Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. CHESTER J. STRZALKA, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
The administrators of the estate of James N. Jovan brought this action against John Starr (Starr) and John J. Yowell (Yowell) for the return of $2,000 which Starr, acting as agent for plaintiff, had deposited with Yowell acting as escrowee. (We shall refer to James N. Jovan as plaintiff.)
The court found the issues against both defendants and entered judgment for the administrators in the sum of $2,000. Defendant Yowell's motion for a new trial was denied and he now prosecutes this appeal.
On December 30, 1957, plaintiff, one Alexander G. Chiagouris (Chiagouris) and Starr entered into an agreement whereby plaintiff and Chiagouris each advanced $2,000 to Starr, and Starr agreed to use the funds as earnest money to attempt to purchase all the outstanding stock of Terrace Restaurant, Inc., (Terrace Inc.,). Plaintiff and Chiagouris were to remain as undisclosed principals of Starr. The agreement provided inter alia that if Terrace Inc., already in financial difficulty, went into bankruptcy prior to Starr's acquiring the corporation's stock, the earnest money was to be returned to plaintiff and Chiagouris.
The stock of Terrace Inc., was being held by defendant Yowell, the corporation's attorney. Starr met with Yowell and negotiated for the purchase of the stock. An agreement, in the form of a letter, addressed to the then stockholders of Terrace Inc., and dated December 31, 1957, was then executed. One of those stockholders was James N. Jovan, one of Starr's undisclosed principals and plaintiff herein.
The letter agreement first stated the price to be paid for the stock and then provided:
"I have deposited with John J. Yowell the sum of $4,000 as earnest money and to apply on the purchase price.
"In the event that the creditors of the corporation are unwilling to make a settlement of their claims and the corporation is placed in bankruptcy, said earnest money is to be returned to me.
Yours very truly, /s/ John Starr
"Received check on Pullman Trust & Savings Bank in the sum of $4000.00 signed by John Starr, to be held by me in accordance with the above letter.
/s/ John J. Yowell by L.J. Vance"
(L.J. Vance was an employee of Yowell's and there is no question that she was authorized to sign his name.)
Subsequently, in March 1958, Terrace Inc., was involuntarily placed in bankrupty. Although at the trial there was some testimony as to whether Starr had defaulted prior to the bankruptcy, this issue has been abandoned on appeal. Defendant Yowell contends that: (1) plaintiff's claim is barred by the Statute of Limitations and; (2) that he has a retaining lien on the earnest money for his legal services to Terrace Inc., plaintiff being a stockholder of the corporation.
With respect to the suit being barred by the Statute of Limitations, Yowell argues that absent a writing signed by defendant Yowell, plaintiff's claim, if any, must be controlled by the five year statute of limitations. (Ill Rev Stats 1965, c 83, § 16.) Since the money was deposited with Yowell on December 31, 1957, and the instant action was not commenced until March 20, 1963, it is barred. The only writing signed by Yowell is the letter agreement executed by Starr. Since this does not mention plaintiff, it ...