Wollenberger v. Hoover (346 Ill. 511, 1931)

Mr. Justice Duncan

delivered the opinion of the court:

Herman Wollenberger filed a bill in the circuit court of Cook county on June 3, 1921, the prayer of which was that a deed executed by Ira J. Hoover dated March 8, 1921, to Anna Pritilcin, a trust deed of the same date from Anna Pritikin to David K. Cochrane, and a deed of Anna Pritikin dated March 10, 1921, to Oscar Rubin, all conveying the Lafayette apartment building, which was described in the bill, and all releases executed and delivered by the complainant or Wollenberger & Co. to Evans Larson, Larson & Co. and the Larson Construction Company may be canceled and the title to the property described in such deeds and trust deed re-invested in Hoover subject to the payment by him of the balance due the complainant under the agreements under which Hoover held title; that the amount due complainant for the balance of the purchase price for the Lafayette building be established by the decree of the court; that a lien be declared for the remainder of complainant’s purchase money against said building; that an account of the receipts from the income of the property by the defendants, or any of them, be taken, and that they be decreed to pay the same; and that the interests of all the defendants who furnished supplies or furnishings for the building be established with reference to the lien of complainant, to the end that all valid indebtedness created with respect to said matters may be paid, for a receiver, for an accounting, for an injunction and for general relief. Evans Larson, Larson & Co., the Larson Construction Company, Anna Pritikin, David K. Cochrane, Hoover, Rubin and others were made defendants to the bill. Answers and cross-bills were filed by the defendants, issues were joined, and after reference and re-references to a master, the taking of evidence and the reports of the master, the cause was heard by the chancellor and a decree was rendered granting relief to complainant. Oscar Rubin has sued out a writ of error to reverse the decree.

Second — The litigation arose out of the following facts averred in the bill and shown by the evidence: The complainant was the principal stockholder and president of Wollenberger & Co., a corporation of the State of Delaware, having its principal place of business in Chicago and engaged principally in the mortgage banking and brokerage business, which prior to January 9, 1920, on the request of the complainant, had advanced money to finance certain building operations of Evans Larson, who was a contractor engaged in building in Chicago. Through such advancements Larson had acquired certain properties, the title to which had been taken in his own name or the names of others for his use, subject to such advancements as had been made by Wollenberger & Co. at the instance of the complainant. Because of his ownership of several apartment buildings described in the bill and the indebtedness incurred in their purchase and erection Larson’s financial affairs were involved, judgments had been recovered against him, mechanics’ liens had been taken against and receivers had been appointed for some of the buildings, and disputes had arisen between Wollenberger & Co. and Larson and between the complainant and Larson which the parties desired to settle. Therefore, on January 9, 1920, the complainant and Larson entered into a written agreement for the conveyance of certain apartment buildings, known as the Clarke, the Carmen and the Magnolia buildings, to John J. Rahlf, and an apartment building known as the Lafayette building to William S. Miller, all to be held under the contract for the benefit of the complainant and Larson; that the indebtedness of Larson, of Larson & Co. and of the Larson Construction Company, and all mechanics’ liens and other charges against such apartment buildings, should be advanced by Wollenberger & Co., not exceeding $15,000, and the net proceeds arising from the sale or disposition of the buildings, after providing for matters contained in the prior provisions of the contract, should be divided equally between the parties, one-half to the complainant and one-half to Larson, deducting first from the shares coming to Larson the indebtedness due or to become due under the contract from Larson to Wollenberger & Co. The agreement provided for the formation of a corporation under the laws of Illinois to take the title to the Lafayette apartment building, and for one-half of the stock to be issued to the complainant and one-half to Larson, the stock, when issued, to be delivered to Wollenberger & Co. and held in escrow for the benefit of the parties, subject to the terms of the contract and as collateral for all advances made by the complainant and Wollenberger & Co. to Larson. The corporation was to have the right to issue a series of first mortgage bonds secured by mortgage on the Lafayette building to the amount of not less than $150,000, for the purpose of refunding the indebtedness against the building. Larson was to have the exclusive right until January 1, 1921, to sell the Clarke building at a minimum price of $30,000, the Carmen building at the minimum price of $40,000 and the Magnolia building at the minimum price of $50,000. The buildings were conveyed to Rahlf and to Miller in accordance with the agreement, but it is contended by the complainant that after the execution of the contract Larson refused to sell the Clarke, Carmen and Magnolia buildings at prices alleged by the complainant to be advantageous to the parties or to co-operate in the organization of a corporation to manage or sell the Lafayette building. In consequence the complainant and Wollenberger & Co. on June 17, 1920, filed a bill in the superior court against Larson, Rahlf and Miller for an accounting, which was still pending when the bill in this case was filed.

Third — The other allegations in the bill are substantially the following: While the bill of June 17, 1920, was pending, Larson caused Hoover to be introduced to the complainant as a man of great wealth, and proposed to the complainant that instead of disposing of the premises mentioned in the contract of January 9, 1920, in the manner agreed upon, a price should be fixed upon the properties that would be satisfactory to the complainant and Larson and the title should be vested in Hoover. Hoover confirmed the representations made to the complainant that he was the president of the Bankers’ Mortgage Company of Kansas City, and stated that he was in such a position that he could command the large resources of that company to carry out his projects and that he was in such relation to Larson that he could secure his assent in all respects thereto, and, relying on these representations, the complainant agreed that title to three of the buildings, the Clarke, the Carmen and the Lafayette, should be vested in Hoover. Thereupon a contract in writing was entered into between Hoover and the complainant on October 1, 1920, by which Hoover agreed to purchase from the complainant the three buildings for $292,375 and to place a loan on the Lafayette building for $150,000, dated October 1, 1920, payable in annual installments, secured by a trust deed on the building executed by Hoover to the Chicago Title and Trust Company, as trustee. The complainant relied on the representations made to him by Larson and Hoover and was deceived both as to Hoover’s financial responsibility and his personal character. In reliance upon such representations he entered into the contract of October 1, 1920, and caused the title of the three buildings mentioned in the contract of January 9, 1920, to be conveyed by the trustees, Rahlf and Miller, to Hoover, subject to a trust deed given to secure an unpaid balance of $19,000 on the Clarke building and subject to a trust deed to secure an unpaid balance of $22,000 on the Carmen building, and caused Wollenberger & Co. to offer and sell to the public an issue of $150,000 of first mortgage real estate seven per cent serial gold bonds, maturing as follows:

Fourth — Hoover agreed to execute, and did execute and deliver to the complainant, a second trust deed on the Clarke building to secure the sum of $10,000, $2000 of which was payable on or before August 1, 1921, and $8000 thereof was payable on or before August 1, 1922, with interest at the rate of seven per cent per annum, payable semiannually, and he agreed to execute, and did execute, a second trust deed and notes to the complainant on the Carmen building to secure the sum of $15,000, $2500 of which was payable on or before August 1, 1921, and $12,500 thereof was payable on or before August 1, 1922, with seven per cent interest, payable semi-annually. Hoover received a conveyance of the properties subject to the liens specified in the contract of sale of October 1, 1920. He afterward sold the Carmen and Clarke properties, and there was on December 9, 1920, applied on the amount due the complainant the sum of $4999.35, the earnest money that had been deposited by Hoover by cashier’s check with the Chicago Title and Trust Company, less sixty-five cents for cashing the same, and $5000 and $7352.83 received from the sale of the Carmen and Clarke properties, the first mortgage bond issue of $150,000, the mortgages on the Carmen building of $22,000 and $15,000 and on the Clarke building of $19,000 and $10,000, leaving due the complainant, without interest, the sum of $56,451.11, to which were to be added sums paid in adjustment of taxes, insurance and other matters mentioned in the contract of sale, making the total consideration named in the contract. The complainant believed Larson’s representations that Hoover was a man of great wealth and a gentleman of high standing and unimpeachable character, that he was at that time president of the Bankers’ Mortgage Company of Kansas City, and that his obligations, secured by trust deed, would be valid and collectible against him independently of the security under the trust deed. In advertising and selling the bonds secured by the Lafayette building the complainant made statements of the truth of these representations to the buying public. He was ignorant, although it was the fact, that Hoover was a man of no financial standing, that no debt of any amount could be collected by legal process against him, and that he had been discharged or had withdrawn as president of the Bankers’ Mortgage Company of Kansas City and was no longer actively connected with that company. About February 15, 1921, the complainant discovered the actual standing, moral and financial, of Hoover, but he had prior to that time learned that Larson would have an interest in the properties sold to Hoover after Hoover was re-paid all his advances on them, including the amount due the complainant for the balance of the purchase price, and he learned about February 15, 1921, that there was a written contract between Hoover and Larson executed with the purpose and intent of vesting the title in Hoover for the use of Larson. Larson knew of Hoover’s insolvency and knew that the representations made concerning his personal and financial character and relation to important financial institutions were false.

Fifth — Having large amounts of money invested in the properties and having reached a deadlock with Larson, who refused to go on under the contract of January 9, 1920, the complainant consented to the conveyance of the properties to Hoover, and instead of holding a fifty per cent interest in the equity of the properties, subject to the payment of the indebtedness thereon, he decided to liquidate the interests of himself and Wollenberger & Co. by agreeing upon a stated sum which he should receive under the contract of sale. He therefore accepted the purchase price named in the contract of sale in lieu of his fifty per cent interest in the properties, he having confidence that Hoover would not convey or encumber the property without paying the balance of the agreed price and would manage the properties honestly. Hoover was about December 9, 1920, indebted to the complainant in the sum of $73,803.29 for the purchase price of the properties under the contract of sale of October 1, 1920, with adjustments provided in the contract, and proposed about December 1, 1920, that he should execute his promissory note for that amount to the complainant, promising that he would not sell or convey or encumber the Lafayette building without consent of the complainant, and then only under such conditions as would enable him to pay the balance of the purchase money. The complainant accepted said note December 9, 1920, as an accommodation note for' his own benefit, to be held and redelivered to Hoover upon payment thereof or of his finding a purchaser who would do so. Hoover sold the Clarke and Carmen properties subject to the liens thereon and applied the earnest money received by him from the Chicago Title and Trust Company and the profits of the sale of the buildings over and above such liens to the reduction of the amount named in the note, by endorsing three credits on it, to-wit, $4999.35, $5000 and $7352.83, leaving the balance due for purchase money the sum of $56,451.11, as heretofore stated. Hoover and Larson, conspiring with the defendants Anna Pritikin, David K. Cochrane and Oscar Rubin, who all knew the true relations of Hoover to the Lafayette building and who knew or had notice of the interest of the complainant in that building and with the intent of defrauding the complainant and Wollenberger & Co. out of the balance due them for purchase money, on March 8, 1921, executed, or caused to be executed and delivered, a quit-claim deed to Anna Pritikin by Hoover for the Lafayette building; that Anna Pritikin on the same date and as part of the same transaction and for the same purpose executed and delivered to Cochrane, as trustee, and to his successors in trust, a trust deed upon the Lafayette building and all things appertaining thereto, subject only to an encumbrance to the Chicago Title and Trust Company, trustee, given to secure said bonds of $150,000 and purporting to secure thirty-four principal promissory note's bearing the same date, aggregating $90,000, payable as follows: Ten $1000 notes, one due on the first day of each consecutive month, beginning May 1, 1921; one for $12,000 due May 1, 1921; twenty-two for $3000, one due every three months, beginning June 1, 1922, and one for $2000 due December 1, 1927, all bearing interest at the rate of seven per cent per annum from date; that as a part of the same conspiracy and transaction Anna Pritikin on March 10, 1921, gave a warranty deed to said building to the defendant Oscar Rubin, and in furtherance of the same scheme and as part of the conspiracy to defraud the complainant, Larson and wife, Anna Marie Larson, did by a quit-claim deed, for a pretended consideration of ten dollars, convey the same premises to Rubin; that Anna Pritikin was a mere tool of the conspirators, and has, and had at the date of the deed to her, no financial responsibility and paid no consideration therefor but did all of the acts as the agent and dummy of persons who had full knowledge and information of the true relation of Hoover to the building and of the rights of the complainant therein; that Rubin did not pay any good and valuable consideration, or any consideration whatever, for the building; that he is a man of very little resources and had full knowledge of the plan and purpose of Larson and Hoover and the other defendants named, in the scheme to defraud the complainant as before stated; that it was the plan and purpose of the conspirators to enter into possession of the building and seize and appropriate to themselves the rents thereof, and if any consideration had been paid it was their purpose that such consideration should be recouped and paid from the rents so collected by Rubin, or some agent in his behalf, from the tenants occupying said building.

Sixth — By the terms of the trust deed executed by Hoover to the Chicago Title and Trust Company about October 20, 1920, it is provided that beginning on November 1, 1920, and on the first day of each of the eleven months immediately succeeding thereafter, the mortgagor shall deposit with Wollenberger & Co. at Chicago, for the account of the bondholders, a sum of money which shall be equal to one-twelfth of the total annual interest charges for the year beginning November 1, 1920, and ending October 31, 1921, and thereafter, during each year of the indebtedness, shall deposit in equal monthly payments on the first day of each month, beginning November 1, 1921, one-twelfth of the total annual interest charges falling due within such yearly periods, respectively, and deposit on November 1, 1920, and on the first day of each of the eleven months immediately succeeding thereafter, a sum which shall equal one-twelfth of the principal due November 1, 1921; that the payments required by the covenants of the trust deed have been paid to and including the month of February, 1921; that Hoover and his co-conspirators failed and refused to make the further payments required, and that by the refusal to make the payments due in March, April, May and June, 1921, amounting to the sum of $8500, and by the refusal to pay the taxes due to the amount of $2526.26, there is a default on the first mortgage; that Hoover, Larson and Anna Pritikin are insolvent and unable to respond in damages and Rubin is wholly unable to pay the amount he has collected from the building in rents; that the rents accruing from the building amount, approximately, each month to the sum of $7550; that David K. Cochrane, a man of small means, is one of the lawyers for the defendants and one of the conspirators; that the complainant will suffer a total loss of the amounts due him unless the court, through its injunction and the appointment of a receiver, prevents a waste of the income and also prevents the further encumbrance and conveyance of the building and the assignment of the notes purporting to be secured by the pretended trust deed of Anna Pritikin to Cochrane and the further collection of the rents and income from the property, and at the time the complainant delivered the releases to Larson, Larson & Co. and the Larson Construction Company he was ignorant of the fact that Hoover was but the agent or dummy of Larson and did not possess the financial or moral character which he had been led to believe he had, therefore it is just and in accordance with the principles of equity that the releases should be set aside and held for naught. He is not advised what disposition, if any, has been made of the notes purporting to be secured by the trust deed executed by Anna Pritikin to Cochrane, amounting to $90,000, and that they may not get into the hands of innocent holders it is necessary that the defendants herein be enjoined from disposing of the notes or any of them.

Seventh — Under article 8, section 1, of the trust deed to the Chicago Title and Trust Company, securing the $150,000 of bonds aforesaid, it is provided that the mortgagor shall at no time commit or suffer to be committed any waste upon the mortgaged property or permit to be done about or upon the mortgaged property anything that may in anywise tend to impair the value thereof or to weaken or impair the value of the security furnished by the trust deed and to fully and in due time comply with all laws and ordinances lawfully applicable to the mortgaged property; that the covenant has not been kept by the mortgagor or those persons who are now in possession of the property, but, on the contrary, since Rubin has had possession and control of the building young girls and women of immoral character have been taken to rooms or apartments in the Lafayette building for immoral purposes, which has resulted in complaints to the police department in the city of Chicago and arrests have been made and several raids have been made by the police force, all of which actions have greatly injured the reputation of the building and will destroy or largely impair its value and do irreparable injury to the complainant as owner in equity of the amount due on the balance of the purchase money, and which is prior in right to the title of the defendants or any of them; that some controversy had arisen between Larson and Hoover, and by reason thereof Larson on December 4 and on December 30, 1920, filed and had recorded in the office of the recorder of deeds of Cook county affidavits setting out the contract between Hoover arid Larson, by which Hoover was shown to have been acting merely as agent of Larson, had paid no consideration for the Lafayette building and had no authority to sell or convey it without consent of the complainant and Larson, which affidavits were on file at the time Hoover pretended to transfer the properties to Anna Pritikin; that Larson also filed a bill against Hoover on March 8, 1921, in the circuit court of Cook county, in which bill the agency of Hoover for Larson is averred and the court is asked to decree the delivery of a proper deed from Hoover to Larson to the Lafayette building, and that on June 17, 1920, the complainant and Wollenberger & Co. filed said bill in the superior court of Cook county against Larson, Miller and Rahlf, in which it is alleged that Miller and Rahlf hold the title to the Lafayette, the Clarke, the Carmen and the Magnolia apartment buildings as trustees for the benefit of the complainant and Larson, as set forth in the contract of January 9, 1920. The interests of Larson and the complainant in the apartment buildings are also set forth in the bill, and it is therein stated that Larson was under contract with the complainant for the sale and disposition of two of the buildings, the Clarke and the Carmen, at certain prices therein agreed on and for the purpose of re-paying the advances made by Wollenberger & Co. to Larson at the instance of the complainant; that the demand for sale and the prices available for the buildings are at their peak, and if not promptly sold and the proceeds of sale thereof applied to the amount due Wollenberger & Co. and the remainder divided between complainant and Larson, any loss by failing to sell while prices for such property are at their best will fall altogether, or mainly, upon the complainant and Wollenberger & Co. The Magnolia apartment building has been sold, and on sale thereof Larson was entitled to a commission of $1796, as provided by paragraph 4 of the contract; that contrary to the provisions of paragraph 4 of the contract he has refused to turn over to Wollenberger & Co. the sum received as commission, to apply on the indebtedness due to Wollenberger & Co. The prayer of the bill is for an accounting between Wollenberger & Co. and Larson since January 9, 1920, to the filing of the bill and to fix the sum due Wollenberger & Co. under the contract of January 9, 1920; that Larson may be ordered to turn over to Wollenberger & Co. the commission realized from the sale of the Magnolia apartment building, to be applied as required by the fourth paragraph of the contract of January 9, 1920; that Miller and Rahlf be decreed to hold the record title to the other three buildings for the joint benefit of the complainant and Larson, subject to the provisions of the contract; that a sale of the other three above described buildings subject to the encumbrances thereon may be had under the direction of the court; that after applying the proceeds of sale, if the same should be insufficient to pay all costs and Wollenberger & Co. in full under the terms of the contract, a deficiency judgment or decree be rendered in the company’s favor against Larson for the amount of such deficiency and that execution issue therefor as at common law, and for other and further relief as equity may require. Before the conveyances by Hoover to Pritikin and by Pritilcin to Rubin, dated, respectively, March 8 and March 10, 1921, the complainant and Hoover agreed that the bill of complaint by the complainant and Wollenberger & Co. against Larson and others for an accounting, etc., should not be dismissed, and that the other documents in the hands of the complainant and his attorneys necessary to clear the title to the Lafayette building and procure the guaranty policy on the same should be delivered, but should likewise be withheld from filing until a purchaser satisfactory to the complainant had been procured, whereupon all of the papers should be filed and the bill should be dismissed and the guaranty policy be taken out and delivered to the purchaser.

Eighth — Evans Larson and other defendants filed cross-bills, to which answers were filed and issues were joined. The cross-bills and answers are sufficient to state the respective claims of the parties thereto and to furnish a basis for the introduction of evidence, but it will not be necessary to set out the pleadings or any part of them or discuss them in detail in this opinion, as the documentary proof, taken in connection with the undisputed facts in this case, makes it possible, as stated by the master in chancery in his report, to determine the truth on the issue.

Ninth — The contract of January 9, 1920, and the bill of complaint of June 17, 1920, by the complainant and Wollenberger & Co. against Larson and others for an accounting, copies of five other instruments all dated on the same day the contract of sale was signed, October 1, 1920, and also a copy of the provisions of the bonds and of the trust deed to the Chicago Title and Trust Company on the Lafayette building to secure the bonds in the sum of $150,000, dated October 1, 1920, were filed as exhibits to the complainant’s bill and made parts of the same. The first of the five instruments is signed by H. G. Howard & Co., who thereby acknowledge that upon, but only upon, the full and complete consummation of the above described contract of sale by the complainant to Hoover, or any change or modification thereof agreed upon by the parties thereto, they will be entitled to receive from the complainant the sum of $8265 in full for their commission in the sale of the Clarke, Carmen and Lafayette buildings to Hoover. They also expressly acknowledged that in the event that the contract of sale, or some change or modification thereof agreed upon by the parties to the contract of sale, for any reason whatever is not fully and completely consummated and the consideration fully and completely paid to the complainant, then and in such case they shall not be entitled to receive any commission whatsoever.

Tenth — One of said five instruments was signed by Evans Larson and Anna Marie Larson, his wife, which provided that in consideration of ten dollars paid to them and of the execution by the complainant and Hoover of the contract of sale they consented to all the terms and agreements of the contract of sale and agreed to perform all the terms, provisions, covenants and conditions thereof on the part of the complainant to be done and performed, in which instrument it was recited that it was to be understood that the Larsons should not share in the benefits or purchase price of the contract of sale, which should run to and be paid to the complainant, only. Another of said five instruments was executed by the complainant and Larson, which recites that on January 9, 1920, the complainant and Larson entered into a written contract setting forth their respective rights in the Lafayette, the Carmen and the Clarke apartment buildings; that subsequent to the date of the contract of January 9, 1920, controversies and disputes arose between the parties, and the complainant and Wollenberger & Co. thereafter filed their bill of complaint in the superior court of Cook county against Larson and others, praying for an accounting and for other relief; that the complainant has this day, October 1, 1920, entered into a written contract with Hoover for the sale to Hoover of the three apartment buildings on the terms and conditions set forth in the contract of sale, and Larson and Anna Marie Larson, his wife, have assented to and joined in the execution of the contract of sale, and that the complainant and Larson desire to enter into an agreement for completely adjusting and settling all their controversies and disputes, to take effect as of the date of the consummation of the contract of sale between the complainant and Hoover. Therefore, in consideration of the payment by each party hereto to the other of the sum of one dollar and of the mutual covenants and stipulations hereinafter contained, and which are set forth in eleven paragraphs and numbered First to Eleventh, which covenants and stipulations they hereby agree that they have performed or will perform, to-wit: First, they have authorized in writing William S. Miller and John J. Rahlf, who hold title to the Lafayette, the Carmen and the Clarke buildings for the mutual benefit of the complainant and Larson, to convey the three buildings to Hoover; second, the complainant and Wollenberger & Co. have executed general releases to Larson, Larson & Co. and the Larson Construction Company, and at the same time Larson and Anna Marie Larson, his wife, Larson & Co. and the Larson Construction Company have executed general releases to the complainant and Wollenberger & Co.; third, Larson and Anna Marie Larson, his wife, have executed to the complainant an assignment of all their right, title and interest in and to a certain claim against Chandler, Hildreth & Co.; fourth, Larson and his wife, Anna Marie Larson, shall execute their quit-claim deeds conveying the three buildings to Hoover and shall deliver the same for recording to the Chicago Title and Trust Company; fifth, Larson and his wife have also executed releases running to Miller and Rahlf, respectively; sixth, within five days from this date, October 1, 1920, Larson shall cause to be paid and satisfied of record a certain judgment rendered against him in the superior court of Cook county in favor of Fred J. Trimble, and shall pay and satisfy within said five days any judgment or other liens against the premises suffered or permitted by him to accrue since January 9, 1920; seventh, each of the parties to this contract, the complainant and Larson, shall deliver such instruments, documents, releases and papers in his possession or control as shall be requisite or necessary to carry out the sale contemplated by the contract between the complainant and Hoover and shall execute and deliver such other instruments as may be required or necessary for the same purpose, and Larson agrees to use his best efforts to clear the titles to all of the three buildings covered by the contract of sale to Hoover; eighth, Larson and his wife, Anna Marie Larson, have executed their quit-claim deed conveying to the complainant all their right and title in and to lots 2, 3, 4 and 5 in block 6 in William L. Wallen’s addition to Rogers Park, in Cook county, Illinois; all of paragraphs second, third, fifth and eighth contain the further provisions that the instruments named therein, together with this contract between the complainant and Larson, shall be deposited in escrow with the Chicago Title and Trust Company as depositary and held by it until the full and complete consummation of the contract of sale between the complainant and Hoover, and upon consummation thereof said instruments shall be delivered to the parties to whom they run; ninth, upon the full and complete consummation of the contract of sale between the complainant and Hoover the contract of January 9, 1920, between the complainant and Larson, and all obligations thereunder, shall be considered canceled and annulled; tenth, Larson shall deliver to the Chicago Title and Trust Company, for recording, two certain quitclaim deeds from Ernest Eifer conveying to Miller and Rahlf, respectively, the Lafayette and Carmen buildings; eleventh, in the event that the contract of sale contemplated by the contract between the complainant and Hoover is not consummated, then this contract between Larson and the complainant shall be null and void, and, together with the documents deposited with it, shall be destroyed by the depositary or permanently held by it at its option, and thereupon the contract of January 9, 1920, shall be and remain in full force and effect.

Eleventh — On October 1, 1920, the date of the contract between the complainant and Hoover for the purchase of the buildings by Hoover, Larson and Hoover executed a written agreement which recited that Hoover, at the request of Larson, was about to execute certain instruments regarding the purchase from the complainant of the Lafayette, Carmen and Clarke buildings and to lend Larson $5000, and in such purchase was acting for Larson, who had agreed to compensate him. It continued, that therefore it was agreed that Hoover would execute a contract for the purchase of such properties from the complainant, dated October 1, 1920, and upon its execution would hand Larson a cashier’s check on the First National Bank of Kansas City for $5000, payable to Hoover’s order and endorsed by him to the Chicago Title and Trust Company; that at the same time Larson would execute to Hoover two promissory notes for the aggregate sum of $8000, payable November 1, 1920, being for Hoover’s protection on the loan and as compensation for the execution of the contract and the other instruments mentioned in the contract. These notes were secured by certain collateral mentioned in the contract and delivered to Hoover. It was further agreed that Hoover would execute, at the request of Larson, the instrument required to be executed by the purchaser under the contract of sale and such instruments as might be required under the contract of sale made by Larson with Daniel Burkey for the sale of the Lafayette building, and as a protection for Hoover by reason of the execution of the contract and instruments referred to, Larson agreed to hold Hoover harmless from any loss or liability upon them. The contract of purchase from the complainant of the Lafayette, Carmen and Clarke apartment buildings, together with the cashier’s check for $5000 as soon as executed, was to be deposited with the Chicago Title and Trust Company, to be held and used as earnest money according to the terms of the contract of sale. The contract further provided that in the event Burkey should fail or refuse to carry out the contract now in escrow with the Harris Trust and Savings Bank, and Hoover shall elect personally, from his own resources, to supply all the funds necessary to consummate the contract of sale between the complainant and Hoover of the apartment buildings, then the parties to this agreement shall each have a half interest in the apartment buildings, and shall divide the income and net proceeds of any sale thereof on the basis of fifty-fifty, after the re-payment to Hoover of all advances and payments made by him in carrying out the contract of sale with the complainant or subsequently made in the care of the apartment buildings. If Larson, in case of the failure of the Burkey contract, shall supply any portion of the funds necessary to carry out the contract of sale or to obtain the complainant’s interest in the buildings, the said fifty per cent interest in the properties, or the income or proceeds thereof which may come to Hoover, shall be reduced proportionately.

Twelfth — The fifth instrument aforesaid, which was made a part of the bill of complaint as an exhibit, is the contract of sale between the complainant and Hoover. The contract has been performed in so far as it pertains to the Clarke and Carmen buildings and as to the earnest money deposited with the depositary, and in so far as the contract relates to the Lafayette building the agreements of the complainant and Hoover are the following: The complainant agrees, as part of the consideration of the contract, to make a loan on the Lafayette building for the sum of $150,000 in bonds dated October 1, 1920, with interest at seven per cent per annum, payable semi-annually, and the bonds are payable in annual installments, as heretofore stated, all to be secured by a trust deed to be signed by Hoover to the Chicago Title and Trust Company, as trustee, which shall contain a clause requiring Hoover to deposit monthly, in advance, with the complainant or Wollenberger & Co., one-twelfth of the annual interest and annual principal payments. The complainant by this contract agrees to sell the buildings at the price of $292,375, and to convey, or cause to be conveyed, to Hoover a good and merchantable title thereto by a good and sufficient deed, with release of dower and homestead rights, but subject to existing leases expiring at various dates and to all general taxes levied after the year 1919 and to any unpaid special taxes or special assessments levied for improvements not completed on October 1, 1920, and also subject to any party-wall agreements of record and to building line restrictions and building restrictions of record, and Hoover shall be entitled to rents accruing after October 1, 1920, and the taxes for the year 1920 shall be prorated from January 1, 1920, to October 1, 1920. Premiums on insurance policies held by mortgagee shall be paid by Hoover pro rata from October 1, 1920, for the unexpired term. The interest on encumbrances, rents, water taxes and insurance premiums shall be adjusted pro rata as of October 1, 1920. The coal on the premises on October 1, 1920, shall be purchased by Hoover. Hoover further agrees to pay the insurance premiums and other pro rata adjustments chargeable to him, and the further sum of $71,375, at the office of the Chicago Title and Trust Company, provided a good and sufficient deed conveying to Hoover a good and merchantable title to the premises, subject as aforesaid, shall then be ready for delivery. The complainant further agrees, within a reasonable time from the date of the contract, to furnish Hoover a guaranty policy by the Chicago Title and Trust Company, in its usual form, which shall, upon the consummation of the sale, remain with the complainant or his assigns as part of his security until the deferred installments are fully paid. The complainant also agrees to pay to the firm of H. G. Howard & Co. a commission of $8265 upon, and only upon, the full and complete consummation of the contract of sale, and in the event that for any reason the contract of sale be not fully and completely consummated there shall be no liability upon the complainant to pay any part of the commission. It is further stated in the contract that the expenses in connection with the bond issue of $150,000, and the trust deed securing the same, shall be borne by the complainant. Hoover was to have until November 1, 1920, if necessary, to consummate the contract of sale, and the contract provided that if he shall fail to perform it promptly on his part and in the manner specified the contract shall become null and void, and that the contract shall be held by the Chicago Title and Trust Company, as depositary, for the mutual benefit of the parties, and after the consummation of the sale the depositary shall be at liberty to retain the canceled contract permanently.

In the foregoing paragraphs of this opinion the second to the seventh, inclusive, and in the ninth to the twelfth, inclusive, we have set forth substantially all the material allegations in the complainant’s bill of complaint so far as they pertain to the rights and claims of the complainant or of the defendants contesting the same under this writ of error, except those allegations pertaining to the provisions of the bonds, and of the trust deed on the Lafayette building securing the bonds in the sum of $150,000. The provisions of the. bonds and of the trust deed, the consideration of which is necessary to a correct decision in this case, will be noted when we- come to the consideration of the rights and duties of the complainant under the provisions of the bonds and trust deed.

To sustain the extraordinary decree rendered by the circuit court of Cook county for the complainant in this case and against various defendants, counsel for the complainant, Herman Wollenberger, appear to rely very greatly on the various allegations of fraud against Larson, Hoover, Rubin and other defendants. Under such allegations of fraud there are various conveyances in the record that are apparently set aside merely because alleged to be fraudulent and to which relief the complainant was not entitled by reason of other material allegations in the bill that are inconsistent with such relief. Various fraudulent misrepresentations to the complainant are charged against Larson and his alleged confederates, including Hoover, as to Hoover’s wealth and good standing, morally and financially, and as to his ability, as president of the Bankers’ Mortgage Company of Kansas City, to carry out his projects, and that his relation to Larson was such that he could secure Larson’s assent thereto. It is further charged in the bill that the complainant relied on such representations and was induced thereby to enter into the contract of sale to Hoover of October 1, 1920, of the three buildings aforesaid, and that he was deceived and damaged by reason thereof, and by reason of the alleged fraudulent conveyances by Hoover to Anna Pritikin, and by her to Rubin and others, of the Lafayette building. The record evidence does not sustain the complainant’s allegation and claim that he relied on the representations of Larson and his confederates made to him as to the moral and financial standing of Hoover and that he was deceived and defrauded thereby. His own testimony on that question is that he met Hoover three or four years before he entered into the contract of sale with him for the three buildings; that Hoover was then living in .Waterloo, Iowa; that some time later, about September, 1920, Louis T. Orr, of H. G. Howard & Co., brought Hoover and introduced him to the complainant as a rich banker from Kansas City, and stated that Hoover wanted to buy the Lafayette, the Clarke and the Carmen buildings; that Joseph O. Morris, attorney for Larson, said to the complainant that Hoover was worth half a million dollars and had a big plantation in North Carolina; that Hoover then presented to the complainant his card as president of the Bankers’ Mortgage Company of Kansas City, and “the card said it was a million dollar corporation;” that the complainant then “looked up Hoover” in Bradstreet’s Reports, and therein found the statement that Hoover was the president of the Bankers’ Mortgage Company of Kansas City, and then said that that report satisfied him. This evidence of the complainant seems to show clearly that he relied on the report in Bradstreet’s Reports concerning the standing of Hoover and not on the reports concerning Hoover given him by Larson through Orr and Morris.

The allegation of the complainant shown in the sixth paragraph of this opinion, to the effect that at the time the complainant re-delivered the releases to the defendants Larson, Larson & Co. and the Larson Construction Company he was ignorant of the fact that there was a contract existing between Hoover and Larson dated October 1, 1920, that showed that Hoover was but the agent or dummy of Larson in the execution of the contract of sale to Hoover from the complainant, and that he did not learn that fact until about February 15, 1921, as alleged in the fourth paragraph of this opinion, are facts not established by the evidence in the record. Isaac E. Glaseman, a witness for the complainant, who was forcibly ejected from the Lafayette building by Larson, who had previously put Glaseman in possession as his tenant, testified that he saw the contract of Larson and Hoover of October 1, 1920, showing that Hoover was only a dummy for Larson in the purchase of the three apartment buildings aforesaid and told the complainant all about the provisions of that contract not later than October 23, 1920; that the complainant then replied to Glaseman, “Pay no attention to that contract. Hoover is the owner of the building and Larson’s contract is not worth anything.” The complainant did not specifically deny Glaseman’s testimony but later testified that the first time he learned that Hoover was not the real purchaser of the buildings was in February, 1921, in the office of his attorney, Judge Aldrich, when Aldrich showed him “a kind of a contract” of Hoover with Larson. Joseph O. Morris, Larson’s attorney, testified that the complainant in October, 1920, just after the contract of- sale between the complainant and Hoover was made, asked him if Larson did not retain an interest in the contract of sale to Hoover. Morris replied, in substance, that Larson would not part with all his interest in the buildings without in some way retaining his interest in them, and that Larson did retain an interest in them in his contract with Hoover and'was interested with Hoover in any profits that might be realized in the sale of the buildings by Hoover. To this information from Morris the complainant replied: “All right; you are all too smart for me; just so I get my money I don’t care how much money he [Larson] makes.” As a matter of fact, it is immaterial in the decision of this case whether the complainant first acquired knowledge of the contract between Hoover and Larson in February, 1921, or in October, 1920. The important fact in regard to that matter, which is conceded by the complainant, is, that he obtained complete knowledge of the contract between Larson and Hoover long before he filed his bill of complaint in this case, on June 3, 1921, and according to his own evidence he obtained it through his own attorney, Judge Aldrich, in February, 1921. It is true that the complete title to the buildings was vested in Hoover by the contract of sale by the complainant for his half interest therein, by the deeds of Rahlf and Miller and of Larson and wife, and by the execution of other instruments necessary to place the complete title in Hoover. Nevertheless, Larson did not sell his half interest to Hoover, and Hoover and the complainant have not seriously contended otherwise. It has at all times been recognized that Larson had his half interest in the Lafayette building until he finally disposed of the same by his sale to Rubin and there is no contention otherwise by anyone in this record. It was necessary that the complete title be vested in Hoover so he could obtain the $150,000 loan secured by the trust deed, and the title was so vested for the purpose aforesaid, although he, in fact, purchased only the half interest of the complainant. The bill in this case clearly shows that the complainant sold to Hoover only his half interest and that the entire purchase price of $292,375 was to be paid to the complainant by Hoover and that Larson was to have no part of the purchase money. Larson’s testimony in this case is all to the effect that he did not sell to Hoover his interest in the buildings and at no time intended to do so. The complainant testified that when he sold his interest to Hoover, Larson had a half interest in the properties. It was therefore reasonably necessary that Larson have Hoover, by written contract, recognize the fact that he had an interest in the premises for the protection of his rights, and the complainant had no right to object to such action so long as Larson played fair and practiced no fraud on him by which he might or would be injured. He was not injured in this particular by any alleged fraud of Larson in making his contract of October 1, 1920, with Hoover, and he cannot complain of any such alleged fraud for the reason that he knew all about the alleged fraudulent contract with Hoover months before he filed his bill in this case. He alleges in his bill another important fact set forth in the fourth paragraph of this opinion that precludes him from complaining of any fraud that he has alleged against Hoover and Larson. That fact is, that about February 15, 1921, he discovered the actual standing, moral and financial, of Hoover, and that fact is not denied by him in this record. It therefore appears that after full knowledge of all of the alleged frauds of the defendants practiced against him, he has precluded himself from taking advantage thereof by his election to affirm the contract of sale and to treat it, and all other instruments connected with it and relating to it, as in full force and effect.

The allegations of the complainant’s bill set out in the fifth paragraph of this opinion definitely and conclusively show that the complainant sold all his interest in the three apartment buildings to Hoover for the purchase price named in the contract of sale, and that his interest so sold was a “fifty per cent interest in the equity of the properties, subject to the payment of the indebtedness thereon” mentioned in the contract of sale, and that the total indebtedness claimed by the complainant to be due him from Hoover for the purchase price on December 9, 1920, before the application of the credits aforesaid, was the sum of $73,803.29, “with adjustments provided in said contract of sale.” Moreover, the allegations in said paragraph of this opinion and tlie prayer for relief show just as conclusively that the main relief asked by the complainant is for a decree for the remainder due him for purchase money on the Lafayette building and for the amount due and paid by him of the bonds and coupons secured by the trust deed for $150,000, in the payment of which Hoover and Rubin had made default, and that his bill primarily is simply a bill to foreclose his vendor’s lien for purchase money. Every allegation and claim in his bill is in harmony with our conclusion that his bill is a bill primarily for the foreclosure of his vendor’s lien, and he nowhere in his bill makes claim for any other relief except as aforesaid, and except also the right to have canceled and set aside the instruments named in the first paragraph of this opinion, and the right to a receiver and an injunction to aid him in the recovery of the main relief sought by him. The complainant as a witness in this case has twice, or oftener, stated that the only interest he has or claims in the Lafayette building is the balance due him for purchase money, and in one of these statements he says, in substance, that this suit is on the contract of sale between him and Hoover for the recovery of the balance due him for such purchase money. His right of recovery and the amount he may recover under his claim for purchase money are necessarily controlled by the allegations of his bill and by the provisions of his contract of sale with Hoover. Inasmuch as he has by his bill of complaint and by his own evidence made his claim in the lower court and confined it to the relief aforesaid, he cannot be allowed in this court to make other and different claims than he made in the lower court. It is elementary that a complainant in a chancery suit cannot make one case by his bill in the lower court and on a review by a reviewing court be allowed to make another and entirely different one. This court has frequently so declared, and we have also expressly declared that “this court reviews a case presented to the trial court and does not sit to try issues presented for the first time in this court.” Off v. Exposition Coaster, 336 Ill. 100; Butler v. Miller, 208 id. 231; Waller v. Hildebrecht, 295 id. 116; Winnard v. Clinton, 233 id. 320; Oliver v. Oliver, 179 id. 9.

We have treated the seven instruments described in the ninth to the twelfth paragraphs, inclusive, of this opinion as allegations of the complainant’s bill, for the reason that said instruments were filed as exhibits and made parts- of the bill of complaint. Five of those instruments, including the contract of sale between the complainant and Hoover, were executed on the same day, October 1, 1920, and at the same time. The first of those five instruments set out in the tenth paragraph of this opinion was signed by Evans Larson and Anna Marie Larson, his wife, in which they expressly consented to all the terms and agreements of the contract of sale between the complainant and Hoover, and expressly stated that it was to be understood that the Larsons should not share in the benefits or purchase price of the contract of sale, which should run to and be paid the complainant, only. This instrument needs no explanation further than the bare statement that it was the complainant, only, that was making the sale to Hoover, and that the sale was only of the complainant’s one-half interest in the three properties sold to Hoover. The second of the five instruments is the contract of Larson and the complainant, which recites the fact of the complainant and Larson entering into the written contract of January 9, 1920, and the controversies and disputes that arose between them, which resulted in the complainant filing his bill of complaint for an accounting on June 17, 1920, and in entering into the written contract of sale of the three apartments by the complainant to Hoover on the terms and conditions set forth in the contract of sale. This contract then expressly states that the complainant and Larson desire to enter into an agreement for completely adjusting and settling all their controversies and disputes, to take effect as of the date of the consummation of the contract of sale between the complainant and Hoover. The contract then sets forth a number of mutual covenants and stipulations thereafter set forth in eleven paragraphs, numbered 1 to 11, which covenants and stipulations they thereby agree they have performed or will perform. We call particular attention to the ninth and eleventh paragraphs of that contract, the ninth of which provides that upon full and complete consummation of the contract of sale between the complainant and Hoover the contract of January 9, 1920, between the complainant and Larson, and all obligations thereunder, shall be considered canceled and annulled. The eleventh paragraph provides that in the event the contract of sale contemplated by the contract between the complainant and Hoover is not consummated, then the contract between Larson and the complainant shall be null and void, and, together with the documents delivered with it in escrow, shall be destroyed by the depositary, and thereupon the contract of January 9, 1920, shall be and remain in full force and effect. We also call attention to the provisions of the contract of sale between the complainant and Hoover referred to in the twelfth paragraph of this opinion and which is in the following language: “Should said purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the vendor, be retained by the vendor as liquidated damages, and this contract shall thereupon become null and void. Time is of the essence of this contract and of all the conditions hereof.” By the provisions of the above quoted paragraph of the contract of sale between the complainant and Hoover, the complainant, as against Hoover and his assigns, had the right to have the contract of sale declared void should Hoover and his assigns fail to perform it promptly at the time and in the manner specified in the quoted paragraph. By the agreement of Larson and the complainant of October i, 1920, either Larson or the complainant had the right to have the contract of sale between Hoover and the complainant declared null and void and have it destroyed “in the event that said contract of sale” was not consummated, and thereupon the contract of January 9, 1920, between Larson and the complainant should “be and remain in full force and effect.” Nevertheless, the complainant has made his election to have the contract of sale remain in full force and effect until long after the alleged fraudulent sales by Hoover to Miss Pritikin and by Miss Pritikin to Rubin, and by his bill of complaint filed June 3, 1921, treats the contract of sale as in full force and effect, and claims thereby only his right to foreclose his vendor’s lien and to be paid the remainder of his purchase money and the amount paid by him of the $150,000 bond issue secured by the trust deed to the Chicago Title and Trust Company, except the incidental relief by injunction and the appointment of a receiver, etc., to protect and aid him in securing the main relief that he seeks to recover. Therefore, whatever right he may have had to have the contract of sale declared void as to the Lafayette building and to recover his original interest in that building, and to have the contract of January 9, 1920, between him and Larson come into force and effect, he has waived, and is estopped to claim any right of recovery under the contract of January 9, 1920. His present suit is on the contract of sale, as he has stated in his testimony, and he can recover the main relief sought by him only on the contract of sale and the trust deed securing the bonds and coupons, and the measure of such relief is governed solely by those two instruments, except in so far as the contract of sale may have been modified by an irrevocable agreement between him and Hoover. Larson’s expressed position in this case is that he wants the complainant to recover his purchase money, and he does not object to the complainant treating the contract of sale as in full force and effect. He and the complainant are the only parties to this suit who had the express right to declare the contract of sale void according to the provisions of the contract of October 1, 1920, between Larson and the complainant and the contract of sale by the complainant to Hoover of the same date and which were both executed at the same time.

As a corollary to the proposition that the complainant is entitled to foreclose his vendor’s lien and in doing so is bound by the provisions of the contract of sale and has waived his right to have the same declared void and to claim any right of recovery under the contract of January 9, 1920, between him and Larson, Rubin, as the assignee of Hoover, is entitled to claim every right given to Hoover under the contract of sale and to treat that contract of sale as in full force and effect, provided he shall perform all the obligations of Hoover under the contract of sale and pay to the complainant the remainder found due the complainant for purchase money under that contract. We will supplement our statement that the contract of January 9, 1920, between Larson and the complainant is completely annulled in this suit by the pleadings and the evidence thereunder, by the further statement that all other matters and claims and disputes between them since January 9, 1920, and prior to the execution of the contracts and other instruments entered into by them or assented to by them on October 1, 1920, are settled and completely closed and barred from further consideration in this case by the provisions of their contract of October 1, 1920, and by the election of the complainant, assented to by Larson, to confine his right of recovery in this case to the foreclosure of his vendor’s lien and to recover the amount he has paid of the $150,000 bond issue secured by the trust deed, which was also executed near the same time as the contract of sale between the complainant and Hoover. It is not possible that the complainant in this case can have any form of relief on the contract of January 9, 1920, between him and Larson, and also at the same time have a lien for purchase money on the contract of sale of October 1, 1920, between him and Hoover, if the contract of October 1, 1920, between him and Larson be considered. This proposition is true because of the pro