above set out, then he is to pay said notes so Limited, this guaranty being the essence and given by said Kent to said Jones & Laughlins. basis of this agreement.'** Thereafter Graham caused Kent to execute and deliver to $752.30 each, and to execute and deliver to W. Jones & Laughlins his (Kent's) two notes for P. Rend & Co. a note for $305.94. Graham also acquired all of said merchandise and fixtures advertised for sale by the sheriff, obtaining from Kent a bill of sale therefor. Graham also caused to be formed, in February, 1900, with the assistance of the law firm of Oliver & Mecartney, the Illinois corporation of W. D. Kent Iron Company, with capital stock of $25.000, divided into 250 shares of a par value of $100 each. declaration was overruled and defendant | said notes of said corporation to be given as pleaded to the merits. We adopt the statement of the case and of the evidence made by the Appellate Court, which we find to be substantially correct. A number of judgments had been rendered against William D. Kent before the making of the agreement hereinafter set out in the Appellate Court statement, and his property had been levied upon and advertised for sale under one or more of said judgments. Other creditors than defendant in error are referred to or mentioned in the statement of the case made by the Appellate Court, but defendant in error is the only one interested in this suit. The statement of the case made by the Appellate Court is as follows: "Under date of February 13, 1900, Graham executed a bill of sale of said merchandise and fixtures to Minnie H. Kent, and she, in turn, executed a bill of sale of the same, dated February 14, 1900, to said W. D. Kent Iron Company. Under date of March 2, 1900, said iron company issued to Minnie H. Kent a certificate of 128 shares of the capital stock of said iron company, fully paid and nonassessable, in payment for Under "Prior to the day set for the sale on said executions, and on January 24, 1900, Andrew J. Graham, a Chicago banker and a friend of Kent, entered into a written agreement with said Jones & Laughlins, Limited (hereinafter referred to as Jones & Laughlins), and also into a similar written agreement with the copartnership of W. P. Rend & Co. In the first-mentioned agreement it was agreed that Graham should purchase, and Jones & Laughlins should sell, a certain judgment for $1,489.52 (which the latter had received in the superior court of Cook county on January 9, 1900, against Kent) upon the terms and conditions therein specified. It was further provided in said agreement (1) that Graham was to cause the judgment debtor (Kent) to execute and deliver. to said Jones & Laughlins' two notes, dated January 24, 1900, for the sum of $752.30 each, due in six and nine months after date, respectively, and bearing interest at 6 per cent. per annum from date; that Jones & Laughlins was thereupon to assign to Graham said judgment, together with all rights thereunder; (3) that Graham was to purchase all of the merchandise and fixtures advertised for sale by the sheriff at 18 to 22 North Union street, Chicago, 'at such price as he may deem best,' and to obtain from said Kent a proper billingly all of the judgment creditors subsequently of sale therefor; (4) that Graham was thereupon 'to form, or cause to be formed, an Illinois corporation with a capital stock of $25,000, divided into 250 shares, of a par value of $100 each, and to transfer to said corporation' all of the merchandise and fixtures so purchased by him, and to receive therefor from said corporation 51 per cent. of said capital stock,' to wit, $12,750 worth at par, and no more, and no other consideration or payment from said corporation; that said merchandise and fixtures so transferred were 'to be free from all liens, claims, or demands, either patent or secret, of whatever name or nature,' and that Graham was also to 'cause said corporation to execute and deliver to said Jones & Laughlins, Limited, in exchange for the notes to be executed and delivered by the said judgment debtor, William D. Kent, * * two collateral promissory notes for the same amounts and interest and maturing at similar times,' and that the said 51 per cent. of the capital stock to be issued to Graham or his nominee in payment for said merchandise and fixtures was to be placed with some Chicago trust company to be agreed upon, as collateral security to the payment of said two notes and such other notes to other creditors of said William D. Kent as said Graham may find necessary to be given in order to carry out the plan which this agreement contemplates,' but that the aggregate of all indebtedness against said corporation at the time it commenced business was not to exceed $5,000. The sixth paragraph of the agreement was as follows: If the said Graham fails to form said corporation under the conditions and in the manner as above set forth, and fails to cause 2 * * said merchandise and fixtures. Said 128 shares reverse. said attorneys and Graham; that he on one * "During the year 1900, and subsequently, | sence he was present at one or more meetings of Jones & Laughlins were represented in this matter by attorney H. H. C. Miller, and in his absence by attorney W. S. Oppenheim; W. P. Rend & Co. were represented by attorney Louis C. Ehle; and the Richards & Kelly Manufacturing Company, another creditor, was represented by attorney Charles A. Koepke. On April 3, 1900, attorney John S. Brown wrote said attorneys for said creditors as follows: 'I now have in my possession the notes executed by W. D. Kent Iron Company pursuant to your contract with Mr. Andrew J. Graham. I have also the stock certificate which was to be deposited as collateral to said notes. As the contract with the various parties did not provide for a separation of the stock, it will be neces sary to have a meeting of all the parties and to have an agreement with all the parties. I invite you to be present at our office on April 6, 3 o'clock p. m., for the purpose of formulating a collateral agreement and agreeing upon a trust company to hold the stock certificates and notes executed by W. D. Kent Iron Company. Please bring in the old notes. Accordingly a meeting was held on April 6, 1900, at which the defendant, Graham, attorney John S. Brown, and attorneys Miller, Ehle and Koepke, were present. John S. Brown testified that at this meeting 'somebody suggested, either myself or some one else, that a trust company would have to be appointed, under the contract, with which to deposit the collateral. *** I had the notes there and stock ready to deposit when the parties agreed on a trust company. ** Somebody said there that the matter would have to go over because the parties were not all represented and they would have to consider what trust company to appoint.' * * The principal and material contentions, of plaintiff in error are: (1) The contract is a special, conditional guaranty or collateral undertaking and no right or interest under it can pass to another by assignment; (2) the liability of plaintiff in error was contingent upon his failure to perform the agreement on his part, and it is insisted he did all that was required of him and no liability therefore attached to him; (3) the suit cannot be. maintained in the name of the assignee; (4) the judgment exceeded the ad damnum. "Louis C. Ehle testified that at this meeting 'the talk was about carrying out this agreement of Mr. Graham'; that 'Mr. Miller or myself asked what was the situation, and Mr. Graham, in substance, said that he would make a report in regard to the matter, and then Mr. Brown raised the matter of appointment of a trustee, and either Mr. Miller or myself said there was not anything in our contract about the other parties, but that we were willing to have a reliable trustee, and the Security Title & Trust Company was suggested'; that Mr. Miller, Mr. Koepke and Ehle at this time represented all the creditors involved, and that all expressed themselves as being satisfied that said security company act as trustee; that other meetings were had in the endeavor to get the said notes of the iron company delivered and the stock deposited, without avail; that on July 11, 1900, he (Ehle) wrote Graham to the effect that said Kent note of $305.94, payable to the order of W. P. Rend & Co., due on July 1st, was still unpaid, and that, unless the same was taken up at once, action against Graham on his agree-Jones & Laughlins, Limited, until the corpor ment would be commenced; that Graham returned the letter with the following indorsement thereon: 'I done all you ask except I can't force you or Mr. Rend to take note. Mr; Brown, with Oliver & Mecartney, has note;' that other meetings were had in September, 1900, and February, 1901, but that said creditors were never able to get said notes of the iron company or said 51 per cent. of the stock deposited as collateral security thereto; that the notes were never tendered to him (Ehle), and that 'all that ever was said by Mr. Brown or Mr. Graham with reference to that matter was that it would be attended to, or something to that effect-something in the way of putting it off. Charles A. Koepke testified that he was present at several meetings with Ehle, Miller and Graham when we were trying to get Mr. Graham to carry out his agreement,' but that the creditors could never get the notes, and that heither Graham nor any one else, at any of the meetings, ever tendered to either Koepke or Ehle any notes of the iron company. W. S. Oppenheim testified that in Mr. Miller's ab [1] We construe the contract to be an original undertaking on the part of plaintiff in error. It was not an agreement that he would pay the debt of Kent, if Kent failed to pay it himself. In consideration of the property being released from liability to pay the judgment of Jones & Laughlins, Limited, plaintiff in error agreed to, and did, acquire the property by bill of sale, and thereafter, through an intermediary, caused it to be conveyed to the corporation he agreed to organize. The effect of the contract was to relieve Kent of liability to pay the judgment and substitute either plaintiff in error or the corporation he agreed to organize. While Kent's unsecured notes were to be held by ation was organized and gave its notes secured by its stock, it is evident the parties understood no reliance was placed upon Kent to pay the debt, but it was to be paid either by plaintiff in error or the corporation he agreed to organize, in the manner provided by the contract. [2] No matter what form of expression is used, the character of the promise depends upon the intention of the parties and what they mutually understood the language used meant. Davis v. Patrick, 141 U. S. 479, 12 It seems beyond Sup. Ct. 58, 35 L. Ed. 826. question that when plaintiff in error agreed to take the property of Kent, which was subject to the payment of the judgments, and organize a corporation, which he would have execute its notes and secure them by its stock, or if he failed to do this he would pay the indebtedness himself, credit was given to and reliance placed upon him by Jones & Laughlins, Limited. It was therefore an original undertaking on his part, and the original promisee's right therein passed to defendant in error by assignment. 1 Paron Contracts (3d Ed.) 498; note to Sherman v. Alberts, 126 Am. St. Rep. 486, where the question is elaborately discussed and a large number of authorities cited and reviewed. sons [3] The evidence does not sustain the contention of plaintiff in error either that he performed the agreement on his part or that his failure to do so was not his fault. We do not understand from the testimony that the failure to turn over the notes of the corporation and deposit its stock with the trustee as security was the fault of the creditors. At all events that was a question of fact, and the judgment of the Appellate Court is conclusive upon that question. [4] It is also contended that the suit was not maintainable in the name of defendant in error, as assignee of Jones & Laughlins, Limited. Defendant in error succeeded Jones & Laughlins, Limited, in 1902, and because the owner of the rights of Jones & Laughlins, Limited, in the contract with plaintiff in error: The suit was brought in 1905 in the name of defendant in error, as assignee of Jones & Laughlins, Limited. At the time the suit was begun there was no law authorizing defendant in error to sue in its own name, but the proper method of bringing suit was in the name of Jones & Laughlins, Limited, for the use of defendant in error. By section 18 of the Practice Act, which was added by the revision of 1907, the owner of a chose in action not negotiable, theretofore or thereafter assigned, was authorized to sue in his own name, but the defendant was entitled due upon the notes at the time the judgment was rendered, June 11, 1913. This question does not appear to have been specifically raised in the trial court. It cannot now be urged as a ground for reversal. Utter v. Jaffray & Co., 114 Ill. 470, 2 N. E. 494; Metropolitan Accident Ass'n v. Froiland, 161 Ill. 30, 43 N. E. 766, 52 Am. St. Rep. 359; Grand Lodge A. O. U. W. v. Bagley, 164 Ill. 340, 45 N. E. 538; Prairie State Loan Ass'n v. Gorrie, 167 Ill. 414, 47 N. E. 739; Wheatley, Buck & Co. v. Chicago Trust & Savings Bank, 167 Ill. 480, 47 N. E. 711; Leathe v. Thomas, 218 Ill. 246, 75 N. E. 810. The judgment of the Appellate Court is affirmed. 2. EMBEZZLEMENT VERSION. 11(1)-ELEMENTS-CON Embezzlement, under Cr. Code (Hurd's Rev. St. 1913, c. 38) § 75, defining the crime, and asportation, regardless of subsequent return unlike larceny, which is complete upon taking of the stolen article, requires a fraudulent conversion, which can generally be shown only when there is demand and refusal to pay, although show implied conversion. failure to pay may, from the circumstances, [Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 9; Dec. Dig. 11(1).] 3. EMBEZZLEMENT 11(1) CONVERSION - How PROVED. sion to make out the crime of embezzlement is to be allowed such set-offs, discounts, and defenses as he might have had against the assignor before notice of the assignment. [Ed. Note. For other cases, see EmbezzleThis suit was not tried until 1913. Defend-ment, Cent. Dig. § 9; Dec. Dig. ~11(1).] ant in error might at any time after the 4. EMBEZZLEMENT 8 ELEMENTS OF OFpassage of the act of 1907 have brought the suit in its own name. Does the fact that it brought the suit in its own name prior to the passage of the statute require a reversal of the judgment? We think not. At the time of the trial the suit was in the name it was then authorized to be brought in, and plaintiff in error was not prejudiced in any manner. He was deprived of no defense he could have made if the suit had been brought in the name of the assignor, and plaintiff in error was denied no right to which he was entitled by either law or justice. [5] The ad damnum laid in the declaration FENSE. Under Cr. Code, § 75, defining the crime of embezzlement by an agent, the agent is not guilty if he had an interest or part ownership in the funds, or until an accounting is had, and there is demand and refusal to pay. [Ed. Note.-For other cases, see Embezzlement, Cent. Dig. § 6; Dec. Dig. 8.] 5. EMBEZZLEMENT 8-ATTORNEYS — INTER EST IN FUNDS. An attorney who secured settlement of a case and collected moneys thereunder, failing to pay them to his client, is not guilty of embezzlement until demand and refusal to pay, since he has an interest, by way of his fees, in the funds. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 6; Dec. Dig. 8.] 6. EMBEZZLEMENT 10-ELEMENTS-LAWFUL was $2,500. The judgment was for $2,712.32, and on this ground it is claimed the judgment should be reversed. The judgment was for The crime of embezzlement cannot be made the correct amount of principal and interest out unless the accused came lawfully, and by POSSESSION. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes reason of his relationship with the owner, into [ ry Veeder, a member of the law firm with possession of the funds. [Ed. Note. For other cases, see Embezzle ment, Cent. Dig. 8; Dec. Dig. 10.] 7. ATTORNEY AND CLIENT 33-OFFENSES BY ATTORNEY-RIGHT TO FAIR TRIAL. That attorneys at law are held to a high standard of honesty does not impose restrictions on their right to a fair trial when accused. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 46; Dec. Dig. 33.] Error to Criminal Court, Cook County; Richard E. Burke, Judge. Louis C. Ehle, under indictment for embezzlement, was convicted of larceny, and he brings error. Reversed. Glenn E Plumb, of Chicago, for plaintiff in error. P. J. Lucey, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, George P. Ramsey, of Springfield, Daniel G. Ramsey and John Prystalski, both of Chicago, for the People. which the defendant was associated, and the money so paid was deducted from the amount owing defendant, and that Miss Burns was fully paid without any deduction for services or costs due defendant and she released her claim. The circumstances leading up to the indictment of the defendant, as shown by the evidence, were as follows: Defendant is an attorney at law and has been practicing in the city of Chicago since 1893. In 1901 he became associated with the law firm of Albert H. and Henry Veeder, who were attorneys for Swift & Co. and other packers. By arrangement with this firm he began with a salary of $2,500 a year, and was to handle such business of the firm as they required, and in addition thereto was allowed to take other law business for himself if it did not interfere with his devoting the necessary time to the business of said firm. This arrangement continued until March or April, 1914, at which time he was receiving from the firm $8,000 a year as salary. In 1909 Sarah A. Burns was the holder of seven CRAIG, J. Plaintiff in error (hereinafter called the defendant) was indicted at the June term, 1914, of the criminal court of Cook county. A motion to quash the indictment was overruled, and the defendant was put upon trial before a jury at the Sep-shares of stock in the Swift & Co. corporatember term, 1915, of said court. The indictment originally consisted of seven counts, all of which were dismissed by the state's attorney, except the first, third, and sixth. The first count charged the defendant with larceny as bailee of one check for $615.41, the property of Sarah A. Burns. The sixth count charged larceny of the property of Sarah A. Burns. The state's attorney stated on the trial that he did not rely on either the first or sixth count, and would not claim a conviction under them, but refused to enter a nolle prosequi as to these counts, and they were submitted to the jury. A conviction could not have been sustained under either of these counts anyway. Kibs v. People, 81 Ill. 599. The third count, which was the only count relied upon for the conviction of defendant, charged him with embezzlement as agent in the employ of Sarah A. Burns, without the consent of his employer, of a check for the amount of $615.41, alleged to be the property of Sarah A. Burns. The jury found the defendant guilty of larceny. Motions for a new trial and in arrest of judgment were overruled, judgment was entered on the verdict, and the defendant was sentenced accordingly. He has sued out a writ of error to reverse the judgment of the criminal court. Defendant has assigned numerous errors on the record, any one of which, if well taken, would justify a reversal of the judgment against him. We deem it necessary to consider but two of the questions raised by the assignments of error, viz.: (1) That the verdict of the jury and judgment of the court are contrary to the law and the evidence; (2) that Miss Burns was paid in full by Hen tion, and Mary J. Kelly, her sister, with whom Miss Burgs made her home, was the owner of five shares. Five of the shares of stock of Miss Burns had been indorsed by her and loaned to a relative but had been returned to her, but her indorsement remained on the certificates. The entire twelve shares of stock were stolen by a young man living at the home of Mrs. Kelly. He indorsed the shares not already indorsed by forging the signatures of the holders, and the twelve shares were sold, and the proceeds converted by him. Miss Burns and Mrs. Kelly failing to receive their dividends due on the stock in July, 1909, started an investigation, and the facts in regard to the theft came out. Officers of Swift & Co. interested themselves in recovering this stock for the owners, and on the advice of these officers Mrs. Kelly and Miss Burns placed the matter in the hands of the defendant as attorney, who brought suit in attachment in the municipal court of Chicago for each of them against the firm of brokers who had handled the stock, and the suits were tried. He succeeded in collecting $800 from the man who stole the stock and from his relatives, with which, on the direction of Mrs. Kelly and Miss Burns, he bought seven shares of Swift & Co. stock, of which he turned over five shares to Mrs. Kelly, and two shares to Miss Burns, the balance in cash, about $80, being turned over to Mrs. Kelly. It appears that the two sisters kept their stock together. Mrs. Kelly was in better circumstances, financially, than her sister, and for that reason was anxious to have her sister reimbursed first, and while five of the shares recovered through the settlement were taken in the name of Mrs. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Kelly, the dividends on these shares, as well as on the two shares bought in the name of Miss Burns, were thereafter paid to the latter, and it was understood that she was to eventually own these shares if she did not recover in the suit started by her. The shares were not put in her name outright because the suit of Miss Burns for the shares of stock on which the indorsements were genuine was still pending and undetermined. That suit was tried. Miss Burns was defeated in the municipal court, but the defendant, as her attorney, took the case to the Appellate Court, where the judgment was reversed and the cause remanded. er making the collection and before he was indicted. He talked with Mrs. Kelly once, and also with Mrs. Hull, her daughter, in which conversations he informed them, in substance, that he expected to settle the matter shortly. In March, 1914, the defendant wrote a letter to the secretary of Swift & Co. to the same effect, giving the details of the litigation and stating that he expected to have the matter settled in a few days. About this time, for some reason not disclosed by the record, defendant was having considerable difficulty with Henry Veeder, the surviving member of the Veeder firm, and in April ceased his connection with the firm. Albert H. Veeder had died some time before. It appears that there has never been a final settlement between the defendant and the Veeder firm, the defendant claiming that the firm owed him and Henry Veeder claiming that the defendant was indebted to the firm. The firm was withholding salary and other money due the defendant when the check was collected. The defendant had suffered a severe injury in the fall of 1913 by falling and striking his head on a stone step, from which he was laid up for seven weeks and was ap The Burns Case was pending in the courts several years. In December, 1913, after the judgment was reversed by the Appellate Court, M. D. Follansbee, attorney for the brokers, and the defendant, representing Miss Burns, after some negotiations agreed on a settlement. In making the settlement proposed by Follansbee, as attorney for the brokers, the defendant consulted with Mrs. Kelly, and evidently understood, and had good reason for thinking, that the proceeds of the suit were to belong to her, and not to Miss Burns. He telephoned to her about the pro-parently in poor health for several months posed settlement, and it being satisfactory to her, it was decided to accept the amount offered by Follansbee, $615.41. Accordingly, on December 12, 1913, Follansbee mailed the defendant his check, payable to defendant and Sarah A. Burns, with receipts in triplicate covering the amount, and the terms of the settlement between the parties. The defendant telephoned to Follansbee and asked him if he desired the indorsement of Miss Burns on the check, and he replied that it was not necessary. Follansbee testified that the check was made payable to the defendant and Miss Burns, jointly, so the former could retain from the amount his fees for his services. The defendant indorsed the check with the names of Sarah A. Burns and of himself and deposited the check to his account in the Merchants' Loan & Trust Company Bank and subsequently checked this money out. The defendant had received no fees, and no costs had been paid by either Mrs. Kelly or Miss Burns. The defendant testified that he informed Albert H. Veeder of the outcome of the suit, and the latter stated that the fees he had earned would have to be adjusted, and that the work he had done was worth all he had recovered. The defendant regarded the suit as one that came to him in his usual course of business as an attorney. Henry Veeder testified that while the defendant did all the work in the matter and in connection with the suit and the appeal and settlement the business was business of the Veeder firm, and that they were primarily working for Swift & Co., and secondarily for Miss Burns and Mrs. Kelly. The defendant did not inform Miss Burns or Mrs. Kelly that he had made this collection. In fact, he never talked with Miss Burns aft thereafter. On April 9, 1914, he left Chicago for the purpose of recuperating his health, it being the first time in five years that he had taken a vacation, and returned some time in May. Henry Veeder had also been advised by the defendant that he had made this collection. Henry Veeder seems to have considered that the firm of Veeder & Veeder were attorneys in the matter together with the defendant, and that the firm was liable to account to Miss Burns for the collection. On April 27, 1914, during the absence of the defendant, Veeder gave Miss Burns a check for the full amount of the collection ($615.41) and took a general release from her. Neither Miss Burns nor any one else had ever made a demand on the defendant for the proceeds of this collection, and, in fact, the first knowledge that Miss Burns had that her claim had been paid by the brokers who were the defendants in her suit, was when Henry Veeder paid her. Veeder deducted the amount he paid Miss Burns from the salary due the defendant, or charged it against him, or considered it a proper charge. His testimony on that point is somewhat vague and contradictory. He was asked if he had deducted this amount from defendant's salary when he left their office. He replied: "What balance was due him on salary was applied to that-this and other indebtedness. His salary was applied to that liquidation, so far as it would go-to this and other matters-and when he left he was very much in my debt as yet." He further testified that they never had a full settlement; that they had had a settlement on March 3d; that he did not charge up his account with the amount of the Burns collection; that the amount coming to defendant was applied on other matters. He |