text:
    Superior Mining Company et al., Appellants, v. White Coal Company et al., Appellees.
    1. Corporations, § 170

      —when stockholders may not dispose of all of tangible corporate property against wish of minority. More than two-thirds of the stockholders of a solvent, going, private Illinois corporation were not authorized, in their sound discretion, to dispose of all the tangible property of the concern against the protest of a minority stockholder.
    2. Corporations, § 170*—when majority stockholder may not dispose of tangible assets of corporation. Although one person owns a majority of the stock of a corporation, or all of it, or all but two shares, he does not in consequence thereof acquire the right to act for the corporation, or as the corporation independently of the directors, in the disposition of the tangible assets of the corporation.
    3. Corporations, § 364*—when president may not give option for sale of all of tangible assets of corporation. The president of a corporation cannot act for the corporation in such an important and unusual matter as giving an option for the sale of all the tangible assets of the corporation unless specifically so authorized by the directors. '
    4. Corporations, § 364*—when specific performance of option to purchase coal mine given by president will be denied. Specific performance of an option to purchase a coal mine constituting all of the tangible assets owned by a corporation, given by the president who was also a director, was denied, although the sale was made in good faith, for a good price and was free from fraud, it appearing that the directors had never conferred authority on such president to dispose of the mine, and had not ratified his action, and that one of the stockholders had opposed the attempted sale from the first instant.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    Rehearing denied June 6, 1919.
    B. W. Bopiequet and Maurice V. Joyce, for appellants; Albert L. Schmidt, of counsel.
    Harry A. Frank and John E. Hamlin, for appellees.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The White Coal Company was incorporated under the laws of the State of Illinois with a capital stock of $5,000, divided into 50 shares of the par value of $100 each, owned as follows, namely: Bobert White, 9 shares; Samuel White, 9 shares; Jemima White, executrix of the last will and testament of James B. White, deceased, 11 shares; Prank Sergent, 9 shares, and Clarence V. Beck, 12 shares.

Jemima White is the mother of Bobert White and Samuel White and the mother-in-law of Prank Sergent. Bobert White, Frank Sergent and Clarence Y. Beck were the directors. Bobert White was president and Clarence Y. Beck was secretary at the time of the transaction in question. The corporation was engaged in the business of mining and selling coal and had its principal office at Belleville, Illinois. It originally operated the Massey mine, which was hot a success, and it later acquired from the Kolb Coal Company a lease of the Yalley mine. Clarence Y. Beck was president of the St. Louis Coal Company and had a favorable contract with the White Coal Company to sell the output of the Yalley mine, which contract was determinable upon sale of the Yalley mine by the White Coal Company. Under the lease of the Yalley mine the coal territory therein was very limited, and no coa.1 other than that included in the lease could be taken out through the shaft of the Yalley mine. Prior to the increase in the price of coal, due to the war, the business of the White Coal Company had not been good, but on March 19, 1917, it declared a dividend of 200 per cent. It was indebted to the Kolb Coal Company in the sum of $4,400, part of the consideration paid for the lease of the Yalley mine. Bobert WTiite, the president, had offered the mine for sale at $25,000. Such action seems to have been favored by the White family which desired to dispose of the mine while prices were high, but no action of the corporation as such was taken. He also made an unsuccessful attempt to sell the Valley mine to William H. Bochmer of St. Louis in June, 1917. It is a matter of dispute whether Beck consented to such a sale or was even consulted about it. Later Robert White offered to sell the Valley mine for $35,000 to Lee Grandeolas of Belleville, who secured an agreement from John Henderson, president of the Superior Mining Company of St. Louis, to buy at that price and instructed Grandeolas to secure an option on the mine. Robert White gave him an instrument in writing purporting to be such an option and Grandeolas assigned the same to the Superior Mining Company, which proceeded to secure a lease of coal lands adjoining the Valley mine and a longer time lease of the Valley mine. At the time the claimed option was given Grandeolas, • Robert White and Frank Sergent were the only stockholders present. Beck was in Chicago at the time and Grandeolas was so informed by Robert White, who expressed some doubt both as to his right to sign the option and the attitude which Beck would take in the matter. Upon Beck’s return from Chicago a meeting of the stockholders of the White Coal Company was held at the home of Jemima White, but she did not attend the meeting. The other stockholders were present as were Grandeolas and his attorney, P. C. Otwell. Frank Sergent had previously resigned as director and Robert White and Clarence V. Beck were the only directors present. Otwell had prepared a formal waiver of notice of directors’ meeting and a conveyance for the president and secretary to sign conveying the lease of the Valley mine to the Superior Mining Company. Beck refused to sign either paper and requested time to consult an attorney and learn what his rights were. He promised to and did return the next evening at which time he announced that he had found out what his rights were as a minority stockholder and that he intended to prevent the sale. At that time he announced that he would purchase the shares of the White family on the basis of $35,000 for the entire property, and they have since sold their interests to him. Beck refused to convey the lease of the mine to appellants and they filed their bill for specific performance ag’ainst appellees in the Circuit Court of St. Clair county. Appellees filed a joint answer denying that appellants were entitled to the relief sought, to which appellants filed a replication and the .cause was referred to the master in chancery for the purpose of taking the proof and reporting same, together with bis findings of fact and conclusions of law. After hearing the evidence, the master recommended that the bill be dismissed for want of equity. Objections were filed, overruled and on motion ordered to-stand as exceptions. A decree was entered overruling the exceptions, confirming "and approving the report of the master, dismissing the bill for want of equity and rendering judgment against appellants for costs, to which decree appellants excepted.

The record which has been brought to this court for review shows that Beck, a stockholder, never consented to the attempted sale sought to be enforced; that the attempted sale did not follow corporate action by the board of directors or officers, based upon authority given by the unanimous consent of the stockholders, but it does show that such sale was made in good faith, for a good price and is free, from fraud. It is agreed by appellants and appellees that there is but one legal question involved, that is, whether more than two-thirds of the stockholders of a solvent, going, private Illinois corporation are authorized, in the exercise of a sound discretion, to dispose of all the tangible property of the concern against the protest of a minority stockholder. In our opinion the question raised has been answered by the courts of this State, and under the facts a rule of property is involved which we are not at liberty to disregard. In Sellers v. Greer, 172 Ill. 549, quoting from Cook on Stockholders (3rd Ed.), sec. 709, the court approves this doctrine: “The stockholders cannot enter into contracts with third persons. Contracts between corporations and third persons must be entered into by the directors, and not by the stockholders. The corporation, in such matters, is represented by the former, and not by the latter. Such is one of the main objects of corporate existence,. To the directors is given the management and formation of corporate contracts. The stockholders cannot, in meeting assembled, bind the corporation by their contracts in its behalf. Although one person owns a majority of the stock, or all of it, or all but two shares, he does not in consequence thereof acquire the right to act for the corporation, or as the corporation, independently of the directors. One person may own all the stock, and yet the existence, relations and business methods of the corporation continue. A single stockholder cannot make a contract for and in the name of the corporation which shall have any binding force or validity, except by subsequent ratification or adoption' in the regular manner.” In the same case the court quotes at length to the same effect from Allemong v. Simmons, 124 Ind. 199; Humphreys v. McKissock, 140 U. S. 304, and Smith v. Hurd, 12 Metc. (Mass.) 385.

The record fails to show that the directors of the White Coal Company ever conferred upon Robert White authority to sell the Valley mine and dispose of all its tangible property, and bis attempted sale was never ratified by the directors. His act in giving the option in question was therefore the act of an individual stockholder, or, at most, the act of the stockholders of the White family. His duties were those usual to the office he filled. It is not contended that the president of a corporation usually has the power to dispose of the tangible property of the concern. Notwithstanding he was the president and a director of the company and may have represented the interests of the White family, Eobert White could not act for the White Coal Company in such an important and unusual a matter unless specifically so authorized by its directors. Hopkins v. Roseclare Lead Co., 72 Ill. 373. The record shows that Beck, a director and stockholder, opposed the attempted sale by White from the first instant. This question is discussed in Harding v. American Glucose Co., 182 Ill. 551, where the court uses the following language: “The shares of stock owned by a stockholder derive their value from the corporate property and franchise, although the stockholder’s legal property in his stock is distinct from the property of the corporation (Porter v. Rockford, R. I. & St. L. R. Co., 76 Ill. 561). If the shares derive their value from the corporate property and franchise, they will have no value practically, when all such corporate property is disposed of, and the right to carry on the business is destroyed. What was here attempted was an abandonment of the business and a sale of the assets without a legal termination or dissolution of the company. It makes no difference that the stockholder is to be allowed to receive his proportionate share of the proceeds of the sale of the property. He has the right to hold his investment in the form of stock, and a change of such investment against his consent is a change which affects his pecuniary or financial interests. He has the right to be the judge, whether such a change in his pecuniary status shall be made, or whether he shall continue his investment in the form of stock.” When Beck as a stockholder refused his consent to a sale of the assets of the White Coal Company, he exercised his legal rights as announced in the above-entitled cause. We agree with the statement made in Cook on Corporations (4th Ed.), sees. 669, 670, and approved in Harding v. American Glucose Co., supra, that “ever since the case of Abbot v. American Hard Rubber Co., 33 Barb. [N. Y.] 578, the law has been clearly established in this country, that a dissenting stockholder may prevent the sale of all the corporate property by the directors, or by a majority of the stockholders, where the corporation is a solvent, going concern.” There was no action taken by the board of directors of the White Coal Company, either before or after Robert White gave the option in question, and therefore the same cannot be enforced, as under our statute a corporation can act only through its board of directors and officers. The ownership of stock in a corporation confers no ownership of its property. ‘ ‘ The property of a corporation is not subject to the control of the individual members, whether acting separately or jointly. They can neither encumber nor transfer that property nor authorize others to do so. The corporation, the artificial being created, holds the property and alone can mortgage or transfer it, and the corporation acts only through its officers, subject to the conditions prescribed by law.” Manufacturers’ Exhibition Bldg. Co. v. Landay, 219 Ill. 168. In view of what we have hereinbefore said, appellants, under the facts of this case, are not entitled to the relief prayed for in their bill, and the decree of the Circuit Court must be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Belleville Savings Bank, Conservator, Appellant, v. Henry E. Schrader, Appellee.
    1. Insane persons, § 28

      —when conservator may make final settlement of ward's estate. The plain meaning of Hurd’s Rev. St. ch. 86, sec. 9, as amended (J. & A. 1f 7293), giving the conservator of any deceased incompetent power, under the letters issued to him, to make final settlement of the estate, is that it shall only apply to estates of persons dying intestate, or possibly those estates where the testator may have left a will but appointed no executor.
    2. Insane persons, § 28*—when conservator may not make final settlement of ward’s estate. Under Hurd’s Rev. St. ch. 86, sec. 9, as amended (J. & A. 1f 7293), giving the conservator of any deceased incompetent power, under the letters issued to him, to make final settlement and distribution of the estate, the conservator of the estate of a deceased person, leaving a will appointing an executor, had no right to administer the estate and carry out the provisions of the will as against the executor named therein, who was ready, able and willing to act.
    3. Insane persons, § 28*—when conservator may not make final settlement of ward’s estate. Hurd’s Rev. St. ch. 86, sec. 9, as amended (J. & A. 1f 7293), giving the conservator of any deceased incompetent power, under the letters issued to him to make final settlement and distribution of the estate, and Hurd’s Rev. St. ch. 3, sec. 1 (J. & A. If 49), providing for the issuance of letters testamentary pursuant to the probate of a will, and section 2 (J. & A. V 50), requiring any person knowing he is appointed executor to present the will and cause it to be approved, or to present the will and refuse to act, were all given effect without giving any strained construction to any of them; and the conservator of a deceased incompetent was held not entitled to administer the estate of his ward as against the executor under the last will of such ward.
    4. Executor and administrators, § 20*—when named executor entitled to letters. The word “shall” used in Hurd’s Rev. St. ch. 3, sec. 1 (J. & A. f 49), providing that upon probate of a will the court shall issue letters to the executor named in the will, etc., is used in an imperative sense.
    5. Statutes, § 225*—“shall.” In common ordinary meaning the word “shall” has always a compulsory .sense, though at times, upon sufficient reason, it may- be construed as having only a permissive or directory meaning.

      6. Statutes, § 225

      —“shall.” When the word “shall” is used with reference to any right or benefit to any one, and the right or benefit depends upon giving a mandatory meaning to the word, it cannot be- given a permissive meaning.
    7. Statutes, § 197*—when all of sections of statute will he given effect. In the construction of statutes, the courts will so construe the sections of a statute as to give them all legal effect, if this can be done.
    8. Executors and administrators, § 20*—when legatees and devisees may not nominate executor. The law does not give to legatees and devisees ulider a will the right to nominate who shall act as the executor thereof, where the testator has already named some competent person to act in said capacity, who is ready, willing and able to act.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. CRow, Judge, presiding. Heard in this court at the March term, 1919. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 6, 1919.
    Turner & Holder, for appellant.
    Barthel, Farmer & Klingel, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

This is an appeal prosecuted hy the Belleville Savings Bank, from an order of the Circuit Court of St. Clair county, appointing Henry E. Schrader, appellee, as executor of the last will and testament of said deceased.

The record in this case discloses that Fridolin Aneshaensel executed his last will and testament on the 23rd day of March, 1909, and therein named as his executors his wife, Anna Aneshaensel and the said Henry E. Schrader, to serve without bond. That thereafter the said Fridolin Aneshaensel was adjudged to be a feeble-minded person and appellant bank was appointed as the conservator of his estate. On March 21, 1917, Anna Aneshaensel, wife of said Fridolin Aneshaensel, died. On June 27, 1918, the said Fridolin Aneshaensel died, leaving as his last will and testament the instrument above mentioned. Said will was admitted to probate in St. Clair county, and thereupon appellee filed a petition in said court to be appointed as the executor thereof. Objections were filed thereto by appellant Bank, it being insisted that as such conservator, under the statutes of this State, it had a right to settle said estate. The County Court found against appellee and dismissed his petition for letters and ordered that appellant bank proceed to settle said estate under its original letters of conservatorship.

An appeal was prosecuted by appellee from said order to the Circuit Court of St. Clair county and on a hearing in said court on said appeal the Circuit Court overruled the objections of appellant and found in favor of the appellee, and ordered letters of executor-ship to be issued to him as the sole surviving executor of the last will and testament of said deceased. To reverse said order this appeal is prosecuted as above set forth.

The only question involved in this case is as to whether section 9, as now amended, of an act to revise the law in relation to lunatics, idiots, drunkards and spendthrifts, being section 9 of chapter 86 of Hiird’s Bev. St. (J. & A. 7293), gives to the conservator of the estate of a deceased person, leaving. a wall in and by which said will said testator has appointed an executor who is ready, willing and able to act in said capacity, the right to administer said estate and carry out the provisions of the will as against the executor named therein. Said section 9 among other things provides that: “Whenever any lunatic, idiot, drunkard or spendthrift shall die, seized or possessed of any real or personal estate, then such conservator shall have full power and authority under the letters issued to him or her to make final settlement and distribution of the estate of said deceased ward without further letters of administration, in such time and manner as is required by law of administrators of the estate of deceased persons. Provided, this shall not apply to nonresident conservators. ’ ’

It is contended by appellant that inasmuch as the will left by said deceased does not impose on the executor therein named any specific trust to be carried out, the duties of said executor being only such duties as would ordinarily be administered by an administrator settling a deceased person’s estate, that therefore the act above quoted gives to such conservator the absolute right to settle said estate, even if the executor of said will should desire to qualify and perform the duties imposed upon him by said will. On the other hand, appellee contends that the act in question applies only to the estates of persons dying intestate and that it has no reference whatever to the estate of persons dying testate and who have nominated the person or persons whom they desire to act as executors thereof.

A careful reading of said section 9 convinces us that the plain meaning of it is that it shall only apply to estates of persons dying intestate, or possibly those estates where the testator may have left a will but appointed no executor thereof.

Section 1 of chapter 3 of Hurd’s Rev. St. (J. & A. H 49), among other things, provides: ‘£ That when a will has been duly proved and allowed, the County Court shall issue letters testamentary thereon to the executor named in such will, if he is legally competent and accepts the trust, and gives bonds to discharge the same. ’ ’

Section 2 of said act (J. & A. 50), among other things, provides that: “It shall be the duty of any person, knowing that he is named or appointed as executor of the last will and testament of any person deceased, within thirty days next after the decease of the testator, to cause such will to be proved and recorded in the proper county; or to present the will and declare his refusal to accept of the executorship ; and every such executor neglecting to do so, without just excuse for such delay; shall forfeit the sum of $20 per month from and after the expiration of said term of thirty days, until he shall cause probate of said will to be made, or present the same as aforesaid, to be recovered by action of debt, for the use of the estate, by any person who will sue for the same in any court having jurisdiction thereof.”

One of the rules governing the courts in the construction of a statute is that the court shall so construe the sections of the statute as to give them all legal effect, if this can be done. In other words, unless a later statute expressly repeals a former statute or repeals the same by implication, the two statutes are to be harmonized and given effect. By reading of section 9 of chapter 86 in connection with sections 1 and 2 of chapter 3, above.cited, it can clearly be seen that effect can be given to all of these sections without giving a strained construction to any of them.

In Clark v. Patterson, 214 Ill. 533, the court at page 539 says: “The Probate Court proceeded correctly in granting letters of executorship to the appellee. Section 1 of chapter 3 of the statute on administration (1 Starr & Curt. Stat. 1896, p. 269 [J. & A. ft 49]) provides:. ‘That when a will has been duly proved and allowed the County Court shall issue letters testamentary thereon to the executor named in such will, if he is legally competent and accepts the trust, and gives bonds to discharge the same,’ etc. The word ‘shall’ is used in this statute in an imperative sense. In common and ordinary meaning the word has always a compulsory sense, though at times, upon sufficient reason, it may be construed as having only a permissive or directory meaning. Where the word is employed with reference to any right or benefit to any one, and the right or benefit depends upon giving a mandatory meaning to the word, it cannot be given a permissive meaning, merely. (Wheeler v. City of Chicago, 24 Ill. 105; Fowler v. Pirkins, 77 Ill. 271; O’Rear v. Crum, 135 Ill. 294.) ”

It is urged by appellant that this case should be reversed in order to save the expenses incident to the administration of the estate by appellee as executor. While, in this particular case there may be no special reason why appellant as conservator might not as successfully and as satisfactorily settle the estate of said deceased and carry out the provisions of his will as appellee, still the testator who accumulated the estate has by law the right to designate by will who shall act as the executor of his will, and we have no right under the law to ignore his directions and find that some one else shall act in that capacity.

It is further urged as a reason why this judgment should be reversed, that the beneficiaries under the will have requested that appellant, as conservator, shall settle the estate. We do not understand that this request sets aside the directions given by the testator in his will,-the very will under which these beneficiaries are to take. In other words, the law does not give to legatees and devisees under a will the right to nominate who shall act as the executor thereof, where the testator has already named some competent person to act in said capacity who is ready, willing and able to so act.

Finding no reversible error in the judgment of the Circuit Court the same will be affirmed.

Judgment affirmed.


text:
    Ray H. Scowden, Plaintiff in Error, v. G. Taphorn, Defendant in Error.
    1. Husband and wife, § 280

      —when direction of verdict for defendant, sued for alienation, will he error. Where the sole testimony of a husband who was plaintiff in a suit for the alienation of his wife, with all the reasonable inferences to be drawn therefrom, fairly tended to prove the allegations of his declaration, and where the evidence offered by defendant was purely contradictory excepting that as to the reputation of plaintiff’s wife, it was error to direct a verdict for defendant at the close of all the evidence.
    2. Husband and wife, § 280*—when directed verdict for defendant, sued for alienation, will he set aside. In an action to recover damages for the alienation of plaintiff’s wife, a directed verdict for defendant was set aside, where plaintiff was the sole witness as to occurrences between defendant and plaintiff’s wife, and where the evidence offered by defendant was purely contradictory of plaintiff’s evidence, excepting that offered as to the wife’s good character.
    3. Trial, § 216*—what court should determine on motion to direct verdict. On motion to direct a verdict, the court should not weigh the evidence as it does on a motion for new trial, but should simply determine as to whether or not there is any evidence in the record fairly tending to prove the allegations of the declaration.
    4. Witnesses, § 31*—when error to admit testimony of wife in action for alienation. Under Hurd’s Rev. St. ch. 51, see., 5 (J. & A. 1i 5522), relating to the competency of husband or wife as witnesses for one another, it was error to allow plaintiff’s wife to testify over objection on behalf of defendant in the action in question for the alienation of plaintiff’s wife.
    Error to the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed June 6, 1919.
    Burton & Burton and James A. Lynn, for plaintiff in error.
    John F. McGinnis, W. P. Boynton and B. J. 0 ’Neill, for defendant in error.

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

   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was brought by plaintiff in error, hereafter called plaintiff, against defendant in error, hereafter called defendant, for the recovery of damages for the alleged alienation of plaintiff’s wife. At the close of all the evidence, both for the plaintiff and defendant, the court on motion of defendant directed a verdict in his favor and rendered judgment thereon against plaintiff in bar of action and for costs. To reverse said judgment this writ of error is prosecuted.

The principal ground relied upon by plaintiff for a reversal of this case is that the court erred in directing a verdict for defendant. The evidence on the part of plaintiff is to the effect that plaintiff’s wife, who had been receiving treatments from the defendant as her physician for a misplaced womb, went to the office of the defendant on Sunday afternoon in December, 1917. Plaintiff, who was an electrician, had left with his dinner box saying he was going to his work, but instead of doing so he went to the building in which defendant had his office and was in and around said building until along about 3 or 3:30 in the afternoon when his wife arrived, going to the office of the defendant. Plaintiff’s wife remained in the reception room of the defendant for a short time, and then with defendant passed into what is known as room 8, used by the defendant as his library. Plaintiff testified he was in the hallway and saw them pass to this room and that he listened at the door and that he heard defendant and his wife talking and that he heard kissing and deep breathing and movements. He further testified that he heard defendant ask plaintiff’s wife if it felt good, or words to that effect, and that she replied that it did; that, he, the plaintiff, then broke open the door and found the defendant and his wife in the room, his wife lying on the floor on defendant’s overcoat; that they were both practically undressed, with the exception of their underwear, and that the doctor was over plaintiff’s wife at the time plaintiff came into the room. Except for the conversation that took place between plaintiff and defendant when plaintiff came into said room, which is not necessary for us to go into for a determination of the errors assigned, and evidence to the effect that plaintiff ceased living with his wife after the time in question, the foregoing in effect was the evidence offered on behalf of the plaintiff.

No motion was made at the close of plaintiff’s evidence for a directed verdict, but defendant went on and offered testimony to the effect that he was simply giving plaintiff’s wife treatment and that he was not guilty of any improper relations with her. Defendant also offered evidence to the effect that plaintiff’s wife, prior to the time in question, had always borne a good reputation for chastity in that community.

Plaintiff’s wife testified on behalf of defendant over the objections of plaintiff to the effect that never, either on the day in question or at any other time, had she had improper relations with the defendant, and never had had sexual intercourse with him at any time. At the close of defendant’s evidence a motion for a directed verdict for defendant was sustained by the court and a verdict and judgment were rendered as above set forth.

The only question to be determined on the record in this case, on the assignment of error with reference to the directing of the verdict, is, as to whether the evidence offered by plaintiff, with all the reasonable inferences to be drawn therefrom, fairly tended to prove the allegations of his declaration. If it does, then the court erred in directing a verdict.

While conceding the above statement of the law to be correct, and while further conceding that evidence offered by defendant, which is purely contradictory of plaintiff’s evidence, is not to be considered in determining- the question of whether the evidence supports the averments of the declaration, still it is contended by defendant’s counsel that if there is affirmative evidence, or evidence of an affirmative defense, offered by the defendant, that this may be considered on a motion at the close of all of the evidence for a directed verdict on the part of the defendant. Whether or not the contention of the defendant with reference to an affirmative defense being so considered on a motion for a directed verdict at the close of all the evidence is correct, we do not think in this case that that question arises. The evidence offered on behalf of the defendant was merely contradictory or conflicting with the evidence offered on behalf of the plaintiff, except the evidence offered by defendant as to the good character of plaintiff’s wife. It is therefore only necessary for the court to determine as to whether or not plaintiff’s evidence, with all reasonable inferences to be drawn therefrom, fairly tended to prove his case. We think that it did, and hold that the court erred in directing a verdict for the defendant. Joliet R. Co. v. McPherson, 193 Ill. 630; Balsewicz v. Chicago, B. & Q. R. Co., 240 Ill. 238-244.

The court on a motion to direct a verdict should not weigh the evidence as it does on a motion for a new trial, but should simply determine as to whether or not there is any evidence in the record fairly tending to prove the allegations of plaintiff’s declaration. Woodman v. Illinois Trust & Savings Bank, 211 Ill. 578.

It is also contended by plaintiff that the court erred in allowing plaintiff’s wife to testify on behalf of the defendant over objection. We are of the opinion and so hold that the court erred in this ruling. Plaintiff’s wife is not a competent witness in this behalf either on the part of the defendant or on the part of the plaintiff. Section 5, ch. 51, Hurd’s Bev. St. (J. & A. }[ 5522), provides among other things: “Ho husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during their marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, or where the cause of action grows out of a personal wrong or injury done by one to the other or grows out of the neglect of the husband to furnish the wife with a suitable support; and except in cases where the litigation shall be concerning the separate property of the wife, and suits for divorce; and except also in actions upon policies of insurance of property, so far as relates to the amount and value of the property alleged to be injured or destroyed, * * * and value thereof, or in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband.”

• This section of the statute specifically holds that the husband or the wife shall not be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marital life, except in the specific instances mentioned in that section of the statute, under none of which exceptions does plaintiff’s wife come. Mitchinson v. Gross, 58 Ill. 366; Groom v. Parables, 28 Ill. App. 153.

For the reasons above set forth the judgment of the trial court will be reversed and-said cause will be remanded.

Reversed and remanded.


text:
    F. M. Loveland, Appellant, v. C. F. Bode, Appellee.
    1. Lotteries, § 1

      —when lottery scheme prohibited. Under the statutes of this State a lottery scheme, to come within its prohibition, must contemplate the distribution of prizes by chance, and there must be a chance to gain or lose by the drawing.
    2. Lotteries, § 1*—when coupon-selling scheme constitutes lottery. A scheme contemplating the selling of coupons which were redeemable in merchandise at appellee’s drug store, and entitling the workers who sold the coupons to a chance to draw a prize given at the end of each week, constituted a lottery under Criminal Code, sec. 180 (J. & A. If 3811), imposing a fine for promoting a lottery; and notes given for the purchase of such scheme were invalid.
    3. Bills and notes, § 240*—when wife not bona fide purchaser of notes purchased for her by husband. The plaintiff, in an action upon notes given for the purchase of a trade extension scheme which constituted a lottery under Criminal Code, sec. 180 (J. & A. If 3811), was not a bona fide purchaser, where at the time of her marriage plaintiff had no separate property of her own excepting a sum placed to her credit in the bank by her husband, who retained the right to check on such account and who purchased the notes for her by his check drawn on her account, it appearing that plaintiff had no actual knowledge of the transaction and that her husband was fully conversant with it and the defenses existing against the notes, he having been a member of the partnership which promoted the lottery and having purchased the notes from the partnership.
    4. Principal and agent, § 200*—when notice to agent is notice to principal. Notice to an agent touching the subject-matter of his agency, or in regard to the transaction in which he is engaged, is notice to the principal.
    Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding. Heard in» this court at the March term, 1919.
    Affirmed.
    Opinion filed June 6, 1919.
    Fred Hood, for appellant.
    Charles L. Bice and C. S. Miller, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This is an action in assumpsit, brought to recover on sis promissory notes of $50 each given by appellee on March 15, 1916, to the Brenard Manufacturing Company, a copartnership, composed of J. L. Records and Theodore O. Loveland. Appellant is the wife of Theodore O. Loveland, one of the partners of.the firm to whom the notes were given. Appellee was in the drug business at Mound City, Illinois, at the time of executing and delivering said notes. The Brenard Manufacturing Company had its principal place of business at Iowa City, Iowa, and was engaged in the business of selling what was termed a trade extension scheme, the purpose of which was to increase the business of those who purchased it. The contract entered into provided that appellee should send said company a list of names of workers who were to be sent books to sell with coupons redeemable in merchandise. Those selling a book in a week’s time were entitled to a drawing on a prize or prizes, given at the end of that week. Those who sold five books within a week’s time were entitled to a prize, also a chance on a larger prize to be given away by drawing at the end of the week. At the end of 8 weeks the principal drawing for the capital prize was to take place.

The six notes sued on were given for the purchase of this trade extension scheme. The manufacturing company shipped to appellee the articles to be given as prizes and sent an organizer to develop the scheme. Appellee, after examining some of the articles, returned the entire shipment, paying freight both ways, and thereafter refused to have anything further to do with putting the scheme into effect.

The notes in question were assigned to appellant by said partnership. Theodore O. Loveland, husband of appellant, acting as her agent, had purchased said notes. The check paying for these notes was made out by Theodore O. Loveland, and signed by him and the notes were placed in the Iowa State Bank for collection by him and were never seen by appellant.

Appellee contends that this trade extension scheme constituted a lottery and as such was forbidden by statute, and that appellant was not a bona fide purchaser of the notes in question. The declaration was in assumpsit, to which the general issue, with notice of special defense, was pleaded. Upon a trial, the jury found the issues for appellee. A motion for a new trial being overruled, judgment was rendered on the verdict. From that judgment this appeal was taken.

Section 180 of the Criminal Code (Hurd’s Eev. St. 1895, J. & A. ^ 3811) in force at the time the contract was made and now, is as follows: “Whoever sets up or promotes any lottery for money, or by way of lottery disposes of any property of value, real or personal, or under pretense of a sale, gift or delivery of any other property, or any right, privilege or thing whatever, disposes of, or offers or attempts to dispose of, any real or personal property, with intent to make the disposal of such real or personal property dependent upon or connected with any chance by dice, lot, numbers, game, hazard or other gambling device, whereby such chance or device is made an additional inducement to the disposal or sale of said property, * * * shall, for each offense, be fined not exceeding $2,000.”

Under the statute of this State a lottery scheme, to come within its prohibition, must contemplate the •distribution of prizes by chance, and there must be á chance to gain or lose by the drawing. Dunn v. People, 40 Ill. 465; Thomas v. People, 59 Ill. 160; Elder v. Chapman, 176 Ill. 150.

In the case at bar, it appears that the scheme contemplated the selling of coupons which were redeemable in merchandise at appellee’s drug store. The workers who sold these coupons were entitled to a chance to draw a prize given at the end of each week. These drawings were to he made by placing numbers corresponding to numbers held by contestants in a box or hat and having some disinterested person draw therefrom until the prizes were disposed of. The only inducement or compensation to the workers whom the manufacturing company contemplated using to develop their trade extension scheme was a bare chance to be one of the successful drawers of a prize. The whole plan depended upon securing workers by this inducement, and in our opinion constituted a lottery within the purview of section 180 of our Criminal Code.

It is contended by appellant that she was a hona fide purchaser in due course of the notes in question. The record discloses that at the time appellant married Theodore O. Loveland she had no separate property of her own and had received none since, except $20,000 placed to her credit in the bank of her husband, who seems to have retained the right to check on that account and did purchase these notes for her by his check drawn on her account. Appellant had no actual knowledge of the transaction, either as to the drawing of the check in payment for said notes, their assignment, or in the placing of them in the hands of the bank for collection. The entire matter was handled by her husband who was fully conversant with the entire -transaction and the defenses existing against said notes. Even if appellant is to be regarded as the real purchaser and owner of the notes assigned to her, it is manifest that her husband was her general agent in and about the entire transaction.

The rule is that notice to an agent touching the subject-matter of his agency or in regard to the transaction in .which he is engaged is notice to the principal. Bryan v. Primm, Breese, 59; Doyle v. Teas, 5 Ill. (4 Scam.) 202; Williams v. Brown, 14 Ill. 200; Singer Mfg. Co. v. Holdfodt, 86 Ill. 455.

And this rule applies where the agent is the agent of both parties at the same time, as well as where he is the agent of but one. First Nat. Bank of New Milford v. Town of New Milford, 36 Conn. 93; Miller v. Whelan, 158 Ill. 556.

It follows, then, that when appellant purchased these notes, she was charged with notice of appellee’s defense thereto.

Other errors were assigned but were not argued and are therefore under the rules of this court considered abandoned. Finding no reversible error in the record the judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Eagleton

text:
    Samuel S. Staley, Appellee, v. Commissioner of Highways of Enfield Township, White County, Illinois, Appellant.
    1. Roads and bridges, § 163

      —when question of power to tax not in issue in mandamus to restore bridge. In mandamus against a highway commissioner to restore a bridge which had been washed away, there was no occasion to discuss the power to direct the levying of taxes or borrowing money, where it appeared from the evidence that there was sufficient money on hand at the time of the trial to build the bridge in question.
    2. Roads and bridges, § 163*—when commissioner of highways will be required by mandamus to rebuild bridge. A commissioner of highways was required by mandamus to rebuild a bridge which had been washed away, where, as the record stood, the bridge was needed and there was sufficient money on hand with which to build it.
    3. Roads and bridges, § 163*—what is effect of testimony of highway commissioner on mandamus to rebuild bridge. In mandamus against a highway commissioner to rebuild, a bridge which had been washed away, and which was needed, where the question as to whether money to build the bridge was on hand was material, and where there was sufficient money on hand, testimony of the commissioner to the effect that the money could he used elsewhere manifested no disposition on such commissioner’s part to exercise his discretion and use it in some other place, nor was it proof that the money was needed elsewhere.
    4. Roads and bridges, § 163

      —who required to rebuild bridge. The fact that the Supreme Court held it to be the duty of drainage commissioners to rebuild a bridge after removing the former one did not, after such rebuilding, place a greater burden on the town in question than had existed when such former bridge was in its place, and the continuing, duty was thereafter on the town to maintain the rebuilt bridge; and where such bridge was subsequently washed away, the road commissioner and not the drainage district was required to rebuild it.
    5. Roads and bridges, § 158*—duty to repair bridges. The question of the duty of repairing bridges and on whom the duty devolves, together with a definition of the word “repair,” discussed.
    6. Roads and bridges, § 158*—who required to repair roads and bridges. Whatever is practicable in the way of repairing the roads and bridges is a duty on the towns and districts to be performed by the commissioners of highways of the town or district as the case may be.
    7. Roads and bridges, § 158*—meaning of “practicable?’ as used in statute. The word “practicable” in Illinois Road and Bridge Law, Call'. 1916 Stat. 1f 10000(50), suhd. B, clause 6, providing that highway commissioners shall have power and it shall be their 'duty to have general charge of roads and bridges of their districts, to keep same in repair and to improve them so far as practicable, means that the commissioners are required to keep the roads and bridges in repair and improve them so far as that work may be performed.
    8. Roads and bridges, §§ 154, 159*—When-discretion of road commissioners is subject to control by mandamus. The discretion given to road commissioners as to the use of their judgment in building and repairing roads and bridges is subject to control by mandamus, if abused.
    9. Roads and bridges, § 161*—what not within authority of county superintendent of highways in matter of letting contract for construction or repair. The provision of the Road and Bridge Act that no contract shall be let by the road commissioners for the construction or repair of any road or bridge in excess of $200, etc., without the approval of the county superintendent of highways, Call. 1916 Stat. j[ 10000(50), suhd. B, clause 5, did not give such superintendent any part in determining the necessity for the work to be done, nor did it give him any authority in determining whether it should be done.
    Appeal from the Circuit Court of White county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the March term, 1919. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 6, 1919.
    James M. Endicott and Charles T. Randolph, for appellant.
    F. M. Parish and Creighton & Thomas, for appellee,

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

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

   Mr. Justice Eagleton

delivered the opinion of the court.

Lost Creek Drainage District is organized under the Levee Act and lies in Hamilton and White counties. It lies in part in the Town of Enfield, White county.

Appellee, Samuel S. Staley, who was the petitioner in the court below, is the owner of certain lands situated in the Town of Enfield on which he resides with his family. Enfield is the nearest market for appellee, and a public road, for public and private use, lies between the home of appellee and Enfield. This road crosses a certain creek called Lost Creek at a point between the home of appellee and Enfield, and a bridge had been maintained on said road at said point for many years.

In constructing the drains and ditches in Lost Creek Drainage District the commissioners of the drainage district removed the bridge on the road in question crossing Lost Creek. This was done for the purpose of digging the main channel of the creek deeper "and using the same as part of the drainage system of the district. After digging the creek' deeper at this point, the commissioners of the drainage district and the commissioners of highways made an agreement to rebuild the bridge in question and some other bridges that had been removed bv the drainage commissioners. Under this agreement the commissioners of highways were to have charge of the work and it was to be paid for in part by the drainage district and in part by the town. Pursuant to this agreement the bridge in question was constructed and was paid for according to the, agreement.

In April, 1917, the bridge at the point in question was washed away and the road at that point rendered impassable and from that time has continued to be impassable. The appellant having refused to restore the bridge, on April 27, 1918, the petition for mandamus was filed in this cause.

There is no dispute that because of the bridge being out the public road at the point in question is impassable, and that the bridge is needed, nor that the place where the bridge is sought is in a public road.

The evidence shows that the appellee and some of his neighbors obtained permission from a neighboring landowner to go over his land in going to market. It also appears from the evidence that when heavy rains are falling the children of appellee cannot go to and from school on the road in question. It further appears that the crossing over the neighbor’s land is about half a mile north of the road in question.

It is argued that the petition is insufficient to sustain the action and that under the facts proven the court had not the power to grant the writ. These two questions are discussed together, and it seems to be the basis of the argument that the court had not the power to award the writ in this ease when all the facts are considered. There is no substantial difference in the averments of the petition and the evidence.

Counsel for appellant cite various provisions of the statute providing for the levy of taxes and the issue of bonds for the purpose of raising money where a greater sum is required than is available, and urge that there is not sufficient money on hand with which to build the bridge. On the trial the supervisor of the Town of Enfield testified that he had on hand the sum of $2,137.77, which was held for the ordinary repair and upkeep of the roads and bridges of the town. The highest estimate of the cost of building the bridge was from $1,200 to $1,500. Inasmuch as there was sufficient moneys on hand, at the time of the trial, to build the bridge in question, there is no occasion to discuss the power of the court to direct the levying of taxes or borrowing money.

As the record stands the bridge is needed and there is sufficient money on hand with which to build it. Under these conditions can a court require the commissioner of highways to build the bridge?

A number of cases are cited by counsel for appellant wherein the power of the court to award a writ of mandamus compelling commissioners of highways to build bridges has been denied. An examination of these cases discloses that in none of them did the commissioners have on hand the money with which to do the work demanded. While it is true the appellant said: “If I could have got hold of it would have most all of it been spent by this time. There are several places in the township that I could use the money on.” It may be the money could be used elsewhere, but this manifests no disposition on the part of the appellant to exercise his discretion 'and use it in some other place nor is it proof that it is needed elsewhere.

Section 50 of the Illinois Eoad and Bridge Law makes provision as to some of the duties of commissioners of highways. The first sentence of paragraph B of that section and clause 6 of paragraph B are as follows:

“(B) The highway commissioners of each town or road district shall have power and it shall be their duty:

“(6) To have general charge of the roads and bridges of their town or district, to keep the same in repair and to- improve them so far as practicable.” Callaghan’s Illinois Law (1913-1916), pages 1429-1430.

Counsel for appellant argue that the duty of keeping the bridge in repair devolved on the drainage district after it had taken out the old bridge. This contention is not supported by any authority. The Supreme Court held it to be the duty of the drainage commissioners to rebuild the bridge after removing the former bridge. When this was done no greater burden was placed on the town than had existed when the former bridge was in its place. The duty was then on the town to maintain the bridge, and that duty' was a continuing one except that the commissioners of the drainage "district, having removed the former bridge, had net the power to place the burden of building another bridge on the town.

In People v. Block, 276 Ill. 286, the Supreme Court held a statute unconstitutional that required a town to rebuild a bridge that had been taken down by the drainage commissioners in the construction of a drainage ditch. There, as in this case, a natural waterway had been used in the construction of the ditches in a drainage district. When doing the work the drainage commissioners removed the bridge. When the question as to rebuilding the bridge was before the Supreme Court they said: “The legislature has imposed 'the care of roads and the construction, maintenance and repair of bridges upon the various towns throughout the State,” etc. They also said: “They possess the only authority conferred by law for levying a tax or incurring a liability for road and bridge purposes.” They held, however: “No debt can be imposed upon the town by any authority for such purposes against its will, and no tax can be imposed for such purposes except by the proper corporate authorities,—the highway commissioners.”

In People v. Highway Com’rs of Towns of Dover and Ohio, 158 Ill. 197, is a discussion by the Supreme Court on the question of the duty of repairing bridges and on whom that duty devolves together with a definition of the word “repair.”

They say: “Lord- Coke, in 2 Inst. 700, 701, says: ‘But admit that none at all were bounden to the reparation of the bridge, by whom should it be repaired, by the common law? The answer is, by the whole country, etc., wherein the bridge is, etc., because it is for the common good and ease of the whole country. ’ In King v. Inhabitants of the West Riding of Yorkshire, 2 East 342, it was held that, by the common law, if a bridge be of public utility and is used by the public, then the public must repair it, even though it was built by an individual. And the same rule was unanimously held in the case of Rex v. West Biding, 5 J. Burrow 2594, where the common-law doctrine was much considered. In State v. Town of Campton, 2 N. H. 513, it was held that a bridge, though erected by individuals, yet if dedicated to the public and used by the public so long as to evince its public usefulness, must be repaired by the public; and also held, that under the statute of that State this public duty devolved altogether upon towns, and in no case upon counties. ’ ’

In construing the word “repairs” in that case, the Supreme Court use the following language:

“ ‘To restore’ and ‘to renew’ are given by lexicographers as synonyms of repair. It has always been held at common law, that under a covenant to repair a tenant is obliged to rebuild, even in the case of total destruction of the demised premises. In Brecknock Canal Nav. Co. v. Pritchard, 6 T. R. 750, it was held that a covenant binding a party to keep a bridge in repair bound him to replace it, although it was totally destroyed by flood.”

They also held: ‘ ‘ And in Howe v. Commissioners of Crawford Co., 47 Pa. St. 361, where the words used in the statute were ‘to repair,’ the court said: ‘If we should set aside the act altogether, the duty of maintaining the bridge, once legally imposed upon the county and never taken off, would still have to be enforced.’ And further said: ‘We cannot graduate repairs, and say slight ones shall be done and large ones may be neglected. The legislature did not mean we should do this. They meant by repairs, whatever should be necessary to make ‘bridges safe and passable.’ ”

The statute above quoted places the duty of keeping the roads and bridges in repair so far as practicable on the commissioners of highways, and the •word “repair” requires this to be done to the extent of rebuilding. Under the authority cited this duty will continue until the duty is placed elsewhere. The only limitation on this duty is that it is to be performed “so far as practicable.” In other words, whatever is practicable in the way of repairing the roads and bridges is a duty on the towns and districts to be performed by the commissioners of highways of the town or district as the case may be. .

The word “practicable” is defined in Webster’s" New International Dictionary: “1. That may be practiced or performed.” And in the Standard Dictionary of the English Language, “1. That can be put into practice; possible of execution or performance.” The Supreme Court in the case of Streeter v. Streeter, 43 Ill., on page 165, defines the word as follows: “ ‘Practicable’ is that which may be done, practiced or accomplished, that which is performable, feasible, possible,” etc. Applying this definition, the commissioners of highways are required, to keep the same (roads and bridges) in repair and improve them so far as that work may be performed.

The main contention of appellant is that the commissioner has the right to exercise his judgment in building and repairing the roads and bridges, and that what he will do and what he will not do is entirely discretionary with him.

In discussing the power of a court to compel certain officers to perform the duties enjoined on them by law, High, in his work on Extraordinary Legal Bemedies, says:

“And it is a general rule applicable to all municipal corporations, that whenever the duty is plainly incumbent upon such bodies of making local improvements, such as streets, highways or bridges, or keeping in repair improvements already constructed, and the obligation is so plain and imperative as to leave no room for the exercise of any discretion upon the part of the municipal authorities, mandamus will lie to enforce the obligation.” High’s Extraordinary Legal Bemedies, sec. 413. ,

In Brokaw v. Highway Com’rs Bloomington Tp., 130 Ill. 482, some one had built a fence in the public highway causing an obstruction therein, which made the road impassable. It was argued that the commissioners of highways could not be compelled, by mandamus, to remove the obstruction for the reason they had the right to use their discretion in the matter. In passing on the case the Supreme Court says: “It is urged, that as the commissioners have charge of the roads in their town, they have a discretion in respect to the matter of their management, and that the courts will not coerce them, by mandamus, in regard to matters that are placed under their control and left to , their discretion. * * *” And they further say: “In the statute before us it is clear that a duty is imposed upon public officers, and that the rights and interests both of the pubHe and of third persons are involved, and they have a claim, as a matter of right, that the highway commissioners should exercise the power given them, and the duty devolved upon them of keeping the public road clear and free from fences or other obstructions that render it impossible to travel thereon. * * * When a discretion is abused, and made to work an injustice, it is admissible that it shall be controlled by mandamus. Village of Glencoe v. People, 78 Ill. 382; Tapping on Mandamus (Am. Ed.) 66.”

Klein v. People, 31 Ill. App. 302, is a case in which a petition for mandamus was filed to compel the commissioners of highways to perform certain work on the roads of their town. The court entered an order against the commissioners directing’ them to work upon and repair that part of the road described in the petition, “by removing the weeds and underbrush and repairing the culverts, and that they should proceed without unnecessary delay to put said highway in a condition fit to be used as a highway, and to remove all obstructions and impediments to travel.” The court did not find that the commissioners had the money on hand with which to do this work nor was it alleged in the petition that they had the necessary funds. The Appellate Court for this district reversed the case and held:

“Where there is entire neglect to work the roads, and the same are out of repair, it has been held that a proceeding by mandamus is the proper remedy to compel the commissioners of highways to do their duty. But there is a certain judgment and discretion left to the commissioners of highways in the discharge of their duty under the law, * * * they cannot be commanded, in this character of proceeding, to perform a duty in a manner specific, as in the judgment before us, but can only be commanded generally to do ■their duty. Therefore, to decree that the repairs should be made in a specific manner, and that the work done should be of a particular character, was error.”

The court also held: “Again, there is in this judgment no finding by the court, nor is there in the petition any allegation that the defendants, the commissioners of highways, had in their possession any money that could be used, for the purpose of putting the road in repair.”

Likewise they held “The commissioners- of highways must have either money on hand, or money that can be controlled by them, before they can be ordered to expend money.” They reversed this case because of the specific direction as to the manner in which the work should be done on the roads and the fact that there was no finding that there was money on hand with which to do the work.

In Peotone & M. Union Drain. Dist. v. Adams, 61 Ill. App. 435, on page 442, in speaking of the discretion of officers in the performance of certain duties, the Appellate Court says: “It is laid down by High on Extraordinary Legal Remedies, as follows: ‘Nor does the fact that certain incidents and details of the work' are left discretionary with the authorities as regards the manner of their execution render the duties less mandatory, or constitute a bar to relief by mandamus. ’ High’s Extraordinary Legal Remedies, secs. 413 and 415. * * * Road commissioners, with the same propriety, as it is here contended, could say that they were the judges as to whether the highways needed repairs, and as to whether obstructions needed removal, but the courts hold the statute mandatory, and that they must keep the roads in repair, when actually needed, with discretion as to the mode. ’ ’

Finally it is urged by counsel for appellant that the commissioner of highways is required to submit any contract for the construction or repair of roads and bridges, where the expense thereof exceeds $200, to the county superintendent of highways before entering into a contract, and for that reason the commissioner of highways has not the authority to do the work demanded. The statute on that question is as follows:

(The highway commissioners) “To direct the eonstruction and repair of roads and bridges within the town or district, to let contracts, employ labor and purchase material and machinery therefor, subject to! the limitations herein provided: Provided, however}• that no contract shall be let for the construction or repair of any road or bridge or part thereof in excess! of the amount of $200, nor shall any machinery or other appliances to be used in road construction in excess of such amount be purchased without the ap-: proval of the county superintendent of highways.”: Callaghan’s Illinois Law (1913-1916), page 1429, sec. 50, par. B, clause 5. ;

The duties of the county superintendent of highways so far as they relate to construction and repairs of roads and bridges by towns are as follows:

“Visit and inspect the highways and bridges in each town or district of his county, at least once in each year * * *, and advise and direct the highway commissioners of the several towns or districts in his county as to the best methods of repair, maintenance and improvement of highways and bridges.”

“Keep a record of all contracts or purchases of materials, machinery or apparatus to be used in road construction in excess of two hundred dollars ($200) approved by him in any town or district as hereinafter provided.” Callaghan’s Illinois Law (1913-1916), page 1407, sec. 8, clauses 3 and 5.

“The commissioners of highways in each town or district are hereby authorized to contract for the construction and repairing of roads and bridges lying wholly within the limits of their town or district; the cost whereof does not exceed $200.00. When any contract shall be for a sum in excess of $200.00, the said commissioners shall not let the same without the approval of the county superintendent of highways. The county superintendent shall keep a record of all contracts approved by him.” C'allaghan’s Illinois Law (1913-1916), page 1441, sec. 68.

In City of Ottawa v. People, 48 Ill. 233, a statute authorizing the construction of two bridges across the Illinois and Michigan Canal, in the City of Ottawa, was under consideration. A writ had been awarded by the Circuit Court, and on appeal the judgment of the Circuit Court was affirmed. The statute authorizing' the construction of the bridges had the following proviso in it: “Provided, said bridges shall not be built until plans of the same shall be submitted to the Board of Trustees of the Illinois & Michigan Canal (or their successors) and be approved by them.” There is no substantial difference in the language used in the statute with reference to the county superintendent of highways approving contracts for construction and repairing of roads and bridges and the language used in the statute then under consideration. The statute now under consideration authorizes the county superintendent of highways to advise and direct the commissioners of highways as to the best methods of repair, maintenance and improvement of highways and bridges, and to approve contracts for the construction and repair of roads and bridges where the cost thereof exceeds $200. It is evident that the superintendent of highways is expected to have had greater experience and to be better qualified in the details of such work than the commissioners of highways. For that reason he is to give his approval to the contract where the work to be done exceeds in value the sum of $200. He is not by these provisions given any part in determining the necessity for the work to be done, nor is he given any authority in determining whether it shall be done. After the commissioners of highways conclude to do the work the county superintendent of highways must approve the contract before it can be let. This is a part of the detail of the work that is left to the discretion of the commissioner of highways under the order rendered in this case. In carrying out that detail the law requires that the contract, before it can be entered into by the commissioner of highways, must be approved by the county superintendent of highways. This in no way discharges the appellant from the obligation to build the bridge in question.

In this case it appears that the court found the issues in favor of appellee and awarded the writ. In this the court found that the bridge was needed, that the location thereof was in a public highway, that by reason of the bridge being out the road was impassable and that the money necessary for the construction of the bridge is in the hands of the supervisor of the Town of Enfield. It clearly appears from the evidence that a bridge had existed at the place in question. The order of the Circuit Court compels the appellant to build the bridge. The details of that work are left to the appellant subject to such limitations as the statute makes where the contract price exceeds $200. Under these conditions the Circuit Court did not err in requiring the appellant to build the bridge.

Finding no reversible error in the record the order and judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Bank of Commerce & Savings, Appellant, v. I. N. Elkins, Appellee.
    1. New trial, § 9

      —when question of error in overruling motion for default judgment cannot he raised in motion for new trial. Error in overruling of a motion for a default judgment, on the ground of the insufficiency of the affidavit of merits, was not a question which could be raised in a motion for a new trial, even though the order refusing such judgment was excepted to.
    2. New trial, § 9*—When questions arising on rulings prior to hearing on merits not raised hy motion for new trial. A motion for a new trial does not raise any question arising on any ruling of the court before the hearing on the merits of the case, as questions arising preliminary to the submission to the jury are to be determined summarily by the court, and the rulings are subject to review if properly preserved in the record.
    3. Instructions, § 131*—when error to give instruction ignoring issue. In an action on a note, in which defendant claimed that the note was not filled out according to his directions, and plaintiff claimed ratification, it was error to give an instruction for defendant ignoring the question of ratification.
    4. Instructions, § 131*—when instruction erroneous as ignoring issue. In an action on a note, in which defendant claimed that the note was not filled out according to his directions, and plaintiff claimed ratification, an instruction stating in substance that before plaintiff could recover the jury must believe that defendant author, ized a named person to fill out the note, and that unless such person filled out the blanks strictly according to the authorization of defendant the jury should find for defendant, was mandatory and was reversibly erroneous in that it ignored the question of ratification.
    5. Instructions, § 129*—when mandatory instruction insufficient in contents. A mandatory instruction must be complete' in its statement of facts which will justify a verdict, and if any material fact or requirement is omitted, it will be erroneous, and it is not cured by others.
    6. Instructions, § 118*—when contention not based on evidence need not he covered. In an action on a note, in which plaintiff claimed there was the question of collusion between certain witnesses, it was not error to exclude that question in instructions given for defendant, where there was no testimony in the record on which to base such contention.

      7. Appeal and error, § 452

      —When alleged error in excluding documentary evidence is not available on appeal. A party who offered documentary evidence, generally, was precluded from claiming on appeal that the court erred in excluding such evidence on the ground that it was offered hy way of impeachment.
    Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed June 6, 1919.
    Brown, Brown & Brown, for appellant.
    Spann & Spann, Cowan & Huffman and Mansfield & Cowan, for appellee.

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

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

   Mr. Justice Eagleton

delivered the opinion of the court.

The appellant, Bank of Commerce & Savings, as plaintiff, recovered a judgment for $330.20 against I. N. Elkins, appellee, as defendant, in the Circuit Court of Johnson county and prosecutes this appeal to reverse said judgment.

The suit' was on a promissory note averred to have been executed by the defendant, dated February 7, 1917, for the sum of $4,500, payable 90 days after date, to the order of appellant, with interest at 5 per cent after date.

The declaration contained two counts, the first count declaring specially on the note and the second count being common counts.

With the declaration -plaintiff filed a copy of the note sued on and also a copy of account and an affidavit of merit.

To the declaration the defendant filed two pleas. One was a plea of nonassumpsit and the other a plea denying the execution of the note. The second plea was sworn to hy the defendant. The defendant also filed an affidavit of merit. Before the trial plaintiff moved for default and judgment for the reason, the affidavit filed by the defendant, as an affidavit of merit, did not meet the requirements of the statute. This motion was denied and the plaintiff excepted.'

Counsel for plaintiff urge that this exception is preserved in the motion for a new trial as one of the grounds why a new trial should be granted. This is not a question that can be raised in a motion for a new trial.

A motion for a new trial does not raiée any question arising on any ruling of the court before the hearing on the merits of the case.

“The questions arising preliminarily to the submission to the jury, in such cases, are to be determined summarily by the court, and its rulings are subject to review. * * * But such rulings are not properly embraced in a motion for a new trial. The motion was, and properly, ‘to set aside the verdict of the jury and grant a new trial.’ ” Guyer v. Davenport, R. I. & N. W. Ry. Co., 196 Ill. 370.

The ruling of the court on a motion’ of this character is preserved in the - record, and when properly presented on appeal the ruling of the court may be passed on. In this case there is no assignment of error on this ruling of the court, and for that reason that question is not presented.

The Supreme Court has said: “In Skakel v. People, 188 Ill. 291, on page 294, we say: ‘Every error must be specifically pointed out in the assignment of errors (Swift & Co. v. Fue, 167 Ill. 443), so clearly that from the showing the error is manifest (Gibler v. City of Mattoon, 167 Ill. 18), and an error not assigned is not open to review.’ ” Berry v. City of Chicago, 192 Ill. 154.

Appellant questions instructions numbered 14, 15, 16 and 17, given at the request of the defendant. His argument is that when they are considered with the evidence in the case it was error to give them.

On and prior to February 7, 1917, the plaintiff was engaged in the banking business in the City of Chicago. William Grissom was cashier. Noel Whitehead was customer. I. N. Elkins, the defendant, was a resident of Johnson county, Illinois, and both Grissom and Whitehead had formerly lived in Johnson county, and the three men had been acquainted for many years.

In February, 1917, the note sued on in this case came to the plaintiff’s bank.

Whitehead testifies that Grissom informed him that he, Whitehead, had an overdraft and that the bank was going to do away with overdrafts and that he told Grissom that he would see after it. Soon after that the defendant came to Whitehead’s office in Chicago.

The defendant, Elkins, and Whitehead each testified that defendant was in Whitehead’s office and Whitehead told the defendant that he had overdrawn his account at the bank about $250 or $300, and Whitehead asked the-defendant to sign a note for him and that the defendant complied with this request by signing the note sued on with the place for the amount left blank and left it with Whitehead to take to the bank.

Whitehead further testified that while the defendant was in his office, he, Whitehead, called Grissom on the telephone and asked the amount of his overdraft and Grissom said he was busy and did not know but not over $500. That the day after the note was signed by the defendant, he took it to the bank and Grissom said, “ ‘You give me the note and I will fill in the amount.’ To the best of my knowledge, the handwriting in the body of this note is Mr. Grissom’s. I know Mr. Grissom’s handwriting.”

When this note was placed in the bank Whitehead received credits as follows;

$2,025.28 upon Ms note bank number, 312 1,000.00 “ “ “ “ “ 378

1,500.00 to Ms account.

$4,025.28

The additional $25.28 is explained as another check.

Plaintiff’s exMbit 4 offered in evidence is another note for $4,500, dated May 8, 1917, payable to the order of plaintiff, 90 days after date, with interest at 5 per cent after date and signed by the defendant. During the trial tMs note was surrendered by the plaintiff and accepted by the defendant.

C. P. Belling, assistant cashier in the bank of the plaintiff, testified that he filled out plaintiff’s exhibit 4 before it was signed and mailed it to Elkins at Vienna, Illinois, and that the note came back through the mail.

In testifying about plaintiff’s exhibit 4, Whitehead said he received from Grissom a blank note and he wrote to Elkins and sent him the note; that Grissom asked him to send it to Elkins. He inclosed Exhibit “A.” “I received the blank note back. There was nothing on the paper when I received it but his name. I gave it to Mr. Grissom. It was blank except the name. I had no information how much the note would be.”

“Exhibit A” is a letter from Whitehead to defendant about the second note and nothing is said in the letter about the amount.

The defendant testified he signed another blank note to take the one that he said was for $250 or $300. “I signed one in Chicago and another one that Whitehead sent me by mail. * * * Mr. Whitehead sent me this note that is marked plaintiff’s exhibit ‘4.’ There was not a scratch of a pen on it. I never signed a note that was filled out.”

The objection made by appellant to the instructions mentioned is that they each ignore the question of ratification by the defendant.

The 15th instruction is as follows:

“You are instructed that before the plaintiff" should recover in this case, you must believe from the greater weight of evidence that the defendant authorized William M. Grissom, the cashier of the plaintiff’s bank, to fill in the blanks of the note in question, and that the said William M. Grissom, filled in said blanks as to the amount of said note, strictly according to the authorization of the defendant, and if you should believe that the evidence is evenly balanced, or preponderates in favor of the defendant, on this question then you should find the issues for the defendant.”

This instruction directed the jury to return a verdict for the defendant unless they believed from the evidence that a certain fact existed. Under this instruction, even though the jury may have believed from a preponderance of the evidence that the defendant had ratified the note sued on after it was . given, they were directed that unless Grissom filled in the note strictly according to the authorization of the defendant, they would find the issues for the defendant.

Without undertaking to determine what weight should be given the evidence bearing on the question of ratification, it is sufficient to say an instruction stating under what conditions the jury should return a verdict for the defendant should not omit the question of ratification.

This was a mandatory instruction: “Such an instruction must be complete in its statement of facts which will justify a verdict, and if any material fact or requirement is omitted the instruction will be erroneous. An instruction of that kind is not cured by others, because if the jury obey the instruction they would render a verdict upon the finding of fact stated in it, regardless of the omitted fact or requirement.” Chicago & A. R. Co. v. Kuckkuck, 197 Ill. 304.

This objection applies to other instructions.

It is urged, by counsel for plaintiff, that certain instructions given on behalf of the defendant ignored the question of collusion between Whitehead, Grissom and Elkins. The court did not err in this particular. There was no testimony in the record on which to base such contention. There is no evidence tending to show ' collusion between these parties, nor is there any evidence tending to show that Grissom was the agent of Elkins in this matter.

Certain checks issued by Whitehead after February 7, 1917, were offered in evidence by the plaintiff and refused by the court. It is said this was offered by way of impeachment. When they were offered in court they were offered generally, and it is sufficient to say they were not competent for the purpose offered.

For the errors indicated the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Presiding Justice McDonald

text:
    Fanny Lacy Hawley, Executrix, Appellee, v. Aetna Life Insurance Company of Hartford, Connecticut, et al., on appeal of Frank C. Crittenden, Appellant.
    Gen. No. 24,494.
    1. Insurance, § 69

      —right of person to insure Ufe for "benefit of one mthout insurable interest therein. It is the settled law of this State that one may insure his own life for the benefit of another haying no insurable interest therein.
    2. Insurance, § 172*-—when assignment of life policy to one without insurable interest will be valid. The assignment in good faith of a life insurance policy, valid in its inception, to one not having an insurable interest in the life of the insured, and who assumed the payment of future premiums, was valid.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed June 10, 1919.
    Johr M. Currar, for appellant; Hermar W. Still-mar, of counsel.

      William G. Wise and Worth E. Caylor, for appellee.

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

   Mr. Presiding Justice McDonald

delivered the opinion of the court.

This is an appeal from a decree setting aside the assignment of a life insurance policy made by the insured to one who had no insurable interest in the life of the assignor and where the assignee assumed the payment of future premiums thereon.

On June 30, 1893, one George F. Hawley, a physician residing in Chicago, took out a policy of insurance on his own life in the Aetna Life Insurance Company for $10,000, in which his wife was named as beneficiary. On January 4, 1900, the insured’s said wife having previously died, his daughter was named as beneficiary under the policy. On June 14, 1912, the insured again changed the beneficiary in the policy from his daughter, who had then married, to his executors, administrators and assigns. On June 22, 1912, the policy was duly assigned by the insured to one Frank C. Crittenden, who had no insurable interest in the policyholder’s life, for the sum of $2,500, and said assignee assumed the payment of future premiums thereon.

From the time the policy was issued to the date of the assignment thereof, a period of about 19 years, the annual premiums were paid by the insured. Thereafter they were paid by the assignee, who notified the company of the assignment to him of the policy.

On April 16, 1917, the insured died, whereupon the assignee filed proof of death with the company and demanded payment of the amount due under the policy. About one year prior to the date of the assignment in question, the insured again married and his widow, as executrix of his last will, filed a bill to set aside said assignment, alleging that said assignee had no insurable interest in the life of the insured; that the assignment was procured by the assignee for the purpose of speculating and wagering on the policyholder’s life and that the assignment was contrary to law and against the public policy of this state.

The insurance company was also made a party defendant to the suit, and by its answer admitted its liability on the policy. By stipulation of the parties, its answer was treated as a bill of interpleader and the $10,000 due under the policy was paid to a trustee designated by the court.

The assignee also answered taking issue on the allegations of the bill and the cause proceeded to a hearing, of the conclusion of which the learned chancellor entered a decree setting aside the aforesaid assignment on the g’round that it was a wagering contract on the life of the insured and against the public policy of the State of Illinois, and directed that the proceeds of the policy be paid to said executrix less the amount paid for the assignment thereof and subsequent premiums thereon, with interest in same, which latter sums were ordered to be paid to said assignee.

It appears from the record that the policy was procured by the policyholder in good faith, who personally paid the premiums thereon for upwards of 19 years, amounting in the aggregate to the sum of about $6,000; that at the time of the assignment thereof the policy had a cash surrender value of approximately $2,000, and that the assignment was also made in good faith, free from fraud or deceit.

The controlling question here presented for determination is the right of the holder of a life insurance policy, valid at its inception, to sell and assign the same to one having no insurable interest in the policyholder’s life 'where the assignee assumes the payment of future premiums thereon.

It has been uniformly held that one having no insurable interest in the life of another cannot procure a policy of insurance on such life, and a policy so procured is void at its inception. It is also the settled law of the State that one may insure his own life for the benefit of another having no insurable interest therein. Bloomington Mut. Benefit Ass’n v. Blue, 120 Ill. 121; Johnson v. Van Epps, 110 Ill. 551. The right to assign a policy, valid at its inception, to one having no insurable interest in the life insured has also been upheld. Marlin v. Stubbings, 126 Ill. 387; Delaney v. Delaney, 175 Ill. 187; Moore v. Chicago Guaranty Fund Life Society, 178 Ill. 202. And while the authorities passing upon the right to make such an assignment, where the assignee assumes the payment of future premiums, are not in harmony, yet from a careful examination of them we conclude that the weight of authority and reason favors the holding that such an assignment is valid.

A life insurance policy is but a chose in action for the payment of money, in which the interest of the insured is to be as fully protected as that of the beneficiary. To hold that the policy cannot be lawfully assigned to one not having an insurable interest in the life of the insured, and who assumes the payment of future premiums thereon, would tend to lessen its value and to prevent the policyholder from realizing thereon at a time of life perhaps when his needs were most pressing and his ability to supply them greatly impaired. In our opinion this holding does not violate any rule of law or principle of public policy. In this view of the case it becomes unnecessary to pass upon the other questions here presented, and the decree will therefore be reversed and the cause remanded with directions to dismiss the bill for want of equity and to enter a decree for appellant Crittenden on his cross-bill.

Reversed and remanded with directions.


text:
    Henry J. Kroll, Appellee, v. Arthur S. Hoyt, Appellant.
    Gen. No. 24,518.
    Bnxs and notes, § 165

      -—What is status of irregular indorser, in blank before delivery. Under Negotiable Instruments Act, sec. 63 (J. & A. If 7702), providing that a person placing his signature upon an instrument other than as maker, drawer or acceptor, is deemed to be an indorser, unless he clearly indicates an intention to be bound in some other capacity, and section 64 (J. & A. If 7703), providing that where a person not otherwise a party to an instrument places his signature thereon in blank before delivery, he is liable as indorser to the payee and all subsequent parties, provided the instrument is payable to a third person, the status of an irregular indorser in blank before delivery of the note in question was that of an indorser, and parol evidence of a contemporaneous agreement was inadmissible to show a contrary intention.
    Appeal from the Superior Court of Cook county; the Hon. Oscar Hebbl, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed June 10, 1919.
    Rehearing denied June 23, 1919.
    William R. T. Ewen, for appellant.
    John S. Hummer, for appellee.

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

   Mr. Presiding Justice McDonald

delivered the opinion of the court.

Plaintiff, Henry J. Kroll, was the holder for value of two promissory notes executed by the Home Meat Preparing Company, a corporation, in favor of one J. E. Madden, payee, which bore the following indorsement:

“Arthur S. Hoyt J. E. Madden.”

This action was brought and a recovery had on said notes against defendant (Hoyt) as guarantor thereof. Parol evidence was admitted, over objection of defendant, to the effect that defendant indorsed said notes in blank before delivery, at which time he verbally guaranteed their payment at maturity.

The foregoing notes were executed after the enactment of the Uniform Negotiable Instruments Act in this State, and the sole question here presented is whether defendant, who was an irregular indorser in blank before delivery, can be held to the liability of a guarantor or joint maker thereof.

Section 81 of our Negotiable Instruments Act (Hurd’s Rev. St.) provides as follows:

“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicated by appropriate words his intention to be bound in some other capacity.”

Section 82 (J. & A. jf 7703) of said act provides, among other things, that where a person, not otherwise a party to an instrument, places his signature thereon in blank before delivery, he is liable as indorser to the payee and all subsequent parties, provided the instrument is payable to a third person.

Section 106 (J. & A. 7728) of said act provides that notice of dishonor by nonpayment must be given to an indorser, and any indorser to whom such notice is not given shall be discharged.

It is conceded that no such notice of nonpayment was given defendant.

In our opinion, by the plain language of sections 81 and 82, supra, of the said act, the status of an irregular indorser before delivery is therein fixed as that of an indorser, and parol evidence of a contemporaneous agreement is inadmissible to show a contrary intention. This conclusion finds support in the following authorities bearing directly upon the question here presented: Baumeister v. Kuntz, 53 Fla. 340, 42 So. 886; Neosho Milling Co. v. Farmers’ Co-op. Ware house Stock Co., 130 La. 949, 58 So. 825; Lyons Lumber Co. v. Stewart, 147 Ky. 653, 145 S. W. 376; First Nat. Bank v. Bickel, 143 Ky. 754; McDonald v. Luckenbach, 170 Fed. 434; Lightner v. Roach, 126 Md. 474, 95 Atl. 62; 8 Corpus Juris, pp. 74-79, secs. 121, 122.

In Tucker v. Mueller, 287 Ill. 551, our Supreme Court, in passing upon a somewhat similar state of facts—although declining to pass upon the question here presented, for the reasons therein stated—clearly indicated the construction the act in question should receive, by the following language, p. 558:

“In our judgment the provisions of our Negotiable Instruments Act, as enacted in 1907, must be held to have changed the rule announced in the previous decisions of this court that the liability of a person who indorsed a note in blank on the back, at or before the time of its delivery to the payee, was prima facie that of a guarantor, and we are of the opinion that in the light of these provisions of the act he must be held only to the liability of an indorser.”

And while the following cases, Mercantile Bank of Memphis v. Busby, 120 Tenn. 652; Long v. Gwin (Ala.), 80 So. 440; Haddock, Blanchard & Co. v. Haddock, 192 N. Y. 499, 85 N. E. 682, are not in entire harmony with the holding here to the extent above indicated, yet in these latter cases the right to show a contrary intention of such irregular indorser was upheld only between the immediate parties, and they do not extend such right to a subsequent holder, as is the plaintiff in the case at bar.

• It appearing from the notes in question that defendant placed his signature on the back thereof without any words indicating any intention to be bound other than as indorser, his status and liability were fixed as such and hence he cannot be held liable as/ a guarantor thereof.

Accordingly the judgment must be reversed.

Reversed.