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penses and the said second party two-thirds of the expenses; and that either party hereto who may be absent from the city of Chicago attending to the business contemplated by this agreement, shall receive a reasonable compensation for such time so employed.
"Witness the hands and seals of the parties hereto this tenth (10th) day of April, A. D. 1886.
CHARLES L. CURRIER,
G. W. & J. T. KRETZINGER.
"The within contract is hereby extended one year from April 10, 1887. G. W. & J. T. KRETZINGER, CHARLES L. CURRIER."
Afterward negotiations were instituted between Currier, J. T. Kretzinger, one Reed and others, to obtain the loan of upwards of $600,000 for one Wells, at Wellston, in the State of Ohio, and the following contract was entered into:
"CHICAGO, September 26, 1887.
"We, the undersigned, enter into the following agreement together, to-wit: C. L. Currier and A. C. Reed hereby agree to endeavor to secure a loan for Harvey Wells, of Wellston, Ohio, and if they are successful we hereby agree to divide equally between L. S. Hodges, J. T. Kretzinger, C. L. Currier and A. C. Reed the sum of $25,000, and C. L. Currier and A. C. Reed shall be entitled to keep for themselves any bonus of lands or other properties that they may be able to secure in this transaction over and above this $25,000. CHAS. L. CURRIER,
A. C. REED,
L. S. HODGES,
J. T. KRETZINGER."
The amount was finally reduced to $320,000, and the commission to be received and divided became $20,000, instead of $25,000. To complete the transaction required the organization of a corporation in Ohio, and the transfer of certain coal lands and other property belonging to Wells to the corporation, and the issuing of bonds of the face value of $600,000 by the corporation, (which bonds were secured by mortgage on the corporate property,) and the sale of said bonds to the capitalist who furnished
the money, for said sum of $320,000. In addition to the commission of $20,000 a certain bonus in shares of stock was received, from the sale of which Currier received $7500. Neither of the appellees had any knowledge that Currier had received such a bonus until shortly before this bill was filed. Currier requested Reed not to inform appellees of the receipt of this bonus, for the reason that he feared they might claim a part of it under the first contract, although he thought it belonged to him under the second contract. The preponderance of the evidence shows, also, that for reasons of a prudential character, which were satisfactory to themselves, the three parties to the first contract had an understanding among themselves that Hodges and Reed, parties to the second contract, should not be informed of the existence of the first contract or of the fact that George W. Kretzinger would have any share in the gains to be derived from the venture under the second contract, but nevertheless that so much of such gains as should be received by Currier and Joseph T. Kretzinger should be subject to division between the three parties to the first contract. This secret understanding was in nowise prejudicial to Hodges and Reed, as they were not concerned in any division of the shares which Currier and J. T. Kretzinger saw proper to make with another party. But it is clear that if it was the duty of Currier and J. T. Kretzinger to account with George W. Kretzinger and between themselves, under the first contract, for all that they received under the second contract, Currier should not have concealed the receipt of the bonus of $7500, but should have accounted for the same. If, however, the second contract controlled, and the gains under it were not subject to a further division under the first contract, then Currier was under no obligation to account for the $7500. When the $20,000 was received under the second contract, each of the four signers of that instrument took $5000, and while the evidence shows, as we view it, that Currier did not at first
deny his liability to account for it to the parties to the first contract, but postponed such accounting for reasons having reference to his personal convenience, later he claimed the whole amount as belonging to him under the second contract and as not being subject to subdivision under the first.
While, from a technical point of view, there may have been some room for the opinion of Currier that the gains derived from the second contract should, as to J. T. Kretzinger, and consequently as to him and another suing jointly, be distributed and finally controlled by that contract, yet we agree with the Superior and Appellate Courts that when the objects and purposes of the two contracts, and the evidence showing the interpretation put upon them by the parties, are considered, no sufficient reason appears why an accounting should not be had between the parties to the first contract for gains and profits coming within its purview and so understood and agreed upon by the parties, but which were received by two of the parties under a contract with third parties. J. T. Kretzinger did not and does not claim the whole of the $5000 received by him, but acknowledges his liability to account for it to the two other parties to the first contract. Currier is equally liable to account for the $5000 received by him, and if so liable, is liable also to account for the bonus of $7500 which he received. The agreement in the second contract that he and Reed should have any bonus which they should receive, cannot affect his liability to account for it under a contract with other parties. The act of Currier in concealing the fact that he had received the bonus, and his apprehension, expressed to Reed, that if known the Kretzingers might claim an interest in it, are some corroboration of the testimony of the Kretzingers as to conversations between them and Currier, showing that it was understood between them that all gains under the second contract were to be divided under the first.
Currier was allowed by the decree $1200 for his time and expenses. We are disposed to think the allowance was a fair one, under the evidence.
Complaint is made also of the allowance of interest on the balance found due to the appellees, but we think this point is covered by the statute, which allows interest "on money received to the use of another and retained without the owner's knowledge."
There being no error, the judgment of the Appellate Court is affirmed.
ROSE Z. KELLY et al.
CARRIE KINSELLA et al.
Filed at Ottawa May 12, 1896- Rehearing denied October 13, 1896.
EVIDENCE-force of the testimony of disinterested witness as against those having an interest. The testimony of interested parties that no declaration of trust was executed by a grantee of land and that such grantee does not hold the property as security for money advanced, is insufficient to overcome the testimony of a witness who has no interest in the result of the litigation, supported by the other facts.
APPEAL from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.
IRA W. & C. C. BUELL, for appellants.
L. M. ACKLEY, for appellees.
Mr. CHIEF JUSTICE CRAIG delivered the opinion of the court:
This was a bill in equity brought by Thomas Kinsella and Carrie Kinsella, against Rose Z. Kelly, Robert D. Kelly and Charles Z. Miller, to establish and enforce an alleged trust in favor of the complainant Carrie Kinsella, under which she claims title and the right of possession of lots 1 and 2, in O. A. Bogue's addition to Chicago.
It appears from the record that in January, 1892, and prior thereto, Carrie Kinsella owned the premises subject to certain encumbrances, consisting of judgment liens, mortgages and mortgage foreclosure sales, and that the property was then in the hands of a receiver under a trust deed, and the time of redemption under foreclosure sales would soon expire. At that time William T. Blair, an attorney in Chicago, was employed by the Kinsellas as their agent and attorney, to assist them in saving this property. Blair saw that the financial condition of the Kinsellas was such that it would be impossible to induce any person with money to make them a loan. He therefore determined to have them convey the property to some person in good standing and then make application for a loan. Hence, on the 8th day of January, 1892, he procured the execution of a deed from Carrie Kinsella and her husband, conveying the property to one Albert B. Clark, and at the same time Clark executed a declaration of trust to Carrie Kinsella, showing that he held the property in trust for her. This was not, however, recorded. The declaration of trust in substance provided that Clark should raise money to pay off the claims on the property, repay himself, and then reconvey to the Kinsellas. Blair testified that he consulted Charles Z. Miller, a real estate broker, who had previously made loans for him, and asked his assistance. He told him all about the complications in the title and how he proposed to straighten it. Miller inquired about location, value, rents, etc., and said he would want a large commission. Miller talked to Harrison Bros. about getting a $10,000 loan on the property. He introduced Blair to Robert D. Kelly, who occupied an adjoining office and was discounting city warrants. An arrangement was then made by which Kelly furnished Blair money to buy up outstanding judgments against the Kinsellas, in order to prevent judgment creditors from making redemption. Under this arrangement some $500 was furnished, Blair giving