author: Mr. Justice Holdom

text:
    People of the State of Illinois, Defendant in Error, v. Paul Bush, alias, et al., Plaintiffs in Error.
    Gen. No. 14,424.
    1. Bills of particulars—when refusal to grant additional, in criminal case, not ground for reversal. A motion for an additional hill of particulars in a criminal case is addressed to the sound discretion of the presiding judge and unless the Appellate Court is able to say that the denial of the motion was an abuse of judicial discretion and that such denial operated to the injury of the defendants, the ruling of the trial judge will not be disturbed.
    2. Bills of particulars—when proof not limited by. If a bill of particulars is only asked and given as to one count of an indictment the permitting of evidence under the other counts of such indictment is proper.
    3. False pretenses—-what evidence not essential to conviction for obtaining money by. Held, in this case, that it was not necessary to the conviction had for obtaining money by false pretenses that the. worthlessness of the stock foisted upon the complaining witness be established; also that the admission of the ineffectual efforts of the complaining witness to sell such stock was not error.
    4. Indictment—when sufficiently charges conspiracy. An indictment is sufficient which charges a conspiracy to perpetrate a confidence game, the confidence game being a felony.
    5. Instructions—when upon conspiracy not erroneous. Held, that an instruction upon the subject of the joint criminality of conspirators was not erroneous which contained the following language: “All who with knowledge of the facts concur in the plans originally formed and aid in executing them.”
    6. Instructions—when failure to refer to limitation period not erroneous. In a criminal case, if the statute has not run against the offense, the failure of an instruction to refer to the period of limitation is not error which will reverse.
    Prosecution for obtaining money by false pretenses. Error to the Criminal Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 8, 1909.
    James T. Brady, E. J. Raber and Darrow, Masters & Wilson, for plaintiffs in error.
    John J. Healy and J. E. Northup, for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiffs in error were jointly indicted with one Alex W. Maas, alias Smith, for conspiring together to obtain money by false pretenses from the prosecuting witness, Frank L. Susemihl, and were convicted by the verdict of the jury, who fixed their punishment at imprisonment in the penitentiary for an indeterminate term and a fine of $1,000 each. Judgment was rendered upon this ' verdict, in an attempt to reverse which this writ of error has been sued out, and the record is before us for review.

It is assigned for error and urged in argument that errors are apparent in the following particulars: In refusing to compel the State to furnish an additional bill of particulars; in refusing to instruct the jury to find a verdict of not guilty under the first count, because the bill of particulars supported only the second count and in effect eliminated it from the case; in not instructing a verdict of acquittal as to the second count, it being void for repugnancy; that the verdict is not sustained by the evidence; and errors of the court in its rulings upon the evidence, and in erroneously giving to the jury instructions 13 and 15.

The indictment contains two counts, by the first of which the defendants, and Maas, who failed of apprehension, were charged with conspiring to obtain money from the prosecuting witness by means of false pretenses, contrary to law; and by the second, that they, with the fraudulent intent to wrongfully, etc., do an illegal act, then and there injurious to the public trade, did conspire, confederate and agree together to obtain money and property from the prosecuting witness by means of the confidence game, contrary to the statute.

The motion for a .bill of particulars in terms restricted information as to matters intended to be proven under the second count of the indictment, which related to charging defendants with practicing the confidence game. Such a bill was furnished by the State within the terms of this request. The State prosecutor evidently understood the motion as restricted to the second count of the indictment, and such is the interpretation we put upon it. Defendants therefore received all they asked for. Complaint is made of the refusal of the court to grant defendants’ motion for an additional hill of particulars. Such a motion is addressed to the sound discretion of the presiding judge, and unless we are able to say that the denial of the motion was an abuse of judicial discretion and that such denial operated to the injury of the defendants, we are not at liberty to disturb the ruling of the court. DuBois v. People, 200 Ill. 157; C. & A. R. Co. v. Smith, 10 Ill. App. 359. Moreover, by express provision of the statute an indictment is sufficient which charges what is termed the “confidence game” in the language of the statute. Sec. 99, chap. 38, title Criminal Code, R. S. An examination of the second count satisfies us that it sufficiently conforms to this statutory requirement.

The argument advanced supporting the contention that the court should have instructed a verdict for defendants under the first count, rests upon the alleged ground that the State was limited in its proof to the matters contained in its bill of particulars, which related solely to the crime charged in the second count of the indictment—the conspiracy to obtain money by means of the confidence game. The difficulty with such contention is, as we have already indicated, that no bill of particulars or specification of matters relied upon for a conviction under the first count was asked, but such motion was confined to matters relied upon by the State to support the offense charged in the second count of the indictment. Submitting the case to the jury on both counts was no lapse from legal precedent, nor was the failure to instruct the jury to find defendants not guilty under the second count. The first count charged a conspiracy at common law, and is clearly distinguishable from the case of McDonald v. People, 126 Ill. 150, because in the McDonald case the bill of particulars by order of the court was made to include every count of the indictment; while in the case at bar it applied only to the second count.

Under these conditions the bill of particulars in the case at bar did not affect in the slightest degree the first count of the indictment, nor circumscribe in any way the right of the State to make such proof under it as it might be able to produce.

A careful examination of the evidence discloses a condition fairly bristling with false and deceitful representations in which both the defendants were actual participants. They evidently went out to secure, by false representations and the exercise of much cunning and ingenuity, the money of the prosecuting witness, which they learned from his advertisement he possessed. In this they, by their alluring artifices, succeeded in doing by a scheme which was false and deceptive in every move. Poindexter in an attempt to bring the prosecuting witness to an early decision to part with his money for the worthless stock, under a false pretense that Bush would buy it at a largely increased price, pleaded that he was pressed for money, whereupon the prosecuting witness offered some money to Poindexter to relieve his present financial embarrassment. This Poindexter refused, saying in effect he didn’t want personal assistance; he wanted the prosecuting witness to feel that he was not risking a single penny of his money; he wanted Ms confidence, and, as the denouement showed, he succeeded in getting both. The false representations were as to matters existing—not to occur in the future. That Bush stood ready to buy the stock when in fact he had no such intention at any time, was a false statement which led the prosecuting witness to part with his money and, in so doing, to be swindled out of it. Again, it is said there was no evidence that the stock was worthless, and that the evidence of the prosecuting witness as to his effort to sell it and his inability to do so was inadmissible. Be that as it may, we do not think the admission of this testimony had any harmful or prejudicial effect in establishing the guilt of defendants. If the stock was worthless and the corporation fictitious, it might be impossible to so prove, and we think, in view of all the circumstances, it was unnecessary to do so. Every material representation in faith of which the prosecuting witness was fleeced of his money was absolutely false. Even the names of the conspirators were assumed, as the proof abundantly shows. There was not a truthful statement made by the defendants on any material point during the whole of the negotiations of defendants with the prosecuting witness. Belying upon the truthfulness of these false pretenses, he parted with his money. In so doing he lost his money. We do not think that it was necessary for the state to proceed any farther in its proof on this point. The law does not exact proof of a negative fact, which in most cases would be impossible. The conspiracy to obtain money by false pretenses did not require proof of the value of the article delivered in consummation of the conspiracy at the time the money was obtained from the victim of the confidence game played upon him. It occurs to us, however, that the fact that the person victimized made efforts to sell the stock which were fruitless, together with proof of the falsity of every pretense made which induced such person to part with his money, regardless of the methods used in an attempt to effect a sale, made at' least a sufficient prima facie case against defendants to sustain a conviction and to cast upon them the burden of exculpating themselves by competent evidence from the charge which such proof condemned them as being guilty of.

The second count in substance charges a felony, in that it avers the defendants to have been guilty of working a confidence game upon, and thereby procuring from, the prosecuting witness a large sum of money. It is not repugnant in any of its parts. It is unlike Maloney v. The People,.229 Ill. 593. It charges the practice of the confidence game, which is a felony. In the Maloney case the indictment charg’ed a conspiracy to extort money on the threat to charge another with a crime known as “the infamous crime against nature, then and there injurious to public morals. ” It is plain that the attempt to extort money by threats to charge a person with the infamous crime against nature, has nothing whatever to do with the crime threatened to be charged on failure to accede to the extortionate demand for money made. It did not involve public morals, but it did involve the administration of public justice. The words used were in the Maloney case necessary to characterize the act charged, and consequently could not be rejected as surplusage, and as the offense charged was an attempt »to extort money, and not being contra bonos mores, but contrary to the administration of public justice, rendered the indictment void for repugnancy. But such reasoning has no application to an indictment for felony. The statement in the second count laid under videlicet refers solely to the value of the property obtained by means of the confidence game charged in that count as the means to the accomplishment of the offense. As said in the Maloney ease, “The rule on this subject is, that if the statement laid under the videlicet is material and enters into the substance of the description of the offense, and is impossible or inconsistent with the premises, then the indictment is void.” The words “contrary to public trade” have no influence in charging the quality of the offense, and as the offense charged is a felony, such words may be disregarded as surplusage. No better interpretation can be found, more in keeping with this conclusion, than these words of the court in the Maloney case: “An indictment charging a conspiracy to do an illegal act, which in its nature could not be injurious to public trade, health, morals, police or the administration of public justice and not to commit a felony, would not be a conspiracy under our statute.” This case conies clearly within the exception of the rule announced in the words quoted—“not to commit a felony.”

We do not think the jury were misled as to the law announced in instructions 13 and 15 complained about. We must accord to the language used in instruction 15 its ordinary and usual interpretation in the connection in which it appears. “All who with knowledge of the facts concur in the plans originally formed and aid in executing them,” cannot be understood by intelligent minds as referring to the concurrence of an innocent person. How could any man with full knowledge of antecedent facts, presumptively concurred in by aiding in executing them, be innocent of the criminality of the acts in which he participated? In the condition of this evidence3 such facts would be conclusive. All the facts in this record point to but one conclusion, viz: a conspiracy to obtain money by false pretenses and the using of the methods of the confidence game in luring the victim to part with his money. Ho one with knowledge of the facts and participating in their execution, could be deceived as to the criminality of the whole scheme. The defendants proffered no defense on the merits and produced no witness to contradict the case made by the state’s proof. In the light of the state’s proof, it is hardly conceivable that the jury would have been misled by that instruction to convict either of the defendants, for the reason that they had knowledge of the facts, but that there was an absence of guilty intent. This instruction states the law of conspiracy correctly and is in the form which accords with the uniform holdings of our courts on that subject. Sec. 93 Greenleaf on Ev., vol. 3; Spies v. People, 122 Ill. 1,170.

Instruction 13 is sufficient, though it might have been more clear if the period of the statute of limitations had been stated, instead of leaving it to be inferred by the jury. However erroneous it might be, still in view of the fact that from the time of the committing of the crime until the date of the trial less than six months intervened, it could not have prejudiced the defendants in the slightest, for if the conviction followed on the belief of the jury that the statute had not run against the offense at the time of the finding of the indictment, they were right, and if they found the verdict in ignorance of the statutory limit of time, no harm has been done. It was at most but the statement of an abstract proposition of law, which it is well not to give, but not error to do so.

We find no error in the record calling for a reversal of the judgment of the Criminal Court, and it is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Sara B. Dempster et al., Executors, Appellants, v. Killian V. Lansingh et al., Appellees.
    Gen. No. 14,536.
    1. Res judicata—against whom, doctrine of applies. Even though one may take no active part in litigation, if he knows of its pendency and reaps the fruits of its results, he is hound hy the adjudications thereof.
    2. Res judicata—when authority to maintain action cannot he questioned. If a party stands hy for years with knowledge that he is a party to litigation and receives the substantial result thereof, he is estopped to deny that such action was instituted without authority.
    3. Res judicata—extent of application of doctrine. The doctrine of res judicata extends, under some circumstances, not only to questions which were in fact litigated, but to those which might have been, as growing out of or being part of the subject-matter of the controversy.
    4. Jurisdiction—power of court to retain. A decree may be finally entered in a cause which is appealable and yet the chancellor may with propriety reserve jurisdiction to enlarge or extend the same with respect to certain matters.
    5. Trustees—when compensation cannot he questioned. A party to an agreement having for its object the assertion through the medium of trustees of certain disputed rights, having obtained such rights as the result of litigation cannot question the compensation received by one of such trustees from parties other than himself.
    6. Pleading—what admitted by demurrer. A demurrer admits all facts well pleaded but it does not admit the truth of conclusions drawn, of which the facts alleged do not warrant a fair inference. Conclusions of law, whether correctly or incorrectly stated, are not admitted by a demurrer. It is for the court to state and lay down the law which it shall adjudge to be applicable to the facts before it.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon.-Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 8, 1909.
    Cannon & Poage, for appellants; John B. Heinemann, of counsel.
    Robert F. Pettibone and William S. Freeman, for appellees.
   Mr. Justice Holdom

delivered, the opinion of the court.

This is an appeal from a decree of the Circuit Court dismissing the bill of complainants, several times amended, for want of equity, in accordance with the recommendations of the report of a master, to whom the cause had been referred to take proofs. The decree was entered after the chancellor had sustained the demurrer of certain of the defendants to portions of the bill as finally amended, upon the theory that the rights of complainants’ testator had been determined in the equity suits of Lansingh et al. v. Higgins et al. and Hopkins et al. v. Kean et al. in that court, and that the doctrine of res adjudícala was a barrier to the granting of any further relief. The proceedings in these two equity causes, the matters in controversy and the ultimate decision of them, are set up and sufficiently appear in the several averments of the bill as finally amended. The litigation here.involved appears from the averments of the bill and its several amendments to have been continuously in the Circuit Court for a period of time exceeding a quarter of a century, and the matters involved date back to as remote a time as the year 1859. These matters are intricate and involved and cover many transactions, and originally involved an accounting of wide scope among many different parties. We do not deem it at all expedient or necessary to go over in this opinion in any extended detail the questions here involved and ultimately disposed of in a learned and extended opinion of our Supreme Court in Lansingh v. Higgins, 154 111. 301, but content ourselves by referring to the opinion and adopting the same, so far as it is germane to our decision of this case, as a part of this opinion. The matters involved in the Higgins and Kean suits related to the management for many years of the Bose-hill Cemetery Company and the ownership of its stock. The title to the stock claimed by David S. Dempster was settled in the Higgins suit. The rights of Dempster were confined to the ownership of fifty shares of the stock of the Bosehill Cemetery Company. The right to these fifty shares he originally acquired on May 21, 1885, by the purchase of certificate numbered 3 for fifty shares of what was denominated “Conditional Scrip” of the Bosehill Cémetery Company. Prior to the purchase of this scrip, Dempster had no interest in the Bosehill Cemetery Company, its conditional scrip or its stock. This is the scrip which Dempster afterwards placed in the hands of Lansingh as trustee under the agreement hereinafter referred to, and for which he subsequently procured through Lansingh, as the result of a decre.e in Lansingh v. Higgins, fifty shares of the capital stock of the Bosehill Cemetery Company.

On January 20, 1882, certain of the stock and scrip owners entered into an agreement with each other to secure their rights in the Bosehill Cemetery Company. To this agreement David S. Dempster was not a party. Afterwards another agreement was made between the stock and scrip owners, to which David S. Dempster became a party in 1895, ten years after he bought the fifty shares of “conditional scrip.” By the terms of this agreement the stock and scrip of the parties were placed in the hands of Kean and Lansingh, with full power to manage and control the same. As the agreement appears in complainants’ bill, we think it helpful to a proper understanding of the force and effect of this agreement to set it forth here in haec verba. It is as follows:

“Whereas the undersigned hold certificates of stock or conditional scrip of the Bosehill Cemetery Company, to the amounts set opposite our respective names and numbered as set forth herein, the cash value of which is unknown but is understood to be greatly depreciated by the management of the said Cemetery Company in the interest of certain stockholders, bond holders, 'and holders of indebtedness against said company, to the great injury of other stockholders and against the interests of the undersigned.

“And the undersigned desire to unite our stock and scrip according to our respective interests in a common and united effort to secure by proper negotiations or by legal proceedings (if necessary) a proper value or price for our stock or scrip and a proper recognition of our rights as stockholders in said cemetery company.

“Now, therefore, we hereby severally agree with each other, as follows: said stock and scrip so represented by ns severally shall be and hereby is placed in the possession, management and disposing control of Samuel A. Kean and Killian V. B. Lansingh. They and each of them are authorized and empowered, and we and each of us hereby severally make, constitute and appoint said Samuel A. Kean and Killian V. B. Lansingh and each of them the true and lawful attorneys and attorney irrevocably, for us and each of us, and in our and each of our names, places and stead for the following purposes: now and from time to time hereafter to institute, prosecute and complete all negotiations, investigations, legal proceedings and all other lawful proceedings which in their judgment shall be proper, in order to elucidate and clear up the affairs and the amount of the debts and assets of the Bosehill Cemetery Company as well as to ascertain what is the actual amount and state of our interests in said Company and in its property and to secure the highest value and obtain the best price therefor and for our said stock and scrip.

“And for the same purposes to employ counsel and experts and such other persons as they may think proper, and to make all and singular such contracts, settlements, compromises, sales, transfers and assignments of or concerning said stock and scrip and our interests in said Company and its property and any part thereof as in their judgment shall seem meet.

“To vote upon and in all respects control, dispose of, and act as the owners of said stock, and also of said scrip, at all meetings of said Company or its stockholders, and in all matters and transactions of or concerning said company, both individually and as stockholders, and as parts of said Company, and in all things to have full and disposing power and ownership of said stock and scrip and our interests in said company and its property, only according to us pro rata as hereinafter provided.

“When, in the judgment of said Samuel A. Kean and Killian V. B. Lansingh the purposes of this instrument are accomplished as fully as they consider wise and proper, they shall make account and distribute to each of us pro rata according to our present respective interests, the proceeds of said stock, scrip and interests, and whatever, if any, of the original stock, scrip and interests shall remain after first deducting a reasonable compensation to them and all expenses, costs and liabilities heretofore or hereafter incurred by them or others under their direction.

“The powers herein conferred are coupled with an interest in said Kean and Lansingh and in each of the undersigned, and is irrevocable.

“It is agreed that our said stock, scrip and interests are pledged pro rata for all the costs and expenses of the negotiations, investigations and proceedings herein provided for, and also those which have been heretofore made by them for the same purposes, or which in the judgment of said Kean and Lansingh, or either of them, are expedient, including a reasonable compensation to them for their services.

“And we severally agree to and with said Kean and Lansingh and each other not to sell or dispose of or attempt to sell or dispose of our respective stock, scrip, or interests, or withdraw the same from this agreement, without the written consent of each and all of them.”

The signature of Dempster to this agreement is signed thus: “David S. Dempster per W. D. excepting as to the compensation to the trustee.” W. D., as we gather from the record, is Wesley Dempster, about whose authority to sign no question is raised. Lansingh and Kean executed the agreement, after the signature of some of the other stock and scrip owners, in these words: “We accept the trust hereby conferred upon us.

K. V. K. Lansingh,

Samuel A. Kean.”

Kean took no active part in discharge of the trusts of the agreement, but the whole management was assumed and the duties of the trust discharged by Lansingh alone. The whole contention and claim of complainants rests on the claimed right to attack the bona fides of Lansingh in acquiring certain stock of the Bosehill Cemetery Company as compensation for his efforts and services in procuring favorable decrees in the Higgins and Kean litigation, and an enforcement of the rights of the scrip and stock owners, which made valuable that which was before valueless. That Dempster finally, through the litigation, received from Lansingh the full amount of the stock of the Kosehill Cemetery Company called for by his “conditional scrip” is nowhere denied. That this was made possible after extended litigation instituted by Lansingh is not disputed. That such a favorable result was finally reached after much litigation, fostered and brought about by Lansingh, the record amply demonstrates. That without these efforts so successfully put forth by Lansingh, the scrip and stock would have been of little or no value, seems, from the voluminous record before us, beyond cavil or dispute. Heeding the conditions under which Dempster signed the agreement and the further fact that Lansingh did not obtain for himself any portion of the stock which Dempster was entitled to or claimed under his scrip delivered to Lansingh under the terms of the agreement referred to, we do not regard Dempster or his personal representatives as being in a position to complain or to challenge the right of Lansingh to the stock he received as compensation for his services, all of which came from persons other than Dempster, and in which at no time did Dempster have any interest or claim. Dempster refused to be bound by that part of the agreement which provided for compensation or remuneration for services to be rendered; consequently he was not liable for such services, except as he might become so by some subsequent agreement for compensation or upon a quantum meruit for the value of such services as inured to his benefit, and of which service he may have availed to his profit. As a matter of fact, Dempster voluntarily contributed to defraying a portion of the expenses incurred in the original suit of Lansingh v. Higgins.

The demurrers to portions of the bill as amended were sustained upon the theory that the doctrine of res adjudicata as applied to the cases of Lansingh v. Higgins and Hopkins v. Kean barred Dempster from obtaining any ' further relief. The master reported that the chancellor’s rulings upon the demurrers precluded an impeachment of the ownership of the stock, the title to which was attacked by the bill, thus cutting, out in a measure the ground upon which an accounting could be predicated, and in faith of the strength of such condition recommended a dismissal of the bill for want of equity. In the latter course complainants seem to have acquiesced, upon the. assumption that whatever could be ultimately recovered by an accounting, under the restricted investigation permitted after the chancellor’s rulings upon the demurrers, would not be worth while; so that they were willing to risk a small loss on the chance that a reversal of the chancellor’s holding as to the application of the doctrine of res ad judicata would open up to them the right to recover on an accounting the full amount of their claim.

Before proceeding to discuss the merits of the demurrer or the conclusions thereon to which the learned chancellor of the Circuit Court arrived, we will note some phases of the case as applied to the facts not involving the application of the doctrine of res adjudicata. One of the special causes assigned by the demurrer is the following: “That complainant never paid Lansingh compensation, and it does not lie in complainant’s mouth to complain of what other parties to said agreement paid Lansingh, and such payments have been confirmed and established by decrees of the Circuit Court attached to said amended bill.” That Dempster contributed toward no part of the compensation received by Lansingh in satisfaction for services rendered, is not seriously questioned. What Lansingh did in fact receive for his services was 220 shares of the Bosehill Cemetery Company stock. These 220 shares were contributed by Preston Kean, John Dempster Estate, the Shermans, George H. Scranton and Oliver S. Goss, none of whom is complaining or attacking the verities of the transaction. It is quite apparent that in a measure David S. Dempster benefited from the services of Lansingh for which the 220 shares of stock were given to him by the parties just named, in compensation, and it is just as clear that Dempster’s executors have no cause of complaint for any reason, but, on the contrary, should be satisfied with the bargain Lansingh made, which operated to release Dempster from liability for valuable services inuring to his benefit, without any outlay aside from the original amount freely contributed by him toward the expense of the litigation in Lansingh v. Higgins. That the doctrine of res adjudicata is a complete bar to the maintenance of the bill as amended in this record, in virtue of the decrees in Lansingh v. Higgins and Hopkins v. Kean, supra, seems to be, inferentially at least, admitted by complainants from their attitude of denial that in these proceedings the name of David S. Dempster was used with authority; or that, if with authority, by implication then that Dempster was not such an “adversary” party (because he received nothing but what was admittedly his due) as makes the decrees as to the ownership of stock by Lansingh binding upon him.

There are many cogent reasons which, to our minds, demonstrate the lack of merit of these contentions. The agreement above set out in haec verba contained sufficient authority, clothed in no doubtful language, empowering Lansingh to invoke legal process in Dempster’s name; for it is plain from the spirit of the agreement that little, if anything, could be expected of advantage to Dempster and his associates from the persons then in physical control of the property and assets and stockholdings of the BoseMll Cemetery Company, short of the compelling process of a court of equity. As matters then stood, Dempster’s fifty shares of conditional scrip were worth nothing. He became a party to the Lansingh and Higgins suit by intervening petition. By the decree of the Circuit Court he was adjudged to be the owner of fifty shares of stock on condition that he paid for them the sum of $5,000. To this time Higgins, Blodgett and the other parties in control of the Cemetery Company, insisted that the issue of script was void. On Higgins’s appeal to this and the Supreme Court, Dempster assigned cross-errors, among which is the following r “The"court erred in finding that the complainant (except as to certificates numbered 1 and 2) and the intervening petitioners should pay to the Bosehill Cemetery Company the par value of the so-called stock respectively coming to them, and in finding that nothing had been paid to said company for any of the stock or scrip except said certificates numbered 1 and 2.” On this cross-error Dempster was successful; the Supreme Court saying in deciding this cross-error in Lansingh v. Higgins, supra: “As the Company, by successive boards of managers, elected, in the main, by the creditors and not by scrip holders, not only acquiesced in the transaction, but ratified it in many ways, as before shown, through a period of more than twenty years, it is now too late for the Company to avoid it. The same reasoning also leads to the conclusion that this stock and scrip must be treated as having been fully paid for, and that it would be inequitable to require the holders of it to pay for it again on any basis which could now be fixed, as a condition of equitable relief. We think the trial court erred in requiring such payment, and the decree in that respect is reversed.” Following the mandate of this opinion, the Circuit Court entered a decree in strict conformity with it, and under the decree as so entered Dempster secured, without further payment, fifty shares of the Cemetery Company stock. There is no pretense but Dempster knew of the pending litigation. He may not have actively participated in its conduct. Lansingh was furnishing- the legal ammunition to carry forward the legal battle, so that there was no occasion for any open activity on Dempster’s part. He had knowledge of the proceedings and voluntarily reaped the fruit of the decisive victory. He is, on every known legal principle applicable to such a condition, precluded from avoiding their full force and binding effect. But, say counsel, he was not an “adversary” party, and only secured that to which he was entitled. It might well be answered, that is all any one secures as the result of successful litigation, and we might content ourselves by leaving such contention with this observation but we refrain from so doing without recalling some of the facts, because the position so assumed is so strikingly untenable in the light of these facts. It is plain that all of Dempster’s interests in the Cemetery Company were at stake. His interests were nil except as otherwise established by litigation and enforced under the power of the law. Higgins and his associates asserted that Dempster’s scrip was valueless and its issue a void act on the part of the Company. The learned chancellor disagreed with the void part of the contention, but held while the issuing of the scrip was lawful enough, yet it had not been paid for to the Company, so that Dempster, if he wanted fifty shares of company stock for his scrip, must pay the face value of the stock—$5,000. The Supreme Court held that the dealings of the Company had been such for twenty years in the management of those alien to its lawful stockholders, without questioning the lawfulness of the issuance of the scrip, that the company could not be heard at so remote a day to contend that the scrip had not been paid for, and that its holders were consequently entitled to the stock called for by the scrip without further payment. Under such holding Dempster got his stock. This does not have the appearance of conceded rights conferred as a matter of course and without contention.

What Dempster finally got was the result of the successful prosecution by Lansingh of Dempster’s claim against many obstacles created by eminent legal talent in the manipulation of the Cemetery Company’s affairs, and in resisting the efforts of Lansingh to have the courts enforce the rights of the scrip and stock owners. Again, Dempster, pending the decision of the Supreme Court, joined in a petition for the appointment of a receiver for the Bosehill Cemetery Company, and after the decision was rendered, joined in a motion that the court call a stockholders’ meeting for the election of a board of managers of the company, as four of the seven members of the board had died and the board consequently lacked a quorum to transact business. The court called an election as requested, and Dempster voted his fifty shares of stock at such election and thereby participated in the election of managers.

Through all the years of litigation Dempster stood by with knowledge of his being a party to • all of it. Tie reaped the fruit of the litigation; he received in virtue of it that which was of intrinsic value, which before the litigation was valueless; and we are therefore of the opinion that on plain equitable principles he and those claiming under him are estopped to deny that such litigation was inaugurated and maintained without sufficient authority. Subsequent ratification is as binding as express authority. Acts which constitute ratification are as conclusive on all parties as formal authority by word or writing.

In Hopkins v. Kean, Dempster was a party, and with others filed a cross-bill and obtained an adjudication settling the contentions of all the contestants, which included the title and liens to claims to the stock now in question. The verity of the decree in that case has never been challenged. In the two chancery cases combined, the rights of all parties claiming any interest in its stock or the Eosehill Cemetery Company as creditors or lien holders have been determined and settled. It would seem that whatever other claims Dempster may have had, and which he might have brought forward in either of these proceedings, if they were of such a nature that the court could have granted appropriate relief, he must be held to be barred from now setting them up. The doctrine of res adjwdicata extends, under some circumstances, not only to questions which were in fact litigated, but to those which might have been, as growing out of or being part of the subject-matter of the controversy. Stickney v. Goudy, 132 Ill. 213.

Whatever rights Dempster may have had in the stock procured by Lansingh from stockholders other than Dempster, in settlement of his claim for remuneration under the agreement, in power of which Lansingh maintained and successfully prosecuted the TIiggins case, Dempster could have presented and urged when the matters concerning ownership and title to the stock of the several parties were before the court. Not having done so, the present bill comes too late for any such purpose.

An examination of the decrees of 1890 and 1895 refutes the contention of complainants that the court was without jurisdiction to change them in 1896. The court in express terms reserved in the decree jurisdiction of the parties and the cause, and the power to change or enlarge these decrees. While each decree may have been of such finality as to support an appeal, yet the court may still possess jurisdiction to enlarge such decree or enter another in furtherance of the purpose of carrying into complete effect its provisions. A familiar instance of such condition often arises in foreclosure proceedings. The decree settling the rights of the parties, fixing the amount of indebtedness and ordering its payment and, in default, a sale of the mortgaged premises, is so far final as to be appealable, notwithstanding the fact that the ultimate final order in the cause is the decree approving the sale of the mortgaged premises. So in a bill for an accounting in matters of partnership or a decree of sale of real estate in the estates of minors, intestates and those laboring under legal disabilities. The decree which finds and settles the rights of the contestants is final and appealable, but the court always retains jurisdiction to enter such further orders or decrees, to the end that complete justice may be done between all the parties, necessary to carry into practical effect the original decree of the court. We are therefore of the opinion that the court did not err in the entry of decrees subsequent to the primal decree of 1890 in Lansingh v. Higgins, which went to the Supreme Court on appeal. Whether complainants are barred from the relief sought under the doctrine of 'res adjudicata arising from the litigation preceding this suit, under the ’claim that the right to call Lansingh to an account under the so-called trust agreement had not accrued during the life of such proceedings, we think not of conclusive importance on the action of the chancellor in dismissing complainants’ hill for want of equity. We are unable to discover that complainants’ testator under the trust agreement had any title or claim to the stock acquired by Lansingh in payment for his services. There is nothing in that agreement, as touching the rights of Dempster, which gave him any interest in the stock of the other parties to that agreement. His interest was confined to his claim under scrip certificate 3 for fifty shares of the Cemetery Company stock. Whatever Lansingh acquired from the other parties is his and their concern, about which Dempster, in his lifetime, could not, nor can his executors now, be heard to complain. The averments of the bill, as amended, restrict the claim of Dempster to account for the stock so received by him from the other parties for duties undertaken by Lansingh under the tefims of the agreement referred to, on the theory that Lansingh was trustee for Dempster and liable to account for all he received in his management of the trust. It is clear that this position is unsound. Dempster having procured all that he was in any manner entitled to receive, Lansingh stands discharged from any further liability to Dempster or his personal representative. As such condition appears from the averments of the bill as amended, it fails to show any right of recovery, making it obnoxious to the demurrers interposed which, if for no other reason, were rightfully sustained and the bill dismissed for want of equity.

Stress is laid upon the fact, that a demurrer admits the averments of the bill. This is true in a limited way. A demurrer admits all facts well pleaded, but does not admit the truth of conclusions drawn, of which the facts alleged do not warrant a fair inference. Conclusions of law, whether correctly or incorrectly stated, are not admitted by a demurrer. It is for the court to state and lay down the law which it shall adjudge to be applicable to the facts before it. Lawrence v. Traner, 136 Ill. 474; American L. & T. Co. v. M. & N. R. R. Co., 157 Ill. 641.

The decree of the Circuit Court being without error is affirmed.

Affirmed.


text:
    August Loettker, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,548.
    1. Verdicts—when set aside as against the evidence. While it is true that primarily the jury are the judges of the probative force of the evidence and their finding is not to be lightly disturbed, yet when the Appellate Court upon a review of the record is of the opinion that the verdict is clearly contrary to the manifest weight of the evidence, it becomes its duty to reverse a judgment resting upon such unsupported and unwarranted verdict.
    2. Ordinary cabe—extent of requirements of. In a place of danger the law requires care commensurate with and to be measured by the dangers apparent and obvious, and especially is this rule strict where such dangers are as a matter of fact known to the complaining party. The greater the danger, the higher the care and caution which should be exercised to avoid it.
    3. Contributory negligence—when policeman injured at street crossing guilty of. A policeman assigned to duty at a street crossing to regulate traffic cannot recover for an injury resulting from a street car at such crossing of the approach of which it was his duty to know.
    Brown, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed with finding of fact.
    Opinion filed June 8, 1909.
    Statement by the Court. This is an appeal from the judgment of the Circuit Court, rendered upon the verdict of a jury in favor of plaintiff, for $1,750. The action is for personal injuries. The cause went to the jury upon the first count only of the declaration, which charges that it was the duty of defendant to sound a gong or ring a bell before crossing Madison street; that defendant, on the occasion in question, neglected to do so, and such neglect of duty resulted in a car of defendant’s running into plaintiff, who was lawfully upon the north cross walk at the intersection of Madison and Clark streets, while said car was proceeding to cross Madison street to the south on Clark street, whereby plaintiff was injured, etc.
    The testimony of plaintiff is to the effect that on the 9th day of October, 1903, the day of the accident, he was a Chicago policeman, stationed for duty on the north crossing of Clark street where it intersects Madison street; that his duty was to regulate the traffic at that point; that electrically propelled cars run along tracks of defendant company going north and south along Clark street, and that cable cars run east and west along Madison street at this point; that the time of the accident was about 8:45 or 8:50 in the morning, and that just before the accident plaintiff was on the north cross walk, facing south, between the two tracks; that a car was approaching from the south; that he assisted two women and a couple of children to cross the tracks safely to the east; that in so doing he passed to the east track and then stepped backwards towards the west track, when the car in question, which had stopped at the crossing as required by the rules and regulations of defendant and the ordinances of the city, started up and struck him from behind; that the force of the car striking him felled him to the ground; that he fell on his face, so that his body lay across the track, although he testified, on cross-examination, that he did not fall to the ground; that he caught himself with his hands, fell down on his hands and knees and got ‘ ‘ right up ’ ’ after the colliding car passed by him; that he did not look to the north; that he did not know that the car was on the crossing, and that he did not hear a sound or warning of any kind; that generally he did not look north, but kept his face toward the south; that the crossing was a busy one, and that at the time of day when the accident occurred, cars went back and forth every half minute or minute for several hours. For some time after the accident plaintiff continued to perform his duties on the crossing, and then went to his home and received medical attention. The objective symptoms resulting from his fall consisted of bruises. No bones were broken. He returned to his duties in seventeen days, and thereafter was a policeman for 38 months, when he was retired upon pension for physical disabilities, on his own application. During the 38 months he performed his duties about as continuously as during the former years of his service. On Christmas eve 1905, while endeavoring to place some young hoodlums under arrest for disturbing the peace, he was assaulted by them and knocked down. He was severely injured, and while down, some of his assailants said, “He is all in, like Fitzsimmons; let him die.” He was taken to the Emergency Hospital in a patrol wagon, where he received surgical relief. Among other things there done for him was the sewing up, with several surgical stitches, of a cut in his chin. He was then taken to his home in a patrol wagon and stayed there some ten or eleven days. On another occasion, between October 24 and 25, 1906, he fell down stairs at his home and sprained both of his ankles. He was a man of moderate drinking habit, consuming beer and sometimes alcoholic drinks daily, but never, so he says, to a state of intoxication. An eye witness of the accident, and the only one produced for plaintiff, examined in support of plaintiff’s contentions, testified that the car which struck plaintiff was, at the time it struck him, going about as fast as a man could walk, or a little faster; that it came from the north and pushed plaintiff from behind about three or four feet, and did not “take him off his feet;” he did not notice the ear before it struck plaintiff and was not sure whether he heard a bell ring or not. The conductor and the motorman of the car gave their version of the occurrence as witnesses for defendant, the conductor testifying that the car came to a stop on the north Clark street crossing a few seconds and then started up and ran about three feet slowly and then stopped suddenly. He got off the car and spoke to plaintiff, asking him if he was hurt, and he answered that he was all right. The motorman testified that he stopped his car on the north crossing; that he saw plaintiff escort some women and children across the tracks to the east; that thinking, from the movements of plaintiff, that he intended to proceed across the east tracks, he, after receiving the starting signal from the conductor, rang his bell and started the car slowly, when plaintiff unexpectedly backed up, and when he had run his car about two feet, it “bumped the policeman,” meaning plaintiff; that plaintiff was jarred by the bump, “but not knocked off his feet;” that after the car struck plaintiff it went less than one foot before he again stopped it; that it was customary for cars to proceed without signal from the crossing policeman, unless signaled to stop by that officer; that when the car finally proceeded, plaintiff was still on the crossing, although on the return trip he had left his post.
    At the conclusion of the plaintiff’s direct proof, and again at the close of all the proofs, defendant moved the court in writing to, instruct a verdict in its favor, and tendered on each occasion a written instruction to be given to the jury to so find. To the action of the court in refusing to so instruct the jury, defendant objected and preserved sufficient exceptions to such action of the court to avail of them here for reversal.
    Defendant’s main argument for reversal of the judgment is grounded on the contention that the verdict is manifestly contrary to the weight of the evidence, on erroneous rulings of the trial judge in the admission and exclusion of evidence, in giving instruction 4, and in modifying instruction 19 and not giving’ it as requested.

      West, Eckhart & Taylor, for appellant.
    Francis X. Busch, Frank A. Rockhold and Albert J. W. Appell, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

An examination of the whole evidence impels us to the conviction that it is insufficient to support the judgment. While it is true that primarily the jury are the judges of the probative force of the evidence and their finding is not to be lightly disturbed, yet when this court, upon a review of the record, is of the opinion that the verdict is clearly contrary to the manifest weight of the evidence, it becomes its duty to reverse a judgment resting upon such unsupported and unwarranted verdict. This duty is imposed by the statutes of this state. As said by the court in C. & E. I. R. R. v. O’Connor, 119 Ill. 586: “where there was evidence before the jury tending—how much is immaterial—to establish negligence, * * * the question of the weight of it and of the reasonableness of the amount of damages belongs purely to the Appellate Court.” In Gehm v. The People, 87 Ill. App. 158, the court says: “The question whether the evidence is sufficient to support the verdict is open to determination in this court; and while we must give due weight to the superior facilities possessed by the jury for determining the truth by seeing the manner of the witnesses upon the stand, yet that consideration is not conclusive upon us that their verdict is just.” The Supreme Court said in a chancery case, on questions of fact: “When, as in the case at bar, the record shows that the verdict is against the clear weight and preponderance of the evidence, it will be set aside, as in cases of law,” vide Bradley v. Palmer, 193 Ill. 15; I. C. R. R. v. Cunningham, 102 Ill. App. 206; C. & E. R. R. v. Meech, 163 Ill. 305; B. H. & C. M. Co. v. Bennett, 96 Ill. App. 514. As was said in Borg v. C. R. I. & P. Ry., 162 Ill. 348: “It is plain that the statute is designed to confer upon the Appellate Court more extended powers than are possessed by the judge of the trial court.”

With these principles of the law in mind, we will devote our attention to a review of some of the salient features appearing from the evidence. In the first place, plaintiff’s position on the cross-walk was one fraught with constant peril and required, yea, demanded, at his hands the greatest vigilance and care not only for his own safety, but for the safety and order of the vehicular and foot traffic which continually congregated around him at his place of duty to the point of congestion. While discharging the duties committed to him, and with the knowledge that a car was passing over his crossing about every half minute, he says he was unaware of the presence of the car which struck him, and, without looking to the north, from whence cars of the defendant company were constantly streaming to the south, he walked backwards into the path of the car and was struck by it. That he backed up to the car after escorting the ladies and children across the car tracks to the east, there is no countervailing proof. It will not do for plaintiff to say that he was not required to look to the north, but only to face to the south, in the light of the fact that he was there on the north crossing to regulate all the street traffic coming south down Clark street north of Madison street, for he admits in his testimony that traffic so coming was halted by a signal given by him with his club or his hand. In such a place of danger, the law requires care commensurate with, and to be measured by, the dangers apparent and obvious, and especially is this rule strict where such dangers are, as a matter of fact, known to the complaining party. The greater the danger, the higher the care and caution which should be exercised to avoid it. Austin, Admr., v. C. R. I. & P. Ry., 91 Ill. 35.

We are not able to understand why plaintiff, irrespective of the fact as to whether the bell was rung, did not hear the rumble of the ear (which it is conceded was a “big red car”) as it approached the crossing; for it is a matter of common knowledge and daily observation that such cars make much noise. In the exercise of due care he certainly would have heard the car as it approached the crossing. The contention that plaintiff was absolutely unaware of the presence of the car upon his crossing, coupled with the undeniable fact that he blindly backed into the path of cars constantly moving, and conceding, as is abundantly proven, that the car was proceeding at a speed no faster than the walk of an ordinary man, and that it had come to a dead stop at the crossing before starting and had not gone more than two or three feet before it came in contact with plaintiff and was stopped within about a foot from the place of such contact, we think sufficient to charge plaintiff with negligence which was the primary cause of his collision with the car. It seems more like a case of plaintiff backing into the car, than the car running against plaintiff. Again, plaintiff’s evidence is unreliable on two very material matters. He at first testifies that the force of the impact knocked him down, so that he fell upon his face. This he virtually admits is untrue when, on cross-examination, he says that he caught himself on his hands and knees and “got right up.” On this point his supporting witness swears that the striking of the car did not ‘1 take him off his feet, ’ ’ and the motorman of the cob liding car testifies that plaintiff was bumped by the car and pushed along by the car, but that he was not knocked off his feet.

That plaintiff resumed his duties at once after the accident, and that he did not leave his post for some time after that morning is admitted. The only injury to plaintiff observable was some bruises on bis body, for which he was at first treated by simple remedies by his medical attendant. Seventeen days after the accident he returned to his police duties and so continued for three years and two months, without any more interruption of service than had been his habit during a like previous period of time. During this time he was maltreated by “hoodlums,” necessitating his removal to a hospital in a patrol wagon, where he was treated surgically, a cut in his chin being sewn up, and while the hospital authorities thought it proper to retain him, he was, at his own instance, taken to his home in a patrol wagon, where he says he remained off duty for ten or eleven days. He subsequently met with a mishap in falling down stairs and spraining both of his ankles. He was placed upon the pension roll and retired from active service 38 months after the accident in question, at his own request, and charges all his physical ills to his contact with the car. We are unable to reconcile such claim, in the light of the other accidents which plaintiff admits subsequently befell him, and the medical testimony. It is not contended that any ordinance of the city required the ringing of a bell before starting the car, although negligence is charged in failing to ring a bell, upon the theory that at such a busy place prudence and due care required the bell to be sounded to warn pedestrians of the car’s approach. If it were conceded that not ringing the bell was negligence, still we are confronted with inadequate proof to sustain such contention. Plaintiff was oblivious to all sounds, is the logical conclusion to be drawn from his testimony. His only witness on this point is uncertain, testifying “I am not sure whether I heard the bell ring or not.” The motorman swears positively that he did ring the bell. Can it be said, in this state of the record, that plaintiff on this crucial point has sustained his contention by a preponderance of the evidence? We think not. Plaintiff did not know the car was on the crossing, but it was, as he at once discovered to his sorrow. He was equally without knowledge of the ringing of the bell. Can his ignorance of the ringing of the bell be taken as evidence that the bell did not ring, any- more than his lack of knowledge of the presence of the car can be taken as evidence that the car was not there? The contention of plaintiff, in view of the undeniable facts, borders on the absnrd. What strength does the testimony of plaintiff’s witness, that he was not sure whether he heard the bell ring or not, lend to plaintiff’s contention that the bell was not rung? Is not such testimony entirely overcome when the man who rang the bell comes upon the witness stand and affirmatively and unequivocally swears he did ring the bell when he started his car which came into collision with plaintiff? We cannot hold that the failure to ring the bell, if such failure constituted negligence, is sustained by the greater weight of the evidence, but, on the contrary, that plaintiff has failed to make such proof by a preponderance of the evidence.

We are of the opinion that the duties of plaintiff at the crossing not only required him to protect himself in the regulation of the traffic which he was stationed there to control, but also to protect pedestrians passing over that crossing, and that such duties required him to keep watch for and to know of„the approach of cars. This follows as a natural consequence of his admitted duties; for otherwise, how could he protect others from the danger of coming in contact with approaching cars unless he kept himself informed of their approach? In walking backwards into the path of cars, in such a manner as to be struck by a car, without knowledge of its approach, is evidence of such a lack of care for plaintiff’s safety as to preclude a recovery.

It is, we think, apparent that the duties of plaintiff were analogous to those of flagmen stationed at railroad crossings, and that the decisions of our courts in such cases are, by like analogy, controlling authority. It has been held that a flagman stationed at a crossing to look out for trains and give warning of their approach, if run over by a train, cannot- recover. 2nd Beach on Contributory Negligence, sec. 190; Clark v. B. & A. R. R., 128 Mass. 4. The Supreme Court of Alabama in L. & N. R. R. v. Crawford, 8 So. Rep. 243, after stating the duty required of travellers, say: “By how much stronger reason should it be exacted of a watchman whose special office requires him to watch and give warning to others of approaching dangers.” In Clark v. B. & A. B. B., supra, the court in ruling in the case of a flagman who was run down by cars detached from an engine, which he did not see approaching, made these observations: “He simply failed to see what it was his duty to see, and failed to give the notice he was there to give.” So with plaintiff; he failed to see the car which he was there to see, and which, had he seen, its further movements after stopping on the crossing were within his control. In C. R. I. & P. Ry. v. Clough, 33 Ill. App. 129, this court said, in an opinion voiced by the late Judge Gary: “That the flagman well knew the train was coming may well be presumed. No direct statement that he knew the fact which it was his duty to know was necessary to justify the finding that he did know it.” A person employed in surroundings of the character which confronted plaintiff at his post of duty is presumed to understand the nature and dangers of his employment when he accepts it by entering upon the discharge of its duties, and to assume all the ordinary hazards of the service. C. R. I. & P. Ry. v. Clark, 108 Illl 113.

Plaintiff not only failed to sustain his charge of negligence, but had he done so, would not have been entitled to recover. His own evidence proves that he was guilty of such contributory negligence as inhibits a recovery. Furthermore, the accident was one of the risks of his employment, and the verdict is manifestly contrary to the probative force of the evidence. We do not regard it as essential to our decision to refer to other points argued, although we fail to discover any infirmity in the instructions complained about for the reasons urged.

Being of the opinion, from the evidence in the record, that the plaintiff is not entitled to recover on the case made by his declaration, the judgment of the Circuit Court is reversed, with a finding of fact.

Reversed, with finding of fact.

Mr. Justice Brown dissenting.


author: Mr. Presiding Justice

text:
    Thomas H. Wickes, Jr., Appellant, v. Hugh P. Walden et al., Executors, Appellees.
    Gen. No. 14,538.
    1. Evidence—when impeachment improper. A party cannot impeach a witness whom he has called.
    2. Witnesses—when incompetent 6y virtue of marital relation. The testimony of divorced wives of a party as to matters occurring during the marital relation, is incompetent.
    3. Appeals and errors—presumptions in favor of decree. It will be assumed that the chancellor’s decision was founded on evidence lawfully admissible and the Appellate Court in weighing such evidence will take into consideration, in arriving at its judgment, only such evidence as it regards as admissible.
    4. Amendments and jeoeails—when denial of leave after announcement of decision not error. The right to permit amendments at any time rests within the sound discretion of the court; it is only when it is made clearly to appear that such discretion has been abused that the court of review will interpose its judgment contrary to that of the trial judge.
    Bill in equity. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed June 28, 1909.
    Statement by the Court. This is an appeal from a decree of the Superior Court dismissing appellant’s bill for want of equity after a hearing upon the merits.
    The bill was filed in the lifetime of appellees’ testator, the father of appellant, September 25, 1903. The son was complainant and the father defendant, and so the cause remained as to parties until the death of the father, whose executors, the appellees, were subsequently substituted as defendants. The bill charged substantially that on or before May 1, 1897, appellant was the owner and possessed of twenty shares of the capital stock of the Pacific Steam Laundry Company of St. Louis, a Missouri corporation, and that they were of the par value of $100 each, and together constituted one-fifth of the entire capital stock of the company; that about May 1, 1897, appellant requested his father to make him a loan of $.1,200, which he agreed to do on the assignment of the twenty shares of stock as security for its repayment, and of a further sum of $1,800, the amount of a loan previously made to appellant by his father. This arrangement was consummated, and until payment of the two loans it was agreed that the father should collect and receive all dividends and profits on the stock and credit the amounts so received upon the indebtedness until the $3,000 was paid; that upon the happening of the latter event, appellant’s father should re-assign and deliver the 20 shares of stock to him; that appellant’s father collected dividends upon the stock in excess of the amount of the two loans, with all interest thereon; that while appellant is unable to state how much his father did receive, he applied to him for a statement showing the amounts collected, which was refused; that about May 1, 1903, he demanded of his father a return of the stock, which was likewise refused; charges that his father collected from dividends and profits on the stock several thousand dollars in excess of the amount of the two loans, with interest, and that he, appellant, is entitled to such excess; that the stock is worth much more than its face value, and that appellant is entitled to its return; prays that his father may be decreed to return the stock, and if he shall have sold it, that he then account for its value and for all dividends received, and for general relief.
    Appellees’ testator answered the bill, neither admitting nor denying that his son owned the stock, but calling for strict proof of that alleged fact. The answer then proceeds categorically to deny every other material averment of the bill; denies that appellant is entitled to an accounting, and prays the same benefit of the answer as if he had pleaded or demurred to the bill.
    Appellant filed a replication to his father’s answer and the cause was subsequently referred to a master to take the proofs. March 24, 1906, on suggestion of the death of the defendant Wickes, the appellees were by order duly entered substituted as defendants in the cause.
    Considerable testimony was taken before the former master as special commissioner, prior to the death of appellees’ testator, the latter being called and examined as a witness by appellant. In his examination as appellant’s witness, the transactions covered by the bill were gone into in detail, and the contentions of appellant refuted. The two divorced wives of appellant’s father, Mrs. Clarisa Spicer and Mrs. Edna Parker, gave testimony on behalf of appellant as to matters occurring during the existence of the conjugal relationship. Appellees’ motion to exclude their testimony was allowed. After the decision of the chancellor, appellant asked leave to file an amended bill, which was denied. A decree was entered dismissing the bill for want of equity, as recommended in the special commissioner’s report. The decree recites all the material facts sustained by the proofs, which in its ultimate conclusion is to the effect that while loans had been made to appellant by his father, a final settlement was had between them, and that the stock finally passed to the elder Wickes by tona fide purchase from appellant. The burden of appellant’s contentions, under his numerous assignments of error, are that the decree is contrary to the probative force of the evidence, and that the chancellor, erred in denying appellant’s motion to file an amended bill.
    W. P. Black and Mason & Mason, for appellant.
    F. B. Johnstone, for appellees.
   Mr. Presiding Justice

Assuming, for the purpose of this decision, that the testimony of appellant was admissible, still he failed to sustain the material averments of his bill by that quantum of proof which the law demands to entitle him to prevail. He sought to set aside the transactions with his father in relation to the stock, on the theory that his father acquired title to the stock for certain loans of money for which the stock was surrendered as collateral security, when, on the contrary, the clear weight of the evidence demonstrates that appellant made, in two separate transactions, a direct sale of the stock to his father. We have examined with care all the evidence found in the record, which we do not deem necessary or expedient to here recite more than briefly and therefrom we are impelled to the conclusion, from its probative force and weight, that appellant’s claim is disproved, and the account of the transactions given by the father, as the witness of appellant, sustains the latter’s version of such transactions. The material parts of the testimony of the father is corroborated and sustained by written documents which passed between the parties, and they stand as a complete refutation of appellant’s claim. In no part of appellant’s proof do these mute but incontestable witnesses sustain his contentions.

Appellant saw fit to make his father his own witness, and his testimony he cannot now impeach. By calling him as his witness he vouched for the verity of his father’s testimony, and, furthermore, we make free to say that there is nothing in this record justifying us in doubting its verity, or which tends to cast suspicion upon its reliability. The facts demonstrated by the proofs are, that the stock in question, which was not twenty shares of the par value of $100 each, as averred in appellant’s bill, but forty shares of the par value of $50 each, was originally acquired by appellant through his father, without the payment of any money. These forty shares were evidenced by two certificates of twenty shares each, which were delivered to appellant in June, 1895, from which time, until their sale to the father, they stood in the name of appellant upon the books of the Pacific Laundry Company. On an accounting in April, 1898, between appellant and his father, the former was found to be indebted to the latter in the sum of $743.33, for which appellant gave his note and deposited both of the stock certificates with his father as collateral security for its payment. In the succeeding month appellant’s father returned to him one of the certificates, and this certificate he, in July, 1898, transferred to John A. Devore as collateral security for a money loan. On July 19, 1898, appellant sold to his father for $1,500 the twenty shares of stock which the father had returned to him, which he paid by three checks, two aggregating $1,255 to appellant’s own order, and one to the order of John A. Devore for $245, to take up the loan for which Devore held a certificate for twenty shares as collateral security. The remaining certificate in the hands of appellant’s father, appellant sold to his father October 5, 1898, for another $1,500, which was paid by cancel-ling the note of appellant for $743.33, charging him with $130 advanced him aside from the $743.33, and by giving a check to appellant’s order for $626.67, which three items total $1,500. Appellant failed to question these transactions for nearly five years, nor did he allege or testify to any fact in excuse of laches imputable to him by reason of such long continued delay. There is nothing in this record from which duress or fraud on the part of Wickes, Sr., in his dealings with his son, the appellant, can be inferred, nor are we warranted in assuming that the consideration paid for the stock was inadequate, when it is borne in mind that the Laundry Company was dependent upon the patronage of a corporation in which Wickes, Sr., was the controlling factor, for all the work it did, and by. which its prosperity was made possible, and which patronage might at any time be withdrawn, either at the will of Wickes, Sr., his death, or his ceasing to be connected with the corporation which was the source of the Laundry Company’s successful activities. Neither was appellant uninformed as to the intrinsic value of the stock when he sold it, and the record is silent as to any artifice or deception practiced by appellant’s father, or any one in his behalf, to induce appellant to part with his stock at the price which he sold it to his father. At the time of the sale, appellant was of full age and under no legal disability and no fiduciary relationship existed between appellant and his father at the time appellant sold his father the forty shares of laundry stock. We are in accord with the 20th finding of the decree, viz: “Complainant’s evidence is contradicted in every essential particular by the documentary evidence in the case and by the testimony of Wickes, Sr., while the testimony of Wickes, Sr., is corroborated in every essential particular by such documentary evidence and the testimony of Devore and Clements.”

The testimony of the divorced wives of Wickes, Sr., found in this record, as to matters occurring during the marital relationship, was, by our statute, section 5, chapter 51, E. S., clearly inadmissible. We think the right to object was in apt time, in view of the stipulation of the parties. It will be assumed, however, that the chancellor’s decision was founded on evidence legally admissible, and this court, in weighing such evidence, will take into consideration, in arriving at its judgment, only such evidence as it regards as admissible.

The chancellor did not err in refusing to permit appellant to file an amended bill after announcing its decision on the merits of the cause made by the pleadings and the proofs. No motion was made until after the chancellor had announced his conclusions, and no amended bill was proffered until the day the decree appealed from was entered. The right to permit amendments at any time rests in the sound discretion of the court. It is only when it is made clearly to appear that such discretion has been abused that a court of review will interpose its judgment contrary to that of the trial judge. Sawyer v. Campbell, 130 Ill. 186; Lumber Co. v. Daugherty, 125 Ill. App. 258.

We are of the opinion that the learned chancellor of the Superior Court exercised the discretion reposed in courts wisely, in refusing to grant the motion of appellant to file the amendment proffered, as it came too late. As said in Hoyt v. Tuxbury, 70 Ill. 331, “The objection that the court refused to allow certain amendments to be made after the hearing and final decision of the case in the court below, cannot be assigned for error. Whether the amendment should be made or not, rested purely in the sound discretion of the court.”

The record being without reversible error, the decree of the Superior Court is affirmed.

Affirmed.