text:
    George A. Heyl, Appellee, v. Ritt Bradford, Appellant.
    1. Depositions, § 3

      —when certificate of officer taking deposition is necessary. Under Rev. St. ch. 51, sec. 30 (J. & A. t 5547), the want of a certificate of the official character of the person taking a deposition renders it inadmissible in evidence where the deposition was taken by an officer outside of the State of Illinois and the dedimus on which it was taken did not name any particular person as commissioner.
    2. Depositions, § 38*—when deposition taken outside state may he objected to. The objection that a deposition taken outside of the state lacks the certificate of the official character of the person taking it which is required by Rev. St. ch. 51, sec. 30 (J. & A. H 5547), may be taken advantage of on the trial by objecting to the reading of it in evidence. ■
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed April 27, 1920.
    Hall, Martin & Hoose, for appellant.
    Livingston & Whitmore and Heyl & Heyl, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is a suit in assumpsit to recover commissions on the sale of a herd of ponies. The verdict and judgment were in favor of the plaintiff for $195. On the trial of the case the plaintiff, to support his action, offered the deposition of the person who purchased the ponies. Objection was made by defendant to its being read in evidence on the ground that there was no certificate of the official character of the person taking it, as required by section 30 of chapter 51, Rev. St. (J. & A. ¶ 5547). The objection was overruled and the deposition was read in evidence.

Section 30, ch. 51 (J. & A. ¶ 5547), provides in part as follows: “Provided, that when any deposition shall be taken as aforesaid * * * ont of this State, * * * such return shall be accompanied by a certificate of his official character, under the great seal of the State, or under the seal of the proper court of record of the county or city wherein such deposition shall be taken.” Ño such certificate accompanied or was attached to the deposition in question or was produced in court when such deposition was offered to be read in evidence. The deposition was taken by an officer outside of the State of Illinois, and the dedimus on which it was taken did not name any particular person as commissioner. Under that state of facts the want of the proper certificate was fatal to the deposition and can be taken advantage of on the trial by objecting to the reading of it in evidence. Scott v. Bassett, 186 Ill. 98; Bishop v. Hilliard, 227 Ill. 382. It was error to permit the deposition to he read in evidence. The judgment of the circuit court is reversed and the cause is remanded to that court.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    William Cook, Appellee, v. Amelia Moecker (impleaded with J. E. Stephens), Appellant.
    1. Bills and notes, § 462

      —when instruction as to consideration of note is not erroneous. Where, in an action on a judgment note, no question of want of consideration is raised by the pleadings, an instruction which states in substance that the only issue to be determined by the jury is whether the signature of defendant’s name to the note is the genuine signature of defendant and that plaintiff is not required to show what was the consideration for the note or that defendant received any part of it, is not erroneous.
    2. Appeal and ebbob, § 450*—when objections must be made. Objections to.improper questions must be made at the time and the court must have an opportunity to rule upon them before error can be assigned upon permitting them.
    3. Evidence, § 52*-—how denial of personal act may be proved. When one is charged with having performed an act of a personal, individual nature, such as the manual act of making a signature, which he denies, he may, in the complete establishment of his denial, show by any competent evidence who did in fact make it.
    4. Bills and notes, § 421*—how denial of signature may be established. In an action to recover on a judgment note alleged to have been made by defendant, which defendant denies having signed, claiming that her signature was affixed to the note by the other defendant whose signature was also affixed thereto, she may establish such contention of nonexecution by her by proving that the other defendant affixed her name, which may be shown by his evidence to the fact, by the evidence of witnesses to such act on his part or by any other competent- evidence tending to show that her signature was affixed by him.

      5. Evidence, § 291*—what proof is required to establish handloriting by comparison. In Call. 1916 Stat. jf 5566, authorizing the proof of handwriting by comparison made by the witness or jury with writings properly in the files or records of the case, admitted in evidence, or treated as genuine, or admitted to be genuine by the party against whom the evidence is offered, “or proved to be genuine to the satisfaction of the court,” the words quoted are to be construed as calling for that degree of competent proof, as to the genuineness of the offered standard of comparison, and that degree only, which will require the court to find as a fact that it is genuine.

      6. Evidence, § 291

      —sufficiency of evidence to establish handwriting by comparison. Under Call. 1916 Stat. 1f '5566, evidence of a witness that she had seen the- person, a writing by whom is offered as a standard of comparison, write many times and was entirely familiar with his handwriting and that the writing on the exhibit offered as a standard was the handwriting of such person, is sufficient to warrant the admission of the exhibit in evidence as a standard of comparison, if the exhibit is otherwise admissible.
    7. Evidence, § 291*—when either party may prove handwriting by comparison. Under Call. 1916 Stat. If 5566, where a defendant charged with having executed a writing made the basis of the proceeding denies the charge, either party may have comparisons made by witnesses or the jury between the writing in question and other genuine writings of the party charged with its execution, and this permits such defendant to establish his contention that the instrument was executed by a third person by introducing genuine writings of such third person as standards of comparison with the contested signature, the application of the provision not being limited to the writings of the one charged by the pleadings with having executed the writing on which the proceeding is based.
    8. Evidence, § 52*—how facts may be proved. One entitled to prove a fact may prove it by any competent means.
    9. Evidence, § 291*—how statute permitting proof of handwriting is construed. Call. 1916 Stat. jf 5566, is a remedial law, intended to aid in the ascertainment of the truth in controverted questions as to the genuineness of handwriting, and is to be construed as permitting the spuriousness of a writing to be established by the same means of comparisons authorized to be used to show that it is genuine.
    10. Evidence, § 291*—what statute as to proof of handwriting by comparison permits. By Call. 1916 Stat. If 5566, the legislature undertook, first, to announce that in all courts in the State, when it becomes necessary to prove who executed a writing, a comparison of that writing with other writings whose authorship is known and established shall be competent,, and, second, how the genuineness of writings offered as standards shall be established.
    11. Evidence, § 291*—what evidence of authenticity is required when proving handwriting by comparison. Before the standards of comparison authorized by Call. 1916 Stat. If 5566, to prove the genuineness of writings are admissible, there must be something to connect the author of them with the writing, the authenticity of which is in dispute.
    12. Evidence, § 291*—when evidence ‘as to authenticity of instru

      ment to he used in comparing handwriting is insufficient. In an action to recover on a judgment note, where defendant denies that she signed the note and contends that her signature was affixed by the other signer and seeks to introduce as an exhibit a writing alleged to have been made by the other signer, her purpose being to use it as a standard of comparison as provided by Call. 1916 Stat. T 5666, and testifies that she has seen such person write many times, is familiar with his writing and that the writing on the exhibit is his, but neither she nor any other person testifies that her name on the note is in his handwriting, nor is there any direct statement by her counsel to the court that such is contended to be the case, but merely inferences and suggestions to that effect, there is no error in excluding the exhibit.
    Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Scofield, Hartzell & Califf, for appellant.
    O’Harras, Wood & Walker, 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. Presiding Justice Graves

delivered the opinion of the court.

This is a suit on a judgment note purporting to have been signed by J. E. Stephens and Amelia Moeeker in the órder named, A judgment was entered by confession against both of the purported signers. Later it was opened by order of the circuit court as to Amelia Moeeker, and she was let in to plead to the declaration on its merits. The defense set up by her by appropriate pleas was that she did not sign the note. The jury found that issue in favor of the plaintiff. The defendant has appealed to this court from a judgment entered on that verdict. Appellant has urged three reasons why the judgment should be reversed: (1) That instruction numbered 3 given for appellee is erroneous; (2) that appellant’s Exhibit No. 1 was improperly excluded; (3) that undue and improper cross-examination of appellant was permitted.

The substance of the instruction complained of is that the only issue to be determined by the jury was whether the signature “Amelia Moecker”, on the note is the genuine signature of the defendant Amelia Moecker, and that it was not incumbent on the part of plaintiff to show what the consideration for the note was or that Amelia Moecker received any part of it. This instruction might have been more satisfactorily worded, but we think the jury could not have misunderstood its import and that appellant could not have been in any way prejudiced by it. It fairly states the theory on which the case was tried by both parties, and no question of want of consideration was raised by the pleadings.

We are cited to but one place in the abstract or record where it is claimed that improper questions were asked of appellant, and the record shows that no objection was made to that. The rule is that objections to improper questions must be made at the time, and the court has an opportunity to rule on the same before error can be assigned therefor on appeal. True, there are circumstances * where the mere asking of some question may be prejudicial to the cause of one of the parties, but the matter here referred to is not an illustration of one of those instances.

Exhibit No. 1, the exclusion of which when offered as evidence by appellant is one of the reasons urged for the reversal of this judgment, was an envelope addressed to Amelia Moecker and is claimed to be in the handwriting of J. E. Stephens, who was the first signer of the note sued on. The theory on which it was offered was that appellant had the right not only to deny that she wrote the name Amelia Moecker on the note sued on, but that she had a right to corroborate her denial by showing who did write it, and that she had a right to do that by a comparison of the handwriting in which her name was written on the note with the handwriting of the person she charged with having forged it there.

There can be no doubt that when a person is charged with having performed an act which they deny and which is of a personal, individual nature like the manual act of signing a name, such person may, in the complete establishment of his denial, show by any competent evidence who did In fact do it. Carlton v. People, 150 Ill. 181; People v. Mitchell, 100 Cal. 328. In this case, appellant is charged with signing her name to a note, and she denies it. No better proof could be produced to show that she did not sign - it than to prove that J. E. Stephens did do it. It would be- competent for him to testify that he did it. It would be competent for witnesses to be produced who saw him do it. Any competent evidence that tended to show that he did it would, with equal force, tend to show that she did not do it, and is admissible.

Section 1 of an Act entitled “An act concerning proof of handwriting and to permit proof of handwriting’ to be made by comparison,” in force July 1, 1915, Callaghan’s Illinois Laws 1913-1916, page 740, paragraph 5566, provides: “That in all courts of this State it shall be lawful to prove handwriting by comparison made by the witness or jury with writings properly in the files or records of the case, admitted in evidence, or treated as genuine, or admitted to be genuine, by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the court.”

This act has never been construed by a court of review. Similar acts of other States have received construction by the courts of the States where they were passed, but those constructions so widely differ on the important questions that but little, if any, real aid can be gathered therefrom. Many of the cases cited by counsel relate to the character and, degree of proof to be required to establish the standard of comparison. The only open question on that point in our statute is as to what is meant by the clause “or proved to be genuine to the satisfaction of the court.” We think that clause should be construed to call for that degree of competent proof, as to the genuineness of the offered standard of comparison, and that, only, that would require the court to find as a fact that it was genuine. That certainly would be the rule in a civil case, and in a criminal case where the standard of comparison was being offered by the defendant. The following list of cases include holdings on practically every phase of the question of the kind and amount of proof required of the genuineness of writings offered as standards of comparison. In the main they sustain the view above expressed. McKay v. Lasher, 121 N. Y. 477; Sprague v. Sprague, 80 Hun (N. Y.) 285; People v. Molineaux, 168 N. Y. 264; Marshall v. Hancock, 80 Cal. 82; People v. Gordon, 13 Cal. App. 678; State v. Thompson, 80 Me. 194; Williams v. Williams, 109 Me. 537; Wilmington Sav. Bank v. Waste, 76 Vt. 331; State v. Ryder, 80 Vt. 422; Rowell v. Fuller’s Estate, 59 Vt. 688; University of Illinois v. Spalding, 71 N. H. 163; United States v. North, 184 Fed. 151; State v. Cottrell, 56 Wash. 543; Commonwealth v. Tucker, 189 Mass. 457. The evidence of the fact that the writing on defendant’s Exhibit No. 1, was the genuine handwriting of J. E. Stephens is ample to warrant its admission in evidence as a standard of comparison of handwriting, if it is otherwise admissible.

There is no question but that under the act of 1915 heretofore referred to, where a defendant, in either a civil or criminal proceeding, is charged with having executed a writing made the basis of the suit, and denies the charge, either party may have comparisons made by witnesses or the jury between the writing in question and other genuine writings of the parties charged with its execution. The controverted question is whether such defendant in attempting to prove, as he undoubtedly has a right to do, that some other designated person forged the writing in question, has the right to have such comparisons made between the genuine writing of such other person and the writing in question. It is axiomatic that if one is entitled to prove a fact he may prove it by any competent means. If one charged with being the author of a writing denies such authorship, and has a right in support of that denial to prove that it was executed by another, whether that other is a party to the pending suit or not, and if it is lawful to prove handwriting by comparison, as is declared in the act of 1915, then it goes without saying that he should be entitled to prove by comparison whose writing it is. On principle, a person certainly should be entitled to exculpate himself from the charge of being the author of a writing by the same character of evidence that his responsibility for it may be established.

After a careful examination and consideration of the act in question and such authorities as have been cited, we are convinced that to limit its application to the writings 'of the party charged by the pleadings in the case on trial with having made the writing involved in the litigation, would be a misconstruction of the language of the act, a misinterpretation of the intent of the legislature in passing the act, and would establish an unjust rule of evidence whereby the liability of a man might be established by a class of evidence that would be unavailing to him in making his defense.

The act in question is a remedial law, intended to aid in the ascertainment of the truth in controverted questions in relation to the genuineness of handwriting. If it is competent to prove the genuineness of writings by the means provided by the act in question, no construction of that act, not made necessary by the language employed in it, should be indulged in by which the spuriousness of the same writing may .not be established by the same means. The language of the act itself certainly does not so limit its application. While the act is not a fine specimen of clear expression, it seems manifest that the legislature, first, undertook to announce that in all courts in this State, when it becomes necessary to prove who executed a writing, a comparison of that writing with other writings whose authorship are known and established shall be competent; and second, how the genuineness of writings offered as standards of comparison should be established. In Missouri, a statute, very similar to ours was construed in St. Louis Nat. Bank v. Hoffman, 74 Mo. App. 203, to permit a comparison of the handwriting, the authorship of which was being sought, with the genuine handwriting of both the person sought to be held liable on the writing and the person who was charged with having forged it. In Cook v. Strother, 100 Mo. App. 622, the same doctrine was adhered to, but it was further pointed out that before the genuine handwriting of a person not a party to the record could be introduced as a standard of comparison, there must be some proof in some way connecting him with the forgery. In Wilmington Sav. Bank v. Waste, 76 Vt. 331, the suit was on a note. The defendant denied the signature and claimed that his name was forged by another signer of the note. He offered in evidence as standards of comparison sheets of paper with his name written on them that were found 18 months after the note was signed in the room of the person whom he charged with forging it. The court held that these standards of comparison should have been excluded, not because comparison with proper standards was not proper, but because there was no proof that the names written on these papers used as standards of comparison were written by the alleged forger. In State v. Ryder, 80 Vt. 422, writings of a deceased' person were offered in evidence as standards of comparison. The court held them inadmissible, not because proper standards of comparison were not admissible, but that the genuineness of them was not properly established. To the same effect is Rowell v. Fuller’s Estate, 69 Vt. 688; University of Illinois v. Spalding, 71 N. H. 163.

On the other hand, there are several cases holding squarely that proof by comparison with standards shown to be genuine is limited to the writings of the person sought to be charged, in the litigation pending, with responsibility therefor. Among the cases supporting that theory are the following: Peck v. Callaghan, 95 N. Y. 73; Bruyn v. Russell, 52 Hun (N. Y.) 17; Franklin v. Franklin, 90 Tenn. 44; Coppock v. Lampkin, 114 Iowa 664.

After a careful examination and consideration of all these authorities and the various statutes upon which they are based, we are convinced that the act of 1915 under consideration should be construed to mean that whenever it is competent to establish by proof that a given writing is that of a particular person, other writings of that person, the genuineness of which have been established to the satisfaction of the court, are admissible in evidence as standards of comparison.

Before such standards of comparison are admissible there must be something to connect the author of them with the writing, the authenticity of which is in dispute. Cook v. Strother, 100 Mo. App. 622; Carlton v. People, 150 Ill. 181.

Mrs. Moecker testified that she did not sign the note in question.' She also testified that she had seen Stephens write many times and was entirely familiar with his handwriting, and that the name Amelia Moecker on Exhibit No. 1 was in his handwriting. She was equally capable of testifying that the same name on the note was in the handwriting of Stephens, if it was true, but she did not so testify. Neither did any one so testify. Neither was there any direct statement by counsel to the court that it was contended that was in Stephens’ handwriting. There were some suggestions and inferences but- no direct charge or proof to that effect. For that reason there was no error in excluding “Exhibit No. 1.” The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    In the Matter of the Conservatorship of Freelove B. Smalley. H. R. Budd, Conservator, Appellant.
    Appeal and erboe, § 731

      —what record and abstract must show. Where the record and abstract are so imperfect as to render it impossible to acquire from them any correct idea of what transpired in the court on which the decree appealed from was based, the decree will be affirmed pro forma.
    Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Jesse Peebles, for appellant.
    A. S. Cuthbertson and Thomas Rinaker, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is an appeal by H. R. Budd, conservator of Freelove B. Smalley, an insane person, from an order of the circuit court in relation to a report of the conservator of his acts and doings as such, which counsel for appellant says in his brief and argument “not only charged the conservator ivith this additional sum of $689.42, but he denied him any compensation for his services and charged that he had mismanaged the estate. ’ ’

The order appealed from recites that the said conservator, pursuant to an order of the county court, filed a report of his acts and doings as such conservator from the time of his appointment to the time of his resignation as such, and that a guardian ad litem. appointed by the court objected to such account and that such objections were sustained, but no such report or objections are shown in the abstract and no such objections are shown in the record. The order also recites that the guardian ad litem was ordered to file and did file a statement of the account of said conservator showing the amount of moneys received and paid out by him and that the conservator filed objections thereto, but the abstract contains no further reference thereto than is contained in the order appealed from, and the record contains no such objections. It does contain some suggestions as to corrections of certain items in that account which may have been treated as objections. Neither does the record nor abstract show in the order appealed from or elsewhere what exceptions of either party were allowed or disallowed. The order appealed from also recites that the matter of accounting was referred to the master in chancery and that he made a report to which objections were filed and that such objections were heard in the circuit court as exceptions to such report, but neither the abstract nor the record discloses whether such exceptions were ever passed upon by the court or not. Neither is the abstract indexed as required by the rules of this court. Neither is there in the entire brief and argument of appellant any reference to pages in the abstract where any matter referred to can be found.

All in all, the record and abstract are so imperfect as to render it impossible to acquire from them any correct idea of what transpired in the court on which the decree appealed from was based. The decree is therefore affirmed pro forma.

Decree affirmed.


author: Mr. Justice Eldredge

text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Grady, Plaintiff in Error.
    1. Criminal law, § 584

      —when question of validity of statute is waived. By prosecuting a writ of error, in a case in which the county court has passed upon his objection to the constitutionality of an act adversely to him, from the Appellate Court instead of the Supreme Court, defendant waives the question of the validity of the act.
    2. Criminal law, § 577*—what errors are waived by suing out writ of error. Even though the objection that a prosecution under ah unverified information charging unlawful sales of liquor in anti-saloon territory is a violation of defendant’s constitutional rights can be raised by a motion in arrest of judgment, such objection is waived by suing out a writ of error from the Appellate Court.
    8. Criminal ■ law, § 366*—what objections cannot be preserved by motion in arrest of judgment. The objection that the information charging the unlawful sale of intoxicating liquor in anti-saloon territory was not verified, based on a decision of'the Supreme Court holding unconstitutional the act authorizing prosecutions on unverified informations, which decision was filed prior to the filing of the transcript of the record, cannot be preserved by a motion in arrest of judgment.
    4. Criminal law, § 366*—what is scope of motions in arrest of judgment. Motions in arrest of judgment in criminal cases are limited in their scope and will not be sustained for any matter not affecting the real merits of the offense charged in the indictment or information.
    5. Indictment and information, § 17*—necessity of verification. The verification of an information is but a formal matter, and has little or nothing to do with the question whether defendant is innocent or guilty of the offense charged, and may be waived, and its omission does not render the information so defective that a motion in arrest may he based thereon.
    6. Criminal law, § 457

      —what is necessary in order that additional hill of exceptions may he considered. Where, on a writ of error in a criminal case, it does not appear in the court record, the bill of exceptions or the abstract that any objection was made to the manner in which the jury were procured, but such objection appears only in an alleged additional bill of exceptions attached to the back of the transcript of the record and not signed or certified to by the court but having attached an affidavit of plaintiff in error’s counsel stating in substance that what it contains is true, and no leave was given by the Appellate Court to file an additional bill of exceptions, the objection will not be considered and the additional bill will be ordered stricken from the files.
    Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    John G. Friedmeyer, for plaintiff in error.
    C. F. Mortimer, for defendant in error; Oscar J. Putting and Edward Pree, of counsel.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

On the 29th day of June, 1917, the State’s Attorney of Sangamon county filed an information in the county court of that county charging plaintiff in error with unlawfully selling intoxicating liquor in the Town of Capital while the same was anti-saloon territory. The information contains ten counts and plaintiff in error was found guilty under each count, was sentenced to pay a fine of $25 and to be confined in the county jail for a term of 30 days upon each count, and to pay the costs of the proceeding. A motion for a new trial was made and overruled and a motion in arrest of judgment was also made and overruled. No motion to • quash the information was made by plaintiff in error. The judgment was rendered July 2.1, 1917. The information was not verified and, for this reason, it is now urged in this court that it is insufficient to sustain the judgment of conviction under the authority of the decision in the case of People v. Clark, 280 Ill. 160, which declared that section 117 of the County Court Act (J. & A. ¶ 3243) was in violation of section 6 of the Bill of Rights of the Constitution and, therefore, unconstitutional. The opinion in the Clark case was rendered October 23, 1917. There is nothing in the record of the case at bar to show that the constitutionality of section 117 of the County Court Act was ever raised or questioned in the county court or that the information was insufficient because it lacked a verification. If that question had been raised in the county court and had been passed upon adversely to the interests of plaintiff in error and this writ of error had been sued out prior to the decision in the Clark case, then it should have been prosecuted from the Supreme Court as the Appellate Court has no jurisdiction to pass upon the constitutionality of legislative acts, and, under such circumstances, if a writ of error had been sued out from this court, the question of the validity of the statute would have been waived. People v. Powers, 283 Ill. 438; People v. Reed, 287 Ill. 606.

If it be claimed that the prosecution of plaintiff in error under the unverified information was a violation of his constitutional right and thatftsuch constitutional question can be raised by motion in arrest of judgment, then this question is waived by suing out the writ of error from this court. People v. Powers, supra. The transcript of record was filed in this case April 16, 1918, after the decision in the Clark case was rendered, and if it be contended that, when this writ of error was sued out, the question of the constitutionality of section 117 of the County Court Act had been settled by the decision in the Clark case and was no longer involved (Boylan v. Chicago Title & Trust Co., 240 Ill. 413; Griveau v. South Chicago City Ry. Co., 213 Ill. 633), then the objection that the information was not verified cannot be preserved by the motion in arrest of judgment. Motions in arrest of judgment in criminal cases are limited in their scope and will not be sustained for any matter not affecting the real merits of the offense charged in the indictment or information. Young v. People, 193 Ill. 236. The verification to an information is but a formal matter, and has little or nothing to do with the question of whether the defendant is guilty or innocent of the offense charged. A similar information was involved in the case of People v. Powers, supra, in regard to which it was held: “There was no defect in the information, which charged the offense for which the plaintiff in error was convicted, the only objection being that it was not verified, and that objection being waived, it was legally sufficient to sustain the judgment.” No objection is made to the information in the case at bar except that it is not verified. In 16 Corpus Juris 1257, it is stated: “The failure to verify an information does not render it so defective that a motion in arrest may be based thereon.”

Much of the brief and argument of plaintiff in error is devoted to errors assigned to the manner in which the jury was procured for the trial of the case. Neither in the court record, the bill of exceptions, nor the abstract does it appear that any objection of any kind was made thereto in the trial court. 'We find upon examination of the transcript of the record that attached to the back thereof is what purports to be a supplemental or additional bill of exceptions, in which appears supposed objections made by plaintiff in error to the venire. This alleged additional bill of exceptions is not signed or certified to by the court, but has attached to it an affidavit executed by counsel for plaintiff in error stating in substance that what it contains is true. Whether this document was attached to the record before or after the same was filed in this court, we do not know. No leave was ever given by this court to file an additional bill of exceptions, and this uncertified document and affidavit are hereby stricken from the files.

Plaintiff in error has also assigned as errors the improper restrictions of the cross-examinations of witnesses, that the verdict was the result of passion and prejudice, was contrary to the weight of the evidence and not sufficient to prove the defendant guilty beyond a reasonable doubt. We have considered all of these alleged errors and find the contentions in regard thereto are without merit. The judgment of the county court is therefore affirmed.

Affirmed.


text:
    Clarence V. Wilson, Appellant, v. Mackinaw State Bank et al., Appellees.
    1. Corporations, § 178

      —extent of statutory right of stockholder to examine hooks. The right of a stockholder to examine the books and records of the corporation which is granted by Rev. St. ch. 32, sec. 13 (J. & A. If 2430) is absolute and does not depend upon any circumstance or condition except the ownership of stock.
    2. Corporations, § 178*—what corporations are affected hy statute as to examining hooks hy stockholders. The right given stockholders by Rev. St. ch. 32, sec. 13 (J. & A. If 2430) to examine the books and records of the corporations is not limited to stockholders in corporations which are organized under the General Corporation Act, but is enacted under the police power of the State and applies to every corporation for pecuniary profit organized under the laws of the state, including banking corporations, though the latter’s charters are authorized by different constitutional and statutory provisions which authorize corporations generally.
    3. Cobpobations, § 178

      —what is extent of stockholder's common-law right to examine boohs. Under the common law a stockholder is entitled to examine the corporate books and records only when he shows that the request therefor is made in good faith and for reasons connected with his rights as a stockholder.
    4. Cobpobations, § 178*—what is effect of stockholder’s purpose in examining books. Under Rev. St. ch. 32, sec. 13, the purpose or motive of a stockholder in seeking an inspection of the corporate books is immaterial and he cannot be required to state his reasons and they are not subject to inquiry, the only qualification of his right being that it shall be exercised at reasonable times.
    5. Cobpobations, § 179*—when corporation is proper party to suit to compel inspection of books. A bank may be properly made a party defendant in its corporate capacity to a petition for mandamus brought by a stockholder of the bank to compel the bank and its officers to permit him to examine the corporate books and records.
    6. Mandamus, § 107*—who may be compelled to obey writ. A corporation may be compelled to obey a peremptory writ of mandamus.
    Appeal from the Circuit Court of Tazewell county; the Hon. Chables V. Miles, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed April 27, 1920.
    Kirk & Shurtleff, for appellant.
    Jesse Black, Jr., for appellees.

      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.

   Mr. Justice Eldredge

delivered the opinion of the court.

Clarence V. Wilson, appellant, filed his petition for mandamus in the circuit court of Tazewell county in which, as amended, it is averred that the Mackinaw State Bank was organized and is operating under the general banking laws of the State of Illinois; that it has a capital stock of $30,000, divided into thirty shares of the par value of $1,000 each; that appellant is the owner of one share of said stock and that Benjamin F. Wilson and Lyman Porter are president and cashier, respectively, of said defendant bank and arc in the active management of the affairs thereof; that correct books of account and business affairs of said bank have been kept as said bank; that said books of account and records of said bank are in the custody of said president and cashier; that said appellant, on October 10, 1918, and November 6, 1918, made verbal and written demands upon said officers of said bank, for permission to examine all the records and books of account thereof, but that they denied to him such permission; that, he requested permission to make such examination during the regular business hours of said bank at such hours and on such days as would result in the least inconvenience to the conduct of the regular business of said bank; that said bank and its said officers' have continuously refused to grant such permission to appellant and have refused to fix and inform him of any time or place when and where appellant or Ips attorney may examine the said records and books of account of said bank; that it was the duty of said bank and said officers to permit appellant to make such examination at some suitable and reasonable time and place, but that they have continuously refused so to do contrary to the statute in such case made and provided. The prayer is that a writ of' mandamus may be awarded to appellant against said bank and said officers thereof commanding them to permit appellant to make such examination in such manner as not to interrupt the business of the bank.

To the amended petition, appellees filed a general and special demurrer. The causes for the special demurrer are: . First, that appellant has no right in law by himself and his attorney to examine the records and books of account of the Mackinaw State Bank; second, the provisions of the general statute of the State of Fllinois for the organization of corporations, permitting stockholders, by themselves or their attorneys, to examine the records and books of account of a corporation at all reasonable times, do not apply to the Mackinaw State Bank, a banking corporation, organized and operating under and by virtue of the provisions of the Banking Act; third, that appellant and his attorney have no right to examine the records and 1 looks of account of said bank by virtue of any law or statute of the State of Illinois and that said bank is subject to no other reports, visitations or examinations than those provided by said Banking Act; fourth, the petition shows no sufficient reason on its face to warrant such permission for such examination; fifth, the petition is, in other respects, uncertain, informal and insufficient.

Appellant bases his right to examine the records of the bank upon section 13, ch. 32, of the Revised Statutes, commonly referred to as the General Corporation Act (J. & A. tf 2430), which is as follows: “It shall be the duty of the directors or trustees of every stock corporation to cause to be kept at its principal office .or place of business in this State, correct books of account of all its business, and every stockholder in such corporation shall have the right at all reasonable times, by himself or by his attorney, to examine the records and books of account of the corporation. ’ ’ It is the contention of appellees that this section has no application to any corporation not organized under the General Corporation Act because a State Bank is organized by virtue of entirely different constitutional provisions and statutory enactments. It obtains its charter from the State Auditor while the ordinary corporation secures its charter from the Secretary of State. By the provisions of the Banking Act, a State bank is required to submit to visitations and examination under the direction of the Auditor whenever he deems it necessary and to make full and detailed reports of the bank’s condition to •the Auditor, and the provisions of the Banking Act requiring such visitation and examination by the Auditor precludes the right of visitation and examination by any one else.

It is well settled that the right granted by section 13, ch. 32, Rev. St. (J. & A. ¶ 2430) to a stockholder to, at all reasonable times, examine the records and books of account of a corporation is absolute and does Hot depend upon any circumstance or condition except the ownership of the stock. Venner v. Chicago City Ry. Co., 246 Ill. 170; Furst v. W. T. Rawleigh Medical Co., 282 Ill. 366; Stone v. Kellogg, 165 Ill. 192. It is insisted by appellees, however, that thisvright does not extend to stockholders in State banks organized under the Banking Act because it has been repeatedly held that the provisions of the General Corporation Law apply only to corporations organized under that law, and the cases of Wincock v. Turpin, 96 Ill. 135; Stevens v. Pratt, 101 Ill. 206; and Union Mut. Life Ins. Co. v. Frear Stone Mfg. Co., 97 Ill. 537, are cited to sustain this contention. The facts in the ease of Venner v. Chicago City Ry. Co., supra, disclose that that railway company was incorporated in 1859 under a special public act of the legislature. In that case the contention was made that because the railway company had been created by a special act of the legislature and many years prior to the passage of the General Corporation Law, section 13 of the latter (J. & A. ¶ 2430) could have no application to the railway company, and the same authorities were there cited in support of this contention, but the court held in that case that section 13 was passed under the police power of the State and applied to every stock corporation, and said: “Whatever grants, stipulations or restrictions may be found in a charter of a corporation,- it is -within 'the power of subsequent legislatures to render it subject to general laws enacted under the police power of the State.”

Section 5 of article XI of the Constitution provides in part as follows: “No act of the general assembly authorizing or creating corporations or associations with banking powers, whether of issue, deposit or discount, nor amendments thereto, shall go into effect or in any manner be enforced unless the same shall be submitted to a vote of the people at the general election next succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for or against such law.” By reason of this constitutional provision it is urged that section 13 of the General Corporation Act (J. & A. ¶ 2430) cannot apply to a State bank because no law containing such a provision in regard to State banks was ever passed by the legislature and submitted to and approved by a vote of the people. Under the reasoning adopted in the Tenner case, the constitutional provision above mentioned would not exclude State banking corporations from the operation of general laws passed by the general assembly under the police power of the State, and many such laws now exist. In the Tenner case, it is substantially held that while the primary object of the legislature in enacting section 13 of the General Corporation Act was to protect the rights and interests of stockholders, yet that was not the sole purpose thereof, but it is an aid in the protection of the general public as well, because the direction that every stock corporation shall keep at its principal office in this State correct books of account of all its business assists the State in exercising its visitorial power over the corporation and helps to protect the public from monopolies, unlawful combinations and unreasonable exactions, and it also enables creditors of the several' stockholders to ascertain the number of shares of stock standing in the name of each so they may levy their executions or attachments thereon. In other words, the decision in the Vernier case in effect holds that said section 13 was enacted under the police power of the State and applies to every corporation for pecuniary profit organized under the laws of the State.

Under the common law, a stockholder was entitled to such examination only when he showed that the request therefor was made in good faith and for reasons connected with his rights as a stockholder, but where a statute grants the right in absolute terms, the purpose or motive of the stockholder in seeking such inspection is immaterial and he cannot be required' to state his reasons therefor, and the latter are not subject to inquiry. The only qualification of his right to such examination is that it shall be exercised at reasonable times. Furst v. W. T. Rawleigh Medical Co., supra; Venner v. Chicago City Ry. Co., supra; Stone v. Kellogg, supra.

It is further claimed that the petition is defective because the bank in its corporate capacity was made a party defendant. This reason is not assigned as one of the causes in the special demurrer, but it is claimed that a misjoinder of parties, when apparent upon the face of the pleadings, can be' availed of by general demurrer. We can see no logical reason why the bank in its corporate capacity should not be made a party defendant. A corporation can only act through its agents, and a writ of mandamus directed against a bank commanding it to perform a corporate duty would necessarily compel the officers and agents having control thereof to comply with the mandate. The president and the cashier of a bank do not necessarily have the absolute control and custody of all the records and books of account of the bank. Primarily, such records _and books of account are in the custody and under the control of the board of directors. The Banking Act adopted in 1888 and the recent revision adopted in 1919 [Callaghan’s 1920 Stats. ¶ 688(4)] each contains the following provision: “The directors shall cause to be kept suitable books of record of all the transactions of the bank or association and shall furnish to the Auditor lists of the stockholders and copies of any other records the Auditor may require.” Corporations may be indicted, convicted and punished for violations of criminal laws. 10 Cyc. 1225 et seq. It has even been held that a national bank can be indicted and punished in a State court for a violation of a State law which makes usury a misdemeanor. State v. First Nat. Bank, 2 S. D. 568. If a corporation in its corporate capacity can be indicted and punished for the commission of a crime, there is no good reason why it could not be compelled to obey a peremptory writ of mandamus. In the Venner case, the Chicago City Bailway Company, in its corporate capacity, and its president and secretary, were made parties defendant in the petition. In the trial court, a demurrer was interposed to the answer filed by the defendants and was carried back and sustained to the amended petition. The petitioner elected to abide by his amended petition and it was dismissed and judgment rendered against the petitioner. This judgment was reversed by the Supreme Court on the ground that the trial court erred in sustaining the demurrer to the petition. ' In the petition in the Furst case, supra, the Bawleigh Medical Company, in its corporate capacity, its president and its secretary, were made parties defendant. The Bawleigh Medical Company and the president filed a joint general demurrer to the petition which was overruled. The secretary filed an answer to the' petition to which answer the petitioner demurred and the demurrer thereto was sustained. The Bawleigh Medical Company and the president elected to abide by their demurrer to the petition and the secretary elected to abide by his answer. A judgment was rendered against all the defendants awarding the peremptory writ. All the defendants appealed and the judgment was affirmed. It is true that in neither the Venner case nor the Furst case does it appear that the question of the sufficiency of the petition was attacked on the ground that there was a misjoinder of parties, but in each case the sufficiency of the petition was disposed of on consideration of a demurrer thereto and that was the sole question involved therein. In the case of Breslauer v. S. Franklin & Co., 205 Ill. App. 372, this question was, however, directly passed upon, and it was there held that the corporation was properly joined as a party defendant.

The judgment of the circuit court is reversed and the cause remanded with directions to overrule the demurrer to the petition.

Reversed and remanded with directions.


text:
    Jacob A. Harman et al., Plaintiffs in Error, v. Indian Grave Drainage District, Defendant in Error.
    1. Tbial, § 68

      —when offer of proof is proper. It is not proper to make an offer of proof until the court has sustained an objection to a question propounded for the purpose of eliciting the desired evidence.
    2. Trial, § 68*—what is improper offer of proof. The statement in an offer of proof, made in an action to recover for services rendered under a contract to make plans, etc., for defendant, that the witness would testify that after plaintiffs had furnished the plans, etc., they were accepted by defendant, whereas his previous testimony showed that the original plans were not accepted, but they were caused to be altered, is objectionable as an offer to prove a conclusion of law, and objection is properly sustained thereto.
    3. Tbial, § 68*—what is proper manner of mahing offer of proof. In an action to recover for services rendered under a contract to make plans for defendant, an offer of proof as to the acceptance of such plans should not be to prove that defendant accepted such plans, but to prove facts tending to show that he had accepted them.
    4. Trial, § 68
      —when offer of proof may he rejected. When an offer of proof embraces evidence which is in part inadmissible, the whole offer may be rejected.
    5. Trial, § 68*—when offer of proof is ohjectionahle. In an action to recover for services rendered under a contract to furnish drainage plans to defendant which contains a provision as to the manner in which the funds to pay for such services shall be raised and that, under certain circumstances, payments may be delayed or postponed, where, though the abstract shows that leave was granted to file special counts it does not show that any were filed and none are set out therein or mentioned in the briefs and arguments, an objection was held to have been properly sustained to plaintiffs’ offer to prove that after the plans were furnished by plaintiffs they were accepted by defendant and paid for; that thereafter plaintiffs, at defehdants request and under the provisions of the contract, aided defendant in securing the confirmation of the assessment and in spreading the assessment; that the value of such services was a certain amount; that plaintiffs, after the acceptance of the plans, the rendition of such services and the payment of a stated amount by defendant, rendered further services to defendant at its request in modifying the plans previously accepted and paid for by it, which additional services were of a certain value of which a certain sum had been paid.
    6. Assumpsit, § 33*—when common counts will lie. Where an agreement for services has been fully performed by the one who was to render them and nothing remains to be done but the payment for the services, and the contract contains nothing as to the time or manner of payment, the common counts will lie for the recovery of the contract price.
    7. Contracts, § 352*—when contract must he specially declared on. Where, under a contract for services, the payment is to be made in a particular manner or is to be controlled as to time, by the happening of particular events, the contract must be declared on specially, in an action to recover for such services, and all the conditions in regard to the payment must be shown to have been fulfilled "and that the money is then due and payable.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.

      John E. Wall and Arthur Keithley, for plaintiffs in error.
    Walter P. Martindale and Govert & Lancaster, for defendant in error.

      See Illinois Notes Disrest, 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 Eldredge

delivered the opinion of the court.

Plaintiffs in error and defendant in error entered into the following contract:

“1. This agreement made and entered into in triplicate this 31st day of May, 1912, by and between the Harman Engineering Co., of Peoria, Illinois, party of the first part, and the Indian Crave Drainage District, a public levee and drainage corporation of the County' of Adams and State of Illinois, by its commissioners, Arthur Weber, Henry Vahle and Sheldon C. Earel, party of the second part, witnesseth:

“2. That whereas the said commissioners of said Drainage District have this day appointed Jacob A. Harman, of the said Harman Engineering Co., as engineer for said Drainage District to make surveys and prepare plans for additional drainage ditches, pump plants and other works necessary to protect from overflow and completely drain the lands within said Drainage District; it is, therefore, hereby agreed as follows:

“3. That the said Harman Engineering Co. shall furnish the services of said Jacob A. Harman as chief engineer, and the services of such assistant engineers, instrument men, draftsmen, recorders and other help as shall be needed from time to time under the direction of the commissioners of said Drainage District to make and furnish to said party of the second part, the necessary topographical surveys, plans, profiles, estimates of cost and reports upon the work necessary for the complete drainage of the lands within said Drainage District, as required and provided by the laws of the State of Illinois in the matter of an application for a special assessment of benefits for such proposed improvement upon the lands benefited thereby, and sufficient for such purpose, and also a complete detail, topographical survey and map of the lands benefited by such improvement, on a scale of not less than thirteen inches to the mile, showing the levels of each 40 acre tract of land, and less, if the ownership thereof is divided.

“4. It is further understood and agreed by the parties hereto that the said Harman Engineering Co. shall render any services that the commissioners of said Drainage District may need and request in the establishment of the plans in court or otherwise, and in the preparation and confirmation of the assessment roll.

“5.' It is hereby agreed that the rate of compensation for all the services necessary to be rendered to said Drainage District in the making of a topographical survey, plans, estimates and reports and all the work in connection with the establishment of the plans in court or otherwise, and in the preparation and confirmation of the assessment roll shall be as follows:

“For the services of Jacob A. Harman as chief engineer, at the rate of................$25.00 per day

“For assistant engineers, at the rate of .................................$10.00 per day

“For instrument and draftsmen, at the rate of..........................$ 6.00 per day

“For recorders, at the rate of......$ 4.00 per day

“For all -necessary help and for the necessary living and traveling expenses of said chief engineer, assistant engineers and other help, the cost thereof; time and expenses from the home office of the Harman Engineering Co. (Peoria, Illinois) and return, or from such other points as employees shall come, provided that such time and expense shall not be greater than time and expense from Peoria, Illinois.

“It is further understood that the necessary help on such surveys shall be procured locally wherever it is practicable.

“7. It is further understood and agreed that whenever it shall be necessary to use camp equipment for the surveying party to properly carry on the surveys, the said Harman Engineering Co. shall furnish at its own expense said necessary camping equipment, and that the said Drainage District shall pay for the use of said camping equipment a sum which shall be equal to ten per cent (10%) of the bill for engineering services rendered in accordance with the foregoing paragraph, such percentage to be limited to the bills rendered for the work while such camp is in service.

“8. It is further understood and agreed that the said Harman Engineering Co. will render itemized bills on or about the tenth day of each month, and at such other times as shall be required by said commissioners, or their successors, of the value of the services rendered and expense incurred for said Drainage District for the preceding calendar month, and that the commissioners of said Drainage District will on or about the tenth day of each month pay the said Harman Engineering Co. for such services and expenses for such preceding month, in accordance with the terms as aforesaid.

“9. It is further understood and 'agreed that the said Harman Engineering Co. shall proceed promptly to make the necessary surveys, plans, estimates and reports with estimates of cost, as required by the statutes of Illinois, dor the commissioners to make their report to the court preliminary to the adoption of plans for said Drainage District, and shall furnish to said commissioners at the earliest practicable moment such plans, profiles, report, estimates of cost, as are required by law.

“10. It is further understood and agreed that said Harman Engineering Co. estimates that the cost of the surveys, plats, plans and profiles and reports required for the establishment of the plans and levying of the assessment for said Drainage District will not exceed the sum of Fifty-three Hundred Dollars ($5,300.00) and that said party of the second part hereto shall not be liable under this contract for a greater sum than Fifty-three Hundred Dollars for the complete topographical surveys, plans, estimates and report of cost for the additional work for such Drainage District inclusive of the expenses of camp equipment and all other expenses and costs connected with this employment; provided, that for any services rendered in court, or otherwise, in the establishment of the plans and the preparation and establishment of the assessment roll, payment shall be made at the per diem and expense rates herein set forth.

“11. It is further agreed that the services performed by said first party, and its various assistants and employes, shall at all times be under the direction and control of the commissioners of second part, and that said commissioners shall at all times have the right to order a discontinuance of the work by 'first party under this contract, if for any reason there should be any cause for delay or suspension of work in said Drainage District, and in such case the first party shall only recover such, sum as may have been earned by it under this contract to the time of receiving notice of such suspension.

“12. It is further understood and agreed by and between the parties hereto and this contract is made and entered into with the thorough understanding that the commissioners now have no funds in their hands available for the payment of the consideration provided in this contract; that the annual repair tax of the District is approximately Five Thousand Dollars; that the amount which the commissioners can ■borrow in anticipation of the payment thereof is Thirty-three Hundred Dollars; that such sum will be available about July 10, 1912; and that the balance of the consideration herein provided for' must be advanced by land owners or raised by a special assessment; that it is expected that such advance will be made by interested land owners, but that in the event of a failure thereof, it is the intention of the commissioners to make application to the County Court of Adams County, Illinois, for a special assessment for such purpose at the July term, 1912, if practicable, but at all events at or before the August term, 1912, of said court; and that to such extent the payments .herein provided for shall be delayed and postponed.

“It is further understood and agreed that this contract is an obligation of the Indian Grave Drainage District; and that it does not and shall not create any ^personal liability against the commissioners or any or either of them as individuals.”

Plaintiffs in error brought this action in assumpsit to recover for an alleged balance due under the terms of this contract. The pleadings are abstracted as follows: “Declaration filed May 30, 1917, consisting of the common counts with detailed copy of account sued on, also copy of instrument sued on which is hereinafter set out in full. Plaintiffs obtain leave to amend their declaration and file two special counts declaring especially upon the contract heretofore referred to. General issue pleaded to whole declaration.”

The first and only witness called was Jacob A. Harman, who testified that plaintiffs in error made surveys of the lands in the Drainage District and plats and topographical maps thereof, estimates of the cost and a report, and delivered the same to defendant in error. That the drainage commissioners took the said plans, etc., under consideration and attended public meetings with the landowners; that some weeks or months later, at the suggestion of the commissioners, some changes were made in the plans and he was directed to prepare them for filing in court according to the changes; that all the work which had been done in the preparation of the plans for delivery in the first instance had been paid for in the sum of $4,969.90. Then the following question was asked the witness: “Now, you may tell .the jury how much work you did subsequently to the payment by the defendant of this $4,969.90?” Counsel for defendant in error objected to the question on the ground that it was immaterial. Up to this time, the contract had not been introduced in evidence and the court intimated that he would be unable to pass upon the materiality of the evidence sought without knowing the terms of the contract. Thereupon, the contract was introduced in evidence and the court heard the arguments of counsel on their respective views of the proper construction of the contract. Before the court passed upon the objection to the question above quoted, counsel for plaintiffs in error offered to prove by the witness “that after the plaintiffs had furnished the complete plans and profiles that they were accepted by the defendant and paid for and that the various monthly payments amounted in the aggregate to $4,969.90. And that thereafter plaintiffs, at the request of the defendant and under the terms and provisions of the contract in controversy, furnished services for the defendant in securing the confirmation of the assessment roll in the county court, in assisting in the preparation of the assessment roll and in spreading the assessment upon the lands to be benefited in said Drainage District, and that the value of said services rendered by the plaintiffs at the request of the defendant at the rate provided in said contract amounted to $2,500.00. That the plaintiffs, after the acceptance of said plans by the defendant, and after the payment of said sum of $4,969.90, furnished additional services for the defendant, and at its request, in the changing, alteration and modification, of the said plans so submitted to said defendant and accepted and paid for as aforesaid, and that the value of said services rendered by the plaintiffs in making said changes, alterations and modifications at the contract rate, amounted to $600.00—$400.00 of which has already been paid.” Counsel for defendant in error objected to the offer. The court sustained the objection and plaintiffs in error rested their case. No other evidence was introduced by either party and the court directed the jury to find the issues for the defendant.

This offer of proof was made before the court had ruled upon the objection to the question and was, therefore, premature. It is not proper to make an offer of proof until the court has sustained an objection to a question propounded for the purpose of eliciting the desired evidence. The statement in the offer that the witness would testify that after the plaintiffs had furnished the plans, etc., that they were accepted by the defendant was an offer to prove a conclusion of law. The previous testimony of the witness showed that the original plans were not accepted by the defendant in error, but were' caused to be altered and changed by the defendant in error after the drainage commissioners had consulted with the landowners. It is not error to sustain an objection to. an offer to prove a mere conclusion. The offer should have been to prove facts tending to show that defendant in error had accepted the plans. Martin v. Hertz, 224 Ill. 84. When an offer of proof embraces evidence, a part of which is inadmissible, the whole offer may be rejected. Cressey v. Kimmel, 78 Ill. App. 27.

The abstract does not show that any special counts were filed, and the evidence offered in any event would have been inadmissible under the common counts. Where an agreement for services has been fully performed by the party who was to render them "and there is nothing in the contract in relation to the time or manner of payment and nothing remains to be done but the payment for the services performed, the common counts will lie for the recovery of the contract price for such services, but where the payment is to be made in a particular manner or is to be controlled as to time by the happening of particular events, then the contract must be declared upon specially and all the conditions in regard to the payment shown to have been fulfilled and that the money is then due and payable. First Nat. Bank v. Hart, 55 Ill. 62; Meyers v. Phillips, 72 Ill. 460. Paragraph 12 of the contract specifically provides how the funds for the payment of the services shall be raised and also that under certain conditions the payments may be delayed or postponed. A special count was necessary to show that the conditions authorizing the payments had been fulfilled and that the money was then due and payable. While the abstract shows that leave was granted to file special counts, it does not show that any were filed and none are set out therein or mentioned in the briefs and arguments. The evidence tendered by the offer of proof was not admissible under the common counts and it is unnecessary for us to consider the questions raised upon the construction of the contract.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Dora Brittin, Appellant v. Standard Pecan Company, Incorporated, Appellee.
    1. Appeal and error, § 1306

      —when count will be presumed additional. Where it appears from the record that plaintiff obtained leave to file an additional count and that such additional count was filed, and that a demurrer was filed and sustained to the “amended” count and plaintiff abided by her “amended” count, and no other accounts appear in the record than the above mentioned, it will be presumed on appeal that the count purporting to be an additional count was in fact such, and not an amended count.
    2. Appeal and error, § 1306*—when counts in pleading xoill be presumed abandoned. Where there is nothing in the record to show that after a demurrer was sustained to special counts plaintiff abided by such counts, they must be treated as having been abandoned.
    3. Trial, § 100*—when finding operates as ruling on objection to evidence. Where plaintiff offers the instrument sued on in evidence under the common counts and upon defendant’s objecting to its admission thereunder, it is admitted subject to objection and plaintiff offers no further evidence and the court finds the issues Joined in favor of defendant, such finding in effect sustains the objection, to the admission of the instrument in evidence.
    4. Contracts, § 185

      —when contemporaneous agreements may be considered in construing contract. Contemporaneous agreements in regard to the same subject-matter must be construed together as one contract.
    5. Assumpsit, § 72*—when special count is demurrable. Where an agreement' in which a promissory note is incorporated and oí which it forms a part contains the terms, conditions and contingencies upon which such note shall become due and payable, a demurrer is properly sustained to a special count in an action upon such contract where such count ignores all of the agreement except, that part which constitutes the promissory note.
    6. Contracts, § 351*—when contract must be declared upon specially. When the payment of an obligation is to be made in a particular manner or is to be controlled by the happening of future events, then the contract creating the obligation must be declared upon specially, and facts showing that the obligation is due and payable must be .averred.
    Appeal from the .Circuit Court of McLean county; the Plon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Leslie J. Owen and Stone & Dick, for appellant.
    Livingston & Whitmore, 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 Eldredge

delivered the opinion of the court.

Dora Brittin, appellant, brought her action in assumpsit against the Standard Pecan Company, appellee, to recover upon the following contract:

“In the event that the terms of the agreement recorded on Certificate No. 138 are not complied with by the Standard Pecan Company then the below note shall become at once due and payable according to the terms stated therein and redemption may be demanded any time thereafter.

“Should the Standard Pecan Company go into liquidation before maturity of the above numbered certificate, or before the same has been redeemed, then the owner of said certificate may demand payment of the below note the same as though it was already due.

“It is further agreed that there shall not be issued an amount of withdrawal stock in excess of one-third of the net assets of the company while this certificate or the below note remains in force.

“$1000.00 Bloomington, Ill., July 17th, 1912.

“Three years after date, for value received, the Standard Pecan Company promises to pay Mrs. Dora Brittin, or order, at its office in the city of Bloomington, One thousand Dollars................Dollars, and in addition thereto a sum equal to 7 per cent interest from the last dividend payment on the attached certificate. ,

“Should this note not be paid when due an attorney’s fee of 5 per cent will be allowed for the collection thereof.

“This note will be void if detached from certificate No. 138.

Standard Pecan Co.

H. S. Watson, Pres.

Attest: W. W. Whitmore, Sec’y.

“No. 138 Withdrawable Stock Shares 100

Standard Pecan Company.

Capital Stock $500,000.

“This certifies that Mrs. Dora Brittin........is the owner of.... 100.... Withdrawable Preferred Shares of Ten Dollars each of the capital stock of the Standard Pecan Company, fully paid and non-assessable, however without the right to vote the same, transferable only on the books of the corporation by the holder hereof in person or by attorney upon surrender of this certificate properly endorsed.

“The holder of record of withdrawable stock is entitled to receive, and this company is bounden to pay, a dividénd of seven per cent per annum for a period of ten years from date or until this certificate is redeemed.

“The dividends shall he cumulative and shall be paid prior to any dividend being paid the holder of Common Stock. Withdrawable Stock shall be limited to one-fifth of the capital stock authorized.

“In the distribution of assets the face value of Preferred Stock with cumulative dividends, if any, shall first be paid. Any remaining assets shall go to the holders of Common Stock. .

“Mo mortgage shall be issued ^gainst any of the present or future holdings of the Company while any of these Withdrawal Certificates are outstanding, except for the original purchase price of land.

“This certificate is withdrawable under the following conditions:

“Payment of this certificate at its face value and all accrued, dividends may be made 3 years from date or any time thereafter, a thirty days’ previous notice in writing having been given by either party, upon the following terms and conditions:

“This Company shall create and maintain a Bedemption Fund during the life of these certificates by placing in such fund five per cent of the par value of the certificates outstanding. This fund shall be used to pay withdrawals upon thirty days’ written notice. If this fund is not sufficient to pay the Withdrawal, with cumulative dividends, if any, this company agrees as soon as notice of desire to withdraw is given, to set aside one-half of its entire income from whatever source until there are funds enough to pay this withdrawal and to maintain five per cent Bedemption Fund. These withdrawal certificates, with all accrued dividends, shall be paid in the order in which request ■for payment has been filed with the Company or notice of the Company’s desire to pay the same sent to the owner of record. Mo certificate shall be called in by the Company until it is subject to call for payment by the holder, then the Company may pay same, upon thirty days’ notice to the owner by paying its face value and all accrued dividends. At the end of ten years this certificate and all accrued dividends must be paid.

“In witness whereof, The said corporation has caused this certificate to be signed by its duly authorized officers and to be sealed with the seal of the corporation, this 17th day of July, A. D. 1912.

The cause was submitted to the court for trial who found the issues joined in favor of appellee and judgment was rendered accordingly.

The original declaration consisted of two special counts and the consolidated common counts. The two special counts declare upon the instrument as a promissory note though the whole contract is attached to the declaration and made a part thereof. A demurrer was interposed to these two special counts and sustained. Thereupon it appears from the record that appellant obtained leave to file an additional count, and ^hat purports to be an additional count was filed. To the additional count a demurrer was also interposed and. sustained. There seems to be some confusion in the record in regard to whether this additional count was treated as such or as an amended count. The record shows that a demurrer was filed March 25, 1919, to the “amended count.” The record also shows that on April 28, 1919, the demurrer was sustained to the “amended” count and that on June 25, 1919, that appellant abided by her “amended” count. As no other counts appear in the record than the one above mentioned, it will be presumed that the special count purporting to be an additional count was, in fact, an additional count and not an amended count and that appellant abided by her additional count. However, there is nothing in the record to show that after the demurrer was sustained to the two original special counts that she abided by said counts. They must be treated therefore as having been abandoned.

After the demurrer to the additional count had been sustained the case proceeded to trial before the court and appellant offered to introduce the instrument heretofore set out in evidence under the common counts. Appellee objected to its admission under the common counts and it was admitted subject to the objection. Appellant offered no other evidence and the court found the issues joined in favor of appellee. This finding in effect sustained the objection to the admission of the instrument in evidence. Two questions are involved on this appeal: Did the trial court err in sustaining the demurrer to the additional count and also in refusing to admit the instrument in evidence under the common counts? Counsel for appellant contend that she can recover upon that part of the instrument .purporting to be a promissory note regardless of the other provisions of the agreement attached thereto. Contemporaneous agreements in regard to the same subject-matter must be construed together as one contract. Heldman v. Gunnell, 201 Ill. App. 172, and cases cited therein. The additional count simply sets out the instrument in haec verba and concludes with the averment that said last dividend payment in said writing referred to was of the date of October 1, 1913, and being so liable to pay the said sum of $1,000, together with interest from October 1, 1913, as well as 5 per cent attorney’s fees, appellee then and there to-wit: at the maturity of said note promised to pay the said sum according to the tenure and effect of said instrument, but though often requested so to do, has wholly refused and does still refuse to pay the same or any portion thereof, to the damage of appellant of the sum of $1,500, etc. The promise to pay in the agreement is controlled by the conditions therein set forth and is not an unconditional promise to pay $1,000 three years after date. Under certain conditions, payment might have been demanded before the three years had expired. Under other conditions, the payment might be postponed. In fact, the provision in the form of the promissory note is a sort of guaranty for the faithful fulfilment by appellee of its obligation to redeem the withdraw-able certificates of stock issued by it, in the manner and under the conditions set out in the agreement. The additional count contains no averment of any kind tending to show that any conditions or circumstances have arisen which gives appellant the right to sue upon said promise. The agreement specifically states under what conditions the certificates of stock may be withdrawn or redeemed prior to the maturity of the note and also under what conditions this may be done on the maturity of the note or at any time within 10 years after the date of the agreement. The additional count ignores all of the agreement except that part constituting the promissory note. This count does not state a cause of action and the demur,rer thereto was properly sustained.

When the payment of an obligation is to be made in a particular manner or is to be controlled by the happening of future events, then the contract creating-the obligation must be declared upon specially and facts showing that the obligation is due and payable must be averred. First Nat. Bank v. Hart, 55 Ill. 62; Meyers v. Phillips, 72 Ill. 460; Harman v. Indian Grave Drainage Dist., ante, p. 502. It follows, therefore, that the trial court did not err in refusing to admit the instrument or agreement sued on in evidence under the common counts.

There is no error in the record and the judgment of the circuit court is affirmed.

Affirmed.


text:
    Ex parte Sarah Gertrude Moots. C. E. Moots et al., Petitioners, Appellants. Bunnie C. Moots, Respondent, Appellee.
    1. Trusts, § 211

      —when compensation of trustee is under control of court. The amount of the commissions to be allowed the trustee of a trust created by a will is under the control of the court to which he makes his report.
    2. Trusts, § 125*—what is not ground for removal of nonresident trustee. The mere fact that the trustee appointed to execute a trust created by a will moves out of the State and becomes a nonresident after his appointment is not sufficient ground for removing him.
    3. Trusts, § 125*—what are grounds for removal of nonresident trustee. The same grounds which may cause the removal of a resident trustee apply to the removal of a nonresident trustee.
    4. Trusts, § 125*—when costs will not he taxed against cestui que trust petitioning for removal of trustee. Where the cestui que trust of a trust created by a will is a person of weak mind and, though one of the petitioners in a proceeding to remove the trustee, it is Questionable whether she had anything to do with the instigation of the proceeding, a provision of the decree dismissing the petition which taxes the costs of the proceeding against the trust estate will be reversed and the decree .amended by directing that the costs be paid by the other petitioners.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 27, 1920.
    Livingston & Whitmore, for appellants.
    Stone & Dick, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

It is averred in the petition filed in this case that Charles M. Moots, father of the petitioners and of the defendant, Bunnie G. Moots, died testate and that the seventh paragraph of his will is as follows: “Seventh:: Having- heretofore deeded to my daughter, Gertrude Moots, Lot 1 in N. W. % of See. 30, T. 25, N. B. 3 E. of 3rd P. M., McLean Co., Ill., and having presented her. with a paid up life insurance policy for $1,000 it is my desire that she shall not receive anything further from me out of my said estate except any interest she might have in the devise to my son, T. B. Moots, and I direct that my executor, Bunnie O. Moots, hereinafter named to act as guardian for my said daughter, Gertrude Moots, and to look after her interests, and to attend to her busines’s for her, and, if necessary, I desire an order of court to that effect.” That pursuant to said will, Bunnie C. Moots was appointed trustee for the said Sarah Gertrude Moots and that he qualified as such by filing a bond in the sum of $2,000; that he had full power to take charge of all the property of Sarah Gertrude Moots and to rent and lease the land, to loan any money that may be on hand, and in all matters to exercise sound discretion and good judgment and to act for the best interests of said Sarah Gertrude Moots; that about 7 years ago he removed from Hlinois to the State of New Mexico where he now resides and since his removal from the State he has not given the business any attention personally, acting only through his attorney; that it is unsatisfactory and undesirable for him to pretend to act as trustee while he is a resident of New Mexico; that he has failed and neglected to perform his duties and has usurped certain powers not accorded to him by his appointment, to-wit, to act as guardian of the person of the said Sarah Gertrude Moots, attempts to dictate where she shall live and is threatening to cause her to leave the home of her sister, Ida Bogers, and take up her residence with him in New Mexico, which said Sarah Gertrude Moots does not desire to do; that on account of the mental condition of said Sarah Gertrude Moots, being nervous and excitable, she is kept in a constant condition of turmoil and uncertainty, rendering her life unbearable; that by reason of removal from the State and his failure to give his personal attention and judgment to the property under his care as trustee, the petitioners desire his removal and the appointment of a new trustee. Bunnie C. Moots filed his answer to the petition and the cause was referred to the master in chancery, who found that the trustee had not given his trust his personal attention and had to some extent abandoned his trust and had to some extent attempted to delegate his powers to his attorney and recommended that he be removed as trustee and a new trustee appointed. Bunnie C. Moots filed exceptions to the master’s report which were sustained by the court and a decree was entered dismissing the petition for want of equity, but providing that the costs of the proceedings should be paid out of the trust estate. The petitioners have prosecuted this appeal from that part of the decree dismissing the petition for want of equity, and Bunnie C. Moots has assigned a cross-error to that part of the decree taxing the cost of the proceedings against the trust estate. The only evidence introduced before the master in chancery bearing upon the matters in controversy was the testimony of Bunnie C. Moots and his attorney. This testimony shows that Bunnie C. Moots was bom and raised upon the property in question and was thoroughly familiar with it; that during the 7 years of his residence in New Mexico, he had visited the farm three times; that he had made a report every year to the circuit court of his accounts as trustee; that the premises had always been rented to good tenants at a reasonable rental; that on several occasions when minor repairs were necessary, he had requested his attorney to see that they were made; that his attorney had prepared his reports for him and, on one occasion, the circumstances of which he could not then recollect, he authorized his attorney to sign his name to the report and verify it for him; that the cestui que trust had received all the income derived from the premises regularly above the legitimate expenses of the trust; that he had retained each year as his commissions 6 per cent of the income, amounting to about $80, out of which he paid $15 a year to his attorney for collecting the rent, making out the reports and other services.

There was not one scintilla of proof that the trustee had been negligent in the execution of his trust or that he pretended to assume a guardianship over the person of the cestui que trust or that he threatened or harassed her in any way. The evidence shows that the trust estate has been well managed, well rented and is in good condition; that there has been no misappropriation of funds nor unnecessary expenditures. Some complaint is made that the trustee should not be allowed to retain 6 per cent of the income for his commission. The amount of his commissions is under the oontrol of the court to whom he makes his report. There is nothing in this record to show that his charges in this regard are exorbitant. If the petitioners are of that opinion, they should file their objections to the reports made by the trustee and have a hearing thereon before the court, who has ample power to adjust them.

The petition was evidently drawn upon the theory that the mere fact that the trustee had become a nonresident after his appointment was a sufficient cause for his removal. Mere nonresidence is not a ground for removing a trustee. The same reasons which may cause the removal of a resident trustee apply to the removal of a nonresident trustee. Lill v. Neafie, 31 Ill. 101; La Forge v. Binns, 125 Ill. App. 527.

The court taxed all the costs against the trust estate of Sarah Gertrude Moots, She was only one of the four petitioners and no equitable reason suggests itself why her estate should bear the burden of the litigation. It is conceded that she is of weak mentality and needs a trustee to take care of her affairs. From the evidence it is questionable whether she had anything to do with the instigation of this litigation and, under the circumstances shown, she should receive the protection of the court. We think the cross-error is well assigned and that the court erred in taxing the costs against the trust estate. That part of the decree which dismisses the, petition for want of equity is affirmed and that part which taxes the costs against the trust estate of Sarah Gertrude Moots is reversed and the eause is remanded to the circuit court with directions to amend the decree by directing that the petitioners, C. E. Moots, Frank Moots and Ida Rogers, pay the costs of this proceeding in the trial court. Judgment for the costs of this appeal in this court is entered against the appellants, O. E. Moots, Frank Moots and Ida Rogers.

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


text:
    The People of the State of Illinois ex rel. Charles Miller et al., Directors of School District No. 183, Shelby County, Illinois, Appellants, v. Thomas Dannenbarger et al., School Trustees of Ridge Township, Shelby County, Illinois et al., Appellees.
    Schools and school districts, § 29

      —how indebtedness is apportioned. A bonded indebtedness lawfully incurred by a school district is a “bona fide debt" within the meaning of Hurd’s Rev. St. ch. 122, sec. 65 (J. & A. f 10086), and is to be deducted from the appraised value of the property of the district from which a new district is to be created.
    Appeal'from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 27, 1920.
    Whitaker, Ward & Pugh, for appellants.
    A. J. Steidley, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellants filed a petition for a peremptory writ of mandamus in the circuit court of Shelby county whereby they sought to compel the trustees of schools in and for the townships of Bidge and Bose in said county to make a new and second division of property belonging to two school districts in said townships and to place to the credit of school district No. 183 the sum of $1,615’. Upon a hearing of the cause, the court entered a judgment denying the prayer of the petition, to reverse which this appeal is prosecuted.

There was, originally, in said townships of Bidge and Bose, one school district known as No. 64. Subsequently, this district was divided into two districts, one known as No. 64 and the other as No. 183. Before this was done, however, the original district No. 64 had voted and issued its bonds in the sum of $5,000 for the purpose of building a new schoolhouse. At the time the petition for mandamus was filed, one of the bonds together with the accrued interest thereon had been paid, leaving a bonded indebtedness of the original district No. 64 of $4,250 together with the accrued interest on the unpaid bonds. After the creation of the new District No. 183, the trustees of schools of the townships of Bidge and Bose appointed three appraisers to appraise the school property in each district at its fair, cash market value. The appraisers found the value of the school property in district No. 64 to be $5,270 and the value of the school property of district No. 183 to be $125 and filed their report of their appraisement with the said school trustees. Thereupon, the trustees sought to make a division of the property between the two districts. They deducted $4,250, the amount of the bonded indebtedness of the original district No. 64, from the sum of $5,270, the appraised value of the school property of the new district No. 64, leaving the sum of $1,020. From the last-named amount they deducted the sum of $125, the appraised value of the school property in the new district No. 183, leaving the sum of $895. This last amount of $895 they took as the basic sum to be divided between the two districts. They found that new district No. 64 was entitled to 62. per cent of this sum and that new district No. 183 was entitled to 38 per cent thereof. Other moneys belonging to said school districts were divided at the same ratio, but no complaint is made in regard thereto and that matter is not involved in this case.

Appellants contend that under the statute the bonded indebtedness of $4,250 of the original district No. 64 should not have been deducted from $5,270, the appraised value of the property of the two new districts, before the division of the property was made, and claim that by such method new district No. 183 was deprived of the sum of $1,615 which should have been given to it in the division of the property. Section 65, ch. 122, Hurd’s Revised Statutes (J. & A. ¶ 10086) provides as follows: “When a new district is created or within thirty days thereafter, the trustees of the township or townships concerned, shall appoint three appraisers, who shall not be residents of the township or townships interested.

“It shall be the duty of such appraisers, within thirty days after their appointment, to appraise the school property, real and personal, of the district or districts interested, at their fair cash value. Within thirty days after such appraisement, the trustees of the township or townships concerned shall charg’e the property to the district in which it may be found, and credit the other districts interested with its proportion of such valuation: Provided, however, that the bona fide debts of the old district shall first be deducted and the balance charged and credited as aforesaid; and the trustees shall direct the treasurer to place to the credit of the district not retaining such property, its proportion of the value thereof, and of the funds then on hand, or subsequently to accrue, belonging to the district to which said property is charged. ’ ’

Section 59 (J. & A. ¶ 10080) provides that in case any territory shall be set off from a district that has a bonded debt, such original district shall remain liable for the payment of such bonded debt as if not divided. Appellants urge that as new district No. 183 will have to pay 38 per cent of the bonded indebtedness, it should not be deducted from the property value before the division is made, as such a course deprives it of a property value of $1,615. In support of this contention counsel for appellants argue that the words “bona fide debts” as used in the statute, do not mean a bonded indebtedness which both districts are bound by law to pay, but mean such debts only as one district is bound by law to pay. The trustees, in making the division between the two districts, followed the directions of the statute literally, and they had no authority to make the division in any other manner. Bona fide- debts certainly include a bonded indebtedness lawfully incurred. The statute is plain and unambiguous, and while in the present case, there may possibly be some injustice done to new district No. 183, in the division made by the trustees, yet the' court cannot, by construction, legislate a different section into the statute.

The judgment of the circuit court is affirmed.

Affirmed.