Opinion of the Court.

That the sale was made with the approbation of appellant, the evidence clearly establishes. Appellee, as soon as he learned the condition of the title, and it does not appear there was any unreasonable delay, offered to go on and complete the contract, but appellant declined, alleging he came too late, but he had done nothing to place appellee in default. He did not facilitate the matter by furnishing an abstract, but only referred him to that upon which he had purchased, and appellee seems not to have had the full benefit of it before it was taken from him. Nor did appellant furnish such a deed as appellee was bound to receive. Under such circumstances, a delay of two or three weeks was not unreasonable. .

We have seen that, had the agreement been in parol, equity would have given the relief, notwithstanding the statute of frauds, and, as this was merely a memorandum, not intended to embrace all of the terms and conditions of the contract, is manifest from its mere inspection, as well as the testimony in the case. No time is designated for it to be carried into effect; no time for the payment of the remainder of the purchase money, nor for the conveyance to be executed, nor was the character of the deed specified in the memorandum. But it is positively asserted that one hundred dollars had been paid by appellee on the purchase of four lots, the numbers of which are given, the amount of purchase money is specified, and it states the purchase was made of appellant. In this state of the case, it seems that there can be no reason why parol evidence may not be resorted to for the purpose of locating the lots, and to show when the contract was to be executed and the character of the deed to be given proved, in connection with the possession and improvement of the lots. If to decree a performance when the entire agreement is in parol, and in part executed by the purchaser, is not within the statute of frauds, we are at a loss to perceive how a case of this character can be within its provisions. Had the contract appeared to be full and complete when inspected, but misdescribed the lots, then the parties would have been compelled to proceed for its reformation before it could have been enforced.

Opinion of the Court.

The memorandum refers to representations not embodied in it, and it is manifest that the parties intended to, and understood they could, resort to parol to explain other terms and conditions. When the parties agree, by the writing itself, that parol evidence may establish terms and conditions not specified in the agreement, no one would question that such proof could be made, because such an agreement is made by the parties, and would not be in violation of the law. And in this case, it is manifest that such was the intention as to the representations as to location, and that is the turning point in this case. It refers to the representations as to location, and gives appellee the option to have his money refunded if they were not truly made. Had he refused to proceed with the agreement, and appellant had attempted to compel a specific performance, would any one, for a moment, doubt that he could, under the terms of the memorandum, have shown that the property was not located as represented, without showing fraud, and thus have exonerated himself from the contract? If this be so, it is by reason of the right being reserved in the memorandum to prove that fact by parol, and it seems equally manifest that if, by the writing itself, he can prove the location for one purpose, he may for another.

It is urged, that the proof fails to sustain the allegations of the bill. It is there alleged that the conveyance was to be by a good warranty deed, while the evidence does not show that, in all the negotiations, any reference was made to the character of the deed that was to be executed. But it may be inferred that such was the understanding of the parties, as appellant only required the amount of the purchase money above the incumbrances to be paid in hand, and the balance to be paid on time, and the offer of appellee to take a deed and assume the payment of the incumbrances, all tend to show that a warranty deed was intended. If a quit claim deed was to have been given, then there would have been an arrangement and an understanding that appellee was to pay the incumbrances, beyond the price he was to pay, but we

Syllabus. Statement of the case.

find no such agreement, or anything from which it could be inferred. We think the proof sustains the allegation that appellee was to have a warranty deed, and failing to find any error in this record, the decree of the court below must be affirmed.

JAMES M. ADSIT et al.

v.

WILLIAM SMITH.

Decree affirmed.

TRUST-whether it exists. The mere fact that a person who obtained the discharge from a soldier, and procured a land warrant to be issued thereon, purchased the warrant before it was issued, contrary to the act of congress on that subject, will not constitute such purchaser a trustee of the soldier as respects the land entered under such warrant.

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

This case was before this court at the September term, 1868, and is reported in 49 Ill. 403, where a statement of the case will be found, as presented on the first trial. On the remand of the cause a new hearing was had, and additional testimony introduced, whereupon the court below found a trust existed in favor of Smith, and decreed accordingly. Adsit appealed.

Messrs. KING, SCOTT & PAYSON, for the appellant, Adsit, and Mr. THOMAS CLOWRY, for the purchasers, Wright and Rourk.

Mr. W. T. BURGESS, for the appellee.

Opinion of the Court.

Mr.CHIEF JUSTICE BREESE delivered the opinion of the Court:

This case was before us at a former term, and is reported in 49 Ill. 403. It was then decided on the testimony of Holmes alone, the party from whom Adsit obtained the discharge, and on which a land warrant was issued as a bounty for military services in the war with Mexico. On his testimony, it was held, Adsit was the trustee of Holmes, and bound to account for the land in that capacity.

On a rehearing of the cause in the superior court, Adsit was a witness, and his testimony puts a different phase upon the transaction, and so balances the testimony of Holmes as to render it impossible to base a decree upon it.

There being no evidence of a trust, or of fraud on the part of Adsit, his testimony balancing that of Holmes on that point, nothing is left of the case, but the fact of obtaining by Adsit Holmes' discharge, and procuring thereon a warrant to be issued for the land in controversy. The most that can be said of this, is, that the transaction was in violation of an act of congress, but that would not give a court of chancery jurisdiction to hold Adsit as a trustee, and make him accountable as such. All the matter alleged, of trust and of fraud, has no support in the testimony. Nothing appearing to corroborate Holmes' statements, and they being denied by Adsit, the one is as much entitled to belief as the other.

There is nothing, then, in the record sufficient to give a court of chancery jurisdiction of the subject matter, there being no fraud and no trust established; consequently, the decree finding a trust existed, must be reversed, and the bill must be dismissed.

If Holmes has any right to the money Adsit received for the land, he can prosecute that right in a court of law, and recover according to the justice of his case.

The decree is reversed for want of jurisdiction.

Decree reversed.

Syllabus. Opinion of the Court.

CITY OF CHICAGO

v.

LUNT, PRESTON & KEAN.

TAXATION of government securities held by private bankers. Several persons associated together as partners, and doing business as private bankers, may invest their capital in bonds and negotiable securities of the United States, for the sole purpose of re-selling the same, and thus making a profit, and re-purchasing like securities to be sold in like manner, such capital being kept constantly absorbed in some form of such securities, and still be entitled to that immunity from State and municipal taxation which would be accorded to an individual holding the same securities.

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Mr. S. A. IRVIN, for the appellant.

Messrs. SLEEPER, WHITON & DURHAM, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This case comes before the court upon the following stipu lation as to the facts:

"The complainants formed a co-partnership on the 1st December, 1866, with a capital stock of $50,000, for the purpose of doing business as private bankers in the city of Chicago, making the purchase and sale of the various securities of the United States a principal feature of their business.

"Immediately after the formation of the partnership, the complainants invested their said capital in various bonds and negotiable securities of the United States, but only for the purpose of re-selling the same, and thus making a profit.