text:
    Falcon Engineering Company, Appellee, v. W. M. Wright, Appellant
    Gen. No. 17,018.
    1. Dismissal and nonsuit—when order correcting judgment in nonsuit is not tar to action. Where an order reciting that a plaintiff elects to take a nonsuit enters a judgment which seems to determine the merits of the case in favor of the defendant and is corrected by an order to show no such determination, the latter order is not a bar to a subsequent action between the same parties.
    2. Automobiles—repairs. The owner of an automobile, being sued for repairs, claimed the company was to make repairs for three years. He also claimed that a chauffeur, whose negligence caused repairs to be made and who was furnished by the company at the expense of the owner, was an employe of the company. Held, a verdict for the company would not be disturbed as against the manifest weight of the evidence.
    3. Contracts—when letter containing self-serving declarations is admissible. Where a letter addressed by the president of a company, suing for repairs made to an automobile, to his stenographer is shown to the owner, and the president and stenographer do not agree as to its contents but both testify that it was discussed between themselves, it is not reversible error to admit the letter to show the authority of the stenographer to make a collection, even though it contains a self-serving statement as to how much the owner owed.

      4. Interest—when error for judge to fix date of computation. Where a verdict is returned assessing damages for a certain amount and interest at five per cent., the court has no authority to arbitrarily fix the date at which interest should be computed.
    5. Interest—when allowance is debatable. Whether on a verdict in favor of a company suing to recover for repairs made to an automobile interest should have been allowed is a debatable question.
    6. Appeal and error—when judgment in excess of verdict is cured. The entering by the court of a judgment in excess of the amount fixed by a verdict is an error that may be cured by a remittitur and is not ground for reversal.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torbison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed on remittitur.

    Opinion filed July 9, 1912.
    Rehearing denied July 23, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Samuel B. King, for appellant.
    Otto G. Ryden, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the Falcon Engineering Company, the appellee, against W. M. Wright, the appellant, for the recovery of money claimed to be due for work performed and material furnished in the repairing of an automobile and for new parts and supplies furnished for the same during the latter part of the year 1908 and the month of January, 1909. A trial was had before the court and a jury, and the jury rendered a verdict as follows:

“We, the jury, find the issues for the plaintiff, and assess the plaintiff’s damages at the sum of Fourteen Hundred and Seventeen Dollars and Eighty Cents, and interest at Five (5) per cent.”

The court overruled a motion for a new trial, computed the interest on the amount of the verdict from the date the last statement was rendered by the appellee to appellant, and added the same, $86.58, and thereupon entered judgment in the sum of $1,504.38.

It is first insisted by the appellant that the judgment should be reversed because there had been a previous trial of the case and a judgment rendered in favor of the appellant. It seems that on December 30, 1909, after a partial trial of the case, the plaintiff (appellee) elected to take a nonsuit, the clerk entering the judgment incorrectly. On June 20th following, by order of court, the record was changed. This order has been the subject of a previous appeal by the appellant in this proceeding, and has been held to have been properly entered, in an opinion filed this day in this court in case known as No. 16978. The order referred to is not a bar to the suit now before us.

It is next insisted that the verdict is against the manifest weight of the evidence. It is urged in this regard that the appellant bought the automobile from the appellee, with a contract on the part of the appellee to keep the same in repair for a period of three years; that a large part of the account upon which the verdict was rendered in this case was for repairs which should have been made by the appellee in pursuance of this contract. The record shows that the appellant did purchase the car from the appellee, paying therefor the sum of $2,500. There is a dispute between the witnesses as to whether or not appellee agreed for this amount to keep the car in repair for three years as stated. We have carefully considered the evidence in the case, and are unable to say that it preponderates in favor of the appellant in this matter. After the car was purchased from appellee by the appellant, a man was furnished by the former to the latter to run the car, but at the expense of appellant. It is charged that a large portion of the repairs on the car became necessary because of an accident caused by the negligence of this person, Berglund, in the operation of the car, and the appellant insists that at the time he was so operating the car he was an employe of the appellee. The jury found to the contrary, however. We have carefully considered the evidence in this regard also, and are unable to say that the conclusion reached by the jury was erroneous.

Complaint is made that the court erred in admitting in evidence what purported to be the contents of a letter addressed by John M. Larson, the president of appellee, to his stenographer. The stenographer testified that she showed the letter to the appellant, and in his testimony he admitted that a letter was shown him. As to the contents of the letter, however, the stenographer and appellant do not agree, but that a letter was a matter of discussion between them is testified to by both. The letter was admitted, as announced by the court, for the purpose of showing the authority of the stenographer to make the collection from the appellant. While a portion of it might be said to be of a self-serving character, we do not think that the action of the court in admitting it should cause a reversal of the judgment. In the letter testified by the stenographer as having been received by her, Larson was said to have stated that the appellant owed appellee considerably more than $225, and it is this portion of the letter to which appellant most strenuously objects. While this statement in the letter did not prove or tend to prove that an indebtedness existed between the parties at the time it was written, the letter, as heretofore stated, was not introduced for that purpose.

Whether or not interest should have been allowed is, in our opinion, a debatable question. (Dady v. Condit, 209 Ill. 488.) In any event, we do not think the court was authorized in arbitrarily fixing the date at which interest should be computed. The verdict is unlike that in the case of Meyer v. Johnson, 122 Ill. App. 87, where the jury by its verdict fixed the date. It is urged that the action of the court in entering the judgment in excess of the amount fixed by the jury is sufficient ground for reversal. We think, however, that the error may be cured by the entry of a remittitur.

We find no error in the record with respect to the admission or rejection of testimony, or in the oral charge of the court to the jury, which, in our opinion, should cause a reversal of the ease.

The order of the court will be that if the appellee enters in this court within ten days a remittitur of $86.58 the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded. The costs of this court will be taxed to the appellee.

Judgment affirmed on remittitur; otherwise reversed. Remittitur filed and judgment affirmed July 9,1912.

Mr. Josticb Barnes took no part in the consideration of this case.


source: Caselaw Access Project

author: Mr. Presiding Justice Clark

license: Public Domain

text:
    Annie Gilmore, Appellee, v. The Modern Protective Association, Appellant.
    Gen. No. 17,037.
    1. B’ratebnal benefit societies—subordinate lodge is agent of supreme lodge. .A subordinate lodge or council of a benefit society is the agent of the supreme lodge or council.
    2. Fraternal benefit societies—when fact member was engaged in the sale of liquor waived. The fact that a member of a fraternal benefit society was engaged in the sale of liquor as a beverage is waived by the society where the deputy organizer, with full knowledge of the facts, stated in the application that deceased was a “salesman,” and where dues were accepted by the society with knowledge of the facts and no offer to return them was made, and where the by-law excluding those engaged in the manufacture or sale of liquor was not a part of the organic law of the society.
    Appeal from the Municipal Court of Chicago; the Hon. J. N. Himbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.
    Clyde O. Garmire and James N. Tilton, for appellant.
    Darrow, Masters & Bailey, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case a recovery was had against the appellant and in favor of the appellee upon a benefit certificate issued to Thomas B. Gilmore, the husband of appellee, in his lifetime. The declaration was in the usual form in this class of cases. A special plea was filed by the appellant setting out that the insured, Thomas B. Gilmore, was during his lifetime a saloon keeper and engaged in the sale of spirituous or malt liquors as a beverage. The plea further set up section 115 of the by-laws of appellant’s organization, which reads as follows:

“No certificate shall he issued in Class ‘A’ or Class ‘C’ to any member engaged in the manufacture or sale of spirits or liquors as a beverage.”

To this plea a replication was filed, to the effect that the insured was accepted as a member of the defendant organization with full knowledge of the circumstances surrounding the business in which he was engaged; that it accepted dues and assessments from him from that time up to the time of his death, with full knowledge of all the circumstances; that the insured was not engaged in the saloon business for a short period of time prior to his death; that after he had severed his connection with the business the appellant continued to accept assessments and premiums from the insured, and at no time declared the certificate forfeited nor took any steps to forfeit the same; that appellant at no time tendered to the deceased' or to any person or persons on his behalf, or to the appellee any of the dues or assessments theretofore paid; that the appellant after the death of the insured requested from the appellee proofs of the death of the insured, although well knowing all the facts set out in the special plea, and that it considered the policy of the insured in full force and effect, and at no time made any effort to forfeit the same, but accepted the proofs of loss as provided by its by-laws and in accordance with the terms of the insurance policy or certificate.

The evidence shows that the insured, Thomas B. Gilmore, suffered an injury in 1909, and thereafter became afflicted with pneumonia, which resulted in his death on September 17, 1909. The insured was in the saloon business from the date of the issuance of the certificate, namely, June 11, 1908, until a short time before his death. He disposed of his saloon on August 26, 1909. The insured was solicited to become a member of the society by an organizing deputy, who took the application of the insured in the saloon, where Gilmore was serving patrons. Quinlan, the deputy, was himself served with beer by Gilmore, but notwithstanding this fact wrote in the application as the occupation of Gilmore the word “salesman.” The medical examiner for appellant went to the saloon of Gilmore at the instance of appellant and there made an examination of Gilmore. A collector for appellant called at the saloon of Gilmore monthly and collected dues for the society, giving receipts therefor, which receipts were placed in evidence. On September 9, 1909, a few days before the death of Gilmore, appellee went to the office of the superintendent of the appellant and paid the dues for that month upon the certificate. After the death of Gilmore blank proofs of loss were furnished by appellant to Mrs. Gilmore, and the same were filled out and thereafter signed by her. In these proofs of -loss it was stated that Gilmore was a saloon keeper; that he died of acute pneumonia, a secondary cause being a fracture of the thigh, sustained in a train disaster.

In addition to the pleas heretofore referred to, a plea was filed by the appellant charging that the insured had obtained the certificate of membership by means of fraud, misrepresentation and false statements, but no evidence was adduced at the hearing to sustain this plea.

The law in this State is well settled that a subordinate lodge or council of a benefit society is the agent of the supreme lodge or council, and if the subordinate lodge, with full knowledge of the falsity of a statement in a member’s application that he was not at the time of signing the application in the business of selling liquor, continues to receive dues from him and treats the certificate as in full force up to his death, the right to forfeit the certificate for the falsity of such statement is waived. (Coverdale v. Boyal Arcanum, 193 Ill. 91, and cases referred to therein.)

The case before us is clearly distinguishable from that of Steele v.. Fraternal Tribunes, 215 Ill. 190. In the case last referred to it appeared that the society was organized in this State; that its by-laws and certificate of organisation prohibited the taking in of a member over 51 years of age. The jury in the trial court found that the deceased in his application intentionally misrepresented his age, and that no officer of the supreme tribunal knew that the deceased was more than 51 years of age when his certificate was issued. The court held that£ £ a contract of a corporation which is ultra vires in the proper sense of the term,— that is to say, outside the object of its creation, as defined by the laws of its organization, and therefore beyond the powers conferred upon it by the legislature, —is not only voidable, but wholly void and of no legal effect.”

In the case now under consideration the appellant is shown to be a corporation of Pennsylvania. The bylaw to which reference has been made was not a part of the organic law of the association. The doctrine announced in Coverdale v. Boyal Arcanum, supra, has never been departed from, and is controlling upon us. It further appears that the appellant never offered to return the assessments and dues which were paid by Gilmore or on his behalf. It has frequently been held that such conduct indicates such a ratification and confirmation of the certificate or contract as to estop the association from asserting the defense relied upon in cases like this wherein the contract is not violative of the organic law of the association.

We find no error in the admission or rejection of testimony, or in the charge of the court, which should cause a reversal of the judgment. For the reasons stated the judgment will be affirmed.

Affirmed.


text:
    Thomas M. Hunter, Bailiff, v. John H. Suderwski et al. On Appeal of John H. Suderwski, Appellant, v. Franz Koch et al., Appellees.
    Gen. No. 17,060.
    1. Chancery—maxims. The maxim that persons seeking relief in equity “must do so with clean hands” does not apply where the parties are brought in on interpleader and on dismissal of the complainant and decree for one of the parties the other appeals.
    2. Mortgages—ownership of certificate of sale on foreclosure. Where real estate dealers paid the cost of foreclosure proceedings and the certificate of sale was in the possession of their lawyer or of themselves practically all of the time and only in the possession of their agent for a few minutes, and such agent gave them an assignment of his title to any certificates standing in his name, such facts tend to show that the dealers owned the certificate and that it was taken in the name of the agent for convenience, though one of the dealers testified falsely in the foreclosure proceedings that the agent owned the note.
    Appeal from the Superior Court of Cook county; the Hon. Geokue A. Dtjptjt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.
    N. L. Piotrowski and Cyrus J. Wood, for appellant.
    Adler & Lederer, for appellees; Francis Adams, Jr., of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

A bill of interpleader was filed by Thomas M. Hunter, Bailiff of the Municipal Court of Chicago, against the appellant, Suderwski, and the appellees, who were copartners doing business as Koch & Company. The record shows that one William L. Martin had obtained a judgment against Emilia Eastman and Frederick Eastman, who were two of the defendants in a foreclosure suit in which a decree of sale had been entered and a sale had thereunder, and desired to redeem the property from the sale in order that an execution issued to him might be levied upon it. In the foreclosure suit there had been issued to Suderwski a certificate of sale. The amount necessary to effect the redemption, $1,028.77, was placed in the bailiff’s hands by Martin. Thereupon both the appellant, Suderwski, and the appellees, Koch et ah, laid claim to the same, the contention of the appellees being that while the certificate was made out to Suderwski, he was acting as trustee for them and had assigned the certificate to them.

In the case before us a decree was entered finding that the bill of interpleader was properly filed; ordering, adjudging and decreeing that the complainant be dismissed from the case upon payment to the clerk of the court of the sum of $1,028.77. The decree further finds that the money to be paid by the complainant to the clerk of the court was obtained by him in his official capacity as bailiff of the Municipal Court of Chicago; upon a redemption made from a sale of certain real estate situate in the city of Chicago, made by virtue of a decree entered in a cause lately pending in the Circuit Court of Cook county, wherein Suderwski and others were the complainants, and Catharina Wetzel, as administratrix, etc., and others, were defendants; that Albert W. Brickwood, then a master in chancery of said court, in pursuance of a decree entered in said cause, executed and delivered to Suderwski his certificate of sale of the said real estate in accordance with the statute; that the interest of Suderwski in the said certificate of sale was wholly in trust for the use and benefit of the appellees, as co-partners, doing business as Koch & Co.; that the said redemption was made within the time provided by statute; and that the owner of the certificate of sale was by law entitled to said redemption money; that Suderwski, in consideration of their beneficial interest therein, did assign the certificate to the appellees, and that appellees are the lawful owners of the certificate of sale and entitled to the redemption money. By the decree the clerk is ordered to pay to the complainant $10 as costs taxed in the cause, and to pay the balance of the fund to the appellees, Koch et a!., as such copartners.

From this decree Suderwski has perfected an appeal. The decision of this case rests upon the determination of the question of fact as to the ownership of the certificate of redemption referred to. Koch & Co. were real estate dealers and brokers in the city of Chicago, and the appellant worked with them or for them, sharing the profits in such trans-

actions as he was instrumental in bringing to the'firm. At different times title to property was placed in his name, and he would later convey by deed to such per- ' sons as might be designated by Koch & Co. It appears that in December of each year a statement of account was presented by Suderwski and settlements agreed upon, which resulted, as claimed by the appellees, in the books of the appellees showing the balance, if any, due to Suderwski at the end of the year.

In the case now under consideration Suderwski testified: first, that he got the note from Brautigam, one of the appellees, in January, 1908. Later he testified that it was in January, 1907. In the foreclosure suit he testified that he received the note about three years prior to the taking of his testimony, which we infer was in the early part of 1908. The note referred to is the principal promissory note upon which the foreclosure proceedings were based.

Brautigam, one of the appellees, testified with regard to the note that Koch & Co. had the note in January, 1907, for collection; that they collected $300 on it in January of that year, leaving $600 balance. The note and trust deed or mortgage were placed in the hands of an attorney for foreclosure in January, 1908, and the master’s certificate of sale was issued March 20, 1908. Brautigam testified that he told Suderwski that the- certificate must be assigned, and that the latter told him to sign the latter’s name to such assignment, which he did. Afterwards, as testified to by Brautigam, an assignment was made by Suderwski, which was not dated, but is said by Brautigam to have been executed about April 1, 1908. This was in the following form:

“For value received I hereby transfer, sell and assign to Koch & Company all contracts for the purchase of real estate and notes secured by second mortgages in my name, and all my l'ght, title and interest in any Master’s certificate which may be in my name.

“John H. Suderwski.”

It appears that the only master’s certificate which stood in Suderwski’s name to which Koch & Co. at this time could claim an interest was the one now in question. At the hearing before the Master in the foreclosure proceeding Suderwski testified that he owned the principal note. At the same hearing Frank Koch, one of the appellees, testified that Suderwski purchased the note from him and got control of the note and mortgage in January, 1907, after the $300 was paid. He further stated that he could not tell the exact date. In answer to a question as to what Suderwski paid for it, or what consideration passed for the transfer of the note and mortgage, Koch said: “He paid the value of the note to me.” It is admitted by counsel for appellees that Koch testified falsely at this time, but it is insisted that Suderwski did likewise.

It is urged by the appellant that the decree should be reversed because the members of Koch & Co. did not come into court with clean hands; that because they claimed in the foreclosure suit that Suderwski owned the note they are now estopped from claiming otherwise; and because the pretended assignment by Suderwski was without consideration and consequently void. Numerous cases are cited upon the well known proposition that persons seeking relief in a court of equity “must do so with clean hands.” In the present case, however, the principle is not applicable. Both the appellant and the appellees were brought into court by the complainant, and now each claims title to the fund brought into court as against the complainant and also as against each other. The court in order to enter the decree must have found that Suderwsld testified falsely before the master in the foreclosure proceeding when he stated he was the owner of the note, unless it should be considered from his testimony that he regarded himself as the legal owner, acting as trustee for Koch & Co. We have carefully examined the copies of the statements shown to have been made by Suderwski at the close of several years, including the year 1907, which purported to show the state of his account with Koch & Co. We do not find in them any statement from which the inference could be drawn that he had purchased the promissory note which was in default, and the trust deed securing the same, from Koch & Co. The fact that a certificate of sale was in the hands of Koch & Co. or their lawyer practically all of the time; the testimony of Suderwski that he never had it in his possession but for a few minutes; the fact that Koch & Co. paid the cost of foreclosure, and the giving of the assignment heretofore set forth, on or about April 1, 1906, all tend to show, in our opinion, that Koch & Co. were the owners of the certificate and that it had been taken in the name of Suderwski, as had the title to other property at other times, for convenience.

We come to this conclusion notwithstanding the false testimony given by Frank Koch in the hearing before the master in the foreclosure proceeding. The learned chancellor who entered the decree in the Superior Court saw and heard the witnesses, and was better able to judge of their truthfulness than are we. We think that a correct conclusion was reached in the matter, and the decree will be affirmed.

Affirmed.


text:
    Josephine Krauss, Appellee, v. J. R. Ballinger et al., Appellants.
    Gen. No. 17,074.
    1. Witnesses—experts. A witness properly qualifies as an expert in the taking of X-ray pictures where she testifies that she is superintendent of the dispensary of a medical school, that part of her work consists in taking X-ray pictures, that she had had one year’s experience, and that she had taken about five hundred pictures.
    2. Evidence—X-ray pictures. A prima facie showing sufficient to justify the admission of an X-ray picture in evidence is made when an expert testifies that she made the exposure, developed the negative, and printed the picture therefrom and that the picture is a correct representation of the negative.
    3. Evidence—when admission of X-ray picture not objectionable. On action for alleged negligence in treating a fracture, an X-ray picture thereof is not objectionable on the ground that there is nothing to show that the condition shown by the photograph resulted from the treatment in question, where the plaintiff testifies that she had no other accident or trouble with the arm from the time of the treatment to the time of the taking of the picture.
    4. Evidence—when questions to expert witness assuming that picture in evidence is correct not objectionable. Questions to expert witnesses which assume that an X-ray picture properly in evidence is a correct representation of a fracture occasioned by a fall are not objectionable where there is no question but that the representation is of the fracture in question caused by the fall referred to.
    5. Contributory negligence—when defense of and assumed rish do not apply. Where action is brought for negligence in treating a fracture the defenses of contributory negligence and assumed risk in failing to carry out the instructions of the surgeon do not arise, since liability might exist though the one injured did not in all respects carry out the orders given.
    6. Instructions—directing verdict. An instruction is essentially directory where it states that if the jury believe from the evidence that the plaintiff made out her case as laid in the declaration a finding can be made for the plaintiff.
    7. Instructions—when,, will not reverse though directory. Where action is brought for negligence in treating a fracture and chief reliance is placed on a charge that the bones were not properly set, an instruction which refers to the declaration and is essentially directory will not reverse because contributory negligence is not negatived.
    8. Verdicts—when not excessive. A verdict for $3,000 remitted to $2,250 and judgment therefor is not excessive where, because of negligent treatment of a fracture by physicians, plaintiff’s arm was left in a bad condition which might or might not be relieved by a serious operation.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Thomas G. McElligott and George E. Gorman, for appellants.
    Samuel Friedlander, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case suit was brought by the appellee against the appellants, who are physicians and surgeons, for alleged negligence in their treatment of her for the fracture of an arm. The declaration consists of five counts, the first charging that the appellants were guilty of negligence generally in treating the appellee; the second, that they did not place the bones in the proper position; third, that they did not properly manipulate the wrist and right hand and fingers; fourth, that in setting the bones the appellants did not place the same in proper position; the last, charging the use of an improper splint. To this the appellants filed a plea of the general issue. There was a trial before the court and a jury, and a verdict of $3,000 was returned, upon which a judgment for $2,250 was entered, the appellee having entered a remittitur of $750, as required by the court on the refusal to grant a new trial.

The first point insisted upon as ground for reversal is that the court erred in not instructing the jury to find a verdict of not guilty at the close of the plaintiff’s case; second, that the verdict is against the manifest weight of the evidence.

In our opinion the court did not err in refusing to direct a verdict at the close of the plaintiff’s evidence. The evidence consisted largely of the testimony of medical experts. We have read the same with care, and are unable to say that the verdict of the jury is against the manifest weight of the evidence.

The third and fourth points have to do with what is charged to have been the improper admission of testimony over objection of the defendants, and the refusal to strike the same from the record upon motion made for that purpose. About two years after the treatment was given the arm by the appellants, an X-ray picture or sciagraph was made by Lulu M. Van Auken, who was a witness at the trial in behalf of the appellee. Her testimony was to the effect that she was superintendent of the dispensary connected with the Northwestern University Medical School; that part of her work consisted in taking X-ray pictures; that she had had one year’s experience and had taken 500 or 600 X-ray pictures. She further testified that she exposed the arm of appellee to X-ray, developed the negative and printed the picture from the negative herself; that the picture is a correct representation of the negative. On cross-examination she testified that she was not a physician and that she had no means of knowing that the representation produced on the picture was a correct representation of the hones of the hand. The negative and the picture printed from it were both offered in evidence. It is insisted by appellants that they were improperly received, first, because they had not been properly identified; second, that there was nothing before the court to show that the photograph correctly represented the condition of appellee’s arm; and third, that there was nothing before the court to show that the condition of appellee’s arm as shown by the photograph was the result of treatment administered by appellants. We think the objections not well founded. Appellee testified that she had not had any other accident or trouble with her arm from the time she was treated by the appellants to the time the X-ray picture was taken by Miss Van Auken. Miss Van Auken, we think, qualified herself as an expert in the taking of pictures of this sort, and her evidence made at least a prima facie showing sufficient to justify the court in admitting the picture in evidence. (C. & J. Elec. Ry. Co. v. Spence, 213 Ill. 220; C. C. Ry. Co. v. Smith, 226 Ill. 178.)

A question propounded to two of the surgeons who testified as expert witnesses for the appellee is objected to because it contained the assumption that the picture was a correct representation of the fracture of the radius of the right arm which had been occasioned by a fall sustained by the appellee on April 29, 1908. As the picture was properly in evidence, and as there is no question so far as the record discloses but that the representation was that of a fracture of the radius of the right arm of the appellee, occasioned by the fall referred to, we think that no error was committed by the trial court in overruling the objection.

Error is alleged by the appellants in the action of the court in giving to the jury at the request of appellee what are stated to be improper instructions. The instruction upon which most stress was laid in the argument is as follows: •

“If the jury believe from the evidence that the plaintiff has made out her case, as laid in her declaration, by a preponderance of the evidence, then the jury can find for the plaintiff.”

It is claimed by the appellants, and we agree with the contention, that this is essentially a directory instruction. It refers the jury to the declaration, a proceeding which has often been deprecated by the Supreme Court of this state; but the giving of such an instruction has been countenanced, unless it can be said to be open to the criticism that it does not advise the jury of all the elements which should be taken into consideration by them in arriving at their verdict. Many cases have been cited by appellants wherein judgments have been reversed by the Supreme Court, in cases where contributory negligence on the part of the plaintiff was not negatived by the allegations of the declaration; and others in which the doctrine of assumed risk on the part of the plaintiff was one of the defenses interposed by the defendant.

In the case before us the charge relied upon chiefly by the appellee is that the appellants did not properly set the bones of the arm-—that the parts of the bones were hot set opposite, so that they would knit and in such a manner as to form a proper union.

It is asserted by the appellants that it was essential to the appellee’s right to recover that she show not only negligence of appellants, but also that she was herself free from negligence or fault in carrying out the instructions of the appellants. In our opinion, the questions of contributory negligence and assumed risk do not arise in this case. If the appellants did not set the arm properly, they might be liable even if the appellee did not in every particular carry out their instructions. The appellants might also be liable if their treatment of the arm subsequent to the setting was improper, although the appellee did not in all respects carry out their instructions. We do not think that the giving of the instruction complained of should cause a reversal of the case.

The jury by another instruction were informed that the appellee could not recover if she failed to observe certain rules or a certain line of conduct with regard to the use and position of her hand and arm, as a part of the treatment of the injury in question, provided such directions as were given to her by the surgeons were such as surgeons of ordinary skill would adopt or sanction, and provided her negligence or disobedience directly contributed to the injury. We think this instruction presented the matter to the jury in as favorable a way as the appellants were entitled to have it.

We have carefully considered the objections to other instructions given at the request of appellee, and also objections made to the action of the court in refusing to give certain instructions on behalf of the appellants, and are of the opinion that no error was committed by the court in these respects.

By nine instructions given at the request of appellee, and fourteen given at the request of the appellants, the jury were fully advised as to the rules of law which should govern them in reaching their verdict.

The last ground submitted by the appellants as cause for reversal is that the verdict and judgment are excessive and manifestly the result of passion and prejudice. It is argued by the appellants that passion and prejudice are shown because the court required a remittitur of $750. We cannot agree with this contention. The evidence offered on behalf of the appellee would tend to show that the arm was left in a very bad condition, which might or might not be relieved by a serious operation. If this condition is chargeable to the acts of the appellants, as the jury found, the amount of the judgment cannot, in our opinion, be regarded as excessive.

The judgment must be affirmed.

Affirmed.


text:
    Caroline R. Hepp, Appellee, v. McAvoy Brewing Company, Appellant.
    Gen. No. 17,098.
    1. Negligence—injury to pedestrian. A verdict in favor of a woman injured by being run upon by a wagon of the defendant while she was crossing a street at the rear of a car from which she had alighted is not against the manifest weight of the evidence where it appears from uncontradicted evidence that the driver, knowing that persons were alighting, drove bis team, on the opposite track at, a rate of speed estimated at from five to fifteen miles an hour, and that the plaintiff on alighting looked about her but did not see the team approaching.
    2. Negligence—duty of drivers towards pedestrians. An instruction that it is the duty of drivers on approaching a place in the street where the circumstances are such that a reasonably careful and prudent driver ought reasonably to anticipate the appearance of persons on the street in .front of him, to exercise such a degree of care and watchfulness as is proportionate to the danger that ought to be anticipated by a reasonably careful and prudent driver, and .that this duty is required independently of any city ordinance as to speed, is proper.
    3. Instruction—assuming facts. An instruction assuming a fact that is contradicted by the evidence is properly refused.

      4. Negligence—injury to pedestrian. An instruction to the effect that defendant would not he liable for injuries sustained by a person, run down by its wagon, if the team was being driven at an ordinary trot, and the defendant was not negligent in other respects, is properly refused.
    Appeal from the Superior Court of Cook county; the Hon Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.
    Lackner, Butz & Miller, for appellant.
    Pringle, Northup & Terwilliger, for appellee; Edwin Terwilliger, Jr., of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The appellee, hereinafter called the plaintiff, recovered a judgment against the appellant, hereinafter called the defendant, in the sum of $950, in an action for damages on account of personal injuries.

From the record it would appear that the plaintiff alighted from a southbound Indiana avenue street car, in the city of Chicago, a short distance south of the intersection of Forty-eighth street; that following two other women she crossed over at the rear of the car to the east or northbound track, and walked north on the latter track until she was run upon by a wagon of the defendant, sustaining the injury on account of which recovery was had. The case was tried before a jury, which rendered a verdict for the amount of the judgment.

As ground for reversal it is urged by the appellant that the court should have directed a verdict; second, that the verdict was against the manifest weight of the evidence; third, that the court erred in giving a certain instruction as requested by the plaintiff, and in refusing to give three that were tendered by the defendant.

No motion was made by the defendant at the close of the plaintiff’s evidence that the court direct a verdiet for the defendant. A motion was made at the close of all the evidence that the court direct such a verdict, but the usual practice of handing to the court a form of instruction was not observed. Without reference, however, to this technical objection made by the appellee here,- we think that the motion was properly denied.

It appears uncontradicted in the record that the driver of the wagon knew that persons were alighting from the car which he was approaching; that the team of mules, with the wagon more or less heavily loaded, was upon the street car track, and that it was going at a rate of speed variously estimated at from five to fifteen miles an hour. The plaintiff testified, and it is not contradicted in the record, that she looked about her as she alighted from the car, and did not see the team approaching. It is a well known fact that a wagon with its wheels running in the steel tracks of a street railroad, even if heavily loaded, can be drawn at a faster rate of speed than in the ordinary highway or street. We think, therefore, that both questions, namely, as to the negligence of the defendant, if any, and the contributory negligence of the plaintiff, if any, were proper matters to be determined by the jury under all the circumstances. After a careful perusal of the record we are unable to say that the verdict is against the manifest weight of the evidence.

Instruction No. 32 offered by the plaintiff informed the jury that reasonable care and caution to avoid injury to pedestrians, which the law imposes upon drivers on the streets, requires that on approaching a place in the street where the circumstances and conditions are such that a reasonably careful and prudent driver ought reasonably to anticipate the appearance of persons on the street in front of him, the driver should exercise such a degree of care and watchfulness as is proportionate to the danger that ought to be anticipated by a reasonably careful and prudent driver; and that this duty is required of a driver independently of the terms of any city ordinance as to speed. We think this instruction was properly given, in connection as it was with many other instructions tendered by the two parties to the suit. It does not direct a verdict, and does not, in our opinion, assume, as contended by the defendant, that the defendant’s driver as he met the street car, the latter being then in motion more than 100 feet south of the south crosswalk of Forty-eighth street, ought to have anticipated the appearance of persons in front of his wagon on the northbound track.

Three instructions tendered by the defendant were refused, and error thereon is predicated. Two of these directed a verdict for the defendant, and each was based upon the assumption that the plaintiff did not look to the south for vehicles approaching on the northbound track, or upon the assumption that she did not pay any heed as to whether or not any vehicle was coming from that direction. As heretofore stated, the plaintiff testified that she looked to the south, and we have been unable to find any evidence in the record tending to indicate that she did not do so. We think, therefore, that the instructions were properly refused. The third instruction was to the effect that the verdict should be not guilty if the jury found from the evidence that just before the accident in question happened the defendant’s wagon was being driven north in the east street car track of Indiana avenue at an ordinary trot, and that plaintiff stepped from behind a southbound street car and into the northbound track in front of the defendant’s team and wagon and so near to it that the driver thereof was unable, by the exercise of ordinary care, to stop his team and wagon before striking the plaintiff, and that the driver exercised ordinary care in stopping the wagon. We think this instruction was properly refused, because knowing, as he did, that the street car was there and passengers had been unloaded, it cannot be said that the driver was guiltless of negligence if he drove his team, at such a rate of speed that he could not have stopped them within a very short distance. The jury, in our opinion, were fully advised by the many instructions tendered and given of the rules by which they should be guided in reaching their verdict.

We find in the record no error which should cause a reversal of the judgment, and the same is therefore affirmed.

Affirmed,


author: Mr. Justice F. A. Smith

text:
    Hester Vischer, Appellant, v. Northwestern Elevated Railroad Company, Appellee.
    Gen. No. 16,983.
    1. Carriers—not Hable on unauthorised signal to start. An elevated railway company is not liable for injuries sustained by a passenger in alighting from a car as a result of signal to start the car or train, given by a passenger or one not an employe of the company, without the knowledge or authority of the conductor.
    2. Trial—when part of statement may be read to jury. Counsel for defendant may read to the jury parts of a written statement made by plaintiff at the time of her injury without offering the whole statement in evidence. If counsel for plaintiff desires to put the whole statement in evidence he can do so.
    3. Appeal and error—necessity of adverse ruling. Alleged error in allowing counsel for defendant to read parts of a written statement made by plaintiff at the time of her injury without offering the whole statement in evidence cannot be reviewed in absence of an offer by plaintiff to put the whole statement in evidence or an adverse ruling upon such offer.
    4. Evidence—when physician may be asked hypothetical question. In a personal injury case physicians may be asked hypothetical questions as to matters of skill and science.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the Octoher term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.
    Rehearing denied and opinion modified July 29, 1912.
    David F. Matchett and Amos W. Marston, for appellant; James P. Harrold, of counsel.
    Sheriff, Dent, Dobyns & Freeman, for appellee; Francis G. Hanchett, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

By this appeal it is sought to reverse a judgment rendered in the Superior Court of Cook county in favor of appellee upon verdict of the jury.

The negligence averred in the declaration is in substance that while the plaintiff was a passenger of appellee on its elevated railroad, the train stopped at Randolph street station in the city of Chicago to allow passengers to alight; appellant being about to alight, the train was started by appellee’s servants without warning to her, whereby she was caused to fall and received injuries.

There have been three trials of the case; the first trial resulted in a verdict of not guilty and a special verdict upon this interrogatory: “Was any servant of defendant guilty of negligence which contributed to causing the accident!” to which the jury answered, “No.” A motion for a new trial was sustained because of erroneous instructions. The second trial ended in a disagreement of the jury. The third trial, now brought by this appeal before us for review, resulted in a verdict of not guilty and a special verdict upon the following interrogatory: “Was any servant of defendant guilty of negligence in any act or omission contributing to the cause of the accident!” to which interrogatory the jury answered, “No.”

It appears from the evidence without dispute that plaintiff and her sister, Mrs. Ophelia Devitt, and the latter’s son, James B. Devitt and wife and daughter, Mrs. Barrett Anderson, and husband, were passengers on a southbound train of the defendant on the evening of December 31, 1905. The train arrived at the Randolph street station about nine o’clock, and there stopped to receive and discharge passengers. The train was made up of three ears, and the party above named was on the second car. Upon leaving the train at the station, Mr. Devitt and wife were the first of the party to walk off at the rear end of the second car, and they were followed by Mr. and Mrs. Anderson, Mrs. Ophelia Devitt and the plaintiff, in the order named. The train started forward about the instant Mrs. Ophelia Devitt was stepping off, and she fell on the platform of the station. Plaintiff was walking behind Mrs. Devitt, the distance varying according to the testimony from immediately behind to several feet. The plaintiff testified she was thrown from the car when it started, while other witnesses testified that she stepped from the car after it was in motion, and after her sister had fallen. Whether she was thrown or deliberately stepped from the car has no bearing upon the question of defendant’s negligence, and gives rise only to the question of plaintiff’s contributory negligence.

The train was composed of three cars operated by a motorman, who occupied a booth on the left side of the front end of the forward car; a conductor, who was stationed on the rear platform of the forward car and the front platform of the second car, and a guard stationed upon the rear platform of the second car and the forward platform of the third car. The starting signals, two bells, always originated with the guard, who passed them to the conductor by pulling a rope which passed forward through the upper part of the car, not beyond reach of passengers, to the front end where it was attached to a bell, which was rung when the rope was pulled. The conductor in turn, when his gates and platforms were ready for starting, would pass the signal by similar means of rope and bell to the motorman.

The evidence tends to show that on the occasion in question the train had stood at the station such a length of time before the accident that the conductor between the first and second cars had opened his gates, let his passengers off and on, and again closed the gates, and was ready to go ahead. While waiting he received the regular go-ahead signal, two bells, rung from the rear, and immediately passed it up to the motorman, who started the train; a few seconds later when the train had moved a few feet the conductor received a stop signal, one bell, from the rear, and immediately passed it up to the motorman, who at once stopped the train. The train had moved a distance variously stated by plaintiff’s witnesses from five to thirty feet. In the meantime the plaintiff had fallen to the platform.

The evidence shows that the guard on the rear of the second car did not give the go-ahead signal. He did give the subsequent stop signal. This is shown by the testimony of James B. Devitt, Alfred C. Borden, H. C. Friedenberg and George W. Murphy.

From this testimony as to giving of signals we are of the opinion that the train was not started while the plaintiff was alighting therefrom in pursuance of any signal given by the guard between the second and third coaches of the train, and that the jury were justified in both their special and general verdict in finding that none of defendant’s servants were guilty of negligence in any act or omission contributing to the cause of the accident, and in finding that the defendant was not guilty.

In our opinion the law is well settled that a railway company is not liable for injuries sustained by a passenger in alighting from a car as a result of a signal to start the car or train, given by a passenger or one not an employe of the defendant without the knowledge or authority of the conductor. Krone v. S. W. Mo. Elec. Ry. Co., 97 Mo. App. 609; Cary v. Los Angeles Ry. Co., 157 Cal. 599; Fanshaw v. Norfolk & P. T. R. Co., 108 Va. 300; Cohen v. Phila. R. T. Co., 228 Pa. State 243; O’Neil v. Lynn & Boston B. B. Co., 180 Mass. 576; Moore v. Woonsocket St. Ry. Co., 27 R. I. 450.

This general rule may be said to be qualified in this state in North Chicago St. R. R. Co. v. Cook, 145 Ill. 551, to the extent that “if the conductor or agents of the railway company in charge, by the exercise of due care and diligence, could have prevented the moving of the car, and thereby avoided the injury,” the railway company would not be exempt from liability. In that case the evidence showed that the conductor was on the front platform of the car when the unauthorized signal to start was given and the jury were warranted in finding that the conductor knew that the signal was given by an unauthorized person, and that in the exercise of the highest degree of care, skill and diligence for the safety of the passenger consistent with the mode of conveyance employed, he could know, and should have known, whether any person was attempting to get on or off his car before permitting the same to start in such a manner as would be likely to injure a person so getting on or off the same. In this case no such evidence was produced upon which the jury could base a finding of neglect of such care on the part of the conductor or guard.

Many of the instructions tendered by the defendant and given by the court are criticized on various grounds. We have examined the instructions with care, and criticisms made upon the instructions, and the arguments advanced in-the brief in support of the criticisms, and are of the opinion that no material error was committed by the court in giving the instructions.

It is contended that the court improperly allowed counsel for defendant to read to the jury parts of a written statement which it is claimed was made by the plaintiff about the time of the injury, without offering the whole statement in evidence or identifying it. If counsel for plaintiff had desired under such circumstances to put the whole statement in evidence he could doubtless have done so. We fail to find in the record that it was attempted to put the whole statement in evidence, or any adverse ruling by the court upon such offer.

It is argued that the court erred in its ruling on certain hypothetical questions propounded by counsel for the defendant to the physicians examined in the case. In our opinion the questions propounded with the answers elicited related to matters of skill and science in regard to which it was proper to inform the jury. The case of I. C. R. R. Co. v. Smith, 208 Ill. 608 is clearly distinguishable from the case at bar, and has no application to it. In that case, the questions asked for opinions concerning matters of common observation and involving no skill and science.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.


text:
    Harold S. Osborne, Administrator, Appellant, v. Fred W. Morgan et al., Appellees.
    Gen. No. 17,016.
    1. Mortgages—inferences in Mil not admitted hy demurrer. On a bill by a stockholder to have a corporate deed and bill of sale to a creditor, executed in pursuance of a resolution, declared to be a mortgage, where the bill does not state facts questioning the action of the corporation or the facts stated in the resolution, or set forth any false and fraudulent representations inducing the execution of the instruments, a demurrer does not admit the correctness of. inferences that the instruments were a mortgage.

      Mortgages—necessity of debt. A bill by a stockholder to have a corporate deed and bill of sale to a creditor, executed in pursuance of a resolution stating that the transfer was to pay debts, declared to be a mortgage, that does not aver that the creditor is claiming a debt against the corporation or that the terms and conditions of the resolution have not been carried out, contains no showing of the essential fact of a debt and a liability to pay it.
    3. Mortgages—deed in satisfaction of indebtedness not a mortgage. A deed and bill of sale given in satisfaction of an indebtedness cannot be declared to be a mortgage.
    4. Mortgages—evidence showing deed to be a mortgage. To convert a deed absolute into a mortgage the evidence must be clear, unequivocal and convincing; and the bill should aver facts from which the court can determine that, if they are true, the deed was not absolute, but was a mere security for debt.
    5. Chancery—averments on information. Where the averments of a bill to declare a deed to be a mortgage are made upon the information of the complainant, the sources of such information must be set out.
    6. Mortgages—statute as to absolute deeds as mortgages does not apply to personalty. R. S. c. 95, § 12, as to the constructive mortgages, has no application to personal property.
    7. Mortgage—-when statute as to constructive mortgages does not apply to realty. Where a corporation gave a deed and a bill of sale to a creditor to pay a debt, as set forth in a resolution, representations made to the corporation that the creditor had a use for the property and could sell it show that creditor did not intend the transaction as a mortgage, and R. S. c. 95 § 12, relating to constructive mortgages, does not apply.
    8. Mortgages—necessity of debt. Where a corporation gave a deed and a bill of sale to a creditor to pay a debt, as set forth in a resolution, and there is no showing that the corporation still regarded itself as owing a debt which it must eventually pay or that the. grantee held the property as trustee, except by inferences of the pleader who disclosed no sources of information, a bill to declare the deed and bill of sale to be a mortgage cannot be maintained.
    9. Corporations—right of stockholder to maintain bill to declare a deed a mortgage. In the absence of a corporate intention t) it a deed and bill of sale should be considered as a mortgage and t at the debt secured thereby was to continue, a stockholder filing r bill to declare the instruments to be a mortgage is bound by the . ■ rporate act, and cannot be heard to allege a different effect for i conveyances of the corporation from that given them by the ¡ 'poration itself.

      10. Mortgages—effect of representations to directors prior to execution of alleged constructive mortgage. Where a corporation executes a deed and a bill of sale to a creditor, representations made by the grantee to individual directors prior to a board meeting will not impress upon the instruments the character of corporate mortgages, where that character is negatived by a resolution passed by the stockholders to the effect that the transfers were made to the creditor to pay a debt.
    11. Corporations—condition precedent to action by stockholder. Where the president and superintendent of a corporation have been in control, on a bill by a stockholder to declare corporate transfers to be mortgages an averment that the superintendent has moved away and has no further interest as a stockholder, and that the president is friendly to the defendants, does not furnish a sufficient excuse for failure to request the corporation to act.
    12. Chattel mortgages—laches that defeats bill to redeem. A bill to redeem from a chattel mortgage if maintainable, will not lie after delay of six years and after the parties have changed their positions.
    13. Mortgages—when laches defeats bill to declare a deed a mortgage. Where a stockholder files a bill, asserting a corporate right, to declare a corporate deed and bill of sale to be a mortgage, a delay of six years and the fact that the grantee has disposed of the property will preclude relief.
    14. Mortgages—effect of insufficient allegations of bill. Where a bill by a stockholder to declare corporate transfers to be mortgages and for an accounting sets out an agreement, prior to the transfer, of a creditor and a customer to rehabilitate the affairs of the failing corporation, which was never submitted to the board of directors and was apparently merged into the deed and bill of sale, vague and indefinite statements as to the agreement will preclude an application of the agreement to the alleged equities.
    15. Mortgages—constructive. A bill by a stockholder to declare corporate transfers to be mortgages and for an accounting is insufficient where it shows that the property involved had been mortgaged to a creditor and a receiver appointed, and that a deed and bill of sale were subsequently executed to the creditor to pay his debt, and where the only inference that can be drawn from the bill is that the creditor came into possession through foreclosure sale.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.

      Statement by the Court. This is an appeal from a decree sustaining a demurrer for want of equity to an amended bill, and dismissing the bill. Harold S. Osborne, as administrator de bonis non of the estate of Louise N. Osborne, deceased, filed the bill on behalf of the estate in October, 1905, against Fred W. Morgan, Morgan & Wright, Eubber Groods Manufacturing Company, American Bicycle Company, Charles H. Sieg, Charles H. Sieg Manufacturing Company, Elmer Week, Frank Sayre Osborne and Walter E. Lindsay, defendants. The bill was filed on behalf of the other stockholders of the Charles H. Sieg Manufacturing Company, hereinafter for convenience called the Sieg Company.
    The material allegations of the bill are in substance as follows:
    The Sieg Company is an Illinois corporation with a capital stock of $100,000. Louise N. Osborne, deceased, was in her lifetime the owner of $50,000 par value of stock in the company; the remaining $50,000 of the stock was owned by Charles H. Sieg and Fred W. Morgan. Mr. Morgan also holds $20,000 of Mrs. Osborne’s stock, which was issued to him in order to give him power to vote it and to control the corporation. Mrs. Osborne died December 29, 1902, and the complainant was appointed administrator de bonis non on May 27, 1905.
    The Sieg Company was for many years in the manufacture of bicycles in Kenosha, Wisconsin. The business of the company was large and prosperous up to the fall of 1898. Charles H. Sieg was the president, and Frank Sayre Osborne, the husband of Louise N. Osborne, was secretary and treasurer of the company representing his wife’s interest in the company. The business, however, was actually under the control and direction of Sieg and Elmer Week, who was the mechanical superintendent of the company, and held a small amount of stock therein, but under some arrangement with Sieg and Morgan he is no longer a stockholder.
    Among the necessary materials purchased and used in the business of the Sieg Company were pneumatic tires which were purchased almost exclusively and in large quantities for many years from Morgan & Wright, defendants, an Illinois corporation, of which Fred W. Morgan was president and in virtual control. Morgan & Wright sold these tires to the Sieg Company for $6.00 a pair, and it sold the tires to the smaller dealers at the same price. The Sieg Company sold them for the same price without profit. Prior to October, 1898, the Sieg Company purchased from Morgan & Wright 200,000 pneumatic tires for $6.00 a pair, and became largely indebted to Morgan & Wright therefor.
    The bill avers that the credit of the Sieg Company was.good and that it purchased its material, including pneumatic tires, partly on credit, making payments as returns were made to it on the sales of wheels. In the course of business in July, 1898, the Sieg Company became indebted to Morgan & Wright on promissory notes in the aggregate sum of $40,070.92. It was also indebted to the other creditors, whose claims aggregated about $40,000. On July 6, 1898, Morgan & Wright demanded and obtained from the Sieg Company a real estate mortgage and a chattel mortgage, securing six promissory notes for the indebtedness above mentioned, the two mortgages covering practically all the property of the Sieg Company, except its choses in action and accounts receivable. By this action the smaller creditors of the Sieg Company were disturbed, and immediately one of the creditors commenced an action against the Sieg Company and obtained a receiver in one of the courts of Cook county, Illinois; thereupon Morgan & Wright commenced foreclosure proceedings against the Sieg Company on the mortgages in one of the Wisconsin courts, and obtained a receiver of the company in that proceeding. A controversy arose between Morgan & Wright and the other creditors. Morgan & Wright desired and requested the assistance of the Sieg Company in its controversy with the smaller creditors, and gave assurance to the latter company that it would protect the Sieg Company, see it through its troubles, and see that all of its other creditors were paid, and on this understanding and consideration, the Sieg Company did all in its power to assist Morgan & Wright and put it in possession and control of the company and its property. The bill avers that Frank Sayre Osborne, representing his wife, did what he could and also attempted to learn something of the situation, but that he and all those interested for Mrs. Osborne were kept by the company and its officers in ignorance of everything that was going on except the general fact of the mortgages and suits, and that Morgan & Wright were going to take care of the Sieg Company. The Wisconsin receivers obtained by Morgan & Wright went into possession and control of the Sieg Company’s property and business in the summer of 1898, and continued in such control for some months, defeating the other creditors for the time being.
    The bill avers that in all these transactions Frank Sayre Osborne acted for and represented Louise N. Osborne and Ambrose A. Worsley acted for and represented the defendants, Fred W. Morgan and Morgan & Wright, having authority to so act and represent them. In October, 1898, Worsley and Sieg represented to Frank Sayre Osborne that Mr. Morgan thought highly of the Sieg Company’s plant, property and business, and was interested to put it on its feet in good condition; first, because on the first of November following, the United States Bankruptcy Law would take effect in such a way that the other creditors could file involuntary bankruptcy proceedings against the Sieg Company and destroy Morgan & Wright’s mortgage security, as well as the Sieg Company’s business, and also because the Sieg Company. had for years been placing large quantities of Morgan & Wright’s goods upon the market at the highest retail price, all the profits of which went to Morgan & Wright and none to the Sieg Company, and that the Sieg Company had been and would continue to be, if kept going, an important money maker for Morgan & Wright. They represented that one Walter E. Lindsay was also interested in keeping the Sieg Company a going concern, because he had built up a trade in goods of their make abroad as well as at home; and for these reasons Morgan and Lindsay were willing to, and offered to take hold of and extricate the Sieg Company from its difficulties, see that its debts were paid and that it was put on its feet and continued in business; but that Morgan wanted the control of the Sieg Company and proposed that the stockholders assign their stock, or the greater part of it, to him for that purpose; that the other creditors of the Sieg Company would settle for about 20 per cent, of their claims, and that Lindsay would advance to the Sieg Company sufficient money to settle with the small creditors up to about $15,000, if necessary, and was able to advance the company about $12,000 more for working capital, provided the company would repay him within a year with interest, and that Morgan, who controlled the mortgage indebtedness to Morgan & Wright of about $40,000, would reduce that indebtedness to 40 per cent, of its face, and would also make the Sieg Company safe concerning a first mortgage then existing upon the real property of the Sieg Company of about $25,000; that the stock of the Sieg Company belonging to Sieg and Week would be assigned by them to Morgan for the purposes indicated, and Worsley offered on behalf of Morgan to cause all these things mentioned in his proposition to be carried out and done, provided Mrs. Osborne would cause to be assigned and turned over to Mr. Morgan her stock in the Sieg Company, or $20,000 par value of the stock.
    Frank Sayre Osborne, relying wholly upon the representations so made to him, accepted the proposition with the stipulation that he should be allowed to be a director and the secretary and treasurer of the Sieg Company, and to take an active part in the management and business of the. company and represent Mrs. Osborne therein. This was agreed to. Accordingly Mrs. Osborne turned over to Mr. Morgan $20,000 par value of her stock.
    In August, 1899, Worsley represented to Frank Sayre Osborne and to Sieg that Lindsay was in financial difficulties and unable to carry out his part of the arrangements made, and that Morgan thought it best that deeds of the whole property of the Sieg Company be made to him, and that he (Morgan) would take it upon his own hands; that he was negotiating some large business connections or transactions for the Rubber Goods Manufacturing Company, a corporation in-which Morgan and Morgan & Wright were largely interested, with the American Bicycle Company, and could use the Sieg Company’s plant to good advantage for the benefit of himself and the Rubber Goods Manufacturing Company, and that he might, and probably would, be able to sell the plant and property of the Sieg Company to the American Bicycle Company for a full fair price, and failing so to do would take hold and develop the property himself for the manufacture of bicycles and other lines of manufacture, and that all he should want in return from the Sieg Company was the money which was coming to him and Morgan & Wright, with interest; that is, 40 per cent, of the $40,000 of its indebtedness, and any moneys that he had already or should thereafter advance, and interest thereon.
    Worsley had with him the deeds already prepared by bim for Morgan, one of the real property and one of the personalty of the Sieg Company, conveying the same by the Sieg Company to Fred W. Morgan, and also a resolution to be passed by the board of directors of the Sieg Company authorizing such deeds.
    The bill avers that these representations were made to the Sieg Company and to the officers and directors of the company for the express purpose of inducing the passage of the resolution and the execution and delivery of the deeds, and at about the same time Fred W. Morgan personally made substantially the same representations and statements to Charles H. Sieg, and that the representatives of the company relied upon said representations; the resolutions were thereupon passed and the deeds executed and delivered. The resolutions were as follows:
    “Whereas, The Sieg & Walpole Manufacturing Co., now the Chas. H. Sieg Mfg. Co., did on July 25, 1895, execute twelve promissory notes aggregating $30,000, and numbered from one to twelve, respectively, payable to its order and by it endorsed in blank, all due in one year from date; and
    Whereas, for the purpose of securing payment of same said Sieg <& Walpole Manufacturing Company did on the same day execute its deed of trust to E. D. Tuttle, trustee, conveying all its real estate, buildings, machinery and bicycle tools of every description, situated in the city of Kenosha, Kenosha county, Wisconsin, all of which more fully appears by reference to said deed recorded in Vol. 29 of Mortgages, at page 550 of the records of said County; and
    Whereas, but five thousand dollars of said notes were paid at maturity, the balance, to-wit, twenty-five thousand dollars having been extended from time to time and being still due and unpaid, together with over six hundred dollars of accrued interest; and
    Whereas, this Company on July 7, 1898, being indebted to various merchandise creditors in an amount aggregating eighty thousand dollars executed its six promissory notes aggregating in all $40,070.92 in favor of Morgan & Wright, the last of which fell due July 20, 1898; and

      Whereas, for the purpose of securing payment of same this Company did on July 7, 1898, execute its second deed of trust covering its entire real estate, buildings, bicycle machinery and tools of every description located in Kenosha in favor of Morgan' & Wright, its largest merchandise creditor, and to whom it was indebted in the amount last mentioned, all of which fully appears by reference to a record thereof in the records of said. Kenosha County; and
    Whereas, for the purpose of further securing said notes this company did on the same day execute a chattel mortgage upon all its personal property with the exception of choses in action in favor of Morgan & Wright for $40,070.92, which also appears by a record thereof in the office of said city clerk of Kenosha under date of July 8,1898, at 10:45 a. m. ; and
    Whereas, this company effected a settlement with the balance of its merchandise creditors, whose claims aggregated about forty thousand dollars, since which settlement it has continued to carry on its business of manufacturing bicycles, but without sufficient working capital; and
    Whereas, it is evident from the condition of the business at this time it will not be able to meet its obligations matured and maturing; and
    Whereas, the principal sum of twenty-five thousand dollars due upon said mortgage has been overdue for about four years and there is interest past due amounting to six hundred dollars, and the owner thereof is threatening foreclosure proceedings unless principal and interest is immediately paid; and
    Whereas, this company has been unable to comply with its settlement agreement with Morgan & Wright, and said Morgan & Wright are also threatening foreclosure proceedings unless said mortgage interest is also paid or secured.
    Therefore, Resolved, by the stockholders of this company in meeting assembled, duly called, the owners of over ninety-four (94) per cent, of the issued capital stock being present or represented, and the directors and officers of this company be, and they are hereby authorized and directed to execute and deliver to F. W. Morgan, owner of said first mortgage, in the name and for and on behalf of this company a deed and bill of sale conveying to said Morgan, upon his accepting same in full settlement and satisfaction of said first mortgage, and his assuming and agreeing' to pay said second mortgage of $40,070.92 in favor of Morgan & Wright, the following described real estate and personal property:
    Here follows a description of the manufacturing plant of the Sieg Company, situated in Kenosha, Wisconsin, “being the same property described in that certain deed of trust of the Sieg & Walpole Manufacturing Company to E. B. Tuttle, trustee, hereinbefore referred to. Also, all and singular the bicycle machinery and machinery of every description and character, and all bicycle tools and bicycle appliances, belting and bicycle fixtures of every description and character mentioned and described under the following heads: ‘Machinery’ (machine room), ‘Wheelroom,’ ‘Engine Boom,’ ‘Tool Boom,’ ‘Assembling Boom,’ ‘Buffing Boom,’ ‘Plating* Boom,’ ‘Frame Boom,’ ‘Polishing* Boom,’ and ‘Hardening Boom,’ in ‘Exhibit A’ attached to a chattel mortgage executed by the Sieg Manufacturing Company, on July 7, 1898, in favor of Morgan & Wright, which chattel mortgage was acknowledged the same day and recorded July 8, 1898, in the office of the city clerk of Kenosha, Wisconsin, at 10:45, ‘ and to which for a more detailed and more particular description of the machinery, tools and fixtures intended to be included in said bill of sale and deed to said Morgan reference is hereby made:’ ”
    The bill then avers that upon the delivery of the deeds of the property to Morgan, he continued to carry on the business and affairs of the company; that the models for wheels for the season of 1899 and 1900 had been prepared, and they were about to commence the manufacture of bicycles with a promise of a good season’s business and profits; but in the midst of such preliminary work, in the latter part of 1899, Morgan caused a general slacking up of the work, employes were discharged, and the works gradually closed down and finally suspended, though without the knowledge and consent of Louise N. Osborne or her husband; and that Morgan having consummated his arrangements with the Bicycle Trust, whereby the business of the Sieg Company would be transferred, all orders of the Sieg Company were thereafter filled by Morgan & Wright and the Bicycle Trust, and thereby injured and defrauded the Sieg Company and through it the complainant’s decedent, and obtained possession of the property of the Sieg Company fraudulently for his own purposes and gain; that Mrs. Osborne during her lifetime repeatedly requested of Morgan a statement as to the property and profit of the Sieg Company, and what, if anything, he had done with the same, but was unable to obtain any information from him.
    All the manufactured goods, unmanufactured and partly manufactured materials, tools and property of every name, nature and description of the Sieg Company, not theretofore disposed of by Morgan, were shortly after the consummation of the agreement by him with the Bicycle Trust, moved to the Morgan & Wright plant of said Trust and appropriated and used, for what purpose complainant does not know.
    Morgan still holds the $20,000 par value of the stock of the Sieg Company so assigned and delivered-to him by Louise N. Osborne, and also, as complainant is informed, substantially all the remaining stock of the company, and the company is controlled by Morgan and has ceased doing business, leaving debts unpaid, and is virtually defunct.
    That Fred W. Morgan, either on behalf of himself, or said Morgan & Wright, or both, has acted ever since taking possession of the Sieg Company and its property as mortgagee in possession thereof and of its proceeds, and as such should account therefor.
    That Fred W. Morgan has caused large amounts of manufactured and unmanufactured material and other property of the Sieg Company to be sold, and has appropriated the proceeds to his own use or the nse of Morgan & Wright, or of said Eubber Goods Manufacturing Company; and has caused all the remainder of the stock, machinery, tools, raw and manufactured material and movable property and choses in action of Sieg Company, to be turned over and appropriated to or for the use of himself, or Morgan & Wright, or the Eubber Goods Manufacturing Company; and the complainant has recently been informed that Morgan claims to have sold or appropriated to his own use all the balance of the property in some manner or upon some consideration, to complainant unknown; and that on an accounting it will be found that Morgan and Morgan & Wright have received or appropriated to their own use money and property, or proceeds thereof, of said Sieg Company sufficient to more than pay all indebtedness owing to them under the terms of the agreement mentioned; and that Morgan has not carried out his agreement with Louise N. Osborne, and by reason of his failure to do so, Sieg Company and complainant have each been greatly damaged.
    The bill then prays that Fred W. Morgan, Morgan & Wright, Eubber Goods Manufacturing Company, American Bicycle Company, Charles H. Sieg, Charles H. Sieg Manufacturing Company, Elmer Week, Frank S. Osborne and Walter E. Lindsay, made defendants, may make answer, and that a full discovery and accounting be had under the direction of the court by Morgan, as trustee in possession, of all manufactured and unmanufactured material and stock, accounts, orders, contracts and choses in action, property, rights and franchises of said Chas. H. Sieg Manufacturing Company, conveyed and turned over to or received by said Fred W. Morgan.
    That the Eubber Goods Manufacturing Company, Morgan & Wright, and American Bicycle Company join in said accounting so far as they, or either of them, have wrongfully received, appropriated, bought, sold, used or interfered with the subject-matter of said accounting or the proceeds or any part thereof; and that an accounting also be had of the indebtedness to the said Fred W. Morgan and to Morgan & Wright, for which said property or its proceeds is or was held under the terms of the agreement above mentioned; also that a receiver be appointed.
    To the bill the defendants filed a general and special demurrers, assigning twenty-six grounds or objections to the bill. Upon hearing of the demurrers to the bill as amended the court sustained the demurrers of the several defendants, and the complainant announcing that he had no further amendments to present, but would abide by the bill as amended, the court ordered that the bill of complaint be dismissed for want of equity at the costs of complainant. From that decree the complainant perfected this appeal.
    Mr. Justice Barnes took no part in the consideration of this cause.
    Robert F. Pettibone, for appellant.
    Peck, Miller & Starr, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The principal contention of complainant is that the deed of the' real estate and the bill of sale of the personal property were in fact mortgages, and that Mr. Morgan is mortgagee in possession, and that the bill, therefore, presents grounds of equitable relief.

The bill alleges that the bill of sale and deed were made in pursuance of a resolution by the stockholders at a meeting duly called, the owners of 94 per cent, of the issue of capital stock being present or represented. The resolntion is set forth in the statement preceding this opinion. It purports to set forth the exact facts of the indebtedness of the Sieg Company and its condition at the time the resolution was adopted; and the deed and bill of sale were executed in pursuance thereof.

The bill states that complainant’s decedent owned one-half of the stock of the Sieg Company, and that the decedent’s husband was secretary of the Sieg Company at the time of the adoption of the resolution and the execution of the deed and bill of sale, and as such secretary, signed the bill of sale. It appears, therefore, from the bill itself, that the stock of complainant’s decedent was voted for the resolution by her husband as her representative; and complainant without stating any facts, contradicting, or in any manner questioning the action of the Sieg Company, or the facts stated in the resolution, or setting forth any false or fraudulent representations by which the Sieg Company was induced to make the deed and bill of sale, seeks now to have the transaction declared a mere mortgage, and the defendants to account for the property as such mortgagees. There are no facts stated in the bill, giving the deed and bill of sale the character of a mortgage, and that theory of the transaction rests simply upon the inferences of the pleader. A demurrer does not admit the correctness of inferences of the pleader. Greig v. Russell, 115 Ill. 483.

There is no averment in the bill that Morgan did not carry out the conditions of the resolution passed by the Sieg Company, and under which the deed and bill of sale were executed. There is no showing in the-hill that Fred W. Morgan or Morgan & Wright are claiming any debt or debts against the Sieg Company as still'existing, or that the express terms and conditions of the resolution passed by the Sieg Company stockholders have not been fully and in good faith carried out.

In order to overcome the express terms of the deed, a debt must exist and there must be a liability to pay it. Klock v. Walter, 70 Ill. 416.

‘1 To render such transactions a mere security there must be mutuality. Both parties must be able to treat and enforce it as a mortgage.” Shays v. Norton, 48 Ill. 100.

In our opinion, the hill shows that the deed and bill of sale were given in satisfaction of the indebtedness of the company, and received as such, and for that reason the bill cannot be maintained. Rue v. Dole, 107 Ill. 275; Pitts v. Cable, 44 Ill. 103.

The bill does not set up any writing of defeasance, or claim that any such writing was made. In order to convert a- deed absolute into a mortgage, the evidence must be clear, unequivocal and convincing, and the bill should aver such facts from which the court could determine that, if true, the deed was not absolute, but was a mere security for a debt. This the bill does not do. Keithley v. Wood, 151 Ill. 566. In our opinion, upon the averments of the bill, the court cannot infer that the deed and bill of sale in question was a mortgage given to secure a debt. The allegations of the bill upon this question are too uncertain and indefinite to justify any interference to that effect by a court of equity upon the facts stated.

The complainant claims no personal knowledge of any of the transactions leading up to the execution of the deed and bill of sale described in the bill, and the averments are, therefore, necessarily made upon information and belief. The bill further alleges that neither decedent nor her husband, although he was her representative, and was secretary and treasurer of the company, had any definite knowledge of many of the matters set forth in the bill. No sources of information as to the facts stated or averments made in the bill are set out. Where the averments of a bill are made upon the information of the party complaining, the sources of such information must be set out. Blondheim v. Moore, 11 Md. 365.

The bill fails to show any fraudulent representations of facts made by Morgan or his representative Worsley, or by Morgan & Wright, upon which the directors and stockholders of the Sieg Company transferred its property to Fred W. Morgan. The bill shows that the company was largely in debt; that it was in a position where it could not continue its business and meet its indebtedness; that its creditors, large and small, were pressing their claims, and upon the giving of the mortgage to Morgan & Wright the smaller creditors obtained judgments and filed bills in Illinois, and that the Sieg Company was unable to pay its debts and continue in business without assistance. The Sieg Company seems to have accepted the assistance of Fred W. Morgan and Morgan & Wright, in its financial difficulties, and by malting the deed and bill of sale in question, secured the contract of responsible parties to pay off its indebtedness; and there is no showing in the bill that the consideration thus agreed upon with the company was not fully performed and carried out by the defendants, Fred W. Morgan and Morgan & Wright, or that it was not adequate and reasonable.

There is no allegation in the bill as to the respective values of the real estate and personal property. Construing the bill against the pleader, the bulk of the value was in the personal estate. This, however, appears from the bill, for the inventory of partly and completely manufactured bicycles is shown to amount to $22,301.15. The large schedule of tools and machinery may be fairly assumed to be worth as much or more than the goods manufactured and in course of manufacture. The statute relied upon (R. S. Ill., Chap. 95, Sec. 12) has no application to the personal property. It applies to deeds of real estate intended only as mortgages. The representations of Worsley, which it is claimed the corporation relied on, were that Morgan had a use for the property—that he would be able to sell it, and that it would help him in his deal with the Bicycle Company. These statements themselves showed plainly that Morgan did not intend the transaction as a mortgage. He was getting a clear title to the property on which he and Morgan & Wright then held two past due mortgages, and was giving a discharge of the indebtedness in return. The statute, therefore, could not apply to the deed conveying the real estate.

The bill avers that Morgan refused to give any writing of defeasance, but that his agent said that he could be trusted to do what was right. No obligation was, therefore, assumed, either by Morgan or his agent, and Morgan or Morgan & Wright, were under no obligation or duty to return any part of the property or the proceeds, according to the averments of the bill, to the Sieg Company. “This court has often held that where a conveyance is in form absolute in order to change its character to that of a mortgage, the proof must clearly and satisfactorily show that such was the contract and intent- of the parties.” Strong v. Strong, 126 Ill. 301. The bill must aver the facts showing the contract and intent of the parties.

During all the years that elapsed after the transaction and before the filing of the bill, no averment is made tending to show that the Sieg Company regarded itself as still owing an indebtedness to Morgan and Morgan & Wright, and that it was eventually to pay the indebtedness. Nothing is shown by the bill of any obligation to pay any indebtedness, or of the holding of the property in trust as mortgagee in possession, save and except what must be regarded as the' inferences of the pleader, who knew nothing of the transaction and possesses no information in regard to it, and discloses no sources of information. There is no basis for any implied promise on the part of Morgan, or Morgan & Wright, to pay back any surplus that might be realized from the property conveyed; nor is there any averment showing that the Sieg Company agreed to keep its debt alive and thus place Morgan & Wright, or Morgan, in the position of a mortgagee, or mortgagees in possession. Nothing is shown except from the inferences of the pleader, which are not admitted by the demurrer, that the parties intended that the transaction involved in the deed of conveyance and bill of sale was intended as a mortgage by the parties. In the absence of a corporate intention that the bill of'sale and the deed should be considered as a mortgage or mortgages, and that the debt secured thereby was to continue, the stockholder filing this bill is bound by the corporate act, and cannot be heard to allege a different effect for the conveyances of the corporation from that given them by the corporation itself. Allen v. Wilson, 28 Fed. Rep. 677; 2 Clark & Marshall on Corporations, Sec. 544; 1 Morawetz on Corporations, 2d Ed., Sec. 244.

The bill does not show any corporate act making the bill of sale and the deed mortgages. The representations shown by the averments of the bill were made to two of the three directors of the corporation before any corporate action was taken. On the contrary, this theory of the plaintiff’s action is negatived by a fair construction of the corporate act. We do not think that representations made on behalf of the grantee of the deed and bill of sale to individual members of the board of directors of the Sieg Company before the board meeting, would impress upon the bill of sale and deed the character of corporate mortgages, when that character is negatived by the resolution passed by the stockholders. The complainant’s decedent participated in the corporate act, and by her representative, signed the deed and bill of sale in question, having voted to authorize the corporation to execute them.

Tn our opinion, the averments of the bill fall far short of any proper showing that the complainant had made application to the board of directors at any time, requesting such board to proceed to have the deed and bill of sale declared mortgages. No facts are shown by the bill, making it appear that the corporation has refused to act, or that the application to the corporation would be futile and useless. Baker v. Admr. of Backus, 32 Ill. 79; 2 Clark & Marshall on Corporations, See. 543.

A mere averment that Week has moved away and has no further interest as a stockholder in the company and that Sieg is friendly to the defendants named in the bill does not furnish a sufficient excuse, in our opinion, for failure to request the corporation to act.

This bill was filed some six years after the deed and bill of sale were made. A bill to redeem from a chattel mortgage, if maintainable at all, must be prosecuted with promptness and diligence. We do not think this bill was filed within a reasonable time, and before the parties had changed their positions. McDearmon v. Burnham, 158 Ill. 55; Walker v. Warner, 179 Ill. 16. This rule applies with stronger reason, we think, to a bill by a stockholder not in his own right, but asserting a corporate right. By some authorities laches for two years has been held sufficient to defeat the stockholder’s right to file such a bill. Chicago, etc., R. R. Co. v. Northern Trust Co., 90 Ill. App. 460; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Babe v. Dunlap, 51 N. J. Eq. 40.

Laches appearing on the face of a bill is a proper defense upon demurrer. Henry County v. Winnebago Swamp Drainage Co., 52 Ill. 454; Ilett v. Collins, 103 Ill. 74; Turner v. Littlefield, 46 Ill. App. 169.

An alleged agreement is set out in this bill, purporting to have been entered into on October 28, 1898, between F. W. Morgan, Walter E. Lindsay and the Charles H. Sieg Manufacturing Company, by which it appears that Morgan agreed to advance $15,000, and Lindsay to advance the cash to buy in claims at twenty cents on the dollar, and to accept the Sieg Company’s undertaking to make five thousand wheels and pay part in cash therefor, and to discharge the receivers, and providing that the company would pay $10,000 on the first mortgage in one year, and the second mortgage should remain unreleased until certain contingencies should happen, but which have never happened, and the company would pay Morgan & Wright $20,000 in one year and give endorsed paper therefor, and that the $20,000 of Osborne stock was to be transferred and deposited with the other stock as security for the repayment of the advances, does not appear by the bill to have been acted upon by the parties to the agreement or any of them. The bill shows that it was never submitted to or voted upon or approved by the board of directors of the Sieg Company. We are unable to decide from the bill what, if anything, was done under the agreement, and we cannot discover that it was ever in any manner carried into effect. At all events, it seems to have been subsequently abandoned or merged into the deed and bill of sale made in August, 1899. The averments of the bill are so vague and indefinite with reference to this agreement that we cannot see that any equity in favor of the complainant arises out of it, or that it in any way supports any other equity shown by the averments of the bill.

The bill does not show by what means or in what manner the property conveyed by the deed and the bill of sale passed from the possession of the Wisconsin court to any of the' defendants in the cause, or what disposition was made of the property in the foreclosure proceedings. The bill shows that the property came into the possession of the court, or of the receiver of the court, in a foreclosure proceeding instituted by Morgan & Wright, but it does not show that thereafter the Sieg Company ever obtained possession of the property, or that the defendants obtained possession of the property from the receiver, and the only inference that can be drawn from the averments of the bill is that if defendants came into possession of the property after it passed into the possession of the receiver of the court, it must have been through and by means of a foreclosure sale to such defendant or defendants. In that event, we are unable to discern from the bill any equities which can be asserted in behalf of the Sieg’ Company to the proceeds of the property, or the property itself, or any surplus in the proceeds of the property, in favor of the Sieg Company.

In our opinion the decree of the court sustaining the demurrer of the defendant is correct, and must be affirmed.

Decree affirmed.