{
  "id": 3364763,
  "name": "S. J. Gould, Appellant, v. A. A. Lewis, Appellee",
  "name_abbreviation": "Gould v. Lewis",
  "decision_date": "1932-10-04",
  "docket_number": "Gen. No. 35,892",
  "first_page": "569",
  "last_page": "573",
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      "cite": "267 Ill. App. 569"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "334 Ill. 19",
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  "last_updated": "2023-07-14T20:59:32.583380+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "S. J. Gould, Appellant, v. A. A. Lewis, Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Scanlan\ndelivered the opinion of the court.\nThe plaintiff sued the defendant in the municipal court of Chicago in an action of the first class. There was a trial before the court, without a jury, and a finding for the defendant, upon which judgment was entered. Plaintiff has appealed.\nIn his statement of claim the plaintiff alleged:\n\u201c . . . that on, to-wit, November 20, 1927, for good and valuable consideration, the defendant entered into an agreement with the plaintiff in words and figures following, to-wit:\n\u201c \u2018 A. A. Lewis and Company\nReal Estate-Bonds-Investments\nThird Floor\n208 W. Washington St.\nChicago,\nNovember 20, 1927\n\u201cMr. S. J. Gould,\n77 West Washington Street, >\nChicago, Illinois.\n\u201cDear Sir:\n\u201cThis is to advise you that with reference to your ' services rendered in connection with the purchase of the Stielow property, I agree to pay you, on or before three years from date, out of the proceeds of sale of said property, the sum of Eighty Five Hundred Dollars ($8,500.00).\n\u201cIt is understood that this in no way shall be ieflected as a lien, or a lien on the property, and does not create any partnership or specific agreement to pay, except from the proceeds of sale of said property.\n\u201cThis agreement shall not be recorded, with either the Trustee of said property or the Recorder\u2019s Office of Cook County, Illinois, and if recorded shall be void.\nTour very truly,\nA. A. Lewis. \u2019\n\u201cThat although three (3) years have elapsed since the making of said agreement and the proceeds of the sale of said Stielow property exceeded the sum of Eighty Five Hundred Dollars ($8500.00) the defendant, although often requested, has not paid said sum of Eighty Five Hundred Dollars ($8500.00), or any part thereof.\n\u201cWherefore plaintiff sues for said sum, together with interest at the rate of five per cent (5%) per annum from November 20, 1930, to the date of judgment herein.\u201d\nIn his second amended affidavit of merits the defendant denies that the plaintiff had rendered any services in comiection with the purchase of the Stielow property ; avers that the said written agreement was without consideration and that it was obtained by fraud and misrepresentation; denies that he, \u201cthe defendant, ever received Eighty-five Hundred dollars or any other proceeds of the sale of the Stielow property and denies that he ever at any time possessed any sum from the sale of the Stielow property with which he could have paid said Eighty-five Hundred Dollars or any other amount to this plaintiff.\u201d\nThe major contention of the plaintiff is that \u201cthe finding of the court is clearly and manifestly against the weight of the evidence.\u201d After a careful consideration of all the evidence we have reached the conclusion that this contention is a meritorious one. As the case may be tried again we refrain from analyzing and commenting upon the facts and circumstances in evidence.\nWe deem it necessary to pass upon several controverted questions of law. Upon the trial the defendant contended that the written agreement of November 20, 1927, was obtained by fraud and misrepresentation, and that in the instant proceeding, a civil action, he was required to establish the allegation of fraud by only a preponderance of the evidence. Upon the other hand, the plaintiff insisted that \u201cwhen fraud is relied on as a defense, the burden is upon the party charging the fraud to prove it as a fact, by such clear and convincing evidence as leaves the mind well satisfied that the allegations of fraud are true.\u201d The law on the subject is not open to doubt, as the Supreme Court has many times stated the rule. It is only necessary to cite a very late case bearing upon that subject. In Jaworski v. Sujewicz, 334 Ill. 19, 22, the court said: \u201cFraud will not be presumed, but must be proved by such clear and convincing evidence that the mind is well satisfied that the charge is true. (Carter v. Carter, 283 Ill. 324; Mosbarger v. Brown, 313 id. 238.)\u201d\nThe plaintiff contends that the term \u201cproceeds\u201d in the letter of November 20, 1927, \u201cmeans anything that was realized out of the sale of the property, whether money or any other thing of value, and . . . that the term \u2018proceeds\u2019 cannot be limited to the construction that the defendant would have placed on the term, namely, only profits received by the defendant.\u201d The plaintiff cites several cases which the defendant concedes seem to support the contention of the former. While the defendant cites several cases which hold that the term \u201cproceeds\u201d as used in those cases means net profits, nevertheless, he frankly states in his brief that it is difficult to reconcile the authorities bearing upon the question and that the following statement, from 50 Corpus Juris 427, expresses \u201ca broad middle ground\u201d in the interpretation of the term: \u201cProceeds. Not a word of any fixed or definite meaning, but of varying and loose significance, employed with different meanings, of equivocal import and great generality. . . . Its meaning in each case depends on its context, depends very much on the connection in which it is employed and the subject matter to which it is applied.\u201d The same authority also states (pp. 429, 430): \u201cIn contracts and written instruments, the word \u2018proceeds\u2019 has many meanings and varied usages and is in many instances of doubtful meaning. The subject matter and purpose of a contract must be considered in order to determine the meaning of the word as used by the parties. As used, the word has been variously defined, and held to mean \u2018money;\u2019 to include the increase in value of stock or produce; not to mean actual money recovered or money only or \u2018invoice;\u2019 it has been held to mean gross proceeds and net proceeds.\u201d From a review of the many authorities cited in Corpus Juris it is clear that the statement therein contained that \u201cthe word \u2018proceeds\u2019 has many meanings and varied usages and is in many instances of doubtful meaning,\u201d is fully justified. In 23 Am. & Eng. Ency. of Law, 159, it is stated that \u201cthe term (proceeds) is one of equivocal import. Its construction depends much upon the context and the subject matter to which it is applied.\u201d The plaintiff cites People v. City of Chicago, 216 Ill. 537, 542, as an authority in support of his interpretation of the term \u201cproceeds.\u201d In our judgment the Supreme Court in that case did not intend to state a fixed definition of the term \u201cproceeds\u201d that would apply in the interpretation of all contracts. The general rule that where the terms of a contract are ambiguous and uncertain their meaning may be determined from extrinsic evidence, also applies to the instant contract.\nWhile the plaintiff strenuously insists that we should enter a judgment in his favor in the sum of $8,500, we have reached the conclusion that justice will be best served by a retrial of this cause.\nThe judgment of the municipal court of Chicago is reversed and the cause is remanded.\nReversed and remanded.\nKeeker, P. J., and Gridley, J., concur.",
        "type": "majority",
        "author": "Mr. Justice Scanlan"
      }
    ],
    "attorneys": [
      "Jacobson, Merrick, Nierman & Gilbert, for appellant.",
      "McKenna & Harris, for appellee."
    ],
    "corrections": "",
    "head_matter": "S. J. Gould, Appellant, v. A. A. Lewis, Appellee.\nGen. No. 35,892.\nOpinion filed October 4, 1932.\nJacobson, Merrick, Nierman & Gilbert, for appellant.\nMcKenna & Harris, for appellee."
  },
  "file_name": "0569-01",
  "first_page_order": 617,
  "last_page_order": 621
}