{ "id": 871176, "name": "Jacob Hahn et al., Impleaded, etc., George A. Weiss v. Edward Geiger", "name_abbreviation": "Hahn v. Geiger", "decision_date": "1901-07-18", "docket_number": "", "first_page": "104", "last_page": "116", "citations": [ { "type": "official", "cite": "96 Ill. App. 104" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "42 Ill. 272", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5293589 ], "opinion_index": 0, "case_paths": [ "/ill/42/0272-01" ] }, { "cite": "169 Ill. 275", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "31 Ill. 188", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500097 ], "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/ill/31/0188-01" ] }, { "cite": "74 Ill. 238", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2702811 ], "opinion_index": 0, "case_paths": [ "/ill/74/0238-01" ] }, { "cite": "2 Scam. 344", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2475861 ], "opinion_index": 0, "case_paths": [ "/ill/3/0344-01" ] }, { "cite": "12 Ill. 159", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2579696 ], "opinion_index": 0, "case_paths": [ "/ill/12/0161-01" ] } ], "analysis": { "cardinality": 790, "char_count": 26229, "ocr_confidence": 0.608, "pagerank": { "raw": 1.2377671504957812e-07, "percentile": 0.6071691824504054 }, "sha256": "0553960b9a5b4dd8d11194d324d0484a6225879c731be987dccab410ffcaf8ca", "simhash": "1:e9b10dac9cb176bf", "word_count": 4696 }, "last_updated": "2023-07-14T17:02:30.133382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jacob Hahn et al., Impleaded, etc., George A. Weiss v. Edward Geiger." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nApril 13, 1899, the appellee, Edward Geiger, filed a bill to foreclose a trust deed, executed by Jacob Hahn and Karoline, his wife, to secure the payment of a promissory note for the sum of $2,000, of date August 14, 1896, payable two years after date, with interest at the rate of six per cent per annum. The Hahns, George A. Weiss, the trustee, and Albert F. Madlener were made defendants to the 'bill. After the issues were made up the cause was referred to a master to take proofs and report the same, with his opinion as to the evidence and the law. The master\u2019s conclusion, as reported to the court, was that the appellee was entitled to a decree for $1,000, with interest at the rate of six per cent from October 5, 1898, and for $300 solicitor\u2019s fees. Exceptions were filed to the master\u2019s report by the complainant, and also by the Hahns and Madlener, defendants, and the court sustained the complainant\u2019s and overruled the defendants\u2019 exceptions, and rendered a decree in favor of the complainant, appellee here, for $2,474.30,. principal and interest, and $300 as solicitor\u2019s fees, from which decree this appeal is.\nThe facts of the case are substantially as follows:\nJacob Hahn desired to buy a saloon owned by one ' Charles May, and apparently had agreed with May as to the purchase price. It being necessary for him to borrow some money to make the purchase, he went to the office of the American Brewing and Malting Co. (hereafter called the Brewing Co.) to negotiate fora loan, and there met Mr. Weiss, the president of the company. Charles May, and Charles Christman, who was then in the employ of the company, were present. It was there agreed between Weiss and Hahn that the former would loan to Hahn for the Brewing Co. the sum of $2,000, and that Hahn was to pay the note by paying $2. on each barrel of beer purchased by him from the Brewing Co. in excess of the regular price, each $2 thus paid to be credited on his note for the amount loaned. That such was the agreement was testified to by Hahn, May and Christman, is not contradicted by any witness, nor controverted by counsel. In pursuance of this arrangement Hahn and wife executed the note and trust deed in question, and the sum of $2,000 was loaned to Hahn by the Brewing Co. Hahn completed the purchase of the saloon from May, took possession of it and purchased the beer sold by him from the Brewing Co. He had books furnished him by the company in which were entered by the company\u2019s agents all beer purchased by him, all debits against him and all credits in his favor. Among the findings of the-master are the following:\n\u201c Twenty-first. Finds that as heretofore shown, the total credits of Hahn, from February 28 to October 5, 1898, were $2,319.50. The total debits to Hahn for beer during that period were $1,610, which deducted from the total credit leaves the sum of $709.50 in favor of Hahn, after paying for his beer during that period. During that time Hahn was charged with cash amounting to $352, which deducted from the $709.50 credit for payments for beer during that period, leaves a credit to Hahn of $357.50.\nOutstanding against this credit of Hahn of $357.50 is Hahn\u2019s two debits during that period on account of notes, to wit, the balance of $1,000 on the note in question, and a. charge of $500 for the note secured by chattel mortgage, which were charged to the debit side of Hahn\u2019s account, May 1, 1898.\nFinds that defendant\u2019s solicitor claims that this $357.50 should be applied as a credit on the balance due on the note in question herein for the reason that according to the agreement, all amounts over and above payments for beer should be applied to the payment of the note in question herein, which would leave a balance due to complainant, if such claim should be allowed, of $642.50.\nFinds that' in the opinion of the master this contention on \"the part of defendant\u2019s counsel can not be allowed, and the position of the defendant\u2019s counsel in that respect is untenable. That the brewing company had a right to apply these credits upon either of the notes as it preferred, and that if the credit had\" been applied to the balance of $1,000 due on Hahn\u2019s note in question herein by the brewing company and Hahn prior to the delivery of same to Fridrich, the complainant herein would have taken subject to such application.\u201d\nThe master\u2019s findings as to the items of debits and credits are supported by the evidence, and are correct, but we can not agree in his conclusion that the credit of $357.50 should be applied on the $500 note secured by chattel mortgage. It appears from the evidence that August 19, 1896, Iiahn procured from the Brewing Co. an additional loan of $500 for which he gave his note secured by chattel mortgage on his saloon. This is the note on which the master finds the $357.50 should be applied. The original agreement having been, as heretofore stated, that all credits on account of the payment by Hahn of $2 in excess of the regular price on each barrel of beer purchased by him, should apply on the $2,000 note, and there being no evidence of any modification of that agreement, it applies to the $357.50 credit as much as to any other. The law of the application of payments is that a debtor, owing several claims to his creditor, may, on making a payment, himself apply it, and the application can not be changed by the creditor without the debtor\u2019s consent. Jackson v. Bailey, 12 Ill. 159.\nIf the debtor omits to exercise his privilege of directing the application, the creditor may apply the payment. McFarland v. Lewis, 2 Scam. 344.\nIn the present case there was an agreement between the creditor and debtor as to how payments should be applied, and this was more than equivalent to a direction by the debtor as to application. Hansen v. Rounsavell, 74 Ill. 238.\nAppellant Hahn, on cross-examination by appellee\u2019s solicitor, testified that when he borrowed the $500 it \"was understood that the $2,000 note was to be paid first, and afterward the $500 note, and this is uncontradicted. Ho credits were indorsed on the $2,000 note. Mr. Sottmann, the cashier of the Brewing Co., testified in explanation of the non-indorsement of credits on the note, that he had special instructions from Mr. Weiss, the president of the company, not to indorse credits on notes till they were fully paid.\nBut counsel for appellee contends that appellants are estopped to claim any credit on the $2,000 note, by reason of certain alleged statements made b\\r Hahn. The evidence is that Albert Fridrich either purchased the $2,000 note 1'rom the Brewing Co., or it was assigned to him as collateral security for a loan, and that subsequently Fridrich sold it to appellee. The testimony of Fridrich and Geiger, relied on in support of the claim of estoppel, is as follows :\nAlbert Fridrich, witness on behalf of complainant:\n\u201c Have known Hahn about fifteen years. Remember a conversation that took place between myself and Hahn, about the latter part of September, 1898, which took place in mv place of business, at the corner of Clark and Madison streets. Mr. Geiger, Shutz, Hahn and myself wnre present.\u201d\nQ. \u2022 \u201c Tell what he said to you about this business; tell what he said in the latter part of September, 1898, about business.\u201d A. \u201c I started first. I said,1 Mr. Hahn,\u2019 I says, 1 the American Brewing Company they seem to be short financially. They want to borrow about $2,500 of me and give me your papers for your real estate security.\u2019 I said to him\u2014\u201d\nQ. \u201c Did you tell him rvhat papers ? \u201d A. \u201cYes, sir; mortgage.\u201d\nQ. \u201c State it all.\u201d A. \u201c Mortgage.\u201d\nQ. \u201c What else?\u201d A. \u201cFor his property, and he laughed over it. He says he has got an account with the brewery, and he said, \u2018 the brewery is good enough for it; that will be all right.\u2019 \u201d\nMr. Tripp : \u201c How, Fridrich, I want you to tell me fully what he said. Look right up and tell me fully what he said. How, what did you ask him about the note, if anything ? \u201d A. \u201c I asked Mr. Hahn whether it would be advisable for me to give them that money.\u201d\nMr. Tripp: \u201cYes?\u201d A. \u201c And he says; \u00a3 Certainly; the American Brewing Company is good enough for me,\u2019 yes, sir; and I says, \u2018 All right, then.\u2019 \u201d\nQ. \u201cYes ? \u201d A. \u201c And in a few days after that I gave the American Brewing Company the money.\u201d\nQ. \u201c And took this note ? \u201d A. \u201c And took this note.\u201d\nQ. \u201c How, Mr. Fridrich, when did this conversation between you and Mr. Hahn occur\u2014when ?\u201d A. \u201cIn the month of September, in the afternoon.\u201d\nQ.- . \u201c In the afternoon ? \u201d A. \u201c Yes, sir.\u201d\nQ. \u201c Can you give me about what part of September that was in?\u201d A. \u201c It was the early of\nQ. \u201cWhat?\u201d A. \u201cAbout the early part of September \u2014first of\nQ. \u201cSeptember?\u201d A. \u201cYes, sir.\u201d\nQ. \u201cWhat year?\u201d A. \u201c1898.\u201d\nQ. \u201c When did you get the notes from the American Brewing Company?\u201d A. \u201cThe third day; either the third or fourth day of September.\u201d\n\u25a0 Q. \u201cHo, no; when did you get the notes from the American Brewing Company, that is, the Hahn note; when did you get that ? \u201d A. \u201c Oh, well\u2014\u201d\nQ. \u201c Have you your book here which refreshes your recollections?\u201d A. \u201c Yes, sir.\u201d\n. Q. \u201c Don\u2019t answer until you are certain about those things, Mr. Fridrich.\u201d A. \u201c October 5, 1898. It was about- September, a month before, five or six weeks before October 5, 189S\u2019, that I had this talk with Hahn about the note.\u201d\nOn cross-examination the witness Fridrich testified that he could not tell exactly the date on which he had the conversation with Hahn in September, 1898; that it was the first days of September; that the conversation took place in his office, and that he had started the conversation.\n. Q \u201c How, what did you say ? \u201d A. \u201c I said, Mr. Hahn, I says, \u2018 The American Brewing Company, they want to borrow some money and give me security with your papers for your real, estate mortgage.\u2019 He .seemed surprised, and he says, \u2018Well, Fdon\u2019t \u00bfare. I have got some account with-them, and the Brewing Company is good enough forme.\u2019 \u201d\nQ. \u201c That is what he said to you, was it ? \u201d A. , \u201c Yes, sir.\u201d\nQ. \u201c How, didn\u2019t he tell- you at that time, Mr. Fridrich, that he had paid a large part of that mortgage off to the American Brewing Company ?\u201d A. \u201cHo; he didn\u2019t say a large part.\u201d\n0- \u201cWell, he told you that he had paid some?\u201d A. \u201c Some account with them.\u201d \u2022 \u2022 \"\nQ. \u201c He told you he had paid some of that mortgage off. didn\u2019t he ? \u201d A. \u201c Pie' had an account with them.\u201d\nQ. \u201c Didn\u2019t he tell you he had paid part of that mortgage off?\u201d A. \u201cHo; he didn\u2019t mention that at all. He says he had an account with them.\u201d * * *\nQ. \u201cHow, what else did you say\u2014\u201d A. \u201cWell, that is most of it.\u201d\nQ. \u201cIf anything?\u201d A. \u201cI simply asked them; I asked him if he thought it was all right bv me giving this money on those papers. He said, \u2018Why, certainly.\u2019\u201d\nQ. \u201cHe said, \u2018 Why, certainly?\u2019\u201d A. \u201c The Brewing Company was good enough for it.\u201d\nQ. \u201cHe said the Brewing Company was good enough for it?\u201d A. \u201cYes, sir.\u201d\nQ. \u201c That is what he said ? \u201d A. \u201c Yes, sir.\u201d\nQ. \u201c Didn\u2019t he tell you at that time that he paid, on account of this mortgage, over $1,000 to the American Brewing Company?\u201d A. \u201cHo, sir.\u201d\nQ. \u201cOn account of this note?\u201d A. \u201cHo, sir.\u201d\nQ. \u201c He didn\u2019t tell you ? \u201d A. \u201cHo, sir.\u201d\nQ. \u201c Are you sure about that ? \u201d A. \u201c I am sure.\u201d\nQ. \u201cDid he tell you he paid any amount on that mortgage?\u201d A. \u201cHo, sir. He simply said he had an account\u2014I didn\u2019t ask him what account it was\u2014with the Brewing Company.\u201d\nQ. \u201cDid he say he had a credit balance there?\u201d A. \u201cHo; he never said he had a credit balance.\u201d\nEdward Geiger, witness in his own behalf, recalled, testified\n\u201cIn September, 1898, I was manager of.the Fridrich place. I have known Mr. Hahn for the last ten years. Remember of an occasion of his coming down to Fridrich\u2019s place in September, 1898. I heard.the conversation that took place between Fridrich and Hahn at that time with reference to those notes.\u201d\nQ. \u201c How, then, I wish jmu would give me what you heard pass between Mr. Hahn and Mr. Fridrich.\u201d A. \u201cIt was in the afternoon. Mr.- Hahn wTent into Mr. Fridrich\u2019s ' place, and I remember of Mr. Fridrich, he made the remark, \u2018How do you do, Mr. Hahn?\u2019 He says .so and so. Pie says; \u2018You are just the man I like to see,anyway;\u2019 because the brewery was around there, they wanted to loan some money from Mr. Fridrich, and they offered him some papers; so he found out that the papers signed from\u2014it' was Mr. Hahn\u2019s papers.\u201d\nQ. \u201c Yes ? \u201d A. \u201c And to be sure how it is, he asked Mr. -Hahn, 1 How you stand ? How are them papers ? \u2019 So .Mr. Ilahn says, \u2018 I got some business transaction with the brewery, and them papers is all right, and everything is all right.\u2019\u201d\nQ. \u201c Do you remember anything about his saying anything about the account\u2014\u25a0\u201d A. \u201c Nothing at all.\u201d\nQ. \u201c Between Hahn and the Brewing Company ? \u201d A. \u201cNo.\u201d\nQ. \u201c You didn\u2019t hear that ? \u201d A. \u201c No, I didn\u2019t hear that.\u201d\nOn cross-examination the witness testified :\nQ. \u201c What he (Fridrich) said was that the American Brewing Company wanted to give it to him; is that it?\u201d A. \u201cThe American Brewing Company wants some money to loan from Mr. Fridrich, and offered him them papers as security.\u201d\nQ. \u201c I will ask you, did not Mr. Hahn say at that conversation that he had paid quite a little part of that mortgage off?\u201d A. \u201cNo, sir.\u201d\nQ. \u201cTo the American Brewing Company? \u201d A. \u201cNo, sir; he didn\u2019t say nothing.\u201d\nQ. \u201c He didn\u2019t say anything?\u201d A. \u201cNo; it was a very short conversation; that is what it was.\u201d\nQ. \u201cHe didn\u2019t say anything about any account\u2014\u201d A. \u201cNo, no.\u201d\nQ. \u201cWith the American Brewing Company at all?\u201d A. \u201cNo, sir.\u201d\nQ. \u201c You were there all the time during that conversation?\u201d A. \u201c Yes, sir; yes.\u201d\nQ. \u201cHeard'all of it?\u201d A. \u201cYes, sir.\u201d * * *\nQ. \u201cYou heard all the conversation that took place between Fridrich and Hahn?\u201d A. \u201cYes, sir.\u201d\nQ. \u201cDid Hahn say anything about his account with the American Brewing Company? \u201d A. \u201cNothing about the account.\u201d\nQ. \u201c He didn\u2019t say that he had an account with the American Brewing Company ? \u201d A. \u201cNothing about it. Simply Mr. Hahn said, \u2018I got some business transactions with the brewery, and I gave them some papers, and it is all right; everything is all right.\u2019 \u201d\nJacob Hahn, on behalf of defendants, testified as follows:\n\u201c In September, 1898, I first found out that Fridrich had the $2,000 mortgage made by me.\u201d\nQ. \u201cWhat did you do then\u2014where did you go then ? \u201d A. \u201cI went right straight back. There I found out where my mortgage and the notes were, and then I went right out straight down to Fridrich\u2019s. It was in the afternoon, and I asked him, I says, \u2018You got my mortgage here?\u2019 He says, \u2018Yes, \u2019 and I asked him, says I, \u2018Do you know how much there is paid on it ?\u2019 And he says, \u2018No.\u2019 I says, \u2018You got them here?\u2019 He sa}rs, \u2018 Yes; but I don\u2019t know exactly where they are just now.\u2019 And that was the only conversation we had together there, and I walked out.\u201d\nQ. \u201c Did you say anything to him, at that time, about that you had paid anything off on that mortgage to the American Brewing Company ? \u201d A. \u201cYes, sir; I told him that in the neighborhood of $1,400 I had paid off. That was in Fridrich\u2019s saloon, in September, 1898.\u201d\nQ. \u201c Who was there beside you and Fridrich ? \u201d A. \u201c Fridrich, Geiger, and there was another man there, but they could not find the papers right away, and in other words I told Mr. Fridrich yet, \u2018 Why didn\u2019t you come to me right away and ask me? You knew me.\u2019 \u2018Well,\u2019says Fridrich, \u2018Mr. Weiss and myself, we always been good friends, and I thought it was all right.\u2019 That is what he said.\u201d\nQ. \u201cDid\u2019he ask you in substance whether it would be advisable for him to take those papers?\u201d A. \u201cNo, sir.\u201d\nQ. \u201c Did you say to him that it was all right, that the American Brewing Comp\u00e1ny was all right?\u201d A. .\u201cI didn\u2019t tell him that; me and Fridrich we hadn\u2019t a conversation together at all. I found out.that he had the papers, and that is just what I have given now. That conversation with Fridrich was about the middle of September, 1898.\u201d \u25a0\nIt will be observed that Fridrich, in the first part of his testimony, fixes the time of the conversation in the latter part of September, 1898, and, in his subsequent testimony, in the latter part of September, or a' month or five or six weeks before October 5, 1898; also, that he got the note from the Brewing Co. the 3d or 4th of September,- when he did not get it till October 5, 1898. It nowhere appears in his-testimony that he asked Hahn whether he had paid anything on the note, or had any defense to it, or any part of \u2022 it, of whether there was any reason why it should not be paid. In his examination in chief he testifies: \u201c I said, Mr. Hahn, I says, the American Brewing Company, they seem to be short financially. They want to borrow about $2,500 of me, and give me your papers for your real estate security,\u201d and that'Hahn laughed, and \u201c He says he has got an account with the brewery, and he said, \u2018the brewery is good enough for it; that will be all right.\u2019 \u201d This certainly was not equivalent to a statement that Hahn had not paid anything on the note, or had no defense to it, and was evidently unsatisfactory to complainant\u2019s counsel, who immediately proceeded to ask the witness: \u201cMow, Fridrich, I want you to tell me fully what he said. Look right up and tell me fully what he said. Mow, what did you ask him about the note, if anything?\u201d A. \u201cI asked Mr. Hahn whether it would be advisable for me to give them that money.\u201d Q. \u201cYes?\u201d A. \u201c And he says, \u2018 Certainly, the American Brewing Company is good for me,\u2019 and I says, \u2018 All right, then.\u2019 \u201d Hahn\u2019s answer seems confined to an expression of opinion as to the financial ability of the Brewing Co. On cross-examination the witness is asked: \u201c Mow, didn\u2019t he tell you at that time, Mr. Fridrich, that he had paid a large part of that mortgage off to the American Brewing Company ? \u201d A. \u201c Mo, he didn\u2019t say a largepart.\"\nGeiger testified that he owns the $2,000 note; that he purchased it from Fridrich, April 11, 1899, and paid him $2,000 in currency for it. He says he was manager of Fridrich\u2019s place, and paid the money in Fridrich\u2019s private office; that he had no bank account and no book showing ' O the payment. The second day after purchasing it he filed the bill to foreclose. He is the party interested, so far as appears from the record. He testifies that he was present at the conversation between Hahn and Fridrich, and heard the whole conversation, and yet his version of it is radically different from that of Fridrich. He testified that Fridrich asked him, \u201c How you stand ? How are them papers ? \u201d and that Hahn said, \u201c I got some.business transactions\" with the brewery, and them papers is all right; \u201d that Hahn said nothing about having an account with the Brewing Co. Although the note was past due at the time of the alleged conversation, it does not appear either from the testimony of Fridrich or Geiger that any question was asked as to why it had not been paid, or whether anything had been paid on it. Had these questions been asked, we think there can be no doubt that Hahn would have answered them fully and truthfully. It would have been to his interest so to do, and he had no interest whatever inducing him to mislead Fridrich. After the transfer of the note to Fridrich, Hahn sold the premises conveyed by trust deed to the defendant Madlener, subject to the trust deed, and both he and Madlener testified that he, Hahn, told Madlener of the payments made on the note. Hahn\u2019s evidence as to his transactions with the Brewing Co. is fully corroborated by other witnesses, some of them former employes of the company; and the witnesses Fridrich and Geiger are the only witnesses who contradicted him in any particular, and they do not agree in their testimony. Appellee\u2019s counsel, in his argument, says, in regard to the finding of the Circuit Court, \u201c This court will not disturb that finding, unless manifestly against the evidence.\u201d Such is the general rule, when the report of a master, who saw the witnesses and heard them testify, is confirmed by the court. But such is not the present case. In this case the exceptions of the complainant to the master\u2019s report were sustained, and a decree rendered contrary to the recommendation of the master, and we are as free to pass on the \u25a0question of the credibility of the witnesses and the question of the preponderance of the evidence as was the learned judge of the Circuit Court. The master\u2019s finding, in reference to the conversation between Hahn and Fridrich, is ithat it \u201c is too general to warrant a finding of estoppel in favor of complainant.\u201d We think the finding warranted by the evidence. \u201cIt is the duty of the purchaser of a mortgage to inquire of the mortgagor if there be any reason why it should not be paid.\u201d Olds v. Cummings, 31 Ill. 188, 192; McAuliffe v. Reuter, 166 Ib. 491, 496; Buehler v. McCormick, 169 Ill. 275.\nIn the last case the court say:\n\u201c In Walker v. Dement, 42 Ill. 272, it is said: \u2018 To be protected, the assignee must omit no duty, nor fail to exercise every reasonable precaution, which prudence demands of all men acting in reference to matters of moment.\u2019 \u201d\nFridrich represents himself as about to loan money on the security of a note and mortgage to a company which he says seemed to be short financially; he converses with the maker of the note and mortgage; he knows that the note is past due, and therefore there may be some reason for its not having been paid, and yet he fails specifically to inquire wh\u00e9ther there is any reason why it should not be paid. We can not doubt that had he so inquired he would have been fully informed of the facts. Hahn testifies that he did so inform him. It appears from Hahn\u2019s testimony that when he conversed with Fridrich in September, 1898, he was of the impression that Fridrich then held the note and trust deed, although they were not transferred to him till October 5, 1898. He, perhaps, had heard a rumor that Fridrich was negotiating' for them. Hahn, Fridrich and Geiger agree that the conversation was in September, 1898, and Hahn testifies that he then told Fridrich that he had paid in the neighborhood of $1,400 on the note. It is a fair inference, from Fridrich\u2019s testimony, that Hahn then told him that something had been paid on the note. When asked if Hahn did not tell him that he had paid off a large part of the mortgage, his answer was, \u201cNo, he didn\u2019t say a large part.\u201d The answer is a negative pregnant. The burden was on appellee to prove matter in estoppel, and we are of opinion, after carefully considering the evidence, that an estoppel is not proved by a preponderance of credible evidence.\nAppellee\u2019s cpunsel calls attention to what he deems inconsistencies in the testimony of Hahn. When Hahn was first called as a witness he was asked when he saw Fridrich, and answered that he could not recollect that very well; that he guessed it was in the first part of the year 1899. Subsequently, his memory doubtless having been refreshed, he testified that it was in September, 1898, and this is corroborated by Fridrich and Geiger. So far as inconsistencies in respect to dates are concerned, there are more in Fridrich\u2019s testimony than in Hahn\u2019s.\nHahn also testified that, after conveying the premises described in the trust deed to Madlener, subject to the trust deed, he continued to make payments to the Brewing Co. as before. This is explained by his evidence, drawn out by appellee\u2019s solicitor on cross-examination, which is, in substance, that when he borrowed from the Brewing Co. $500 on his note secured by chattel mortgage, it was agreed that he should pay that note in the same manner as he had agreed to pay the $2,000 note, but the latter was to be paid first. The trust deed provided for a reasonable solicitor\u2019s fee, and the master and the court found that $300'was reasonable, and the court allowed that amount. Mr. Tripp, appellee\u2019s solicitor, testified that $300 .was a reasonable fee for his services. Mr. Mcllvaine, attorney, testified that if defendants were successful in reducing the complainant\u2019s claim to $400 or $500, $100 would be a reasonable fee, and Mr. Patton, attorney, testified that $200 would be a reasonable fee. We are of opinion from the evidence, and considering the circumstances of the case, that $200 is a reasonable solicitor\u2019s fee.\nThe decree will be reversed and the cause remanded, with directions to the Circuit Court to enter a decree for $642.50 with interest at the rate of six per cent per annum from October 5, 1898, and for $200 as a solicitor\u2019s fee and appellee\u2019s costs of the Circuit Court, appellants to recover their costs of this court. Beversed and remanded, with directions.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "Laokner, Butz & Miller, attorneys for appellants.", "Arnold Tripp, attorney for appellee." ], "corrections": "", "head_matter": "Jacob Hahn et al., Impleaded, etc., George A. Weiss v. Edward Geiger.\n1. Payments\u2014Debtor May Make Application of Payments.\u2014A debtor, owing several claims to his creditors, may, on making a payment, himself apply it, and the application can not be changed by the creditor without the debtor\u2019s consent.\n2. Same\u2014Agreement Between the Debtor and Creditor.\u2014An agreement between the creditor and debtor as to how payments should be applied is equivalent to a direction by the debtor as to the application of such payments.\n3. Mortgages\u2014Assignee of, Takes Subject to All Equities.\u2014The assignee of a mortgage takes it subject to all the equities existing between the mortgagor and mortgagee at the time of the transfer.\n4. Same\u2014Duty of Purchaser to Make Inquiries.\u2014In order to be protected, it is the duty of the purchaser of a mortgage to make inquiries of the mortgagor if there is any reason why it should not be paid.\n5. Appellate Court Practice\u2014When Competent to Pass upon the Evidence.\u2014Where exceptions to the master's report are sustained, and a decree rendered contrary to the recommendations of the master, the Appellate Court is as free to pass upon the question of the credibility of the witnesses and the question of the preponderance of the evidence as is the trial judge.\nForeclosure of a Trust Deed.\u2014Appeal from the Circuit Court of Cook County; the Hon. Richard 8. Tuthill, Judge, presiding.\nHeard in this court at the October term, 1900:\nReversed and remanded with directions.\nOpinion filed July 18, 1901.\nLaokner, Butz & Miller, attorneys for appellants.\nArnold Tripp, attorney for appellee." }, "file_name": "0104-01", "first_page_order": 126, "last_page_order": 138 }