text:
    Everett Fogelsong by Irvine R. Wasson, Appellee, v. Peoria Railway Terminal Company, Appellant.
    Gen. No. 6,305.
    1. Street railroads, § 93

      —when questionable whether child sliding upon tracks should be held free from contributory negligence. Where a hoy eight and one-half years old went to a certain street car crossing to warn his companions of the approach of cars while they were coasting, and was injured by a car as he reached the tracks at the crossing, held, taking his age and capacity into account, it would be questionable whether he should be held free from contributory negligence in sliding upon the tracks.
    2. Damages, § 110

      —when verdict for personal injuries to child is excessive. Where the testimony as to plaintiff’s injury was contradictory and the only evidence showing a serious permanent injury was that of the plaintiff, a boy nine or ten years old, his mother, and one physician, and his and his mother’s testimony was on some questions false or mistaken, held that a verdict for $3,300 was excessive.
    3. Street railroads, § 78

      —what constitutes prima facie case of negligence in operation in cities. Under the statute fixing the liability of railroad companies in operating trains in cities (J. & A. 3 8836), the violation of an ordinance as to the speed of trains makes a prima facie case of negligence for the plaintiff, in. an action against a street railroad to recover damages for injuries sustained by reason of such violation.

      4. Negligence, § 8

      —when question of character of in violation of ordinance is immaterial. Whether the violation of an ordinance is negligence per se or prima facie negligence is of no consequence unless it contributed to the injury complained of, in an action to recover damages for personal injuries.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 12, 1916.
    Jack, Irwin & Jack, for appellant.
    Bernard Kelly, for appellee; Shelton F. McGrath, of counsel.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

The appellant is a railroad corporation operating cars propelled by electric power on certain streets in the City of Peoria. The ordinance of that city licensing such operation provides that it should not run its cars at a speed greater than fifteen miles per hour. On December 27, 1914, the appellee, Everett Fogelsong, a boy eight and a half years old, was with other boys coasting .down Chicago street to and across Washington street in a densely populated portion of said city. He was going to the crossing of said two streets for the purpose of standing on Washington street to warn his companions of the approach of appellant’s cars on that street and thus avoid danger. As he reached appellant’s track on Washington street he came in contact with an approaching car at the street crossing and was injured. There was an ordinance of the city prohibiting coasting on any of the streets except where it might be suspended by the public proclamation of the mayor. This action was brought to recover for that injury. Appellee had judgment on a verdict of $3,300, and the railroad company prosecutes this appeal.

Appéllee’s evidence tended to show that appellant was driving the ear at a high and dangerous speed and in excess of fifteen miles per hour; that the view of the crossing was obstructed and no signal was given in time to warn him of danger. Appellant’s evidence tended to show that the car was not driven at an excessive speed and not driven to exceed the rate fixed by the ordinance. It pleaded and offered in evidence the coasting ordinance above mentioned, and relied on its violation as a defense, and also claims that independent of that ordinance appellee was guilty of contributory negligence in sliding upon the track, and here argues that appellee’s violation of that ordinance was negligence per se and therefore the judgment must be reversed if such negligence essentially contributed to the injury. It also claims that, even conceding the defendant’s liability, the verdict is so excessive as to indicate passion and prejudice on the part of the jury.

There is a question whether the coasting ordinance was at the time suspended by public proclamation of the mayor. Both parties in instructions to the jury tendered and given treated that question as one of fact to be determined by the jury.

We are not satisfied that the evidence warrants the conclusion that appellee, independent of the question of the coasting ordinance, was exercising reasonable care for his own safety. He knew the danger and had undertaken to warn his companions of the approach of cars. Of course his age and capacity must be taken into account, but under the rules governing in such cases it is very questionable whether he should be held free from contributory negligence in sliding upon the track as he did. We are also of the opinion that the great preponderance of the evidence shows that appellee’s injury was not of such a serious, permanent character as to warrant the verdict of $3,300. He was no doubt injured, but the only evidence showing' a serious, permanent injury is that of himself and his mother and one physician that testified in his behalf. This testimony is much of it contradicted by other physicians that had examined him, and other disinterested witnesses that had opportunities to see him from time to.time after the accident, including his public school teacher. It also appears beyond question that the testimony of appellee and his mother on some questions affecting his disability was false or mistaken, thus materially discrediting their entire testimony. For these reasons alone the case should be submitted to another jury.

If there was a valid ordinance in force prohibiting coasting on that street, and we assume on another trial it will be made clearly to appear whether there was or not, then the question of the effect of the violation of that ordinance will become important. The record does not present the question whether the violation of a valid ordinance is negligence per se. The court at appellant’s instance instructed the jury that such violation, if proved, should be “taken as prima facie evidence of contributory negligence on the part of the plaintiff.” And on the part of the appellee instructed the jury that such violation would not bar a recovery if they believed he was at the time “exercising that degree of care and caution that an ordinarily careful and prudent boy of his age, experience and intelligence would have exercised under the same or similar circumstances.” These instructions, read together, mean that a child eight and one-half years old may recover for a personal injury caused in part by the negligence of another, notwithstanding his own violation of a valid law or ordinance was the proximate and efficient cause of the injury, if other ordinarily careful and prudent children of his age and capacity would, in the opinion of the jury, have under like circumstances so violated the law or ordinance. The Supreme Court of Massachusetts in McGuiness v. Butler, 159 Mass. 233, in speaking of a similar question, said:

“The principle for which the plaintiff contends would require us to hold that in no case would trespassing or intermeddling by a child, or participation by him in the act resulting in injury to him, be a bar, as matter of law, to his recovery, provided it appeared that the defendant was negligent, and that the child was only doing what he might naturally have been expected to do. We do not think that such is the law.” Perhaps if a violation of the ordinance was only prima facie evidence of negligence (and appellant is responsible for the adoption of that theory by the court), then it might follow that the prima facie showing could be rebutted in the way indicated in the court’s instructions. But if a violation of the ordinance is to be taken as negligence per se, we do not see how it can reasonably be said to be overcome by the fact that other prudent and reasonable boys under the same circumstances would have done the same thing.

Whether the violation of a public law or ordinance is to be taken as negligence per se or as prima facie negligence is a question upon which there is conflict and confusion of authority. (29 Cyc. 436.) Appellee argues that if appellant violated the city ordinance in its rate of speed it was prima facie evidence of negligence, and seems to assume that it necessarily follows that the violation of any ordinance is only prima facie negligence. Our statute fixing the liability of railroad companies in operating trains in cities (J. & A. jf 8836) provides that in case of such violation “such corporation shall be liable to the person aggrieved for all damages done to the person or property by such train, locomotive engine, or car; and the same shall he presumed to have been done by the negligence of said corporation, or their agents.” Under that statute the violation of the ordinance makes a prima facie case for the plaintiff, and it is easily seen why the courts should speak of it as prima facie negligence. But in the absence of such a statute there is much authority in this State that the violation of a public law or ordinance by either plaintiff or defendant is negligence as matter of law, and if it essentially contributes to the injury complained of it bars recovery by the plaintiff except in cases of wilful and wanton conduct on the part of the defendant, which are not, strictly speaking, cases of negligence. It should also be borne in mind that whether such violation is negligence per se or prima facie negligence it is of no consequence either to the plaintiff or defendant unless it contributed to the injury complained of. Whether there is negligence is one inquiry, but, if there is, still it is immaterial if it did not contribute to the injury. Proof of negligence does not make a case or a defense either prima facie or per se unless it so contributed. It is also true that the law or ordinance violated must be one enacted for the benefit of the plaintiff as distinguished from an ordinance manifestly enacted to control some situation other and different from that in which the parties were placed.

Independent of the question of contributory negligence, plaintiffs engaged in the violation of some public law or valid ordinance have been denied the right of recovery on the ground that they are asking to be relieved from the consequences of their own illegal acts.

Appellant in its briefs here suggests the court could properly have informed the jury that a violation of the coasting ordinance would not absolutely bar re-‘ covery if the jury believed the plaintiff was incapable of appreciating that he was engaged in an unlawful act, and was also in the exercise of such care as might have been expected of him. Appellee says the instruction might have been properly so framed. Appellant cites Massachusetts cases to support its contention that the law making the violation of an ordinance negligence per se is applicable to children as well as adults. Appellee says the position may be well taken as to adults, but does not apply to' children, and cites no authority. The question of affirming or reversing the judgment in this court does not depend upon whether counsel for either side is right in the construction of the law applicable to the violation of a valid ordinance by a child over seven years of age. Whatever the conclusion on that question, the judgment should be reversed. We do not know that it will on another trial appear that there was a valid ordinance violated by the plaintiff, or what position counsel may take as to the effect of such violation if it occurred. In the condition of the record here and in view of the position taken by counsel .both in the court below and in their argument here as to the construction of the law, we will not attempt to anticipate and answer questions that may or may not arise on a future trial, but submit what we have said on that question and the following authorities for the consideration of the court and counsel, with such other authorities on the subject as they may find.

In Terre Haute & I. R. Co. v. Voelker, 129 Ill. 540, it was said on page 555 that nonperformance of a statutory duty resulting in injury to another may be pronounced to be negligence as a conclusion of law. In Lake S. & M. S. Ry. Co. v. Parker, 131 Ill. 557, the court said on page 566:

“While it is true that the omission of a duty imposed by positive law is negligence per se, yet such negligence becomes actionable, as a rule, only when it causes or contributes to the injury complained of.” In Chicago & E. I. R. Co. v. Goyette, 133 Ill. 21, on page 28, this language is used:

“It is not disputed that a failure to perform a duty commanded by the statute may properly be denominated negligence per se.”

In Star Brewery Co. v. Hauck, 222 Ill. 348, on page 352, in discussing the acts of a boy ten years and ten months old, the court said:

“Even if deceased had been engaged in the violation of an ordinance, to bar a recovery on that ground it must appear that such violation of the ordinance was the proximate and efficient cause of the injury.” (Citing authorities.)

This court in Knickerbocker Ice Co. v. Leyda, 128 Ill. App. 66, quoted with approval from Newcomb v. Boston Protective Department, 146 Mass. 596, 602, as follows:

“No case has been brought to our attention, and upon careful investigation we have found none, in which a plaintiff, whose violation of law contributed directly and proximately to cause him an injury, has been permitted to recover for it, and the decisions are numerous to the contrary. (Citing authorities.) And it is quite immaterial whether or not a plaintiff’s unlawful act contributing to his injury is negligent or wrong when considered in all its relations. He is precluded from recovering, on the ground that the court will not lend its aid to one whose violation of law is the foundation of his claim.”

In Gilmore v. Fuller, 198 Ill. 130, the court cited Harris v. Hatfield, 71 Ill. 298, where the rule announced in Heland v. City of Lowell, 3 Allen (Mass.) 407, “that when a plaintiff’s own unlawful act concurs in causing the damage he complains of, he cannot recover compensation for such damage,” was adopted. In Frye v. Chicago, B. & Q. R. Co., 73 Ill. 399, the court said on page 403:

“The rule is well settled that if a party suffers injury whilst violating a public law, the other party being also a transgressor, he cannot recover for the injury, if his unlawful act was the cause of the injury.” Lynch v. Public Service Ry. Co., 82 N. J. L. 712 [3 N. C. C. A. 514], 42 L. R. A. (N. S.) 865, with its notes in L. R. A. is instructive on the question of injuries to children and effect of violation of an ordinance as a defense. In 29 Cyc. 525, and following pages, is found a discussion of these subjects and citation of authorities.

Appellant urges error in the admission of evidence as to the possible future effects of the injury and on the opinion of a witness as to whether certain conditions resulted from the injury. The latest controlling authority on those questions is Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, where the court said on page 76:

“Mere surmise or conjecture cannot be regarded as proof of an existing fact or of a future condition that will result. Expert witnesses can only testify or give their opinion as to future consequences that are shown to be reasonably certain to follow.” (Citing authorities.)

And on page 77:

“A physician may be asked whether the facts stated in a hypothetical question are sufficient, from a medical or surgical point of view, to cause and bring about a certain condition or malady, or he may be asked whether or not a given condition or malady of a person may or could result from and be caused by the facts stated in the hypothetical question, but he should not be asked whether or not such facts did cause and bring about such condition or malady.” (Citing authorities.)

The judgment is reversed and the cause remanded.

Beversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Ella Rynearson, Appellee, v. William McCartney and Jennie McCartney, Appellants.
    Gen. No. 6,309.
    1. Witnesses, § 253

      —when party entitled to benefit of greater number in his behalf. A party to an action is entitled to whatever benefit the jury might consider arose from the greater number of witnesses on his behalf on a material question.
    2. Appeal and error, § 1535

      —when instruction on preponderance of evidence is not reversibly erroneous. An instruction is not reversibly erroneous in so far as it states that a preponderance of the evidence does not necessarily mean a greater number of witnesses who testify on any issue involved where such instruction is read in connection with other instructions which inform the jury they should consider all of the evidence.
    3. Instructions, § 81

      —when erroneous in singling out particur lar testimony. An instruction held erroneous in singling out particular .testimony, in an action to recover damages for personal injuries.
    4. Instructions, § 18

      —when misleading. An instruction may properly enumerate the elements to be considered by the jury, hut is liable to be misleading in telling them they “must” or “should” consider certain elements.
    5. Master and servant, § 191

      —what is duty of master to inform servant as to danger in employment. The duty of a master to inform his servant as to the danger in the servant’s employment depends upon the apparent understanding of the servant.
    6. Instructions, § 7

      —when accuracy essential. Great accuracy in instructions is required where the preponderance of the evidence is a close question.
    7. Instructions, § 87

      —when instruction on preponderance of evidence is erroneous. An instruction on the preponderance of evidence as affected by greater number of witnesses, held erroneous where it contained the limiting word “necessarily” in one place, but omitted it in another and the testimony was conflicting.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 12, 1916.
    Cameron & Cameron, for appellants.

      Weil & Bartley, for appellee; Clarence D. Murphy, of counsel.

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal by the defendants from a judgment of $2,500 rendered on a jury trial in an action on the case for a personal injury to the plaintiff caused by an explosion of gasoline vapor in a room in which she was employed by them doing their family ironing with a gasoline laundry iron. Her claim is based on an alleged failure of the defendants to warn her of such danger in the use of gasoline, of which danger she says she was ignorant. It is defended on the ground that she represented herself to understand the nature of gasoline and how to fill and operate the iron, and that she was, notwithstanding, advised as to the proper method of filling the iron, and the accident happened because of her violation of her instruction.

It appears that appellee was at the time (June 30, 1914) about forty-eight years old; that in addition to her own housework she was sometimes engaged by the day in washing and house cleaning for others; that she had periodically been so employed by appellants, who were farmers, for about two months before the accident; that she had before done their ironing with the gasoline iron that she was using on this occasion; that it was filled by bringing gasoline in a small pitcher from a tank in the yard near by; that at the time of the accident she, out of the presence of Mrs. McCartney, brought into the room a pitcher of gasoline and filled the receptacle on the iron, then, while lighting a match to start the flame there was an explosion of gas from which she was seriously injured. Her claim, supported by her individual testimony, is that Mrs. McCartney asked her if she could fill the iron and start it; and she replied that she guessed she could; that she had never received any instructions as to the operation of the iron or how it was to be filled, and had never been warned of the dangers incident to lighting it, and did not know that gasoline gave off explosive gases, but that she had before seen Mrs. McCartney fill the iron and prepare it for use. She said she took the pitcher to the tank in the yard and partially filled it, then took it into the laundry room and poured the gasoline from the pitcher into the tank, leaving none in the pitcher, and when she struck the match the explosion and flames came so quick that she could not tell where they started. Appellants’ claim, supported by Mrs. McCartney’s testimony, is that appellee herself suggested that she would go and iron, and said to Mrs. McCartney: “You don’t need to go out there with me, because I have fixed the iron and can do it again to-day”; that before that time she, Mrs. McCartney, had filled the iron and started it for her and expressly warned her of the danger of leaving any gasoline in the room in the pitcher from which she filled the iron; that generally the amount brought in was not all used in filling the iron, and appellee was expressly told to carry the pitcher back in the yard and empty the remaining contents into the tank before lighting the iron; that on this occasion there was gasoline remaining in the pitcher and the explosion came from that source, and therefore the injury was caused by violation of an express order and warning. Mrs. McCartney also testified that before that time appellee had told her she was familiar with the use of gasoline and had used it at other places where she had worked.

No one other than Mrs. McCartney and appellee testified as to these conversations between them. Their testimony was in direct conflict. If the jury believed appellee she was entitled to a verdict on the ground of failure of the duty of the master to warn his servant of a danger known to him and not to the servant. If Mrs. McCartney is to be believed, there was no liability. It was quite material whether the flame started from gasoline left in the pitcher. Mrs. McCartney testified that there was a dark ring on the inside of the pitcher immediately after the accident that might indicate the fire had burned there. The physician called to attend appellee testified that she, appellee, told him that the accident occurred in that way, and that it was entirely-her fault. Several other witnesses testified for appellants that within a few hours of the accident appellee stated that there was nobody to blame but herself, or something to that effect. These witnesses also said that at the time appellee made these statements she was apparently clear in her mind and knew what she was saying. Appellee does not deny making such statements, but says she was so distressed and under the influence of medicine given her that she has no recollection of what she said to these parties. If appellee, in the possession of her mental faculties, made statements that the accident was all her own fault, such statements tend strongly to contradict her testimony and corroborate that of Mrs. McCartney. Appellants were entitled to whatever benefit the jury might consider arose from the greater number of witnesses on a material question.

The court, at the instance of appellee, instructed the jury:

“You are instructed that while the plaintiff must prove her case by a preponderance of the evidence, that does not necessarily mean a greater number of witnesses who testify on" any issue or issues involved in the case; the preponderance of evidence does not depend upon the number of witnesses, and does not mean the greater number of witnesses, but it depends upon the weight of evidence, and means the greater weight of evidence; and if the plaintiff in this case has so proven her case as explained herein and in the instruction of the court and as alleged in the declaration or some count thereof, you should find the defendant guilty.”

And also:

“That even though you may believe from the evidence that the plaintiff, at different times after the accident in question, made statements to the effect that her injuries were caused through her own fault still, you are further instructed that in determining the weight to be given to such evidence, you have a right to and should take into consideration the fact, if proven by the evidence, as to whether or not the plaintiff at the time she made such statements, knew that she was making them, together with all the other facts and circumstances in evidence before you.”

Appellants urge these instructions as reversible error. It would seem on the authority of St. Louis & O’Fallon Ry. Co. v. Union Trust & Savings Bank, 209 Ill. 457, 460; Chenoweth v. Burr, 242 Ill. 312, 319; Lyons v. Ryerson & Son, 242 Ill. 409, 417; Chicago Union Traction Co. v. Hampe, 228 Ill. 346; Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621; Chicago & A. R. Co. v. Fisher, 141 Ill. 614, 626; North Chicago St. R. Co. v. Fitzgibbons, 180 Ill. 466, 468; and Gough v. Illinois Cent. Traction Co., 180 Ill. App. 708, that the instruction, in so far as it states that a preponderance of the evidence does not necessarily mean a greater number of witnesses who testify on any issue or issues involved in the case should not be held reversible error, and perhaps is permissible in cases where it is read in connection with other instructions that inform the jury they should consider all the evidence. But' its propriety, even when the word “necessarily” or some equivalent limiting word is used, has been several times questioned. There is no doubt that the number of witnesses is not to be ignored by the jury, although it is not necessarily controlling; neither are any of the other elements that are often stated to the jury in instructions as to what they may consider in determining the weight of the evidence necessarily controlling. There is an obvious danger in selecting any one of several elements and telling the jury it does not necessarily control, notwithstanding that statement is true. And where such instructions have been discussed and held not error in some of the above-cited cases, it has been apparently for the reason that the limiting word “necessarily” or some equivalent word was used. In the present case, while that limiting word appears in the first part of the instruction, the jury were afterwards informed that the preponderance of evidence does not “depend upon the number of witnesses and does not mean the greater number of witnesses,” thus partially destroying the force of the word “necessarily” that had been before used in the instruction. We think in the condition of the evidence the instruction in that form should be held substantial error.

The other instruction above quoted seems subject to criticism because in effect it singles out the plaintiff’s testimony that she did not know what she was saying when she was making the statements that the injuries were caused through her own fault. It also violates the rule announced on the authority of an earlier case in Lyons v. Chicago City Ry. Co., 258 Ill. 76, 84, that while it may be proper to enumerate elements which the jury may consider, an instruction which tells them they “must” or “should” consider is liable to be misleading.

Appellants complain of instructions on the duty of the master to inform the servant of dangers, and on the question of assumption of risk by the servant; that they direct the attention of the jury to the capacity of appellee, or people of that class, instead of to persons of average intelligence and prudence. These instructions seem to conform to the principles announced in the text of 26 Cyc. 1196, and following pages, supported by numerous authorities, including Illinois cases. The duty to inform a servant must certainly depend upon the apparent understanding of the servant. Information in English writing would very likely he sufficient for the ideal, average man or woman, but it would not avail the master in a case where he knew, or ought to have known, that the servant could not read and did not understand the English language.

It is doubtful whether the verdict is not so manifestly against the preponderance of the evidence that a new trial should be granted upon that ground. If not, it is certainly so. close a question upon the evidence that great accuracy in the instructions was required.

For the reasons above stated the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Chicago, Burlington & Quincy Railroad Company, Appellant, v. Merchant’s National Bank, Appellee.
    Gen. No. 6,313.
    Banks and banking, § 144

      —when bank is not Hable to holder of check for refusal to make payment. Where a declaration in assumpsit by special count set up as ground for recovery against a bank its refusal "to pay, accept or certify a certain check drawn in favor of the plaintiff against a certain account of the drawer in said bank and. that there were when the check was presented sufficient funds in said account to pay the check, held that section 188 of the Negotiable Instruments Act (J. & A. 7828), providing that a bank is not liable to the holder of a check drawn upon it unless and until it accepts or certifies .the check, controlled, and demurrer to the declaration was properly sustained.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.

      F. J. Campbell, for appellant; J. A. Connell, of counsel.
    Sheean & Sheean, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal from a final judgment for the defendant entered by the court after sustaining a general demurrer to the plaintiff’s declaration. The only error assigned is “the court erred in sustaining the demurrer to the additional counts.”

Appellant held the check of the Galena Commission Company for $362.46, drawn in the usual form on the appellee bank, payable to appellant, or its order. It presented that check to the bank and payment was refused. It then began this action in assumpsit and filed a declaration consisting of a special count and the common counts in assumpsit. A demurrer to the special count was sustained and appellant asked and obtained leave of court ‘ ‘ to withdraw all counts to the declaration heretofore filed herein, and to file additional counts.” It then filed two counts as follows:

“For that whereas, also, the Galena Commission Company, by its duly authorized agents, in the county aforesaid, on, to wit, the 17th day of July, 1915, being indebted to plaintiff, made and delivered to plaintiff a check on defendant, which check is in the following. words and figures, to wit:

‘ Galena, Ill., July 17th, 1915. No. 153.

Merchant’s National Bank,

Pay to Chicago, Burlington & Quincy R. R. Co., or order

Pay $362 and 46 cents Dollars

Galena Commission Co.

William Micurio, S. B.’

The plaintiff further avers that on, to wit, the 19th day of July, 1915, in the county aforesaid, plaintiff presented said check to defendant, during banking hours of said day, for payment, and then and there demanded payment thereof according to the tenor and effect thereof; .that the defendant is a national bank doing a general banking business in said City of Galena in said county; that at the time said check was presented to defendant for payment and payment thereof demanded as aforesaid, the maker of said check had on general deposit in the hands of defendant, sufficient moneys of said Galena Commission Company subject to check to pay said check, which moneys were deposited by said Galena Commission Company in said bank subject to check and known as a checking account to be paid to the holder of any check made and delivered by said Galena Commission Company, presenting said check for payment, upon presentment thereof; that upon presentment of said check as aforesaid to defendant by plaintiff, it then and there became and was the duty of defendant, according to the tenor and effect thereof, to pay, accept or certify said check as by law required. Tet the defendant, not regarding its duty in this behalf, wrongfully, negligently, unlawfully and improperly failed, neglected and refused then and there to pay, accept or certify said check, and, at all times thence hitherto, has failed, neglected and refused to pay, accept or certify said check; that by reason of the failure, neglect and refusal of defendant to pay, accept or certify said check as aforesaid, the plaintiff has been deprived of said sum of money and the use thereof, and the said sum of money and the use thereof has become wholly lost to the plaintiff, to the damages of the plaintiff in the sum of five hundred dollars.”

“For that wherea's, also, on, to wit, the 17th day of July, 1915, The Galena Commission Company, being then indebted to plaintiff in the sum of $483.93, and having on deposit with defendant a sum in excess thereof, to wit, the sum of $500,- which was subject to its check, executed and delivered to plaintiff its certain check upon defendant, thereby directing defendant to pay plaintiff said sum of $362.46, and the plaintiff, on, to wit, the 19th day of July, 1915, presented said check to defendant and requested that payment be made then and there; and it then and there became and was the duty of defendant to then and there pay said check, or to accept or certify the same; yet the defendant, wholly disregarding its said duty, wilfully, and wrongfully failed and refused and ever since has failed and refused to pay said check or to accept or certify the same; and the defendant, afterwards, to wit, on the 20th day of July, 1915, diverted the said sum of $362.46 to, and used the same for other purposes, whereby the said sum has been wholly lost to the plaintiff and the plaintiff has been deprived of and is now deprived of the use thereof; to the damage of the plaintiff in the sum of $500, wherefore it brings its suit, etc.”

The court sustained a demurrer to these two counts, and the plaintiff, standing by its declaration, judgment in bar was entered against it. The controlling question is whether section 188 of our Negotiable Instruments Act (J. & A. j[ 7828), providing that: “Á check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check,” controls. Appellant cites many Illinois cases decided before the passage of our Negotiable Instruments Act of 1907 in support of its contention that a banker is bound to honor the check of its depositor if the drawer has that amount on deposit; and that the check operates as an assignment in favor of the drawee of that part of the fund on deposit, and that there is an implied promise on the part of the banker to pay it to the payee of the check. It is true that under the law as it formerly stood there was a liability of the banker to the legal holder of a check presented for payment, provided there was sufficient bankable funds to pay it on deposit belonging to the drawer. The court held in Fourth Nat. Bank of Chicago v. City Nat. Bank of Grand Rapids, 68 Ill. 398, that there was an implied agreement between the banker and depositor that whoever should become the owner of such check shall, upon presentation thereof, become the owner and entitled to receive the amount specified in the check, provided the drawer shall at the time have that amount on deposit. While this was the law of Illinois as indicated by the above cited and many other eases, it was not so held in most jurisdictions. The general rule was that the holder of an unaccepted check has no right of action against the bank for refusing to pay such check. (5 Cyc. 536, and authorities there cited.) Therefore the rule that the holder of a check has no right of action against the bank on which it is drawn before acceptance, while new in this State, is a familiar one in the world of commerce. Appellee only cites Standard Trust Co. of New York v. Commercial Nat. Bank, 166 N. C. 112 (81 S. E. 1074), in support of its contention that the statute in question does not control, but that case was decided on the ground that there was evidence" of a constructive or implied acceptance of the check by the bank, and it was there said that where a bank refuses to pay a check “the holder has no cause of action thereon against the bank but must seek his remedy against the drawer.” Justice Brown in an opinion of the First District Appellate Court, in Rauch v. The Bankers Nat. Bank of Chicago, 143 Ill. App. 625, said:

“By the law of Illinois as it exists to-day (since the passage of the Negotiable Instruments Act of June 5, 1907), a bank is not liable in any case to the holder of a check drawn on it ‘unless and until it accepts or certifies ’ the same. This conforms to the law as it before existed in most jurisdictions, but in Illinois before the passage of the act in question * * * a different doctrine prevailed. ’ ’

While this statement as to the effect of the late Negotiable Instruments Act was not necessary to the decision of the case and may be taken as dicta, we believe it correctly states the law. This court recognized the effect of that provision of the act in Eshbach v. Byers, 164 Ill. App. 449. It is not alleged in the declaration in the present case that appellee either expressly or impliedly accepted the check upon which the action is brought. We conclude, therefore, that no liability of the bank to appellee is shown, and that the demurrer was properly sustained.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Dibell

text:
    Jessie Frazier, Administratrix, Appellee, v. City of Geneva, Appellant.
    Gen. No. 6,238.
    1. Electricity, § 8

      —when city not obligated to inspect electric appliances inside house of customer receiving current. A city operating an electric lighting plant is not required to make inspection of appliances connected with the system inside the house of a customer which are put there by such customer without notice to the city and over which the city has no control and in which it has no interest, and the city is liable in an action for damages for injuries occasioned by such appliances.
    2. Electricity—when city does not adopt wiring inside house of customer as part of its system of lighting. Where a city operating an electric lighting plant required customers to bring their house wires a certain distance outside the house where it attached its wires to such house wires, held that the city did not, by so attaching its wires to the house wires, adopt the wiring inside the house as part of its system of lighting.
    3. Electricity, § 27

      —when evidence insufficient to show existence of excessive volume of electricity in wires in house of customer. Evidence held insufficient to show that an excessive volume of electricity was in the electric lighting wire in the house of the deceased, in an action to recover damages for his death.
    4. Evidence, § 232

      —when coroner’s verdict is competent evidence. A coroner’s verdict is competent evidence, although not filed with the clerk of the Circuit Court.
    5. Evidence, § 442

      —when opinion of physician as to cause of death is inadmissible. The testimony of a physician giving his opinion as to the cause of a party’s death, based in part upon what he was told by another party, but not stating what such other party had told him, held improperly admitted in an action to recover damages for such death.
    6. Negligence, § 228

      —when instruction limiting question of contributory negligence to the time of death is improper. An instruction limiting the question of contributory negligence of deceased to the time of his death from contact with an electric appliance placed by him in his house without the knowledge of or notice to the city furnishing electricity for his house, held improper, in an action to recover damages for his death.
    7. Witnesses, § 187

      —when leading questions are improper. Leading questions on examination in chief are, as a general rule, improper.
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 12, 1916.
    Aldrich & Worcester and Leonard O. Mead, for appellant.
    Russell & MoNerny, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

David Frazier died suddenly in the basement of his home in Geneva, Illinois, on the evening of July 8, 1913, and this suit was brought by his administratrix for the benefit of the next of kin, upon allegations in the declaration that his death was dne to the negligence of the City of Geneva in the control of its electric lighting plant. Plaintiff had a verdict and a judgment for $5,000, from which defendant appeals.

The city operated an electric lighting plant and supplied electricity to business houses and homes within the city and to the home of Frazier, situated on the north side of James street, between Third and Fourth streets. A severe wind, electrical and rainstofm passed over the city on the afternoon of July 8th, but abated about six o’clock in the evening. At some places in the city poles carrying the electric wires were broken down, and. primary wires carrying 2,300 volts and secondary wires carrying 110 volts went down together. The poles and wires near the Frazier house were not broken down, but a pole in front of the Frazier residence, to which a guy wire was "attached, had fire on the outside of it, and sparks were seen to come from the wires in front of his house. He reported this by telephone to an officer of the city in its electrical department and the latter inquired if the lights were burning all right in Frazier’s house and received the answer that they were. Thereupon said officer paid no further attention to Frazier’s house. The city received many notifications of trouble at various places, and did work at some of those places. The city officers testified that they received no notice that the wires were down a block and a half or two blocks from Frazier’s house until after his death, but did receive notice that the wires were down at a place still more distant, and they did not make any repairs there at that time, and they left the works early in the evening. About nine o’clock Frazier carried a crate of fruit into the basement and his wife accompanied bim. Part way down the stairs there was a button with which to turn on the lights in the basement. There were two electric lights in the main room of the basement. One of these had been turned off at the socket so that it did not light when Frazier turned the button. The other one did light. In the fruit room an electric cord came down from the ceiling and there was a socket at its end several feet above the floor. The afternoon of the preceding day Mrs. Frazier had taken out that lamp and had inserted in the socket a fixture connected with a flat iron which she used that afternoon upon her ironing table in the basement. "When she finished her ironing she detached that fixture from the socket, but she did not put back the lamp. She did not remember whether the current was shut off at the socket when she left it. When they reached the main basement Mrs. Frazier turned to one side for some other errand and Frazier passed into the fruit room, the door of which was open, and into which room shone the light that was burning in the basement. An instant later Mrs. Frazier heard a groan and went to the fruit room and found her husband lying on the floor. She testified that there was electricity in the air and she was thrown down and could not immediately get up or detach her hands from the floor. She found herself unable to move her husband and went and called a neighbor, and then telephoned her husband’s physician, who came at once. Frazier was dead. He had a burn in the palm of his hand. The doctor testified in chief that it was half the size of the palm of the hand. Counsel say this was a mistake of the stenographer. On cross-examination the doctor said that it was three-fourths the size of a ten-cent piece. Another witness said it was a quarter of an inch in diameter; another one that it was as large as the head of a pin. Counsel for appellee have argued the case as if the testimony showed that it was a fresh burn. We do not find that any witness testified that it was fresh or that it had the appearance of being caused by elec, tricity. If this was a fresh burn, caused by electricity, then it is highly probable that when Frazier entered the fruit room he did not know that the lamp had been removed from the socket at the end of the cord, and that he then put up his hand to that socket for the purpose of turning on the light and then received the shock and fell and died. This cord in the fruit room and the socket thereon were not a part of the original wiring of the house, which had been done many years before, but was put in by Frazier, either personally or by some person whom he employed, and it was not shown that the city or any one connected with its electrical department knew of its existence. An employee of the city took off this socket soon after the death of Frazier and substituted a standard socket and produced in court the socket that was upon the cord when Frazier died; and the city proved that that was an improper and defective socket and that because of its defects a person placing his hand upon it could receive the shock of a short circuit. There was no evidence in denial of this testimony, so that the reasonable inference from this testimony is that if Frazier received the shock from the city’s current it was through and because of a defective fixture that he had installed and of which the city had no notice.

Appellee contends that because of the dangerous character of electricity the city owed to all its customers and to Frazier, the duty of constantly inspecting the wires inside of houses and the fixtures, and to constantly keep them in proper repair, and this position is based upon Alton Railway & Illuminating Co. v. Foulds, 190 Ill. 367. That case should be read in connection with the report of the same case on the same record in 81 Ill. App. 322. In that case the defendant had wired the house and the basement and had installed the lamps," and the declaration so charged. Also, in that case the defect found to exist and which could have caused the death of the deceased in the basement was a condition existing at the pole outside the house by which the high potential current on the primary wire could pass around the transformer and to the secondary wire, without passing through the transformer. The question here involved whether the seller of electricity is liable for a defective condition inside a house which it did not wire, for injury to the owner who did install it without the knowledge of the seller of the electricity, was not involved in that case, and is not there decided. This question was discussed in Memphis Consol. Gas & Electric Co. v. Speers, 113 Tenn. 83, where it was held that liability for an injury occasioned by a defect in a fixture of this kind depends upon the interest in or control over the defective appliance by the defendant which furnished the electricity, and that if it neither had interest in nor control over the appliance, then there would be no liability, and that the argument which would make an electric company an insurer against defects in appliances over which it had no control would, to avoid liability, impose upon it the duty of continued inspection of the wires of every customer supplied with its product, and that this would be a burden which no such company could bear and live, and would be a source of annoyance to its customers to which they would not long submit. That court therefore refused to follow the Kentucky case to the contrary (Maysville Gas Co. v. Thomas, Adm’r, 25 Ky. L. Rep. 403 (75 S. W. 1129), and held that there was no liability where there was no control over the wires and no knowledge of the defect that caused the injury. To the like effect is Harter v. Colfax Electric Light & Power Co., 124 Iowa 500; and Peters v. Lynchburg Light & Traction Co., 108 Va. 333. This subject is exhaustively considered and many authorities reviewed in Minneapolis General Elec. Co. v. Cronon, 166 Fed. 651. In that case the wiring in the building where the death occurred had been done by the defendant, hut that was some three years before, and the court said that there was no pretense that the work then done was improper or imperfect or that the fire resulted from any such cause, but that the occupant of the building had hung a suspended wire over a nail for so long a time that the insulation became broken and exposed the live wire to the inflammable wooden wall, but for which the fire would not have occurred, and that this was the direct fault of the occupant, over whose action defendant had no right of control. It was there contended for the plaintiff, as here, that as the defendant was manufacturing and furnishing to the building a highly dangerous force under its immediate control in the transmission, it was its duty to see that the inside wires were, at the instant, in such condition of repair and insulation as to prevent electricity from the exposed live4 wire to be conveyed to the building. The court reviewed the Kentucky case, which does so hold, and refused to follow it, and said:

“Its recognition and enforcement by the courts would impose upon the company, furnishing electricity under a contract with the owner of a building who had wired it and owned and controlled the wires inside, an intolerable burden. * * * Can the company, unbidden, enter at will a private house of the citizen and pass into its various rooms to inspect these wires every day to see that they are in proper condition for the reception of the electricity it has contracted to sell? If so, it must employ a large retinue of competent men to do this work; and, as absolute insurers, under the rule contended for, the necessities of the situation would demand that they should have free access to these buildings at all times and under all conditions. Such a rule of law would tend to put concerns furnishing electricity to private houses out of business. ’ ’

Among the cases there reviewed is National Fire Ins. Co. v. Denver Consol. Elec. Co., 16 Colo. App. 86, to which we have not access. That court is there quoted as saying:

“Where parties undertake to wire their own property and then apply to a light company to deliver a current to light the building, they must be assumed to take all risks resulting from the character of the wire which is put in the building and the method of construction which is adopted in putting it in. * * * We are quite ready to concede that, when an electric light company undertakes to supply a dangerous current to a dwelling house or to a building, they are bound to see that the wires they put in and the connections they make are properly insulated and protected, so that no harm will come to the property. Where, however, they are only employed to deliver the current by connection with wiring already made by the individual who owns the property, it seems to us that their responsibility ends when the connection is properly made under proper conditions, and they deliver the current in a manner which will protect both life and property.”

We follow the principle announced in the foregoing cases and hold that no inspection of this wire in the fruit room was required of appellant by reason of anything thus far discussed. As to the electricity upon the floor, testified to by Mrs. Frazier, there is nothing in the evidence to justify the jury in finding that that electricity came from the wires of appellant. But appellee seeks to avoid the application of the foregoing authorities to this case by reason of one answer given by Peterson, superintendent of the electrical plant on cross-examination by counsel for appellee. The following occurred:

Q. “What is required by the City of Gleneva in making its contract with the property owner, is that he shall bring his wires out for you to hitch on to?” A. “Yes, sir.” Q. “And the city adopts that wiring as part of the means to carry the electrical current to the customer?” A. “Yes, sir.” It is contended that this answer proves that the wires inside of the house, including this cord and socket, put in the fruit room by Frazier without the knowledge of the city about a year before his death, became a part of the ’wires which the city was bound to inspect and keep in proper condition. We are of opinion no such conclusion can be drawn from that answer. The proof abundantly shows that the city did none of the wiring in this house, but that it required the house owner to bring his wires a certain distance outside of the house and the city attached its necessary wires to the house wires at that place. Of course, it is entirely true that the city sends its electricity into the house over the wires of the owner and that it is only by that method that its current can get to the lamps in the house. It cannot be held that the witness meant that the city thereby adopted the wires in the house as its own, or contracted to keep them in repair and duly inspected. In every building where the owner wires his own house and furnishes his own fixtures, the manufacturer of the electricity attaches its wires to the wires of the owner and the rule here contended for would make every manufacturer of electricity responsible for the inside wiring and lamps, and bound to inspection. No such consequence can follow the mere connecting of the wires outside of the building. The court therefore erred in modifying certain instructions so as to submit to the jury the question whether the city had adopted the wiring inside the house as part of its system of lighting. There was no evidence to justify those modifications.

There are three other facts under which, in our judgment, the jury could not reasonably find that an excessive current of electricity reached deceased over the wire hanging in the fruit room. The light in the cellar which was lighted when deceased turned the button as he went down the stairs remained burning. There was a light burning in the back bedroom upstairs, and it remained burning. The primary wire was arranged to carry 110 volts, which is not dangerous to life. There was a fuse in the attic where the wires first entered the house, which would melt and cut off all current from the building if it was loaded beyond 110 volts, and that fuse did not melt. As we understand the evidence the secondary wires did not come from the plant, but there were separate secondary wires for each transformer. On a pole near the comer of James and Fifth streets there was a transformer, the office of which was to take from the primary wire, which carried 2,300 volts, and transfer to the secondary wires 110 volts only, and those secondary wires led to four dwellings, including Frazier’s, and those secondary wires did not enter any other houses or come near any other transformer. If, because of a storm or a stroke of lightning more than 110 volts had passed from the primary wire to the secondary wires, it would have destroyed or wrecked the transformer. This transformer was in perfect condition after Frazier died. We are therefore of opinion that under this evidence the jury could not reasonably find that Frazier died because of an excessive volume of electricity upon the wire in the house, and that the condition of other primary wires at other places could have no effect upon the primary wires running to these four houses. But it is said that Mrs. Sawyer, the occupant of one of these four houses, received a shock in her cellar the same evening from her electrical appliances. It was shown that this was from a cord put in by her husband and wound around some pipes in the basement and that, because of the storm and moisture in the air, these pipes became covered with moisture and the insulation of the wires became moist, and therefrom a current of electricity would pass to the floor and that when Mrs. Sawyer took hold of the fixture a slight current of electricity might pass through her body, producing the shock to which she testified. No such condition was shown to exist in Frazier’s case. The reasonable inference from the evidence is that Frazier received a shock because of the defective condition of the fixture which he had installed, and it is entirely possible from the evidence that he was not in physical condition to withstand a slight shock of electricity; and if there was electricity on the floor of the strength testified to by Mrs. Frazier, that came from some source not disclosed by this evidence, and may have assisted in producing Frazier’s death.

The court admitted in evidence the coroner’s verdict, which attributed the death of Frazier to being accidentally electrocuted in the basement of his home. Appellant contends that this was incompetent because it was produced by the man who was coroner when this death occurred, and that it had not been filed in the Circuit, Court. It is contended that it does not become competent evidence until it has been filed with the clerk of the Circuit Court, and some of the earlier cases base its competency on the fact that it is a record of the Circuit Court. Stollery v. Cicero & Proviso St. Ry. Co., 243 Ill. 290, was a case where such a verdict was introduced over the specific objection, set out in the opinion, that it was not shown to have been filed with the circuit clerk. The court did not discuss that objection, but in effect overruled it by holding that the verdict was properly admitted in evidence. That is decisive of the same question here.

Dr. Scott, a witness for plaintiff, gave his opinion as to the cause of death, based in part upon what Mrs. Frazier told him. The court refused to exclude that answer. He did not testify what Mrs. Frazier told him and the jury therefore had no means of knowing the basis -of his opinion, and the answer should have been excluded. A hypothetical question could have been put involving what Mrs. Frazier testified to, and we are not called upon to decide whether in any other way his opinion based upon her statements could have been made competent.

The court by instructions limited the question of contributory negligence of Frazier to the time of his death. It was the contention of appellant that he was guilty of negligence contributing to his death in installing this defective fixture in the fruit room. For that reason the limitation in the instruction was improper.

Counsel for appellee put many leading questions to his witnesses on examination in chief, over the objections of appellant. Why the court overruled these objections does not appear. The general rule prevailing in this country forbids leading questions on examination in chief. Jones on Evidence (2nd Ed.) 816; Cannon v. People, 141 Ill. 270; Flynn v. Fogarty, 106 Ill. 263; Coon v. People, 99 Ill. 368. There are exceptions to this rule, but no reason for departing from the general rule appears here. We mention this to prevent a like course at another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Woman’s American Baptist Home Mission Society, Appellee, v. George W. Rayburn, Executor, Appellant.
    Gen. No. 6,248.
    1. Courts, § 94

      —when County Court exercises equitable jurisdiction. In the allowance of claims against an estate, the County Court exercises an equitable jurisdiction and is governed by equitable rules.
    2. Life estates, § 12

      —what was liability at common law for rent of lessee of life tenant to reversioner upon death of life tenant prior to expiration of lease. At common law the lessee of a life tenant who died prior to the expiration of the lease, according to its terms, was not liable to the representative of the life tenant for rent which had not yet become due, and the lessee could quit on the life tenant’s death, or the reversioner could put him out, subject to the lessee’s right to emblements, but if the lessee remained with the reversioner’s consent the latter could recover for the lessee’s use of the lands after the life tenant’s death.
    3. Life estates, § 12

      —what are rights under statute of reversioner as to rent accruing after life tenant’s death. Under the Act of July 1. 1897 (J. & A. If 1075), providing that, when a life tenant of lands dies on or after the day when rent becomes due and payable under a lease by him of the lands, his executors or administrators may recover from the undertenant the whole rent due, but only the proportion of rent accruing before the life tenant’s death when he dies before the day when rent is to become due under such lease, and the remainderman the residue, the reversioner is not required to permit such lessee to remain after the life tenant’s death, but if the lessee does remain with the reversioner’s consent the rent should be apportioned as provided in the act, and the reversioner may recover from such lessee or from the executor or administrator of the life tenant to whom the lessee may have paid it his proportion of the rent accruing after the life tenant’s death.
    4. Equity, § 7

      —when- will not relieve against force of a statute. It is not within the province of a court of equity to relieve against the force of a statute the meaning of which is not doubtful.
    Appeal from the Circuit Court of Warren county; the Hon. Robert J. Crier, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.
    Saeford & Graham, for appellant.
    O. Y. Stookey and Hanna & Lauder, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Mrs. Melissa Hayes was life tenant of a quarter section of land in Warren county and the Woman’s American Baptist Home Mission Society was the reversioner. Mrs. Hayes’ affairs were in the hands of a conservator, and J. B. and George E. Pratt were in possession of the land as tenants for a term expiring March 1,1914, when, on October 6,1913, said conservator executed with Pratt & Pratt a written lease of said premises from the conservator to the tenants for one year, from March 1,1914 to March 1, 1915, for $1,430, payable on March 1, 1914, which was the first day of the term. They paid the rent to the conservator on March 7, 1914, and continued in possession under said lease until March 1,1915. Mrs. Hayes died on May 4, 1914. Thereafter the conservator paid over said rent to her executor. On May 5, 1915, the reversioner filed a claim against her estate in the following language:

“To money had and received for the use of said Corporation of Messrs. Pratt & Pratt, such money having been paid for the rent or use and occupation of real estate and premises in Warren County, Illinois, known andi described as the North-west Quarter (N W 14) of Section Nineteen (19), Township Nine (9) North, Range Two (2) West of the Fourth (4th) Principal Meridian, from May 4, 1914, to and including February 28, 1915, at $1,521.00 per annum.

$1,250.58.”

The County Court disallowed the claim and the cause was appealed by the claimant to the Circuit Court, where it was heard without a jury and was allowed in the sum of $1,175.33. The term of the lease was one year and Mrs. Hayes died on the sixty-fifth day, and this allowance in the Circuit Court was for three hundred days or three hundred three-hundred-sixty-fifths of the rent agreed for that year. The claim filed stated the rent at more than the true amount but this was immaterial. The executor appeals from the judgment of the Circuit Court.

If there can be an apportionment of this rent between the life tenant and the reversioner, then the judgment of the Circuit Court should be sustained, because it is equitable. Appellee relies upon the doctrine that in the allowance of claims the County Court exercises an equitable jurisdiction and is governed by equitable rules, as has been laid down in many cases, including Wolf v. Beaird, 123 Ill. 585; Shepard v. Speer, 140 Ill. 238; and Thomson v. Black, 200 Ill. 465. But it is said in Donoghue v. City of Chicago, 57 Ill. 235: “It is not in the power of a court of equity to relieve against the force of a statute, the meaning of which is not doubtful.” The statute which appellant claims to be applicable to this case is the Act of July 1, 1897, as follows:

“When a tenant for life shall demise any lands and shall die on or after the day when any rent becomes due and payable, his executors or administrators may recover from the undertenant the whole rent due, but if any such tenant for life shall die before the day when any rent is to become .due, his executors or administrators may recover the proportion of rent which accrued before his death, and the remainder-man shall recover for the residue.”

Hurd’s Rev. St. 1913, p. 1540; 1916, p. 1635 (4 J. & A. ¶ 7075).

That statute was passed after the common law, relating to the liability for rent of those leasing from a tenant for life who died during the term of the lease, had been stated in Hoagland v. Crum, 113 Ill. 365. It was there held that as the contract had been broken by the death of the life tenant, the undertenant was not liable to the representative of the life tenant for rent which had not yet become due; that the lease did not bind the reversioner; that the undertenant could quit, and that the reversioner could put him out; but that if the undertenant remained with the consent of the reversioner, the latter could recover of the former a reasonable satisfaction for the use of the lands after the determination of the lease by the death of the life tenant.

There is one exception to this rule. If the premises are tillable lands, and the life tenant or his subtenant has put in his crops, and the estate then ends by the death of the life tenant, an event the time of which could not be foreseen, the legal representatives of the life tenant, or his subtenant, can thereafter harvest the crop. This is called “the right to emblements.” Keays v. Blinn, 234 Ill. 121. The record in this case does not show whether any crops had been put in before the life tenant died. After the proofs were closed, claimant sought to show what the facts were in that respect, and the estate objected that the doctrine of emblements was not involved. The court permitted claimant to call a witness on that subject but he did not know the facts, and the court declined to hold the ease open for further proof to be procured. Claimant’s counsel then stated that some oats were in, but no corn. This was not evidence, and was not admitted by the other side, and did not become a stipulation. "We cannot know what crops the subtenant put in nor whether they were in on May 4th, when the life tenant died. In this state of the record we treat the case as if the right to emblements was not involved.

The main object of the statute, we think, was to prevent the undertenant from escaping liability for rent where the life tenant dies before the lease expired by its terms.. The statute provides that whatever rent is due when the life tenant dies may be recovered from the undertenant in an action by the executor or administrator of the life tenant; but if any such rent is not due when the life tenant dies, the executor or administrator of the life tenant may recover from the under-tenant the proportion of the rent which accrued before the life tenant died, and the remainderman may recover for the residue. The thing specially sought was to make the undertenant liable to some one for each part of the rent, and to prevent his escaping liability, as he could do at common law and under Hoagland v. Crum, supra. It sought to provide who should bring the action. If any rent was due when the life tenant died, the suit for the sum so due could be maintained by his representatives ; if any rent was not yet due when the life tenant died, the representative of the life tenant could maintain an action for the part of the rent which accrued before the life tenant died, and the reversioner could maintain an action against the undertenant for the part which accrued after the life tenant died. It was not the main purpose of the statute to determine how the rent should be divided between the representative of the life tenant and the reversioner. The statute provided for an apportionment between the two if the rent was not due when the reversion took effect, but left that already due by the lease to be sued for by the representative of the one to whom it was payable by the terms of the lease. The position of appellant is, in effect, that if the rent had fallen due on September 30th and the life tenant had died on October 1st, the representative of the life tenant could collect and keep all the rent for the entire year; but if the life tenant died October 1st, and the rent was due October 2nd, then the representative of the life tenant could recover and keep the rent for seven months and the reversioner for five months. We cannot impute to the Legislature so unreasonable an intention. An apportionment having been provided for by this statute, we think the reasonable import thereof, though not expressly so stated, is that all the rent should be so divided. The statute does not intend to compel the reversioner to permit the undertenant to remain. If that could be so compelled under a lease for one year, it could be so enforced under a lease for five or ten years. The statute does not intend to permit the life tenant to make a contract enforceable against the reversioner after the death of the life tenant. As to the rent accruing after the death of the life tenant (leaving out of consideration the right to emblements), it depends upon the consent of the reversioner to permit the undertenant to occupy until the expiration of the lease. If he so consents, and thereby ratifies the lease to the end of the term, the implied consideration therefor is the rent earned during the rest of the time. Here the remainderman practically ratified the le^se for the rest of the rental year. The meaning of the accruing of rent, as distinguished from the date when it is payable by the terms of the contract, is well explained in Noble v. Tyler, 61 Ohio St. 432. The principle of apportionment is established by the statute. The portion of the rent which accrued, that is, was earned, after the life tenancy expired, equitably belongs to the reversioner. It is in the hands of the executor of the life tenant. It does not equitably belong to him or to the estate. In equity and good conscience the executor should pay it to the reversioner. A year is three hundred and sixty-five days. The life tenant was entitled to the rent for sixty-five days. The remainderman was entitled to the rent for three hundred days. That method of apportionment under the statute was approved in Wilson v. Hagey, 251 Ill. 452. The Circuit Court made a like apportionment here. The case may be stated in another way. If the reversioner had sued the undertenants for the use of this farm, it could have recovered from them the reasonable value of the use and occupation of the farm for the period from the death of the life tenant to the end of the rental year, that is, for its use and occupation for three hundred days, under Hoagland v. Crum, supra. There is no evidence that such reasonable value would be anything less than three hundred three-hundred-sixty-fifths of what the undertenants paid for the year. That fraction of $1,430 is $1,175.33, and the reversioner could have recovered that sum from the undertenants. If the undertenants had been compelled to pay that sum, they could have recovered it from the representative of the life tenant, because, to that extent at least, they failed to receive what the conservator of the life tenant contracted to give them, and the executor has the money which they paid the conservator for the rental for that period. Td permit the reversioner to recover that sum from the executor of the life tenant avoids circuity of action. The judgment is affirmed.

Affirmed.


text:
    Daniel W. Zehr, Defendant in Error, v. Reuben F. Zehr, Plaintiff in Error.
    Gen. No. 6,251.
    1. Corporations, § 208

      —when evidence sufficient to sustain verdict in action by third person against stockholders. Evidence held to warrant the amount of the verdict and the finding that plaintiff had a just demand against the corporation in which the defendants were shown to be the sole stockholders for such amount and judgment, in an action against several defendants sued jointly as partners.
    2. Corporations—what are powers as to engaging in brokerage business. Under section 1 of the Corporation Act as originally enacted and as amended in 1915 (Cal. Ill. St. Supp. 1916, 2418), an Illinois corporation could not engage in real estate brokerage business but could engage in buying personal property.
    3. Partnership, § 243

      —when plaintiff must prove joint liability. Under a declaration in assumpsit alleging joint liability of the defendants as partners, the plaintiff must prove such liability even without a plea denying it.
    4. Partnership, § 243

      —when plaintiff must prove joint liability of defendants. Under a declaration alleging and a verified plea denying joint liability of several defendants as partners, such liability must be proved as to all even though only one of such defendants was served and pleaded.
    5. Corporations, § 208

      —when evidence sufficient to show existence of. Where plaintiff offered in evidence certain contracts between himself and another party referred to in such contracts as “incorporated,” held that this was sufficient evidence against plaintiff that such other party was a corporation.

      6. Corporations, § 208

      —when plaintiff must prove joint liability of stockholders. Where certain defendants were sued jointly as partners but were shown in proof to have been not partners but sole stockholders in a corporation, held that it would be necessary for plaintiff to show all defendants were liable upon the claim sued on.
    7. Evidence, § 33

      —when presumed common law in force in foreign State. In the absence of proof as to the laws of another State, it is presumed the common law is in force there.
    8. Corporations—right at common law to engage in real estate brokerage business. The common law contained no restrictions on a corporation engaging in a real estate brokerage business.
    9. Corporations, § 678

      —what is basis of privilege of doing business within State. A foreign corporation is permitted to do business in the State of Illinois only on the principle of comity.
    10. Corporations, § 197

      —what is liability of all of stockholders for illegal acts of officers. There is no statute or decision in the State of Illinois which makes all stockholders liable if the officers of a corporation in its name undertake an illegal act.
    11. Corporations, § 197

      —what law governs liability of stockholders. A mere stockholder incurs only the liability which the laws of the State where the corporation was organized places on him.
    12. Corporations, § 208

      —when evidence insufficient to show joint liability of stockholders. Evidence held to show plaintiff had not established joint liability of defendants, in an action against several stockholders sued jointly as partners.
    Error to the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of facts.
    Opinion filed October 12, 1916.
    Keithley & Keithley, for plaintiff in error.
    Scholes & Pratt and Robert N. McCormick, for defendant in error.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Daniel W. Zehr brought this action of assumpsit against Reuben P. Zehr, Christ Stoller, John Zehr and L. T. Hammond, and apparently had service only on Reuben F. Zehr, as he only appeared and defended, although the summons and return are not in the record before us, nor are many of the orders of court. That the other defendants were not served and defaulted is only an inference from the fact that the verdict and the judgment, which were for $6,541, were only against Reuben F. Zehr. From that judgment Reuben F. Zehr prosecutes this writ of error. We shall call the parties plaintiff and defendant, as in the court below.

In the declaration, filed October 30, 1914, as it appears in the original record before us, the defendants were described as ‘ co-partners, doing business under name and style of Hammond & Zehr.” It appeared in argument that there were indorsements on said declaration and an affidavit of claim which were not in the record, and thereupon, by stipulation and leave of court, the parties filed a supplemental record containing said declaration filed October 30, 1914, together with a copy of the account sued on and plaintiff’s affidavit of amount due and a subsequent bill of particulars. The . declaration as contained in this supplemental record contains no part of the words above quoted describing the defendants as partners. As the first plea was to the declaration as amended, and answered its allegations of partnership, we infer that the part first above quoted by us was added by some subsequent amendment, and in this court plaintiff claims that defendants are liable as partners. Defendant Reuben F. Zehr filed two pleas, the first of which averred that there had never been any such partnership as Hammond & Zehr and that the four defendants named never were partners, and this plea was duly verified. The second plea was nonassumpsit, and was verified by an affidavit of Reuben F. Zehr that his defense was that plaintiff never had any such contract with this defendant nor with all the defendants, express or implied, as is sued upon in this case, and that all the dealings of plaintiff with said defendant and with all the defendants had been settled with plaintiff before the commencement of the suit, and that at the time said suit was begun defendant did not nor did any or all of the defendants owe plaintiff anything. This affidavit was made necessary by the affidavit of plaintiff to the declaration that plaintiff’s demand was for money loaned and goods sold and delivered, and that there was due to the plaintiff from the defendants, after allowing them all just credits, deductions and set-offs, $30,000. The body of the specific bill of particulars was as follows:

“ (1) 320 acres of land in Iron County, Missouri, sold and delivered..........$8,000.00

“(2) Machinery (threshing machines, etc., water tanks, etc., corn sheller, etc.) sold and delivered................ 8,300.00

“ (3) Two automobiles, sold and delivered at $2,000.00 each.................... 4,000.00

“(4) Money loaned...................... 107.00

“(5) Expenses incurred and money paid out • 65.19

“ (6) Money expended for feed............ 21.65

“(7) Commission on sale of 3 sections of land............................. 3,840.00

“(8) Money paid in settlement of note and interest ......................... 370.00

“(9) Increase in value of farm in Grand Forks County, N. D............... 5,280.00

“The date of transactions (1) and (2) is on or about April 4th, 1911; transaction (3) occurred on or about the same date; transaction (4) covered a period from on or about October 15th, 1911, to January 31st, 1912; transactions (5) and (6) and (7) extend over a period fitim April 4th, 1911, to April 4th, 1912; transaction (8) bears date on or about January 15th, 1912.”

Under date of April 4th, three written contracts were executed which plaintiff offered in evidence as Exhibits “A,” “B” and “C.” They were admitted in evidence over objection. In each of them “Hammond & Zehr (incorporated) ” is party of the first part and Daniel W. Zehr is party of the second part and they are each executed by the corporation by L. T. Hammond, as president, with the corporate seal attached, and by Daniel W. Zehr. The first paragraph of Exhibit “A” provides that the first party employs the second party to find for it purchasers for lands or other property which the first party owns or has for sale in North Dakota and Minnesota, and elsewhere, and agrees to pay the second party for such services $2 per acre for all land sold by the first party to purchasers found by the second party, and a reasonable commission on all property other than lands. The fourth paragraph provides for paying to the second party his reasonable expenses in finding such purchasers. The fifth paragraph provides that the first party shall not employ any other person as its agent in Peoria and that the second party shall not work for any other person offering for sale lands in the location where the first party is now operating in North Dakota and Minnesota. The contract was limited to one year from date. Exhibit “B” is a duplicate of Exhibit “A.” In Exhibit “C” the first party agrees to execute a contract for a warranty deed to convey to the second party 480 acres of land in the county of Grand Forks, North Dakota, known as the McCoulan farm, subject to a mortgage for $12,500, with interest at six per cent, per annum, principal and interest to be payable at a time satisfactory to the second party, and that the first party shall execute the deed when certain sums have been paid at certain dates, and that at the execution of said contract the second party is to convey by warranty deed to the first party certain lands described, amounting to 160 acres, in Iron county, Missouri, subject to a mortgage for $1,600,' which the first party assumes and agrees to pay, and subject to certain taxes; and it also provides for merchantable abstracts to be furnished by the respective par Lies. It also provides that the second party shall deliver to the first party two threshing machine outfits, and two water tanks with pump, hose and belting, and one Memphis com sheller and one 40-horse power Glide touring car (seven passenger), subject to $800, which the second party owes on said threshing machine outfit and which the first party agrees to pay. Under these contracts the parties had various dealings under which plaintiff claims there is due him the several items specified in the bill of particulars, the total of which items amounts to $29,983.84. The evidence offered by plaintiff tended to establish his right to recover substantially said sums from some one. Defendant introduced evidence tending to contradict some of plaintiff’s claims. Plaintiff’s actual dealings were mostly with Reuben F. Zehr, who was 'the vice president of the corporation, “Hammond & Zehr (incorporated)” and with L. T. Hammond, who was its president. There is proof that the four defendants were together at one time in Peoria, and that Reuben F. Zehr introduced the other three as his partners, but this is denied by proof introduced by defendant. Two of the defendants, not served, lived in Indiana. Defendants’ proof makes it entirely clear that no partnership in the ordinary sense was ever entered into by the four defendants, and that if any of them used the term “partners” it was in a loose sense, without distinguishing between a partnership and a corporation. The proof warranted the jury in finding that the four defendants were the sole stockholders at the time here involved, although one witness named still another party as a stockholder in the corporation. Plaintiff’s claim that defendants are liable as partners is not based upon any proof that any partnership was ever actually formed between the four, but upon the claim that the corporation, Hammond & Zehr, could not legally transact business relating to real estate brokerage in the State of Illinois, and that as these contracts made by the corporation were illegal, the stockholders are liable as partners and each partner is bound by the acts of the other partners.

Section 1 of the Corporation Act (Cal. Ill. St. Supp. 1916, ft 2418), authorizes corporations for any lawful purpose with certain exceptions, one of which is “real estate brokerage.” In Hurd’s Statutes, now before us, a comma is placed between the words, “real estate” and the word, “brokerage,” but in the original session laws when this section was adopted in 1.872, as it was in force when these contracts were made and these transactions were had, the comma was not there, nor is it in the session laws of 1915, when this section was amended. An Illinois corporation, therefore, could not engage in the business of real estate brokerage, but it could engage in buying the personal property described in Exhibit “C” and in the bill of particulars. Defendant produced testimony that this personal property, although received by the defendants, who were actively engaged in carrying out the business, was only received for plaintiff and was not accepted on the contract. One or two of the defendants caused the automobile in question and another automobile put with it to be overhauled at an expense of $350 and to be shipped to another defendant in the State of Indiana. They paid the money which, under the contract, was assumed by the first party, with added interest. The defendants claimed that this property was never accepted and that they afterwards sold it in Indiana to recoup themselves for the expenses that they had been to and the moneys they had paid but. There were also some horses which passed into the hands of some of the defendants. Defendant claimed a settlement and somebody did write at the foot of Exhibit “A” these words: “This contract is settled and cancelled by mutual agreement.” Plaintiff testified that he did not know that said indorsement had ever been made thereon. He admitted that he did deliver the contracts to the defendant or his attorney, but claimed it was not as a settlement, but for another purpose. As to these conflicting contentions we think it sufficient to say, without discussing the evidence, that we are of opinion that the evidence warranted the amount of the verdict, and that plaintiff had a just demand against the corporation for the amount of the verdict and judgment.

Plaintiff alleged in his declaration, which was in assumpsit, the joint liability of the four defendants. Even without a plea denying the joint liability, it was necessary for him to prove that joint, liability as to all the defendants. United Workmen v. Zuhlke, 129 Ill. 298. When, as here, the joint liability is denied by a plea properly verified, then for that additional reason the joint liability must be proved as to all, and that is true even if only one of several defendants is served and pleads. Griffith v. Furry, 30 Ill. 251; Yocum v. Benson, 45 Ill. 435; M. W. Powell Co. v. Finn, 198 Ill. 567. Section 54 of the present Practice Act (J. & A. ft 8591) on this subject is the same as section 35 of the Practice Act discussed in the decisions above cited. The execution by plaintiff of Exhibits “A,” “B” and “0,” in which the other party to the contract was called a corporation, was sufficient evidence against plaintiff that the first party to said contracts was a corporation. West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill. 156. Therefore, as the proof does not disclose any intentional partnership between the four defendants, but only that they were stockholders in Hammond & Zehr, incorporated, it was necessary for plaintiff to show that all the stockholders are liable under the facts in this case. Section 8 of the Corporation Act (J. & A. if 2425), makes stockholders liable for unpaid stock under certain circumstances, but there is no proof that there was any unpaid stock here. Sections 16 and 19 (J. & A. fifí 2433, 2436), make the officers and directors' of a corporation liable under certain circumstances, but those circumstances are not shown here, nor is it shown that all the defendants were officers or directors. Section 18 (J. A. 2435) makes the stockholders liable under certain circumstances, but there is no proof here to bring these stockholders within that section. Our attention is not called to any other statutory provision making stockholders liable. There is no direct proof under the laws of what State this corporation was organized. It is proved that its corporate seal was in Indiana and that it had an attorney in Indiana, and counsel for both sides seem to assume that it is an Indiana corporation. At common law there was no such restriction as in this State forbidding corporations to be engaged in real estate brokerage. In the absence of any proof as to the laws of Indiana, Minnesota, North Dakota and Missouri, we must presume that the common law is in force there. Dalton v. Taliaferro, 101 Ill. App. 592; County of Jo Daviess v. Staples, 108 Ill. App. 539. Plaintiff argues this cause as if this corporation was organized to do a real estate brokerage business, hut there is no proof in this record what its corporate powers were. A witness did call it the ‘ ‘ Hammond & Zehr Land Company,” hut that was not its corporate name nor was there proof from which the court could draw an inference as to the purpose for which the corporation was organized. We regard it as really immaterial in what State it was organized, for as the law of this State does not permit a corporation organized under its law to do a real estate brokerage business, no foreign corporation could lawfully do such a business in this State. A foreign corporation is permitted to do business in this State only on the principle of comity. Carroll v. City of East St. Louis, 67 Ill. 568. In Illinois a corporation organized for the sole purpose of buying and selling real estate is unlawful and such a corporation cannot exercise its powers in Illinois, even though it is organized under the laws of another State. Walker v. Taylor, 252 Ill. 424. For various applications and illustrations of this principle, see Dunbar v. American Telephone & Telegraph Co., 238 Ill. 456; Imperial Building Co. v. Chicago Open Board of Trade, 238 Ill. 100; People v. Shedd, 241 Ill. 155; Alpena Portland Cement Co. v. Jenkins & Reynolds Co., 244 Ill. 354; Africani Home Purchase & Loan Ass’n v. Carroll, 267 Ill. 380. It was the intention of the parties to this contract that plaintiff, who lived in the vicinity of Peoria, should seek to interest parties in and about Peoria in the purchase of lands in Minnesota, North Dakota and elsewhere, and before the transactions were completed there were also dealings in real estate in Illinois. So far as the real estate transactions were to be conducted in Illinois, they were beyond the power of the corporation to transact, and the illegal part seems to have been inextricably combined with the transactions in Minnesota and North Dakota and Missouri, and it may be that the entire dealings were thereby rendered illegal. We are not aware of any statute or decision in this State making all the stockholders liable if the officers of the corporation in the name of the corporation undertake an illegal act. Plaintiff relies upon Wing v. Slater, 19 R. I. 597, 33 L. R. A. 566, as so holding, but that case was under a statute making the stockholders of a company jointly and severally liable for its debts if the directors failed to file a certain certificate by a certain annual date, and even there the stockholders were relieved of liability. There are several other States whose decisions are there referred to, making stockholders personally liable for. debts of the corporation, but none of them seem to be in point here. It is stated in 10 Cyc. 652 and 676, that where a corporation engages in a business which is prohibited by law or public policy, its members become liable as partners, but we are of opinion that that is too strong a statement of the law so far as appears from authorities within our reach. In Hawes v. Anglo-Saxon Petroleum Co., 101 Mass. 385, the stockholders were held liable for debts incurred before the capital was fully paid in, but that was under a statute providing that in such case each stockholder should be liable but not beyond the par value of his stock; and that case was in equity. Same v. Same, 111 Mass. 200, was another stage of the same case. First Nat. Bank v. Almy, 117 Mass. 476, was a suit at law on a note given by a corporation in its business, which business it was not yet entitled to transact because its capital stock had not all been subscribed and paid in. It was held that the stockholders could only be held liable in equity after a judgment against the corporation, and the court there said: “Even if the organization of the corporation had been defective, there would have been great difficulty in holding the associates to the liability of co-partners which they never intended to assume.” In Empire Mills v. Alston Grocery Co. (Tex. App.), 12 L. R. A. 366, stockholders were held liable as partners, but in that case the corporation had been organized in Iowa for the sole purpose of carrying on a business in Texas for which the laws of Texas did not permit a corporation to be organized, so .that the corporation was conducting a wholly illegal business. In the present case, at least one of these defendants had practically no part in the transactions here involved and apparently had no knowledge that any such contracts were made. If every stockholder is liable for the performance of a contract entered into in the corporate name by the officers of the corporation where the contract was beyond the corporate powers, then stockholders who are in the minority, who did not elect the directors, who had no knowledge that they had performed an illegal act or entered into an illegal contract, are bound. It seems to us that this is a responsibility that we ought not to fix upon a mere stockholder when there is no statute providing therefor. It seems to us that a mere stockholder incurs the liability, and only the liability, which is placed upon stockholders by the laws of the State where the corporation is organized. Baker v. Backus’ Adm’r, 32 Ill. 79. If this corporation had been organized in Illinois for the sole purpose of real estate brokerage, or if it had been organized under the laws of the State of Indiana for any purpose which was wholly forbidden by the laws of that State, so that it was organized to do only a business which was illegal, then every person who subscribed for a share of stock in that corporation would be charged with notice that it was organized to do only an illegal business; and under such circumstances it may very well be that the principle stated in 10 Cyc. would be applicable, but if the plaintiff here relied upon any such ground for holding the defendants liable merely as stockholders, the burden was on the plaintiff to prove that the corporation was organized solely for an illegal purpose. That proof is entirely wanting. In whatever State this corporation was organized, we must assume, in the absence of proof, that it was organized for some lawful purpose, and we are unable to hold that if such a corporation engages in one or two illegal contracts, the owner of a single share of stock would become liable as a partner for all the debts incurred under such contract or contracts, even where, as here, it amounts to nearly $30,000. We are therefore of the opinion that the evidence in this case does not fix the liability upon all of the defendants, and that therefore plaintiff cannot recover under this declaration against the one stockholder who was served and appeared. If he alone had been sued and his liability had been placed upon his violation of his duty as an officer and a director, a different question would be presented which we do not here decide.

The declaration contains only the common* counts. Defendant has raised the serious question whether a recovery could he had against stockholders in such a case upon the common counts, but owing to our other conclusions above stated, we have not thought it necessary to discuss that question.

As our conclusion appears to be decisive against plaintiff we do not remand the case. If, however, plaintiff desires to retry the case in the expectation of being able to overcome our view of the facts by further,, proofs, he may make an application to that effect to this court during this term and it will be duly considered.

For the reasons above stated the judgment is reversed.

Reversed, with finding of facts.

Finding of facts to be incorporated in the judgment.

We find from the evidence that plaintiff has not established the joint liability of the four defendants named in the declaration and has not established a partnership between the four defendants and therefore he cannot have a judgment against the one defendant who appeared and pleaded.