand of payment for the holding the possession of the goods, or rehigh wines. They directed the porter in claiming them after the purchaser refuses to charge of Ames' warehouse to take care of pay, the contract of sale is not thereby rethe goods until morning, when they would scinded. The vendor merely retains possescall for the pay. When the agents called in sion to enforce his lien as vendor. What the morning, Ames was nowhere to be found, are the rights of a vendor of goods when the and they found that he had shipped 50 barrels vendee refuses to pay upon delivery or on ofof the high wines for New York, and the re- fer to deliver goods? This question arose in maining 50 barrels were loaded in cars ready Bagley v. Findlay, 82 Ill. 525, and this court for shipment. Phillips & Carmichel imme- held that the vendor had three remedies: diately replevied the 50 barrels which were (1) The vendor may store the goods for the found in cars in Chicago, and went on to De- vendee, give notice that he has done so, and troit, Mich., where they overhauled the other then recover the full contract price. (2) He 50 barrels, and they were also replevied. may keep the goods, and recover the excess Phillips & Carmichel sold the wines thus re- of the contract price over and above the marplevied to Shufeldt & Co. at 97 cents per gal-ket price of the goods at the time and place Îon, the market price at that time, and deposited the proceeds in bank to await the result of the replevin suits. It appears that between the time the wines were delivered, late in the afternoon of July 18th, and the time the agents reached Ames' store next morning, Ames had sent all the wines to the Michigan Central depot, shipped them, obtained bills of lading, which were attached to drafts on the consignee in New York, one for $2,800, and the other for $2,900, of delivery. (3) The vendor may sell the goods to the best advantage, and recover of the vendee the loss, if the goods failed to bring the contract price. The same rule is laid down in Benj. Sales, (2d Ed.) § 788. Here the possession of the gods was fraudulently obtained, with the view to ship them out of the state, and not pay the purchase money agreed to be paid. As against Ames, Moir & Co. had the right to replevy the goods, not for the purpose of rescind them on the 15th day of July. His object seemed to be to get possession and control of the wines, and convert them to his own use without payment. This the evidence tends to show he did, and thus the debt was created. We think the evidence submitted to offered to prove that Ames settled the action of replevin with Phillips & Carmichel a short time after the suit was commenced. The offered evidence was excluded, and the decision of the court is relied upon as error. It is nowhere apparent that the agents had any authority from Moir & Co. to make any settlement, and, in the absence of authority, what they may have done would not be binding on Moir & Co. ing the contract, but for the purpose of asserting the vendor's lien, and holding the possession of the goods until Ames should pay for the same. It turned out, however, that the action of replevin was unavailing, as the goods had by the act of Ames passed into the custody of innocent purchasers before they the jury was competent. The defendant were reached by the writ of replevin, and the proceeds of the goods were used in payment of the advances of the Commercial National Bank. Benj. Sales, § 735, (2d Ed.) says: "The vendor's remedy after a resale, made in the absence of an express reservation of the right, is assumpsit on the original contract, which was not rescinded by the resale." This was the course pursued here, and we regard it correct. We have been referred in the argument to Kellogg v. Turpie, 93 Ill. 265, and Doane v. Lockwood, 115 Ill. 490, 4 N. E. Rep. 500, and also cases decided in the courts of other states, where it has been held that the rescission of a contract of sale, where there was fraud in the contract, was inconsistent with a subsequent action on the contract; that, if the contract was rescinded by the vendor on the ground of fraud in the contract, a subsequent action on the contract itself could not be maintained. We concur fully in the law as laid down in those cases, but they have no application to the facts of this case. As heretofore stated, the commencement of the action of replevin was not a rescission of the contract by Moir & Co., but it was a proceeding to enforce the vendor's lien. To place the wines in that position, the vendors had the right to hold them in until the vendee should pay for them. It is also contended that Ames' discharge in bankruptcy was a bar to the action. Section 5117 of the bankrupt act is as follows: "No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy." Whether the debt in this case was created by the fraud of Ames was a question of fact upon which the judgment of the appellate court is conclusive. But it is said incompetent evidence was admitted upon this question. No evidence was introduced except such as tended to establish fraud on behalf of Ames, and the sufficiency of the evidence was a question for the jury. But it is said the debt was created when the contract was executed, June 9, 1870, and up to this time there was no fraud on the part of Ames. The debt was not entirely created until Ames induced the agents of Moir & Co. to place the wines in his possession, and if he obtained the possession by fraud, with the intent to ship the goods out of the country, and thus defeat the lien of the vendors, those were facts from which the jury might infer fraud within the meaning of the bankrupt law. Darling v. Woodward, 54 Vt. 101. It is apparent from the evidence that Ames had no intention of paying for the wines, when he called for Objection is made to the ruling of the court on the instructions to the jury. It is said the first and third given for the plaintiff were erroneous. The court in these instructions placed a construction on the written contract read in evidence which it was proper to do. The fourth and eighth instructions given for plaintiff are criticised, but we perceive no substantial objection to them. Three instructions were given for the defendant, and several others were refused, and the court gave one instruction on its own motion. We have examined the instructions given and those refused, and, without entering upon a discussion of those given or refused, we are satisfied that the law involved in the case was fairly given to the jury, and that, so far as instructions are concerned, no substantial error was committed. The judgment of the appellate court will be affirmed. (130 III. 631) MORRISON et al. v. HERRICK et al. (Supreme Court of Illinois. Oct. 31, 1889.) ORAL LEASE-STATUTE OF FRAUDS-NOTICE. 1. Where the tenants of a building under a written lease for a year make an oral agreement with their landlord for a five-years lease to begin at the end of their present term, and on the faith of such agreement make valuable permanent improvements, costing as much as two years' rent, and retain possession after the determination of their written lease, such improvements and possession are sufficient part performance of the oral agreement to take it out of the statute of frauds, and warrant a decree for specific performance. 2. In such case the tenants' possession is sufficient notice of their rights as against one who has received a written lease of the premises, but who has paid no rent and expended no money under his lease. Appeal from appellate court, first district. S. K. Dow, for appellant Morrison. L. H. Boutell, for appellants Miner, Beal & Co. Smith & Forch, for appellees. BAILEY, J. In this case, Harry Herrick and Charles K. Herrick filed their bill in chancery against Edward W. Morrison to compel the specific performance by him of an oral agreement alleged to have been made on or about June 1, 1884, for a lease for a term of five years from May 1, 1885, of a certain store and basement known as "No. 115 East Madison Street," Chicago. George A. Miner and others, comprising the firm of Miner, I came very desirable that they should make Beal & Co., were also made parties defend- extensive and costly improvements in their ant; it being alleged that said Morrison had store, provided they could obtain a further fraudulently executed to them a lease of said lease for a sufficient length of time to warpremises, and had entered into an unlawful rant such expenditure; that they so informed and fraudulent conspiracy with them to eject said Morrison, and proposed to him that if the complainants therefrom, and to deprive he would grant to them a lease of said premthem of their right to the possession and en- ises for a term of five years, to commence at joyment thereof. The bill prayed that said the expiration of their then existing lease, lease to Miner, Beal & Co. be held to be sub- they would make certain extensive and perject to the complainants' rights, and inoper-manent improvements in said store, and ative as against them, and that said Miner, would also put in new and expensive cases Beal & Co. be restrained from interfering and fixtures, thus rendering it as fine if not with the complainants' possession of said the finest and most beautiful and attractive premises. Defendant Morrison answered, hat and cap store in the city of Chicago; that denying said oral agreement, and setting up said Morrison approved of and assented to the statute of frauds, and also admitting that said proposition, and that it was thereupon he had demised said premises, together with agreed between him and the complainants. certain other premises thereto adjoining, to that he would execute to them a further Miner, Beal & Co. for the term of five years lease of said premises for the term of five from May 1, 1886. Miner, Beal & Co. an-years, beginning on the 1st day of May, 1885, swered, and filed their cross-bill, asserting and continuing until the 30th day of April, the validity of said lease to them, and the 1890, at a yearly rental of $3,000 for the first priority of their rights thereunder, and pray-year, payable in monthly installments of ing that the complainants in the original bill $250, and at a yearly rental of $3,300 for be decreed to surrender and deliver up said each of the four remaining years, payable in premises to them. A demurrer to the cross-monthly installments of $275 each. It apbill was sustained, and the cause coming on pears from the evidence, without any mafor hearing, as to the original bill, on plead-terial controversy, that, shortly after the ings and proofs, a decree was rendered in accordance with the prayer of said bill. Said decree was affirmed by the appellate court, and the record is now brought here on appeal from that court. time this agreement for a lease is alleged to have been made, the complainants proceeded to make their proposed improvements; those of a permanent character consisting of expensive panel work upon the ceiling, fresco It appears that Edward W. Morrison is, painting on the walls, remodeling the front and for many years has been, the owner of a doors and windows, and putting in stained four-story business building on the north- or cathedral glass; costing, in all, about east corner of Clark and East Madison streets, $1,700. They also constructed new cases of Chicago. The first story of said building is hard wood and plate glass, fitted and adapted divided up so as to be used by several occu- to the store, with pulleys to raise and lower pants for mercantile purposes; there being the doors and sashes, and also plate-glass in addition to one or more stores on the mirrors, fitted and adapted to the spaces corner, not in controversy here, three stores which they were to occupy on the walls; the fronting on East Madison street, known as total expense of such fixtures being about "Nos. 113, 115, and 117," and a double store $3,300. To make room for these fixtures, fronting on Clark street, known as "131 and those previously in use, and which cost $700, 133." For several years prior to the time were removed and disposed of for only $150; said oral agreement is alleged to have been that being all they would bring. A new made, the complainants had occupied No. | furnace and new gas-fittings were put in, at 115 East Madison street as a hat and cap a cost of about $490. These expenditures store, under yearly leases executed by Morrison to them, and at the date of said oral agreement they were occupying it under a written lease for the term commencing May 1, 1884, and ending April 30, 1885; the rent reserved being $3,000, payable in monthly installments of $250 each. The allegations of the bill in relation to the making of the The evidence in relation to the alleged conoral agreement, and the circumstances con- tract for a lease is in some degree conflicting, nected therewith, are, in substance, that the but, after giving it careful consideration, we complainants, during the time they had oc- are of the opinion that it is sufficient to warcupied said premises, had been doing a flour-rant the finding of the chancellor that such ishing, profitable, and constantly increasing contract was in fact made. We are not disbusiness, and that they and their place of posed to attempt an analysis of said evidence business had become widely known to the in detail, but shall content ourselves with public; that for the purpose of retaining the general statement that four witnesses their position, and competing successfully testify positively to the making of the conwith rival establishments, and of still further tract, viz., Isaac Gardner, Louis Kohn, and extending their business and patronage, it be- the complainants, and their testimony is to were all made during the months of July and August, 1884. The time occupied in fitting up the store in the manner above indicated was from four to six weeks, and during that time the complainants' business was largely, if not wholly, interrupted, thus causing them considerable additional loss. |