Mohr v. Smith , 176 Ill. App. 64 ( 1912 )

Mr. Justice McSurely

delivered the opinion of the court.

It is first urged as ground for reversal that complainants have a full and adequate defense in a suit at law. The bill, however, seeks an accounting of funds said to have been wrongfully collected by Smith as secret commissions and profits, in violation of a position of trust and confidence, which funds have in part come into the hands of the other defendants, with knowledge of the facts and without consideration. It has been held repeatedly that courts of equity will take jurisdiction for the purpose of compelling an accounting by one standing in a fiduciary or confidential relation who is charged with fraud against his cestui que trust. Roby v. Colehour, 135 Ill. 300. Other considerations herein justifying equitable cognizance are fraud, discovery, an avoidance of a multiplicity of suits, and the impossibility of relief in a suit at law for certain of the complainants who have not x signed the notes in question but who have agreed to indemnify the three complainants who signed the notes.

Criticism of the verification of the bill is made, in that it recites that the matters and things contained therein “are true in substance and fact as therein alleged;” and it is said that the essential allegations in the bill are made upon information and belief. Consideration of the allegations of the bill, in the light of many decisions of the courts, leads us to conclude that the criticism is not well taken and that the allegations are sufficiently positive to warrant the granting of the injunction. Campbell v. Paris & D. R. Co., 71 Ill. 611; Coryell v. Klehm, 157 Ill. 462; State v. Illinois Cent. R. Co., 246 Ill. 188; Greenberg v. Holmes, 100 Ill. App. 186; Story’s Eq. Pl., sec. 255.

It is next urged that the injunction order is erroneous in that it did not require all of the complainants, instead of one or more, to sign the bond. This is a matter within the discretion of the chancellor, and his action will not be set aside unless it should appear that the discretion was improperly exercised. If the bond is sufficient as to surety and amount, which we must assume to be the fact here, we see no good reason for requiring further signatures to it. At most the objection goes to the adequacy or form of the bond, and if necessary this may be remedied upon application to the chancellor. Herzberger v. Barrow, 115 Ill. App. 79.

In the reply brief of appellant it is argued in substance that the allegations of the bill are not sufficiently specific as to the notes in the hands of the Maytag Company, the collection of which is sought to be enjoined. We think it is sufficiently clear that the notes affected are any and all notes or renewals thereof which came from Hood to Smith in payment of the secret commissions or profits, and from Smith to Maytag and from Maytag to the Maytag Company.

The order granting the injunction is affirmed.

Affirmed.