on the part of respondent. The commissioner found the proof sustained the charges made in the additional count with reference to both the Bogie and Jones cases, and that the conduct of respondent with reference to such cases was unprofessional, dishonorable and constituted malconduct in respondent's office as an attorney.

The most serious question we have had to determine in this case is whether the rule should be made absolute and respondent disbarred, or whether a suspension from practice for a definite period named and until restored by order of this court would sufficiently serve the purpose of the prosecution. After careful deliberation we are inclined. to adopt the latter course. We are led to this conclusion, not because we are of opinion the commissioner's conclusion that respondent's conduct has been unprofessional and dishonorable is wrong, but because we incline to the belief that that degree of culpability is not shown by such clear and satisfactory evidence as to leave no ground for the exercise, of a discretion between disbarment and suspension. We do not purpose in the slightest a retrogression from the position the court has always taken with reference to unprofessional or dishonorable conduct of members of the bar, and when convinced by satisfactory evidence that such conduct has been attended with corrupt motives we will unhesitatingly deprive the guilty party of the right to further practice his profession. We are determined that, so far as this court is concerned, members of the bar will be required to square their conduct by the rules and principles of honesty, truthfulness and fair dealing, but we are not convinced that every dereliction should be visited with the same consequences. In this case we think the proof warrants disciplining respondent. His explanations of his acts are not sufficient to warrant discharging the rule, nor do we think, from a consideration of the evidence, that his absolute disbarment is required.

The judgment, therefore, will be that the respondent be suspended for a period of two years and until restored by order of this court. Respondent suspended.

DUNN, CARTWRIGHT and COOKE, JJ., dissenting:

The respondent received money for services to be rendered and kept the money without rendering the services, in the meantime deceiving his clients by false statements as to their cases. He returned a part of the money when charges were made against him and prosecution was imminent. He had a license to practice law, which he used to obtain money dishonestly. He should be permanently deprived of the opportunity to do this and his name should be stricken from the roll of attorneys.

S. H. CUMMINS, Appellant, vs. TONY MARTZEN et al.

Appellees.

Opinion filed April 20, 1916.

1. SPECIFIC PERFORMANCE—contract not enforced against party having no reciprocal right against complainant. A contract for the conveyance of real estate will not be specifically enforced in equity where the defendant has no reciprocal right to enforce the contract against the complainant.

2. SAME when decree denying specific performance will be affirmed. A decree dismissing for want of equity a bill to specifically enforce an alleged contract, the only memorandum of which was written across the face of a check cashed by the defendant, will be affirmed, where the evidence does not satisfactorily show a clear right by the complainant to the relief, but, on the contrary, tends strongly to show that the defendant, who could not read English, did not know he was dealing with the complainant but thought he was giving a ten-day option to the drawer of the check, whose subsequent conduct caused the defendant to believe he had declined to exercise his option.

APPEAL from the Circuit Court of Sangamon county; the Hon. NORMAN L. JONES, Judge, presiding.

CHARLES G. BRIGGLE, for appellant.

DAVIS MCKEOWN, for appellees.

Mr. CHIEF JUSTICE FARMER delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Sangamon county dismissing a bill for specific performance of a contract to convey real estate. The bill was filed October 27, 1913, by S. H. Cummins, appellant here, against Tony Marcinka, alias Tony Martzen, who will hereafter be referred to as Martzen. The bill alleged B. R. Brisk, acting as agent for appellant for the purchase of the property described in the bill, on August 2, 1913, gave Tony Martzen a check for $100, upon the face of which was written the following memorandum of agreement: "Received of S. H. Cummins $100 on purchase from Tony Marcinka as part pay on his property on Sangamon avenue; balance, $13,900, to be paid ten days after abstract and deed are tendered to said S. H. Cummins;" that on the same day the check was given Martzen he indorsed and cashed it and has ever since retained the money to his own use; that on said second day of August, Martzen agreed to sell to appellant for $14,000 the real estate described and appellant agreed to purchase the premises for said sum, as evidenced by the said written memorandum executed by appellant and Martzen. The bill alleges appellant has always been ready and willing to comply with the terms of the agreement, and about August 12, 1913, he applied to and demanded from Martzen an abstract of title and deed of conveyance, offering to pay Martzen the balance due on the delivery of the deed, but Martzen refused, and still refuses, to comply with the agreement on his part. The prayer of the bill is for specific performance.

Martzen answered the bill, admitting Brisk gave him a check for $100 August 2, 1913, upon which was written some memorandum the nature and effect of which he did

not know, as his understanding of the English language is limited and confined to a few spoken words and does not extend to written words. The answer admitted Martzen received $100 on the check and applied it to his own use, but alleges the check was given for a ten-day option on the purchase of the premises but denies the option was given appellant. The answer further avers the agreement of Martzen for the sale of the premises was to sell them to B. R. Brisk; that he at no time agreed to sell them to appellant; that pursuant to the agreement to sell to Brisk, Martzen on the twelfth day of September (evidently intended for August 12) tendered to said Brisk at his saloon office a deed and abstract; that Brisk made no objection to the deed or the title but said he was unable to get the money and that his attorney (appellant) had been unable to get it for him. The answer further avers that shortly after said date Brisk and appellant asked for another chance to buy the premises and Martzen agreed to give them an additional ten days to raise the money, and the abstract of title was then delivered to appellant; that he kept it an unreasonable length of time and made no objection to the title but said he could not raise the money, and Martzen finally finding another purchaser, sold the premises. The answer alleges that neither Brisk nor appellant, or anyone for them, ever made any tender or offer to pay until October 15, 1913, before which time Martzen had entered into a written contract to sell the premises to Kasten Stockus, to whom he did make conveyance on October 27, 1913.

On January 31, 1914, the appellant, by leave of court, amended his bill. The amendment alleged that since the filing of the original bill Martzen had conveyed the premises to Kasten Stockus, who had given a mortgage or deed of trust on the property to Peter Theurer, trustee, to secure a note for $9000, and that on the same day Stockus executed a similar mortgage or trust deed to the Peter Schoenhofen Brewing Company to secure the payment of $9000, which

Stockus received from the brewing company and paid to Martzen on the purchase of the property. The amendment alleges that at the time Stockus bought the property he knew of the contract with appellant for its purchase, and that he was not an innocent purchaser and that his title was null and void; also that the mortgagees had notice of appellant's contract for the purchase of the premises, and that the title of Stockus and the mortgagees is invalid and a fraud against the rights of appellant. Stockus and said mortgagees were made additional parties to the suit, and the amended prayer was that Stockus be decreed to convey the premises to appellant and that the mortgages be canceled and set aside as a fraud on the rights of appellant upon his paying the balance of the purchase money, which he averred he was ready and willing and then offered to pay to Stockus. Stockus and the mortgagees answered, denying all knowledge that appellant had any right or interest in the premises.

After the issues were made up the cause was referred to the master in chancery, who heard the testimony and reported it, with his conclusion that appellant had failed to prove his cause by a preponderance of the evidence, and recommended that a decree be entered dismissing the bill for want of equity at appellant's cost. Exceptions by appellant to the master's report were overruled by the chancellor and a decree was entered dismissing the bill for want of equity. The chancellor found and recited in the decree that on the second day of August, 1913, Martzen agreed with appellant to sell the premises for $14,000; that at said time B. R. Brisk delivered to Martzen a check for $100 signed by said Brisk, and underneath the signature was written the word "agent;" that a memorandum appeared on the face of the check, as follows: "Received of S. H. Cummins $100 on purchase from Tony Marcinka as part pay on his property on Sangamon avenue; balance, $13,900, to be paid ten days after abstract and deed are tendered to said S. H. Cummins," which was the only writing evidencing the con