{
  "id": 5116268,
  "name": "Kerting v. Hilton",
  "name_abbreviation": "Kerting v. Hilton",
  "decision_date": "1894-02-01",
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  "last_updated": "2023-07-14T18:36:15.137575+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "Kerting v. Hilton."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nThe property which, with such changes as have come in the course of business, is the cause of this suit, was, on May 30, 1890, assigned by the Kerting Lithographing Co.\u2014of which the appellant held the majority of the stock\u2014for the benelit of creditors. It ivas bought for $2,750 by F. FT. Gage & Co. from the assignee, and by them sold FTovember 1, 1890, to I. G. Hatcher for $5,000, who had the day before made an agreement with the appellant that he might have the property on or before December 4, 1890, for $5,500. The agreement is voluminous, and contains many other stipulations not material in this controversy. December 4,1890, Hatcher conveyed to the appellee, by a bill of sale, which recited, \u201c for and in consideration of the sum of $5,500 lawful money of the Hnited States of America, to him in hand paid, at or before the ensealing and delivery of these presents by Mr. William K. Hilton, in trust for Frank Kerting, party of the second part,\u201d habendum, \u201c to and for his own proper use and behoof forever, unless redeemed by said Frank Kerting on or before March 4, 1891.\u201d\nOn the same date as the last mentioned bill of sale, an agreement between these parties Avas made Avhich recited that the appellee, \u201c at the request of said Kerting, has this day purchased,\u201d \u201c and a trust is reposed in,\u201d the appellee, \u201c which trust in said bill of sale was so declared in favor of said Kerting because he was vested with the sole option and legal right to purchase \u201d from Hatcher.\nDecember 13, 1890, a neAV agreement was executed betiveen the parties, which inter alia said \u201c that the said Hilton is hereby declared to be the absolute OAvner of the said property, freed from any trust in favor of said Hilton.\u201d Both of the agreements betiveen these parties provided for the employment of the appellant in the business, and gaAre him the privilege of buying the lithographic plant on or before March 4, 1891, but contained no promise or undertaking on his part ever to buy it. He had a mere option, void under the statute. Schneider v. Turner, 27 Ill. App. 220; 130 Ill. 28; Corcoran v. Lehigh & Franklin Coal Co., 37 Ill. App. 577; S. C., 138 Ill. 390; Locke v. Fowler, 41 Ill. App. 66. It matters not how good the consideration, or what the inducement, for such a contract.\nThis view of the case makes all inquiry into the charges of fraud and oppression contained in the bill, useless, as the whole theory of the appellant\u2019s case is based upon the validity of his option to buy. He has never put anything but his labor\u2014for which probably he has been paid a salary \u2014into the business, and if he is, under either of the agreements, entitled to a share of any profits, this bill is not for them. The object of this bill is, in effect, a specific per: formance of his option to buy.\nThe decree dismissing the bill is affirmed.",
        "type": "majority",
        "author": "Mr. Justice Gary"
      }
    ],
    "attorneys": [
      "Appellant\u2019s Bribe, Barnum, Humphrey & Barnum, Attorneys.",
      "Appellee\u2019s Brief, Flower, Smith & Musgrave, Attorneys."
    ],
    "corrections": "",
    "head_matter": "Kerting v. Hilton.\n1. Option Contract\u2014What is.\u2014An agreement providing for the employment of a party in a manufacturing business and giving him the privilege of buying the plant on or before a day mentioned but containing no promise or undertaking on his part to buy it, is a mere option and void under the statute.\nMemorandum.\u2014Chancery. Bill to have an option contract declared a mortgage. Appeal from an order dismissing the bill entered by the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding. Heard in this court at the October term, 1893, and affirmed.\nOpinion filed February 1, 1894.\nThe statement of facts is contained in the opinion of the court.\nAppellant\u2019s Bribe, Barnum, Humphrey & Barnum, Attorneys.\nAppellants contended that the showing is clear that both of the agreements dated December 4th and December 13th, were wrung from Kerting by abusing the advantage which the mortgagee had over the mortgagor, and by taking advantage of the distress and ignorance and helplessness of Kerting, the mortgagor.\nThe law bearing on this subject is and always has been plain. It is well understood and has been often administered by the court. We need only cite a few authorities in deference to the rules of court appertaining to briefs. Brown v. Gaffney, 28 Ill. 149; Tennery v. Nicholson, 87 Ill. 464; Scanlan v. Scanlan, 134 Ill. 645; Conant v. Riseborough, 139 Ill. 388; Russell v. Southard, 12 How. (U. S.) 139; Peugh v. Davis, 96 U. S. (6 Otto), 332; Brick v. Brick, 98 U. S. (8 Otto), 516; Hayworth v. Worthington, 5 Blackf. 361; Miller v. Green, 37 App. (Ill.) 635; 1 Jones on Mort., Secs. 273, 293; Story\u2019s Eq. Jur., Sec. 222; Preschbaker v. Feaman, 32 Ill. 485; 2 Jones on Mort., Secs. 1039, 1042; 2 Story\u2019s Eq. Jur., Sec. 1019; Bearss v. Ford, 108 Ill. 16; Beach Eq. Jur., Secs. 407, 412, 413, 416.\nAppellee\u2019s Brief, Flower, Smith & Musgrave, Attorneys.\nAppellee contended, that to establish that a transfer absolute on its face was in fact a mortgage, the proof must be clear and convincing. The question is one of the intention of the parties. Eames v. Hardin, 111 Ill. 634; Porrington v. Akhorst, 74 Ill. 490; 1 Beach on Equity, Sec. 414.\nOne of the distinguishing tests to determine whether an instrument is a mortgage or a sale with the privilege of repurchasing, is the existence or non-existence of a debt to be secured. If there be no debt due from the grantor to the grantee, there can be no mortgage. Rue v. Dole, 107 Ill. 275; McKinstry v. Conley, 12 Ala. 478; McGee v. Catching, 33 Miss. 672.\nThe fact that the original transaction was in the nature of a loan is not conclusive, nor does the rule once a mortgage, always a mortgage, control the transaction. Quick v. Rodman, 5 Duer, 285 (N. Y.); Moss v. Green, 10 Leigh (Va.) 251."
  },
  "file_name": "0437-01",
  "first_page_order": 433,
  "last_page_order": 436
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