text:
    John W. Dunsworth, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Greene county; the Hon. Nob-man L. Jones, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by John W. Dunsworth, plaintiff, against the Chicago & Alton Railroad Company, defendant, to recover for failure of defendant to deliver certain cattle shipped by plaintiff from Carrollton, Greene county, Illinois, to Blast St. Louis, and there reshipped to Van Norman, Lawler & Company, commission merchants, at the Union Stockyards, Chicago, over defendant’s railroad. From a judgment for plaintiff, for $4,140, defendant appeals.

      Abstract of the Decision.
    1. Carriers, § 4

      —when connecting railroad and transfer company are common carriers. Where the defendant railroad received certain live stock for shipment from a point outside of Chicago to a consignee at the Union Stockyards, Chicago, under an arrangement with another railroad for the cars of defendant to pass over the tracks of the other railroad from Western avenue, Chicago, to unloading chutes at the Union Stockyards at a certain price per car, defendant’s trainman doing the actual work of conducting or transferring the cars from Western avenue to such chutes, and with ■the Union Stockyards & Transit Company for the unloading of such cars at such chutes and delivery to the consignee at a certain price per car, held that such other railroad and the Union Stockyards & Transit Company were common carriers connecting with defendant in such shipment.
    2. Carriers, § 188*—when connecting railroad and stockyards company are agents of initial carrier. Where the defendant railroad received certain live stock for shipment from a point outside of Chicago to a consignee at the Union Stockyards, Chicago, under an arrangement with another railroad for such cars to pass over the tracks of the other railroad from Western avenue, Chicago, to unloading chutes at said yards at a certain price per car and with the Union Stockyards & Transit Company for unloading such ears at such chutes and delivering them to the consignee at a certain price per car, held that the other railroad and the Union Stockyards & Transit Company were defendant’s agents for the transportation and delivery to the consignee of such cars, for whose acts, if negligently performed, defendant was liable to respond in damages.
    3. Carriers, § 190*—what is sufficient proof of knowledge of initial carrier t>f its duty to deliver stock to consignee. The fact that the defendant railroad hired and paid the Union Stockyards & Transit Company to unload and deliver to the consignee certain live stock received for shipment by defendant, held to not only prove conclusively that said company was defendant’s agent but to prove that defendant’s own construction of its duty as a common carrier of live stock was that it was obliged to unload and deliver the same to the consignee, in an action to recover damages for failure of defendant to deliver such shipment.

      T. I. McKnight, for appellant; Silas H. Strawn, of counsel.
    Whiteside & Wright, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and' Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

4. Carriers, § 188 —when duty of initial carrier of stock fully performed. Where the defendant railroad received certain cars of cattle for shipment from a point outside of Chicago to a consignee at the Union Stockyards, Chicago, and defendant, in its regular course of business, transported such shipments by another railroad from Western avenue, Chicago, to unloading chutes at said yards at a certain price per car, paid by it to such other railroad and also paid the Union Stockyards & Transit Company a certain price per car for unloading and delivering such shipments, held that defendant’s whole duty as a common carrier would not be performed until such shipment had been actually delivered to the consignee.

5. Carriers, § 199*—when burden of proof on initial carrier to show lawful excuse for failure to deliver stock. In an action to recover damages for failure of a common carrier to deliver a shipment of live stock, where the defendant’s duty as initial carrier to deliver such shipment and its failure to deliver it to the consignee were established, held, that the defendant had the burden of showing a sufficient lawful excuse for such failure.

6. Carriers—what is sufficient excuse for failure to deliver live stock. The fact that a shipment of live stock came from a quarantined territory, held to constitute a justification for the refusal of the carrier transporting such shipment to unload and its failure to deliver same as required by its contract of carriage.

7. Animals, § 4*—what not sufficient grounds for destruction of property rights in stock coming from, quarantined territory. A mere rumor, the truth or falsity of which is easy of ascertainment, that a certain shipment of live stock came from quarantined territory, held not enough to justify the destruction of property rights without even an attempt to verify or disprove such rumor, in an action to recover damages for failure of the carrier to deliver such shipment under its contract of carriage.

8. Carriers, § 93*—when evidence insufficient to show acceptance of shipment of live stock by shipper. Evidence held insuffi-, cient to show plaintiff’s agent had accepted a certain shipment of live stock, where such agent attempted to secure possession of such live stock but defendant refused to permit it to be unloaded and delivered, in an action by a shipper to recover damages for failure to deliver such shipment.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Nokomis National Bank, Appellee, v. John F. Hendricks, Appellant.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 410

      —when assignee must prove proper assignment of note. In an action to recover on a promissory note, where the defendant filed an affidavit denying assignment of the note to the plaintiff, held that such affidavit made it necessary for plaintiff to prove that the note was duly and properly assigned by the payee.
    2. Bills and notes—token, authority of officer of corporation payee of note to make assignment must be proved by assignee. Where the payee of a note was a corporation, an affidavit filéd in defense to an action to recover on the, note denying assignment of it, held to destroy every presumption of authority in the officer or agent purporting to make the same, and puts the burden of proving not only the assignment but the authority of the person making it to do so upon the party asserting its validity.

      Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Nokomis National Bank, plaintiff, against John F. Hendricks, defendant, to recover on a promissory note for $50 purporting' to have been given by defendant. From a judgment for plaintiff for $55.67, defendant appeals.
    J. D. Wilson and Lane, Dryer & Brown, for appellants.
    Miller & McDavid and W. G. Webster, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number»

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

3. Bills and notes—when authority of agent to make assignment of note must be proved. Alter assignment of a note is denied by an affidavit, the doctrine of apparent authority of an agent to make it no longer applies, and such authority is a matter of proof.

4. Bills and notes, § 406 —what party suing on assigned note required to prove at common law. At common law a party suing on an assigned note, if the general issue was filed, was required ,to prove by a preponderance of the evidence the validity of both the execution and the assignment of it.

5. Bills and notes, § 350*—whe'n affidavit denying validity of execution or assignment of note is necessary. Since the enactment in its present form of section 52 of the Practice Act (J. & A. U 8589), relating to denial of the execution or assignment of an instrument, a defendant in an action on a promissory note is not permitted to deny on the trial the validity of either the execution or assignment of the note unless he files an affidavit or a verified plea denying the validity of such execution or assignment.

6. Bills and notes, § 406*—what proof necessary where affidavit or verified plea denying execution or assignment of note filed. In an action on a promissory note where an affidavit or verified plea is filed denying the execution or the assignment of the note, the same proof of execution or of assignment must be made as in a contested case at the common law.

7. Bills and notes, § 406*—what is proper practice where no affidavit or verified plea is filed denying execution or assignment of note. In an action on a promissory note where no affidavit or verified plea is filed denying the execution or the assignment of the note, the same practice prevails as at common law when no defense was made to such an action, except as such rule is varied by section 59 of the Negotiable Instruments Act (J. & A. K 7698), providing that the holder of a negotiable instrument is deemed prima facie a holder in due course and that when the title of one who negotiated the instrument is shown to be defective the burden is on the holder to prove that he or some person under whom he claims acquired title in due course.

8. Bells and notes, § 410*—when rule that burden is upon holder to show acquirement of title in due course is inapplicable. Where the title of any one who negotiated a negotiable instrument is shown to be defective, the rule that the burden is upon the holder to prove that he or some person under whom he claims acquired titlé in due course does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.

9. Bills and notes, § 406 —what is rule as to burden of proof where holder makes proof of assignment. When the course established in section 52 of the Practice Act (J. & A. H 8589), providing how a party must proceed to require the holder of a note to make proof of its due and proper assignment, is pursued, the trial proceeds the same and the order and burden of proof are the same as when those same tacts were contested at the common law.

10. Bills and notes—what does not constitute indorsement. An indorsement by the “Central Route and Rating Agency” on a note made payable to the “Central Rate and Routing Agency,”' held not to be an indorsement by the payee of the note in the absence of proof that the two agencies were the same legal entity.

11. Bills and notes, § 446*—what proof necessary to make assigned note evidence of debt to assignee. In an action on an assigned note, where the validity of the assignment was denied by affidavit, and the indorsement purported to be signed by an agent, such note held to be, without proof of the agency of the party so signing the indorsement, no evidence of a debt of the defendant to the plaintiff and inadmissible.

12. Bills and notes, § 319*—when holder of note may sue thereon in his own name. Under section 51 of the Negotiable Instruments Act (J. & A. K 7690), providing that the holder of a negotiable instrument may sue thereon in his own name, any holder in whose hands any instrument in writing may be found may not sue thereon regardless of whether such instrument is negotiable on delivery or not.

13. Bills and notes, § 319*—what was purpose of statute allowing holder of negotiable instrument to sue thereon in his own name. The manifest intention of section 51 of the Negotiable Instruments Act (J. & A. T[ 7690), providing that the holder of a negotiable instrument may sue thereon in his own name, was to have it apply to the holder in due course of instruments that because of the way they were originally written, or because of a proper indorsement thereon, were negotiable on delivery.

14. Bills and notes, § 412*—when assignee of note required to prove good faith of assignment. The filing of an affidavit or verified plea denying the validity of an assignment of negotiable paper sued on challenges, among other things, the right of the holder of it to sue it in his own name, and puts him to proof of the bona fldes of the assignment through which he claims the right to sue.


text:
    National Bank of Decatur, Appellant, v. Board of Education of Decatur School District, Appellee.
    1. Schools and school districts, § 118*—inapplicability of statute as to orders for payment of teachers’ wages to district organized under special act. Section 81 of the General School Act (J. & A. Í 10102), relating to orders for the payment of teachers’ wages, has no application to a school district organized under a special act.
    2. Schools and school districts, § 111

      —when special act provides ample means for borrowing money for teachers’ salaries. The special act under which the defendant school district was organized, held to provide ample means for borrowing money for géneral school purposes, including teachers’ salaries, although such salaries were not specifically mentioned therein.
    3. Municipal corporations, § 60*—when speak through records and documents. A municipal corporation, as a general rule, speaks only through its records and properly executed documents.
    4. Municipal corporations, § 159*—when officer cannot bind by contract. No person, committee or officer of a municipal corporation can bind it by contract unless he or they are expressly authorized to do so or the power to do so is necessarily implied from' the powers expressly given.
    5. Municipal corporations, § 159*—what is source of authority of officers to bind by contract. Authority of a person, committee or officer of a municipal corporation to bind it by contract must be given by statute or by the corporation acting within its powers, and in the manner prescribed by law.
    6. Evidence, § 116*—when authority of officer must be shown by record. When authority is given by a municipal corporation to any person, committee or officer to bind it by contract, such fact can only be shown by the record of the corporation.
    7. Schools and school districts, § 87*—when contract by officer must be ratified by majority vote of members of controlling board. When a contract is made by any person, committee or officer acting for a school district under its authority, such contract when made under such authority must be ratified by a majority vote of the members of the controlling board of such district.
    8. Evidence, § 116*—what is method of proof of ratification by controlling board by vote of contract of officer. The vote of the members of the controlling board of a municipal corporation ratifying a contract made under its authority by any person, committee or officer of such corporation acting for it in making such contract can only be shown by the record of the corporation.
    9. Evidence, § 116

      —when ratification of contract by officer for borrowing money must be proved by records. Where a contract entered into by a municipal corporation acting by any person, committee or officer under its authority is of the character of a contract for borrowing money for the payment of teachers’ salaries, there is no exception to the rule that such authority to make and a ratification of such contract can only be shown by the records of the corporation.
    10. Statutes, § 226*—when construed as controlling. When a statute provides how a thing shall be done it excludes all other means.
    11. Schools and school districts, § 143*—when declaration in action against district to recover money borrowed is insufficient. Where a declaration, in an action by a bank against a school district to recover money borrowed for the payment of teachers’ salaries, with interest thereon, alleged that the defendant school district, organized under a special act, had adopted' the provisions of the general law in regard to the payment of teachers and had made a contract to borrow money and to pay interest thereon for payment of certain salaries, held that neither the adoption by defendant of the general school law nor the making by it of such contract was well pleaded.
    12. Municipal corporations, § 164*—when contract to pay interest on money advanced is illegal. A contract of a municipal corporation to pay interest for money advanced by others to the holders of its outstanding, noninterest-bearing obligations cannot lawfully be made.
    13. Schools and school districts, § 143*—when declaration averring existence of contract of district to pay interest on borrowed money insufficient. An averment in a declaration of a contract by a school municipal corporation to pay interest on money borrowed by it to pay teachers’ salaries, held to be insufficient to show any legal obligation on such corporation,'because it set up a verbal contract with such corporation and did not show who talked for the corporation or that, whoever it was, had any authority so to do, or that his acts were legally ratified.
    14. Pleading, § 38*—when. taken most strongly against pleader. Where a declaration set up a certain contract with a municipal corporation, without averring whether it was written or oral and without filing any copy of any contract, held that the pleading must tie taken most strongly against the pleader, and such contract would be presumed to be oral.
    15. Tbial, § 68

      —when objection to offer of proof properly sustained. In an action to recover money advanced to a school district to pay teachers’ salaries, where the plaintiff offered to prove that the defendant corporation had no money to pay its teachers; that it therefore agreed with plaintiff for plaintiff to advance money to pay defendant’s orders for payment of its teachers’ salaries; that defendant had issued a certain order for such payment and plaintiff had advanced the money therefor under such prior agreement, and that defendant had agreed to pay interest on such money, held that objection to such offer of proof was properly sustained, as the offer did not show how or by whom such proof was to be made, nor how, when, or by whom such agreement was made, as it was a verbal agreement, as stipulated, as it was not stated who the agent, committee or officer was who acted for the corporation in making such agreement, and as there was no offer to prove that at any meeting of the school board any one was authorized to make any contract with plaintiff.
    16. Evidence, § 116*—when oral evidence as to actions of school board at meeting admissible. Oral proof of the actions of a school board at a regular or called meeting at which all members were present, or had opportunity to be present, is admissible in evidence after it is shown that no record of such meeting existed.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Redmon, Hogan & Redmon and McCullough & Wierman, for appellants.
    Vail, Miller & Pogue, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, Same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Appellee is organized under a special act of the Legislature of the State of Illinois passed in 1865 and is acting under that law.

Appellant, a banking corporation, brought this suit to recover sixty dollars which it gave to one Carrie Jordan for an order which appellee gave to her on January 29, 1915, on its treasurer for that amount, to pay her for her services as a school teacher, and interest thereon at the rate of five per cent. Appellee does not deny that it owes the sixty dollars and after this suit was brought it tendered to appellant that amount together with all costs made up to that time, and upon the tender being refused brought the same into court, but it does deny that it is liable for interest.

A demurrer to three special counts on the declaration, one of them being designated as an additional count, was sustained and appellant stood by those counts. The case was tried by the court without a jury on the common counts and a plea of the general issue. The court found that appellee was not liable for interest and entered judgment against appellant for costs subsequent to the tender. The bank appeals.

The first of the three counts to which the demurrer was sustained places appellant’s right to recover on the theory that section 81 of the Gfeneral School Act of Illinois (J. & A. ft 10102) is in force in appellee school district. If that section is there in force, then appellant is undoubtedly entitled to interest because the steps pointed out in that section, which, if followed, would make appellee liable for interest, are shown by this count to have been followed in this case.

That section is part of the general act which is complete in itself. Section 51 of that Act (J. & A. ff 10072) provides that districts existing under special acts may adopt the general act and how it may be done. There are some sections in that act so worded as to apply to all school districts whether operating under the general act or under a special law. Other sections of it have been held so to apply. There is no pretense that any attempt has ever been made by appellee district to adopt the general school law. Section 81 does not purport to apply to any school district that has not adopted the general act, nor has it ever been held in any court to apply to districts acting under special laws, and section 276 (J. & A. 10314) of the general law provides that this act “shall not be construed so as to repeal or change in any respect any special act, in relation to schools.” The special act under which appellee is operating contains ample means for borrowing money for general school purposes, which unquestionably includes teachers ’ salaries, although such salaries are not specifically and in express terms mentioned therein. Franklin County v. Layman, 145 Ill. 138. No reason is apparent justifying a holding that section 81 of the General School Act applies to appellee.

The second special count to which demurrer was sustained was drafted on the theory that appellee had contracted to pay interest. This count after averring that appellee was operating schools and hiring teachers, and that it had no funds in the treasury, avers that for the purpose of making the necessary provisions for continuing said schools in operation it did adopt as a rule for carrying their duties into effect the provisions of the general act above referred to in regard to the payment of teachers, and did then and there pursuant to the law as in said act provided “issue the order in question’ ’; that it was afterwards presented to the treasurer of appellee and marked: “Presented this Feby. 1, 1915, and not paid for want of funds,” and that appellee did then and there agree with the plaintiff that the plaintiff should cash said order for said teacher and that defendant would pay the said order to the plaintiff with interest thereon at the rate of five per cent, per annum from the time said order was presented to its treasurer until such time as the treasurer had the money with which said order could be legally paid. The transfer of the order to appellant and the fact that the treasurer then had money in his hands with which the same could be paid and his refusal to pay is averred.

The amended or third special count is substantially the same as the second special count as to the contract made with appellant to take up the order in question, except that it is averred that the contract was made before the order was issued, and that it applied to orders issued to other teachers as well as Miss Jordan.

In considering the sufficiency of these counts it must be kept in mind that appellee is a municipal corporation and that as a general proposition it speaks only through its records and properly executed documents, and that no person, committee or officer of such a corporation can bind it by contract, unless he or they are expressly authorized to do so, or the power to do so is necessarily implied from the powers expressly given, and that such authority must be given by statute or by the corporation, acting within its powers and in the manner provided by law. It must also be remembered that when authority to make a contract is given by such a corporation, that fact can only be shown by the record, and the contract when made under such authority must be ratified by a majority vote of the members of the controlling board of such corporation, which vote can only be shown by the record of the corporation. We know of no exception to that general rule where the contract to be entered into is of the character of the one before us.

It is said in “Cyc.” vol. 35, page 958:

“The power of a school board or committee to enter into contracts on behalf of the school district must be exercised by them as boards and not as individuals; and hence it is necessary, in order that such a contract may be binding, that it be authorized or executed- at a board meeting regularly adjourned to, or regularly called, at which all the members of the board are present or have had notice to be present * * *. In accordance with these rules a contract is not binding on the district, if it is executed by members of the board acting separately and individually and not as a body convened for the transaction of business,- although it is actually executed by a majority of the board * * * nor will the ratification of such a contract by the individual members make the contract valid and binding.”

The averment in the second special count, to the effect that appellee adopted as a rule for carrying these duties into effect the provisions of the general law in regard to the payment of teachers, means nothing as to the legal rights or abilities of appellant. In the first place the act under which appellee was operating provided how money to pay its teachers could be obtained, and when a statute provides how a thing shall be done it excludes all other means. That principle applies here doubly, for not only does the special act provide how the directors can raise money, but section 51 of the General School Act provides how that act may be adopted. If appellee did do as the averment charges, it was not acting within the provisions of either the special act or the general law.

The averments in the second special and the additional or third special counts to the effect that appellee contracted with appellant to pay the teacher’s salary orders when issued, together with the accrued interest thereon, is no better. Assuming that the making of such a contract was well pleaded, which it is not, it would violate the same rule, for in making it neither the special character nor the general law would be followed. It would be a contract appellee would have no power to make and could not be compelled to perform.

The averment is further faulty in that it sets up a contract of a municipal corporation to pay interest for money advanced by others to the holders of its outstanding, noninterest-bearing obligations. Such a contract as that cannot lawfully be made. Hardin County v. McFarlan, 82 Ill. 141; Locke v. Davison, 111 Ill. 19. In the case of Jackson County v. Rendleman, 100 Ill. 379, the Supreme Court sustained a contract for the payment of interest for the reason that a contract which the interest-bearing warrants were issued to liquidate bore interest.

That averment is further insufficient to show a legal obligation because it sets up a verbal contract with a municipal corporation and does not show who talked for the corporation, or that whoever it was had any authority whatever so to do, or that his acts were ever legally ratified. See citation from' 35 Cye. 958, already quoted.

That it was a verbal contract that is referred to in the second and third special counts is shown by the counts themselves, for it is not averred that it was in writing, neither is any copy of any written contract filed with the declaration. Under the rule that all pleadings must be taken most strongly against the pleader, it must be presumed that the contract is an oral one. More than that, during the trial of the case on the common counts and general issue, it was stipulated that there was no written contract and that there was no record of any oral one or of any action of the board in relation to any contract, oral or written. Neither is there any averment in any of the counts that the board ever in fact held a meeting at which any action in relation to making the contract averred was taken or considered, or any authority given to any one to enter any such contract or at which any such contract was ever ratified.

Clearly no legal liability was averred in either of the three special counts mentioned.

At the trial an offer to prove certain things was made by appellant and was objected to by appellee and the objection was sustained. Among the things which appellant then offered to prove, and now claims it should have been allowed to prove, is the following: treasury with which to pay its teachers for services; that it entered into an agreement prior to that time with the National bank of Decatur to advance moneys to pay orders issued by the defendant to its teachers for services rendered in the school for the wages; that the defendant did issue the order described in the declaration in this case, and that the plaintiff advanced the money to take up the order by its agreement with the defendant; that the defendant prior to that time agreed with the plaintiff to pay interest to the plaintiff on the moneys advanced by it from time to time to pay its teachers, and at such times as the defendant had no moneys in the treasury with which to pay its teachers.”

The plaintiff now offers to prove that in the month of January, 1915, the defendant had no moneys in its

The objection to the offer was properly sustained. The offer does not show how or by whom the proof offered was to be made. It does not show how, when or by whom the ‘ ‘ agreement was made. ’ ’ That it was not in writing appeared from the stipulation before referred to. It is not stated in the offer who the agent, committee or officer was who acted for the district in the making of the “agreement.” There is no offer to prove that at any meeting of the board of education at any time, any one was authorized to make a contract with appellant about anything, or that the subject of a contract with appellant concerning the taking up of teachers’ salary orders was ever spoken of or considered in any meeting of the board. Conceding for the moment that an oral agreement made by some one acting for 'appellee would be binding if he had been properly authorized to make it, that authority would necessarily come from an action of the board at a regular or called meeting at which all the members were present or had an opportunity to be present. If such a meeting was had and such authority was given, then oral proof of what was there done would likely be admissible in evidence after it was shown that no record of such a meeting existed. Vermilion County v. Knight, 2 Ill. 97; Franklin County v. Layman, 145 Ill. 138; School Directors v. Kimmel, 31 Ill. App. 537; Bartlett v. Board of Education, 59 Ill. 364; School District v. Clark, 90 Mich. 435.

The offer is loose and uncertain and abounds in conclusions. It should have been a statement of the facts appellant proposed to prove by which the conclusions reached by it would be established.

Other defects in the offer might be mentioned, but it is not necessary.

What has been said disposes of all the questions argued. The conclusions reached by the Circuit Court were undoubtedly correct, and its judgment is affirmed.

Judgment affirmed.


text:
    Charles T. Smith, Appellee, v. Village of Sidell, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Charles T. Smith,. plaintiff, against the Village of Sidell, a municipal corporation, defendant, to recover damages for personal injuries sustained in a collision between an automobile driven by plaintiff and a rope stretched across one of defendant’s streets by its authorities to keep off travel while oil placed theréon for improvement of the road was fresh. From a judgment for plaintiff for one hundred dollars, defendant appeals.

      Abstract of the Decision.
    Municipal cobporations, § 1107

      —what are questions for jury in action for' injuries received 6y colliding with roye stretched across street. In an action against a city to recover damages for personal injuries sustained by plaintiff’s automobile running into a rope stretched by defendant across one of defendant’s streets to keep off travel while oil placed thereon for improvement of such street was fresh, the amount of the injury, whether same was due to defendant’s negligence to properly warn the traveling public by lights or otherwise of the obstruction or was due to plaintiff’s negligence in driving into the rope, held to he questions for the jury.
    R. Allan Stephens, for appellant.
    Lindley, Penwell & Lindley and Swallow & Bookwalter, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    George P. Bridwell, Appellee, v. John W. Utt, Appellant.
    (Not to he reported in full.)
    Appeal from the County Court of Macoupin county; the Hon. Andbew J. Duggan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by George P. Bridwell, plaintiff, against John W. Utt, defendant, to recover for certain groceries sold to defendant’s brother on defendant’s credit. From a judgment for plaintiff for $275.23, defendant appeals.

      Abstract of the Decision.
    1. Guaranty—when evidence tends to show belief of creditor that obligation was originally that of person other than defendant. In an action to recover for certain goods sold to defendant’s brother on defendant’s credit, the fact that after defendant made the statements on which plaintiff relied the goods were delivered and charged by plaintiff to defendant’s brother, held to tend to establish that plaintiff regarded the obligation to pay for the goods was originally only that of defendant’s brother.
    2. Guaranty—what is evidence that credit was given to third person only. In an action to recover for goods sold to defendant’s brother on defendant’s credit, the fact that, after the account for the goods charged to defendant’s brother had been running for some time and become of some little moment, plaintiff took from defendant’s brother his notes and a chattel mortgage and credited the account a certain amount, and also allowed him to sell part of the mortgaged property, and sought to enforce his lien against another part, and the fact that defendant never paid anything on the account, held to be very persuasive evidence that credit, was given to defendant’s brother and not to defendant.
    3. Frauds, Statute of, § 2

      —what is test as to whether promise is original or collateral. In determining whether a promise is original or collateral the test is whether the credit is given to the person sought to be charged or to some one else.
    4. Guaranty—when evidence sufficient to show giving of credit to third person. Evidence held sufficient to show credit was given to defendant’s brother on a sale of certain goods to the brother, in an action to recover for such goods claimed to have been sold on defendant’s credit.
    5. Frauds, Statute of, § 14*—when promise to pay for goods sold on credit to third person not binding. In an action to recover for goods sold to defendant’s brother claimed to have been sold on the credit of defendant based upon certain alleged statements by defendant, held that even if such promises were made by defendant no liability was thereby created on defendant to pay the bill because of the provisions of the Statute of Frauds.
    Edward C. Knotts, for appellant.
    Thomas K. Rinaker and Thomas Rinaker, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Eli R. Wagler and Noah Wagler, trading as Wagler Brothers, Appellants, v. James A. Norris, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bbokbbs, § 88

      —when evidence sufficient to sustain verdict ■for defendant in action for commissions. Evidence held sufficient to sustain a verdict for the defendant, in an action to recover commissions claimed on a sale of defendant’s real estate.
    2. Tbial, § 78*—when evidence is not proper in rebuttal. In an action to recover commissions claimed on a sale of real estate, where one of the plaintiffs testified in chief to a certain conversation between him and defendant, and the defendant testified that he had not met the witness at the time and place testified to by the latter, the testimony of another witness offered by the plaintiffs in rebuttal that he saw the former witness and defendant at said time and place, held to be competent in chief but properly excluded in rebuttal.

      Appeal from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Eli R. Wagler and Noah Wagler, trading as Wagler Brothers, plaintiffs, against James A. Norris, defendant, to recover commissions claimed to have been earned by the plaintiffs for selling certain real estate for defendant. From a judgment for defendant, plaintiffs appeal.
    Wilkins & Brecher, for appellants.
    William A. Potts, for appellee.

      See Hlinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

3. Appeal and error, § 1565 —when modification of instruction not prejudicial error. In an action to recover commissions claimed on a sale of real estate, modification of an instruction offered by plaintiffs by adding the words “and sale” after the word “purchaser” in the clause “and that their services were instrumental in securing a purchaser and sale,” held to be insignificant and not prejudicial.

4. Appeal and error, § 1526*—when instructions not reversibly erroneous. Instructions, even if wrong, held not reversibly erroneous where the verdict and judgment thoroughly comported with the manifest justice of the case.


text:
    Muskegon Tool & Stamping Company, Appellee, v. Allith-Prouty Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Muskegon Tool & Stamping Company, plaintiff, against Allith-Prouty Company, defendant, to recover on a sale by plaintiff to defendant of certain dies. From a judgment for plaintiff, defendant appeals,
    J. B. Mann and O. D. Mann, for appellant.
    Lindley, Penwell & Lindley, for appellee; Walter C. Lindley, of counsel.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 804 —when weight of evidence will not be determined. Where certain dies introduced in evidence were not made part of the bill of exceptions, heldt that the weight of the evidence could not be determined on review.

2. Appeal and error, § 1303*-^-to7iero presumed that evidence was sufficient to support judgment. When all of the evidence is not contained in a bill of exceptions, it will be presumed in support of a judgment that there was all the evidence necessary to justify the one rendered.

3. Sales, § 326*—when expert evidence of commercial marketability of article manufactured with dies inadmissible. Where the defense to an action based upon a sale by plaintiff to defendant of certain dies raised the question whether the dies were fit fdr the use for which they were purchased, namely, to make a certain hinge, a question asked of a witness as a mechanical expert whether the dies would produce the hinges so the hinges could be “commercially marketable,” held to be improper, as the commercial marketability of the hinges was not involved in the case and as the question was answered in the negative and the answer remained in the record.

4. Trial, § 58*-—when objection to question already answered properly sustained. Where a witness, after he had stated that he did not know what day a certain party was coming to a certain place, was asked the question: “You knew he was coming, and didn’t you have word he was coming that day?” held that an objection to such question was properly sustained, as, if pertinent, it had been answered and there was no occasion to clog the record with a repetition.


text:
    Peter Brethorst, Appellee, v. O. H. Wylie, State’s-Attorney of Ford County, Illinois, Appellant.
    1. Quo warranto, § 26

      —what is discretion of State’s Attorney as to presenting petition. Where only public rights are involved, the State’s Attorney has an arbitrary discretion as to presenting or refusing to present a petition for quo warranto.
    2. Quo warranto—what are requisites of affidavit where private rights involved. Where private rights are partly or solely involved in a petition for quo warranto, the affidavit in support of such petition must be made on knowledge and not on information and belief, and must be full, complete and positive, and so drawn that perjury may be assigned thereon if its statements be untrue.
    3. Quo warranto—when affidavit in support of petition for quo warranto insufficient. A notary’s certificate that an affiant “being first duly sworn upon his oath, deposes and says that he has heard read the above affidavit and knows the contents thereof and that the matters and facts therein contained are true except as to those matters and things stated on his information and belief and as to those he believes them to be true,” held to be insufficient to sustain a petition for quo warranto, as no one could tell what is stated on information and belief and what on the affiant’s own knowledge, and as perjury could not be assigned on the affidavit, if untrue.
    4. Quo warranto—when affidavit in support of petition for quo warranto sufficient. Where a notary’s certificate that an affiant had, on being duly sworn, stated on oath that he had heard read the affidavit and knew the contents thereof and that the matters and facts therein contained were true “except as to those matters and things therein stated to be on information and belief,” etc., held that it was sufficient to sustain a petition for quo warranto, as by reference to the body of the affidavit the things so stated could have been easily ascertained.
    Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Kerr & Lindley, for appellant.
    Schneider & Schneider, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Appellant prepared what purported to he a petition to the Circuit Court of Ford county for leave to file an information in the nature of quo warranto, for the purpose of challenging the legality of a pretended election of a board of education in and for a pretended high school district known as the Sibley High School District, and for the further purpose' of challenging the validity of the organization of the said pretended high school district and presented the same to appellant as State’s Attorney of the said county of Ford and requested him to sign the same and to present the same to one of the judges of the Circuit Court of the district including the said county of Ford. That petition was accompanied by a purported affidavit of appellee in this case setting out various claimed defects in the attempted organization of said pretended district and in the said pretended election of a board of education. A paper in form an information in the nature of quo warranto was presented to appellant with said information. Appellant refused to sign and present to a judge of the Circuit Court the petition for leave to file the information, and appellee procured a writ of mandamus to issue, commanding appellant to ‘ ‘ receive said affidavit in support of petition of quo warranto aforesaid, that he sign the said petition for information in said cause as State’s Attorney of Ford county, Illinois, and present the same to one of the judges of the 11th Judicial District, asking leave of said Judge to file an information in the nature of quo warranto against the said A. J. Casner, H. C. Zander, Edward Rudolph, Frank Elliott, W. R. Liddlv, Thomas Christenson and P. J. Leenerman, and that he, the said O. H. Wylie, State’s Attorney, as aforesaid, be ordered and commanded to do any and all acts in the premises, which unto law may appertain and as may be his duty as such State’s Attorney in and about the securing leave from one of the Judges of the 11th Judicial District to file an information in the nature of a quo warranto as aforesaid.”

Since this case was taken by this court the Supreme Court in People v. Weis, 275 Ill. 581, has held the entire act under which it was attempted to organize the school district in question to be void and of no effect.

Numerous reasons are urged by appellant why the judgment of the Circuit Court awarding the writ of mandamus is erroneous.

He first contends that admitting everything to be true that is stated in the so-called affidavit presented with the petition, still the petitioners have failed to show that they are legally entitled to the relief sought by reason of any private right which they are seeking to protect, and that in all cases where purely public rights are involved he, as a public officer, has an arbitrary discretion whether or not to present to the court such a petition.

In the view we take of this case, it is unimportant to determine whether the supposed facts relied on disclose a private right of petitioners to be enforced or whether the matters referred to relate to purely public rights, for in either event the action of appellant in refusing to sign and file the petition in question was warranted.

In People v. Healy, 230 Ill. 280, the Supreme Court said:

“By the common law the information in the nature of quo warranto was solely a prerogative remedy. No suit was ever prosecuted by that remedy at the instance of a private person, or for the assertion of a private right. It was used only where a wrong had been done, or was alleged to have been done, to the king, and it was therefore the rule that only the king, or his representative, should determine whether a suit should be brought to enforce the right of the king. *******
“The discretion possessed by the Attorney General at the common law is no doubt possessed by the Attorney General or State’s Attorney in all cases which are, in fact, prosecutions on the part of the people and which involve no individual grievance of the relator. * * * In cases, however, where the proposed relator has an individual and personal right, distinct from the right, if any, of the public, which is enforceable by a proceeding in quo warranto, and where he presents to the State’s Attorney a proper petition for his signature with evidence of the facts necessary to establish the right, it is the duty of that officer to apply for leave to file an information in the nature of a quo warranto, and if he refuses when the matter is properly presented to him, he may be compelled by mandamus to sign and file the petition for leave.
“The practice which may be followed by one who desires to become relator is to present to the State’s Attorney a petition addressed to the court, or to the judge thereof in vacation, for leave to file an information in the nature of a quo warranto, which petition should be so drawn as to be ready for filing when the signature of the State’s Attorney is thereto attached. As was suggested in Cain v. Brown, supra (111 Mich. 657), the affidavit or affidavits accompanying the petition must be full and positive and must be made by a person or persons knowing the facts, and be drawn in such a manner as that perjury may be assigned thereon if any material allegation contained therein is false. The affidavit or affidavits accompanying the petition, after being inspected by the State’s Attorney, should, in case he sign the petition, be presented with it for consideration by the court, or judge thereof, in determining whether to grant the leave asked.”

It follows that where only public rights are involved the State’s Attorney is clothed with an arbitrary discretion to present or refuse to present a petition of this character, and that when private rights are also, or only, involved then the affidavits presented with the petition must be made on knowledge and not on information and belief, must be full, complete and positive and so drawn that perjury can be assigned on them if found to be untrue. That leaves but one question to determine and that is whether the affidavit presented with the petition is sufficient to fill the requirements of the law.

There are at least two reasons why it is fatally defective., It does not purport to be made by a person who knows the facts, neither is it drafted in such a manner that it can be determined from it what part of ■ it, if any, is intended to be on knowledge and what part is on information and belief, or that perjury could be assigned thereon. What the notary certifies was sworn to is as follows:

“State of Illinois} “County of Ford
“Peter Brethorst, being first duly sworn upon his oath, deposes and says that he has heard read the above affidavit and knows the contents thereof and that the matters and facts therein contained are true except as to those matters and things stated on his information and belief and as to those he believes them to be true. ’ ’

It has been repeatedly held in this State that affidavits in substance the same as- the foregoing were insufficient because no one can tell from them what is stated on the affiant’s own knowledge and what is stated on information and belief. If that part of the affidavit had been “* * * except as to those matters and things therein stated to be on information and belief * * etc., then by referring to the body of the affidavit the things so stated could have been easily ascertained, but from the language employed in this affidavit no one except the affiant can tell which matters were stated from the personal knowledge of the affiant and which upon information and belief. On such an affidavit perjury could not be assigned. Christian Hospital v. People, 223 Ill. 244; Grabarski v. Stankowicz, 179 Ill. App. 45; Von der Leck v. Baldwin County Colonization Co., 178 Ill. App. 93; Schroth v. Siegfried, 162 Ill. App. 595.

Instead of this record disclosing a clear right in the petitioner to have the relief sought, it shows a clear right in appellant to refuse to present to the court the petition for leave to file an information in the nature of quo warranto.

The order of the Circuit Court is reversed and the cause is remanded to that court with directions to deny the writ of mandamus.

Reversed and remanded with directions.


author: Per Curiam.

text:
    Adolph Scott Gorden, Appellant, v. Thomas J. Gorden and John M. Gorden, Appellees.
    1. Appeal and ebbob, § 123

      —when freehold involved. When a will disposes of the fee of the testator’s real estate, an appeal from an order of the Circuit Court refusing probate and dismissing the petition lies to the Supreme Court upon the ground that a freehold is involved.
    2. Wills, § 146*—when order admitting will to probate set aside. Where a certain will disposing of the testator’s real estate was probated without notice to a certain party claiming to be the testator’s only son and heir, held, on petition by such party to set aside such probate, that if petitioner was the son of the testator the order admitting the will to probate must be set aside for want of jurisdiction in the court that entered the order.
    3. Appeal and ebbob, § 123*—when freehold involved. A petition by one claiming to be the only son and heir of a testator to set aside the probate of the testator’s will disposing of the testator’s real estate involves a freehold, and the Appellate Court is without jurisdiction to review an order dismissing such petition.
    Appeal from the Circuit Court of Christian county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the April term, 1917. Transferred to Supreme Court.
    Opinion filed May 1, 1917.

      W. B. McBride, Frumberg & Russell and Brownrigg & Mason, for appellant.
    J. E. Hogan, S. S. Clapper and George T. Wallace, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section ntimber.

   Per Curiam.

This is an appeal by Adolph Scott Gorden from a judgment of the Circuit Court of Christian county denying and dismissing a petition filed by him to set aside the probate of the will of Bandall B. Gorden, deceased. The case was heard by the Circuit Court on appeal by the petitioner from an order of the County Court of Christian county denying his petition. The appellees have made a motion to transfer the cause to the Supreme Court on the ground that a freehold is involved and therefore this court has no jurisdiction.

The petition alleges, among other grounds for setting aside the probate of the will of Bandall B. Gorden, that the petitioner is the only son and heir of Bandall B. Gorden and that he received no notice of the probate of the will. The answer filed on behalf of the executors admits that no notice was given to the petitioner and denies that the petitioner is a son of the deceased testator. The will devises certain real estate in fee to Thomas J. Gorden, a brother of the testator, and certain other real estate in fee to John M. Gorden, another brother.

When a will disposes of the fee of the testator’s real estate, an appeal from an order of the Circuit Court refusing probate and dismissing the petition lies to the Supreme Court upon the ground that a freehold is involved. More v. More, 191 Ill. 97; Senn v. Gruendling, 218 Ill 458. Section 21 of chapter 148 of the Statute (J. & A. j]" 11563) requires that a petition for the probate of a will shall be verified and shall state the names of all the heirs at law and legatees with the place of residence of each, when known, and when unknown the petition shall so state, and that the clerk shall mail notice to the parties where residence is known not less than twenty days prior to the hearing on the petition, and in certain cases the notice shall be published.

In Mosser v. Flake, 258 Ill. 233, it was held that if a party entitled to notice of a proceeding to probate a will receives no notice and does not appear or waive notice, the court is without jurisdiction to enter an order admitting the will to probate, and such order will be set aside and declared of no effect when the want of jurisdiction is called to the attention of the court. In that case a will disposing of real estate had been admitted to probate without notice to a legatee named in the will, whose interest was revoked by a codicil. Subsequently one of the executors filed a petition in the County Court to set aside the order admitting the instrument to probate on the ground that no notice of the proceeding for probate had been given to such legatee, and the legatee had neither appeared nor waived notice. The County Court denied the petition. On appeal to the Circuit Court the petition was again denied. The cause was then appealed to the Supreme Court, which held that the County and Circuit Courts erred in not vacating the order admitting the instrument to probate since they were without jurisdiction because the statutory notice had not been given.

If petitioner is a son of the said Eandall B. Gorden, then the order admitting the alleged will to probate must be set aside for want of jurisdiction in the court that entered the order, and the order of probate being vacated affects the title to the real estate devised to appellees. A freehold is involved and this court is without jurisdiction in the matter and the cause is transferred to the Supreme Court.

Transferred to Supreme Court.


author: Mr. Presiding Justice

text:
    A. L. Pulver and J. H. Kohlman, trading as Pulver-Kohlman Land Agency, Appellees, v. Harry Ainsworth, Appellant.
    Gen. No. 6,263.
    (Not to he reported in full.)
    Appeal from the City Court of Moline; the Hon. George O. Dietz, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    Statement of the Case.
    Action by A. L. Pulver and J. H. Kohlman, trading as Pulver-Kohlman Land Agency, plaintiffs, against Harry Ainsworth, defendant, to recover commissions claimed for services rendered in arranging a contract between defendant and R. and Gf. A. Shallberg to trade and exchange certain real estate. From a judgment for plaintiffs for nine hundred arid eighty dollars, defendant appeals.

      Abstract of the Decision.
    1. Brokers, § 93

      —what are questions for jury in action by members of real estate partnership individually for commissions. In an action by two plaintiffs doing business as a real estate partnership agency to recover commissions claimed for arranging a contract between the defendant and others for the exchange of defendant’s real estate, the questions whether there was a misjoinder of plaintiffs and whether plaintiffs were acting in a dual capacity as agents for both parties to the contract, held to be for the jury.
    2. Brokers, § 91*—when evidence sufficient to show knowledge by owner that members of real estate partnership were acting for both parties. Evidence held sufficient to sustain the finding that plaintiffs were acting as a partnership in the transaction sued on and that defendant knew they were acting both for him and for the other party to the contract involved in such transaction for the exchange of defendant’s real estate, in an action to recover commissions claimed on account of such transaction.
    3. Appeal and error, § 1525*—when instruction in action by brokers for commissions for exchange of real estate not reversibly erroneous. In an action to recover commissions claimed- for securing a contract for the exchange of defendant’s real estate, where plaintiffs were acting for both parties to such contract, an instruction that before plaintiffs could recover they must show that defendant had knowledge that they were acting for and were to recover commissions from both parties, held to be erroneous in omitting the necessary requirement also that defendant had agreed to plaintiffs so acting in a dual capacity, but not reversibly erroneous where other instructions covered the point, and the jury could not have been misled.
    4. Instructions, § 154*—when modification proper. Modification of a requested instruction, making it more clear, where it was vague as originally drawn, held to be proper.
    George W. Wood, for appellant.
    Dietz & Sinnett, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice

Niehaus delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    Frank E. Furst, Appellee, v. W. T. Rawleigh Medical Company et al., Appellants.
    Gen. No. 6,130.
    1. Appeal and error, § 1733

      —when prior decision of Appellate Court is conclusive as to right of stockholder to examine hooks of corporation. On a petition by a stockholder of a corporation for mandamus to compel the corporation and its officers to admit petitioner to its principal office and place of business to examine its records and books of account, where the defendants’ answer set up a former adjudication wherein an order was entered for one complete examination by petitioner of the corporation’s financial affairs, held that a demurrer to the answer was properly sustained, as petitioner had by such examination exhausted his rights under such order.
    2. Corporations, § 178*—when improper motives of stockholder are not har to right of inspection of hooks. The existence of improper motives in a stockholder of a corporation seeking mandamus to compel the corporation and its officers to admit him to an examination of its records and books of account is no bar to the exercise of his rights as a stockholder.
    3. Corporations, § 178*—what records and hooks stockholder not permitted to examine. On petition by a stockholder in a medical company for mandamus to compel the company and its officers to allow him to make an examination of its records and books of account, held that the order for mandamus should except from its operation the report register of salesmen, the correspondence and contracts with salesmen, and the formulas and secret processes of manufacturing preparations sold by the company.
    4. Corporations, § 178*—when stockholder permitted to examine records and hooks. An order for mandamus to compel a corporation and its officers to allow a stockholder to make an examination of its records and books of account should restrict such examination to business hours.
    5. Corporations, § 178*—when right of stockholder to examine records and hooks ceases. An order for mandamus to compel a corporation and its officers to allow a stockholder to make an examination of its records and books of account should provide that it shall cease to be effective whenever the stockholder ceases to be a stockholder of the corporation.

      Appeal from the Circuit Court of Stephenson county; the Hon. Richabd S. Farband, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    R. R. Tiffany and C. E. Cruikshank, for appellants.
    Louis H. Burrell and Harold D. James, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

On November 20, 1914, Frank E. Furst filed in the Circuit Court of Stephenson county a petition against W. T. Bawleigh Medical Company and certain of its officers for a mandamus against said company and said officers, commanding them to admit the petitioner to its principal office and place of business at Freeport at all reasonable times to examine the records and books of account of the company, his alleged right to that relief being based on the fact that he then was and since August, 1905, had been a stockholder therein. The defendant company and its president and treasurer demurred to said petition and that demurrer was overruled. Jackson, the secretary of said company, answered the petition and the petitioner demurred thereto and that demurrer was sustained. The other defendants refused to plead further and the defendants who had demurred to the petition elected to stand by their demurrers, and Jackson elected to abide by his answer. A peremptory writ of mandamus was ordered, commanding the defendants to admit the petitioner in person or' by his attorney to the principal office or place of business of the company in Freeport at all reasonable times and to malee examinations of the records and books of account of said company and to give said petitioner or Ms attorney access to the records and books of account of the company. This is an appeal from that order. The answer of Jackson set up at great length that Furst was a rival in business and was using the information obtained from the company ’s books to steal its methods and its salesmen and its customers, and also said answer pleaded the proceedings set out by us in Furst v. Rawleigh, 154 Ill. App. 522, as a prior adjudication. We held that the facts set up in said answer did constitute a former adjudication and that the demurrer to the answer of Jackson should have been overruled, and we reversed and remanded the cause. Thereafter we granted a rehearing to re-examine the question of former adjudication.

Upon a further consideration of the former judgment, set out in full in said answer, we find that by a reasonable construction thereof .it is confined to one complete examination of the financial condition of the corporation. It appears from the allegations of said answer that Furst made one examination of the books of the company and it is a reasonable construction of the proceedings that he thereby exhausted his rights under that order. We therefore conclude that the former judgment could not be resorted to by petitioner to procure another examination, and that therefore the court properly sustained a demurrer to the answer so far as the question of former adjudication was concerned. The answer further indicated that Furst used the former Order and will use the present judgment, not only for the legitimate purpose of exercising his right as a stockholder to ascertain the financial condition of the company, but also to gain knowledge to be used by him ag a rival, to the detriment of the company. We conclude, however, that the existence of improper motives will not bar him from the exercise of his rights as a stockholder and that the judgment in the main is right.

We conclude, however, that the order is too broad. We conclude that the order should be so amended and qualified as to except from its operation and from such examination the report register of salesmen, the correspondence and contracts with salesmen, and the formulas and secret processes of manufacturing preparations sold by the company, and that the right to examine should be so modified as to restrict it to business hours, and that the judgment should provide that it shall cease to be effective whenever Furst ceases to be a stockholder of the corporation. The costs here will be adjudged against the appellee.

The judgment is therefore affirmed in part and reversed in part at the costs of appellee, and remanded with directions to modify the judgment in conformity with this opinion.

Affirmed in part, reversed in part and remanded with directions.


text:
    Thomas Sage, Administrator, Defendant in Error, v. W. O. Johnson, Receiver, Plaintiff in Error.
    Gen. No. 6,324.
    1. Carriers, § 476

      —when evidence sufficient to show negligence of motorman and due care of intending passenger. Evidence held sufficient to warrant the finding that the motorman operating defendant’s interurban car was negligent and that plaintiff’s intestate was in the exercise of due care for his own safety at the time he was struck by said car, which was while crossing the track to the platform to take the car, on its arrival.
    2. Trial, § 195*—when direction of verdict improper. Where there was some evidence tending to show defendant was negligent and that plaintiff’s intestate was in the exercise of due care when he was struck and killed by defendant’s interurban car, held that a directed verdict for the defendant was properly refused, in an action to recover damages on account of intestate’s death.
    3. Carriers, § 482*-—when instruction in action for death of intending passenger hilled hy street car is erroneous. An instruction, in an action to recover damages for loss to the next of kin of an intestate killed by defendant’s interurban car while crossing the track to the platform to take the car, on its arrival, that the place where the accident occurred was not within an incorporated city and that there was no ordinance or law restricting the speed of cars as they approached such place, held to he erroneous where neither the pleadings nor the evidence referred to any ordinance or statute, and the question of the propriety of the speed of the car depended on the facts concerning the motorman’s duty to stop at such place because of a prevailing custom and the signals and presence on the platform there of a person, which facts the instruction ignored.
    4. Instructions, § 482*—when instruction singling out facts is erroneous. An instruction which singled out one particular fact and stated that that fact alone and of itself was not evidence of negligence of defendant’s motorman, in an action to recover damages for loss to next of kin of plaintiff’s intestate killed by defendurhan car operated by such motorman, held to be erroneous.
    5. Carriers, § 482

      —when instruction in action for death of intending passenger properly refused. In an action to recover damages for loss to next of kin of plaintiff’s intestate killed by defendant’s interurban car while crossing the track to the platform to take the car, on its arrival, an instruction that if intestate knew the car was coming in time to avoid being struck by it, it made no difference whether or not the motorman of the car sounded the whistle for the crossing where the intestate was struck by the car, held properly refused, as it ignored the evidence tending to show that the intestate had a right to expect the car would stop before it reached the crossing.
    Error to the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    Bull & Johnson and Charles H. King, for plaintiff in error.
    C. Helmer Johnson and James G. Welch, for defendant in error; Arthur H. Chetlain, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

James Sage was killed on a highway crossing by an interurban car operated by plaintiff in error. Sage’s administrator brought this suit against the receiver of said interurban line to recover damages for the loss to the next of kin, and on a jury trial had a verdict and a judgment of $1,000. The receiver brings the judgment here for review by writ of error and contends that the evidence did not warrant the jury in finding that the deceased was in the exercise of due care nor that the motorman running the car was negligent, and that therefore the court should have directed a verdict for the receiver; and that the court erred in refusing certain instructions requested by the receiver.

The Chicago & Milwaukee Electric Railroad Company has a branch line running from Lake Bluff west to Rockefeller. Libertyville is the only regular station between the termini of the branch road, but it stops on signal at various highway crossings. Something like two miles east of Libertyville the road is crossed by a north and south highway, and that is called St. Mary’s crossing. The road has a double track. At St. Mary’s crossing there is an elevated platform and a small station building on the south side of the tracks, and a platform one step high opposite that on the north side. Eastbound cars go by on the south track and westbound on the north track. This branch road operates but one car, which leaves Lake Bluff on the even hour and Rockefeller on the even half hour. The platforms at St. Mary’s crossing are east of the highway. The car stops at one of those platforms if signaled by the conductor to permit any one to leave the car, and also if any one on the platform from which the car is entered signals the car, and the presence of a person on the platform is itself a signal to stop. On Sunday evenings the car usually stops at St. Mary’s crossing, and this accident happened on a Sunday evening. James Sage, seventy-nine years old, and his. wife had come from Libertyville that afternoon and got off at that crossing' and had gone south to visit relatives, and had come back in a sleigh with a team driven by a grandson, George T. Hoffman, to take the evening car» to Libertyville. When they reached the crossing the car was coming over a hill at the east and the headlight shone upon the wires and the leaves of trees above them. Hoffman turned his team up to a telegraph pole south of the tracks and called out that he would signal the car and ran ahead and across the tracks and east onto the platform on the north side, which was where the car would take on passengers going to Libertyville. The old people got out of the sleigh and hurried across. Hoffman was on the platform before the car got to the top of the hill and stood there and signaled as it came down.- The top of the hill was twelve hundred to fourteen hundred feet from the platform. The car was running from thirty-five to forty miles per hour, and after it had begun to go down hill the motorman shut off the power and coasted down hill. He did not see Hoffman until the car was very near the platform, and he then discovered the old people on the track ahead of him, just going across, and gave the danger signal after the front of the car had passed Hoffman. Mr. and Mrs. Sage were struck and killed, and the car ran some distance beyond St. Mary’s crossing before the motorman could stop it. The jury were warranted in finding that Hoffman was signaling the car from the time it reached the top of the hill, and that the motorman for some reason did not see him. The track was straight. It is sought to excuse the motorman because the track passed through a cut, and it is claimed that the rays of the headlight were directed straight down the track and did not reach out at the side. When it is considered that this car usually stopped at this place on Sunday evenings, and that the motorman had a right to expect that some one might be on that platform, signaling to stop, and that Hoffman was there when the car was at least twelve hundred feet east thereof, and was signaling, and that the car had a brilliant headlight, shining ahead, and that the motorman did not discover Hoffman until he was almost opposite him, and did not see the old people crossing the south track, or until they were right in front of him on the north track, the jury might well find from all the evidence that the motorman was negligent in running the car as he did. The principal effort of the defense was to show that Sage must have seen this car coming before he got to the tracks and especially before he got upon the north track, and therefore was guilty of such negligence as precludes recovery. There would be much force in. this argument if this was a place where the car did not stop. Sage had often come to this place and alighted there from Libertyville, and again taken the car there to return to Libertyville. So far as the evidence shows, the cars he knew of always did stop there. He knew that Hoffman had gone ahead to signal the car. As he approached the crossing from the south he was in full view of Hoffman standing on the north platform signaling the car. He had every reason to expect that the car would stop before it reached the highway. The fact that the car was in sight would not lead him to fear that it was going across the highway. The power had been shut off a long ways east of this crossing and if that made any difference in the sound of the approaching car he would naturally suppose it was stopping. The jury might well conclude that he could not tell the speed of the car as it came directly towards him. These were questions of fact for the jury, and it was for them to decide whether Sage was in the exercise of due care for his own safety in hurrying over the north track to the platform under these circumstances. We would not be justified in disturbing their conclusion. As there was evidence tending to show negligence by defendant and due care by deceased, the court properly refused to direct a verdict for defendant. Libby, McNeill & Libby v. Cook, 222 Ill. 206.

Complaint is made of the refusal of instructions Nos. 14,17,18 and 19, requested by defendant. No. 14 was covered by No. 12, given at defendant’s request. No. 17 was to the effect that St. Mary’s crossing was not within the limits of any incorporated city and that there was no ordinance or law restricting the speed of the car as it approached the crossing. No ordinance or statute had been referred to in the pleadings and no evidence was offered of any such ordinance or statute, and there was no propriety in giving such- an instruction. Moreover, the question of the propriety of the speed of this car at this crossing depended on the facts concerning the duty of the motorman to stop because of the prevailing custom and the signals and the presence of a person on the platform, and these were ignored in the instruction. The eighteenth instruction singled out one particular fact and said that that fact alone and of itself was not any evidence of negligence on the part of the motorman. Instructions of this character have often been disapproved. The reasons therefor are stated in West Chicago St. R. Co. v. Petters, 196 Ill. 298; and Weston v. Teufel, 213 Ill. 291. See also, Healea v. Keenan, 244 Ill. 484, and Geohegan v. Union Elev. R. Co., 266 Ill. 482. The nineteenth instruction was to the effect that if Sage knew the car was coming in time to avoid being struck by it, then it made no difference whether or not the whistle was sounded for St. Mary’s crossing. This instruction was properly refused because it ignored the evidence tending to show that Sage had a right to expect that the car would stop before it reached the crossing. It was also properly refused under Chicago & A. R. Co. v. Smith, 180 Ill. 453, where the court said:

“Even if he did see the train, we are not prepared to say that the question as to whether the failure to give the signal caused the injury was not one to be submitted to the jury. Under some circumstances, if one approaching a railroad crossing sees a train coming, the ringing of a bill or sounding of a whistle would accomplish no purpose, while under other circumstances such a signal might so arrest the attention and apprise him of the danger as to prevent his attempting to cross the track.”

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.