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In Re Estate of Sullivan

APRIL 19, 1972.

IN RE ESTATE OF JOHN E. SULLIVAN, DECEASED — (ELIZABETH SULLIVAN ET AL., PETITIONERS-APPELLANTS,

v.

MCCORMICK & COMPANY, INC., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. JOHN E. PAVLIK, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 17, 1972.

This is an appeal from a judgment of the Circuit Court of Cook County, dismissing a petition for citation on the pleadings.

This action was brought by the executors of the estate of John E. Sullivan to recover shares of stock that had been loaned by him pursuant to written agreements to Thomas E. Hosty, Sr., and Thomas E. Hosty, Jr., who were associated with Sincere and Company, a brokerage firm. Pursuant to separate written agreements these securities were subsequently loaned by the Hostys to McCormick & Co., Inc., also a brokerage firm. When the securities were not returned to the estate by the Hostys on the termination dates of the Sullivan-Hosty agreement, the executors of the estate filed a petition for citation against the Hostys and McCormick and requested either a return of the securities or damages for their value.

McCormick answered the petition for citation and subsequently filed a motion for judgment on the pleadings. After a hearing on the motion the Circuit Court entered judgment in favor of McCormick against the Estate of Sullivan on the grounds that there was no triable issue of fact between the estate and McCormick.

The issue on appeal is whether the executors' petition for citation stated a cause of action and whether the pleadings raised any issues of fact.

The agreement dated September 13, 1968, between Sullivan and the Hostys, provided in part:

"Thomas E. Hosty Sr. and Thomas E. Hosty Jr. may make this stock, borrowed by them, available to the Firm as part of the Firm's assets, and such securities may be held, pledged, sold, transferred, disposed of or otherwise dealt with by the Firm as partnership property, as though Thomas E. Hosty Sr. and Thomas E. Hosty Jr. had so contributed or made available their own securities.

It is further agreed that all obligations created or evidenced hereby are solely those of the borrowers individually, and neither the Firm of Sincere and Company or any successor firm is in any way liable in connection therewith.

The term `the Firm' as used in this agreement shall mean the Firm of Sincere and Company as presently constituted or as it may hereafter be constituted from time to time, and also any firm which may succeed to its business."

On January 15, 1969, another agreement was entered into between Sullivan and the Hostys for additional stock and repeated the above-stated terms.

On July 3, 1969, an agreement between the Hostys and McCormick provided in part:

"Transmitted with this letter are agreements signed by the lenders of the securities hereinafter detailed, and Thomas E. Hosty, Sr. ...


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