text:
    Mississippi Lumber Company, Appellee, v. John K. Joice et al., Appellants.
    Gen. No. 16,095.
    1. Corporations—secret profits in organization. Where one who has two options on a lumber mill, one for $35,000 and another for $60,000, interests others in forming a corporation to buy it, and, after a subscription agreement is signed, acting as “trustee,” collects stock subscriptions and with the money purchases the lumber mill with other property for $60,815.75, and receives drafts from the vendors for. $25,000, which are turned over to a corporation of which he and two others are the chief stockholders, this corporation being a subscriber to the proposed corporation in the amount of $25,000, afterwards dividing the stock among the three stockholders, a bill in equity by the new corporation to recover such secret profits is properly sustained.
    2. Corporations—promoter liable for secret profits. A promoter of a corporation, although not its agent, is a fiduciary and must account to the corporation for any secret profit.
    3. Corporations—where secret profits are purchased from a promoter. Those who purchase secret profits from the promoter of a corporation, knowing them to be such, are liable with the promoter to the new corporation.
    "4. Corporations—secret profits. Where the promoter of a corporation retains secret profits, which are used to pay for stock in the new corporation, and the stock is sold at a profit, the original fund and the profit, with interest on both from the time the profit was made, may be recovered in equity by the corporation.
    5. Chancery—master’s fees. Master’s fees will not be reduced as having been increased by his own delay where the delay is not shown not to have been occasioned by the parties.
    Appeal from the Circuit Court of Cook county; the Hon. G-boroe A. Carpenter, Judge, presiding. Heard in this court at the October term, 1912.
    Petition for certiorari denied by Supreme Court making opinion final.
    Affirmed.
    Opinion filed December 30, 1912.
    Rehearing denied January 13, 1913.
    Charles E. Pope and D. A. Clithero, for appellants; John S. Miller, of counsel.
    Defrees, Buckingham, Ritter & Campbell, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The bill was filed in this case in 1903 by the appellee, an Illinois corporation, hereinafter called complainant, to recover from the appellants, hereinafter called defendants, a secret profit by them made in the purchase by complainant of a lumber mill, timber rights, etc., in the State of Mississippi. The said defendants answered, as did also certain other defendants, Lowe, Deeves, Templeton and Miller. The said last-named defendants, hereinafter called cross-complainants, also filed a cross-bill claiming, as members of a certain syndicate organized to purchase the said described property and to form a corporation to take over said property, they were entitled to the said secret profits. The court dismissed the said cross-bill as not germane to the original bill and the said cross-complainants come here in another and separate appeal from that portion of the decree dismissing said cross-bill. The cause was referred to a master, and after hearing much testimony the master reported that the proofs sustained the original bill and recommended a decree in favor of complainant, and the chancellor confirmed said report and entered a decree accordingly, and from that decree this appeal is prosecuted.

On this record there is no question that the said defendants made and received in the transaction in question a secret profit of $25,000. The defendants insist that they were entitled to the said profit and should not be held liable to account to any one therefor ; but that if it should be held that they were liable to account therefor, it should not be to the complainant, but to the syndicate claimed by them to have been organized to purchase said property and then to sell same to a corporation to be subsequently organized.

The material facts presented by this record, as we understand them, are substantially as follows: The defendant, D. S. Pate Lumber Co., was an Illinois corporation with a capital of one hundred thousand dollars, conducting a general lumber business. Its stock was owned, except five shares, by the defendants, D. S. Pate, George J. Pope and John K. Joice, in substantially equal parts. Joice secured an option in writing dated November 17,1899, good for thirty days, wherein Wetherbee Bros, of Quitman, Mississippi, agreed'to sell a lumber mill, timber rights, etc., for the sum of $35,000, the time of which was subsequently extended by the Wetherbees or a renewal thereof secured; and whether an extension or renewal we deem Immaterial. Joice also secured from the Wetherbees another option, so-called, the same in all particulars as the said $35,000 option, except the selling price therein stated was $60,000. Joice was attempting to make a sale of said property when, through W. R. Ransom, he began negotiations with the said Perley Lowe, C. F. Thompson and William Templeton, comprising the firm of Lowe, Templeton & Miller, .also in the lumber business. There is much conflict of testimony in relation to the securing by Joice of the extension or renewal of his said option and the exact time and the details of his first meeting with Lowe et al. However, on a careful consideration of all the evidence relating thereto, we believe that the said extension or renewal was secured by Joice subsequent to his first talk with Ransom about interesting the Lowe firm in said property, and was secured in contemplation of negotiating with the Lowe firm and organizing a corporation to purchase the property. At a meeting of all the interested parties on January 11 or 12, 1900, Joice presented his $60,000, option and the negotiations culminated in the signing of the following instrument, previously prepared by Joice and by him claimed to have been drawn for use with other parties with whom he had been negotiating:

“For and in consideration of the sum of one dollar ($1.00) and the benefits to be derived, we, the undersigned, mutually agree to subscribe the amount set opposite our names to the capital stock of a company to be incorporated for the sum of one hundred thousand dollars ($100,000). The primary reasons for the incorporation and the understanding is that the company purchase a certain timber contract and saw mill, as outlined in papers hereto attached.
“In event that total subscription is not made this agreement shall be null and void.
“As evidence of good faith we agree to pay to a trustee, appointed by the subscribers to this agreement, one per cent (1%) of the amount of our several subscriptions immediately upon notification of completed subscription.
“It is further agreed that the subscribers to this agreement, after subscription has been made in full, shall call a meeting and appoint a committee, for the thorough investigation of the timber lands, titles, etc., and if it is unanimously agreed by the subscribers, we then agree to pay within ten (10) days from date of notice, a second payment of fifty-nine per cent (59%) on our subscription. The balance of the subscription —forty per cent (40%) shall be subject to call at any time and payable within ten (10) days from date of notice. Payments shall be made to a trustee elected by the subscribers, same to be exchanged for capital stock of the company, which shall be issued as soon as company is organized.
“It is further agreed that the expenses of the committee appointed to examine the lands, titles, etc., shall be divided equally between the subscribers, according to their subscriptions.
“In event the purchase is not made, all subscriptions shall be returned to the subscribers.
Lowe, Templeton & Miller, $50,000
......................Dollars.
Pate Lumber Co. $25,000
...................... Dollars.
C. F. Thompson, Jr., $15,000
...................... Dollars.
W. B. Bansom, $10,000
$100,000
.................____dollars.”

Ransom went to Mississippi and investigated the property and made a favorable report thereon. Joice also went to Mississippi and secured additional property from the Wetherbees to be included in the deal for additional compensation and valuable concessions from other parties in case the deal with the Wetherbees was consummated. Thompson and Lowe followed and many conferences were had and further negotiations, but Joice alone conducted all the negotiations with the Wetherbees, requesting Thompson and Lowe not to talk to them. Joice urged the closing of the deal and arrangements being made to' include other property, on January 31 Thompson gave Joice a check to give the Wetherbees as the first payment on the contract, as follows:

"the THOMPSON LUMBER 00.,
"Chicago, Jan. 31,1900.
"Pay to the order of John J. Joice, trustee ($5,000) five thousand dollars.
"The Thompson Lumber Co.,
“By C. F. Thompson, Jr., “President.
“To Union National Bank, “Chicago, Ill.”

This check was endorsed by Joice personally and as trustee and delivered to the Wetherbees and by them accepted and collected, as the first payment on the $35,000 option held by Joice. At the time of the said payment the Wetherbees made and delivered to Joice what was designated a “Memorandum of Sale” as follows:

“Quitman, Miss., January 31, 1900.
"memorandum of sale.
“We hereby sell and guarantee to convey and transfer with perfect title and clear of all encumbrances to J. K. Joice all of the real and personal properties, also options and contracts covered by our option to the said J. K. Joice, dated November 17,1899, and with supplement to same dated January 25, 1900. It being understood that whatever amount the inventory of the commissaries shall run short of $6,000 the same shall be deducted from the total sum. The titles and transfers to be made to J. K. Joice, trustee, to be held in trust for individual interests.
“In consideration of the above we hereby acknowledge receipt of ($5,000) five thousand dollars. Balance of payment to be made as soon as papers are prepared and within (15) fifteen days from this date.
“Witnesseth our signatures.
“(Signed) C. P. Wetherbee.
“(Signed) W. C. Wetherbee.
“Witness:
“(1) J. G-. Wetherbee, Jr.
“(2) J. E. Hand.”

Thereupon Bansom took possession of certain of the premises and operated same under the name of “John K. Joice, trustee.” The parties interested met in Chicago, February 5, and agreed that the capital stock of the proposed corporation be increased to $150,000, and authorized Joice to call for the payment of fifty per cent, of the said subscriptions. Joice then made the call by writing, and sending to the subscribers a letter of which the following is a copy, except as to names and amounts:

(Letterhead of D. S. Pate Lumber Co.)
“Chicago, February 6, 1900.
“Perley Lowe and Others, City.
“Gentlemen: On January 16th and February 5th you subscribed $75,000 to the capital stock of the Mississippi Lumber Co.
“At a meeting February 5th it was unanimously agreed that fifty per cent of the subscription was due and payable at call. Tour proportion due is therefore $37,500, less cash paid January 16th, $250, balance due $37,250.
“Please make check payable to J. K. Joice, trustee.
“Bespectfully yours,
“J. K. Joice, “Trustee.”

The said sum mentioned was paid him and he acknowledged same by the following:

(Letterhead of D. S. Pate Lumber Co.)
“Chicago, February 10, 1900.
“Received of Perley Lowe & Co. thirty-seven thousand five hundred & 00/100 dollars, which I hold as trustee for the Mississippi Lumber Company, and agree to transfer as directed by request of the directors of the company as soon as they are legally incorporated.
“J. K. Joice, i í Trustee.
“$37,500.00.”

Other subscriptions were collected by Joice and on February 12th he paid of the money so collected to the Wetherbees the sum of $60,815.75, being the balance of the alleged purchase price of $60,000 and the price of the additional property included in the deal. This payment was made in six checks, five of which were signed “J. K. Joice, trustee,” and one for $5,000 signed “D. S. Pate Lumber Co., J. K. Joice, Treas.” At the same time Joice received from the Wetherbees New York drafts'for $25,000, which he sent to the. D. S. Pate Lumber Co., which amount was entered in its books to the credit of the Mississippi Lumber Co.; and the Pate Lumber Co. on February 15th apportioned its subscription of $25,000 of the capital stock of the Mississippi Lumber Co. to Pate $8,000, Pope $8,000 and to Joice $9,000. On the payment of the said $60,815.75 to the Wetherbees on February 12th, conveyances were made of a part of the premises to “J. K. Joice, trustee,” and subsequently the remainder thereof as agreed upon were also conveyed to “J. K. Joice, trustee,” all of which said premises were subsequently, after the organization of the Mississippi Lumber Company as a corporation, conveyed to it for a nominal consideration by “J. K. Joice, trustee.”

A license was issued by the secretary of state to open books of subscription to the capital stock of the complainant corporation and the same was subscribed for under date of February 8th, as follows:

“names. SHARES. AMOUNT.
Perley Lowe ................ 450 $ 45,000
C. F. Thompson ............. 225 22,500
Gr. J. Pope .................. 80 8,000
D. S. Pate .................. 80 8,000
J. K. Joice ................. 215 21,500
0. H. Deeves ................ 50 5,000
Wm. Templeton ............. 150 15,000
0. P. Miller by W. Templeton 100 10,000
W. B. Bansom .............. 150 15,000
1,500 $150,000.’

February 19th at a duly called meeting of said subscribers, Perley Lowe, C. F. Thompson, Wm. Temple-ton, J. K. Joice and D. S. Pate were elected directors and a report made thereof, as required by law, to the secretary of state, and a charter issued to' said company and filed in the recorder’s office of Cook county, Illinois, February 27, 1900. That the company was organized with a capital of $150,000, instead of $100,-000, as first arranged, we think is immaterial to the issues. Certificates of stock in the said company were thereupon issued, not in payment of the said premises purchased, but to the individual subscribers of the stock, equal to and in consideration of the amount paid by them on their respective subscriptions to Joice as trustee; and entries showing same made in the books of the complainant corporation under the direction of Thompson in consultation with Lowe, Temple-ton, Joice and Pope.

In August, 1902, Pate, Pope and Joice sold their 250 shares so received and paid for by them with the said $25,000 for $125 per share; and not until a short time prior to the filing of the bill herein did the cross-complainants and officers of the complainant learn that the said profit had been made by the said defendants.

The record is voluminous and the abstract thereof consists of over eight hundred pages. There was much conflict of testimony in respect to the issues involved, but it seems to us neither practical nor necessary to state same more in detail. We have only attempted a brief summary of certain material facts we think established that will make the situation sufficiently clear to an understanding of the application of the principles of law we believe are here controlling.

On a careful study of the record we arrive at the conclusion that the money to purchase said property was paid to Joice as trustee. It was claimed by the complainant that when Joice began the negotiations in question his option had expired. This Joice denied. At any rate he secured its renewal or extension, and thereunder might have sold the property and been entitled to the profit resulting therefrom; but we are of the opinion that under all the facts and circumstances in evidence, the transaction was not a sale by Joice under his option, but was a purchase thereunder by him, acting in behalf of and representing others, and wherein he was, and termed himself, “trustee.” While it may be true that he intended his position to be that of vendor, it is clear from the evidence that practically every paper drawn and every act done by him from the time of presenting the subscription agreement on January 11th or 12th was, and by himself so designated, in the capacity of and as a trustee; and under such circumstances he cannot in justice and equity escape the duties and responsibilities of such trusteeship.

Whether he was the trustee for the individuals as subscribers to a syndicate to purchase the said premises or trustee for the complainant, is perhaps not so clear. If the said syndicate, so called, did in fact make the purchase of said property and pay therefor, and then sell same to the complainant corporation, receiving payment therefor in the stock of the complainant, then, whatever might be the liability of the defendants to the members of the syndicate, it would seem there could he no liability herein to the complainant. If, however, the capital stock of the complainant was paid for in money to Joice, acting for and representing the proposed corporation, and the money so paid him was used by him to pay for the said property, it would seem that any secret profit made in such transaction would be from the money belonging to the proposed corporation, and it might recover the secret profit so made, even though the property purchased would be worth the amount paid therefor, which seems to be the situation in the case at bar.

That there is no right of action in the complainant, much reliance is placed by the defendants in the cases of Old Dominion Copper Min. & S. Co. v. Lewisohn, 210 U. S. 206, affirming 79 C. C. A. 534, and Maxwell v. McWilliams, 145 Ill. App. 155. In the Lewisohn case, supra, the court held that the corporation knew all that was known to Bigelow and Lewisohn, who were selling the property to the company, and that there was therefore no concealment from the company of the facts; very different from the case at bar. In the Maxwell case, supra, as we understand it, the court found that Mr. Lord was given the money as agent for the subscribers, and the purchase of the property there in question was made by him for the said subscribers. As it seems to us, there is a marked difference in this case from the one at bar, unless of course the court should here find as a fact that Joice was acting for and on behalf of the subscribers to the agreement first mentioned as individuals, and that the said individuals, and not the proposed corporation, purchased the said property from the Wetherbees. The master found the said purchase was by the proposed corporation, and the chancellor found:

“That from January 12, 1900, it was the constant intention of the parties to organize a corporation; that it was the constant intention of all of the parties from then that the money paid by them should be paid for the capital stock of said corporation to be organized; that all of the money that was paid by all of the parties was in payment of the capital stock of ‘the company,’ and was in equity the property of ‘the company;’ that said Joice, as to all of the said money held by him, was in equity, trustee for ‘the company.’ ”

We are not inclined to hold to the contrary, and under such circumstances we think that the complainant is entitled to recover. Pittsburg Mining Co. v. Spooner, 74 Wis. 307; Woodbury Heights Land Co. v. Loudenslager, 55 N. J. Eq. 78; Hayward v. Leeson, 176 Mass. 310; Hinkley v. Sac Oil & Pipe Line Co., 132 Iowa 396; Lomita Land & Water Co. v. Robinson, 154 Cal. 36; Yeiser v. U. S. Board & Paper Co., 107 Fed. 340.

It is insisted by the defendants that Joice was not an agent of the proposed corporation because there can be no agency for' a corporation not in existence. While that-may be correct as a general rule of law, we do not think the principle applicable to the case at bar. We think the evidence proves that Joice was a promoter of the complainant; and it has been repeatedly held that a promoter of a corporation occupies a trust relation to it, and will not be permitted to retain a secret profit made by him in his sales or purchases for the proposed corporation. In 10 Cyc. 274, it is said: “Although the promoters of a corporation are not its agents for the purpose of binding it by their acts and engagements, yet they are fiduciaries. * * * They are trustees in a sense which disables them from taking to themselves a secret profit made out of their trust to the detriment of the future corporation or its members; and they will be required to account for such profits to the corporation, to its shareholders, or to its receiver or representatives in insolvency proceedings.”

Thompson on Corporations (2d Ed.), sec. 103, discussing the duty of a promoter toward the corporation, says: “They occupy in these respects a fiduciary relation, or a relation of trust and confidence, and this being the case they are bound by the same rules and principles that govern all persons acting in a fiduciary capacity or relation. It is now the settled law that a promoter of a corporation stands in a fiduciary relation to the corporation of which he is a promoter.” In section 104 the author states the rule that promoters are not entitled to secret profits; also in section 1234 that directors must account to the corporation for secret profits. It will be observed that Mr. Joice and Mr. Pate were both directors of the complainant upon its organization, and when the transactions in question were finally consummated.

Complaint is made that the decree is erroneous in holding Pate, Pope and the Pate Lumber Co. liable for the said secret profit. The evidence shows that Pate and Pope knew of the said secret profit and that it was deposited with the Pate Lumber Co. and by it apportioned among the said Pate, Pope and Joice. It being determined that the said Joice was a trustee of the complainant in the collection of the money paid in on the subscriptions for its stock and in the purchase therewith of the property in question for the complainant the secret profit made by him became a trust fund. In First Nat. Bank of Metropolis v. Leech, 207 Ill. 215, the court, citing many authorities in support thereof, quote the rule we think here applicable, as follows: ‘ The doctrine is, that a purchaser with notice of a trust, either express or implied, becomes himself a trustee for the beneficiary with respect of the property, and is bound in the same manner as the original trustee from whom he purchased,—and this even though he is a purchaser for a valuable consideration. ’ ’

It is claimed that the master’s fees allowed by the court are exorbitant and unreasonable. The arguments were heard by the master in July, 1905, and he did not begin to prepare his report until May, 1907. The defendants say that a great amount of time taken by the master in the preparation of his report, and for which he charged and the court allowed, was necessarily occasioned by his own delay in taking up and making his report, which contained a recital of certain testimony, many findings and his reasons therefor. The defendants’ argument appeals to us and we would be inclined to sustain the objection to the decree in this respect if we found any evidence in the record, which we do not and none is pointed out to us, that the delay of the master of nearly two years before he began the preparation of his report, was not caused by the parties or either of them, hut was his own fault.

With the said $25,000 secret profit the defendants paid on their subscriptions to the capital stock of the complainant and Joice, Pate and Pope received therefor 250 shares of said stock. About September 1,1902, they sold this stock for $31,250, making a profit of $6,250. The decree provided: “That complainant, the Mississippi Lumber Company, is entitled to have and recover from the defendants, Davey S. Pate, John K. Joice and Geo. J. Pope, the sum of thirty-one thousand two hundred and fifty dollars ($31,250) with interest at the rate of five (5) per cent per annum, on twenty-five thousand dollars ($25,000) of said amount, from February 15, 1900, to this date, and on sixty-two hundred and fifty dollars ($6,250) of said amount from September 1, 1902, to this date, being a total of forty-four thousand seven hundred ninety-nine and 24/100 dollars ($44,799.24), which said amount of money the said defendants, Davey S. Pate, George J. Pope and John K. Joice are hereby directed, ordered, adjudged and decreed to pay to complainant, within ten (10) days from this date, and that in default of said payment that execution issue therefor.”

The defendants contend that a recovery should not be allowed for both interest and profits. It will be observed that the decree gives the complainant $6,250, the profits from the investment of the said $25,000 made from the date thereof, February 15, 1900, to September 1, 1902, when the stock was sold, and also interest on the said $25,000 “from February 15, 1900, to this date.” In other words, the complainant is given both the interest on said $25,000 from February 15, 1900, to September 1, 1902, and the profits made therefrom during the said time. We think it well settled that the cestui que trust is entitled to either the profits or the interest, but not to both. It is evident from the record that its choice was the profits, and those will be allowed. The interest on the said $25,000 at five per cent, from February 15, 1900, to September 1, 1902, is $3,177.05, and should not have been allowed the' "complainant. The decree is modified by deducting the said $3,177.05 from the amount allowed therein to the complainant, and as so modified it is affirmed and the complainant taxed the costs of this appeal.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Ida E. Mack Barber, Appellee, v. Samuel A. Tolman, Appellant.
    Gen. No. 16,510.
    1. Appeals and errors—appeal from, final decree. An appeal from a final decree is a matter of right.
    2. Appeals and errors—test in determining whether reference decree is final or interlocutory. Where a decree refers a cause to a master, if the things to be done or the facts to be ascertained are in execution of the decree, then the decree is final, but if the things to be done or the facts to be ascertained are preparatory to a decision and final decree, then the decree is interlocutory.
    3. Appeals and errors—when decree ordering reference is interlocutory. Where additional collateral security is deposited with the holder of a note and on a bill in equity by the pledgor against the holder the court finds that the holder contracted to turn over certain collateral when the note was paid, that payments had been made and that collateral had been received, and further decrees that the cause be referred to a master to determine by an accounting and a discovery whether the note had been overpaid and whether the securities had been converted and, if so, their value, but many matters put in issue pertaining to the securities are not determined by the decree and can only be determined by a hearing thereon adjudicating the rights of the parties, the decree is not a final decree from which an appeal may be taken.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1910.
    Appeal dismissed.
    Opinion filed December 30, 1912.
    Rehearing denied January 13, 1913.

      Albert Kocourek and Musgrave, Oppenheim & Lee, for appellant; John H. S. Lee, of counsel.
    H. S. & F. S. Osborne and Robert F. Pettibone, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellee filed a bill, as amended, alleging, inter alia, that on September 9, 1891, the appellant loaned to Charles P. Packer, as agent of the shareholders of the Park National Bank, the sum of $22,965.35 upon a note dated August 29, 1891, for the sum of $25,500, payable to the order of the said Packer six months after date, with interest at the rate of seven per cent, per annum after date thereof, signed by M. T. Roberts and others and endorsed by the said Packer and delivered to the said appellant in consideration of the said loan, together with certain collateral as security for the payment of the said note; that on or about September 9, 1896, the appellee delivered certain collateral to appellant as additional security for the payment of the said note, and in consideration thereof the appellant agreed with the appellee that upon the payment of the said note, he, the said Tolman, “would turn over to your oratrix certain collateral remaining in his hands which had theretofore been deposited with said Tolman as security for the payment of said note and had been by him sold under collateral powers of sale and bought in at such sales by said Tolman, a precise description of which collateral your oratrix is unable to give without an accounting, as hereinafter prayed,” and would also turn back to your oratrix as soon as said note should be paid certain property hereinafter described, then and there by your oratrix conveyed and turned over to said Tolman as further collateral security for the payment of said note;” that said appellant had been paid more than seventy thousand dollars on the said note; that certain of said collateral had heen foreclosed and bought in by said appellant and he was about to secure a deed thereto and take possession thereof, unless restrained by the order of the court, although appellee was entitled to said premises and the possession thereof; that said Tolman had been requested to carry out the said agreement, “but has failed and refused to account with your oratrix with respect to said $25,500 note and the indebtedness evidenced thereby, and has failed and refused to turn over to your oratrix the said collateral pledged for said note. ’ ’ The prayer was for a discovery and accounting and “that said Tolman may be decreed to deliver to your oratrix all the securities and property now in the hands of said Tolman which were pledged as security for the payment of said twenty-five thousand five hundred dollar ($25,500) note and by said Tolman sold and bought in and also to deliver to your oratrix proper deeds of conveyance of the real estate pledged for the payment of said twenty-five thousand five hundred dollar ($25,500) note, and that if said Tolman has misappropriated, wasted, or diverted any of said securities or property, that he may be decreed to pay to your oratrix the value thereof, and that if it shall be found upon said accounting that since the payment in full of the indebtedness due to said Tolman on account of said twenty-five thousand five hundred dollar ($25,500) note, said Tolman has sold or otherwise disposed of any of the securities so as aforesaid held by him, he shall be decreed to pay the proceeds of said sales or the value of said securities to your oratrix; that said Tolman be restrained and enjoined from taking out a deed upon the master’s certificate upon the premises hereinabove described, and may be decreed to endorse and deliver the said certificate to your oratrix, and that your oratrix may have such further and other or different relief as to equity shall seem meet.”

The appellant answering admitted the execution and delivery to him of the said $25,500 note, and alleged that he purchased the same from the said Packer; that the said Packer was the agent of the shareholders of the Park National Bank; that the said bank was in the hands of a receiver and in consideration of certain services rendered by the said appellant to said Packer and shareholders pertaining to the affairs of said bank, it was agreed that the appellant’s compensation therefor should be $2,300, and that the said sum was deducted from the payment of the purchase price of the said $25,500 note. The appellant by his answer denied substantially all the other material averments of the bill as amended, and alleged what he claimed were the facts in relation to all of the said transactions and the various collateral deposited as security for said note and also set up judgments in various courts in relation to the said collateral, which he claimed were a bar to this action. The answer is voluminous, but from the view we take of this appeal, it is not necessary to recite same in more detail. A replication was filed and on a hearing before the chancellor a decree was entered sustaining appellee’s contentions that the appellant agreed with the appellee that whenever he was reimbursed for the money advanced that appellant would return to appellee the securities held by him for the payment of said money so advanced, and that the said amount was $22,965.35; that the appellee had an interest in said securities; that the conveyances made by the appellee were in the nature of securities and should be considered as mortgages; that the bill was not a bill for specific performance, but in the nature of a bill for redemption of said securities; that there had been no adjudication by former decisions of the questions then before the court; that the appellee was not guilty of laches; that the said Tolman had been paid large sums of money on the said note and had received from time to time collateral security for the payment of the said note, from which he had collected large sums. The court referred the cause to the master and ordered:

“1. The master shall take the original amount of $22,965.35 advanced on said note on September 9,1891, and allow interest from said date at five per cent, per annum on such portions of said indebtedness as remained from time to time unextinguished, crediting on said indebtedness all payments and credits which should be allowed thereon. If said indebtedness is overpaid, when and how much, and all credits and payments since it was overpaid, charging the defendant with interest at five per cent, per annum on all such overpayments. The accounting shall be brought down to include the date of the master’s report.
“2. Of all the securities at any time delivered to and held by Tolman as security for said indebtedness, and what of such securities are now in existence and held by said Tolman; also if any of said securities are not held by said Tolman, that he fully account for those so missing.
“And it is ordered that said Tolman produce before the master all his books, vouchers, papers and other instruments so far as the master shall deem the same relevant, or to throw light upon such accounting.
“The master or any party may apply for further directions as to the accounting herein required to be taken. The master shall report the evidence taken before him under this order of reference together with his conclusions of fact and law thereon.
“All questions not herein specifically determined are reserved for determination on the entry of final decree herein.”

From said decree an appeal was allowed and the appellee here moved to dismiss the appeal on the ground the decree is not final, and said motion was reserved to the hearing. An appeal from a final decree is a matter of right, and if the said decree be held to be a final decree, the motion should be denied; but if it is not a final decree, then the motion must be allowed. In Barbour’s Chancery Practice, vol. 1, p. 330, it is said: “When a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree. And a decree may be final, although it directs a reference to a master, if all the consequential directions depending upon the result of the master’s report are contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the full and entire benefit of the previous decision of the court.” In Rosenthal v. Board of Education, 239 Ill. 29, the court say (p. 36): “A judgment or a decree is only final and appealable when it terminates the litigation between the parties on the merits of the case, so that when affirmed the court below has only to proceed with the execution of the judgment or decree. Chicago & N. W. R. Co. v. City of Chicago, 148 Ill. 141; Gray v. Ames, 220 Ill. 251; Brodhead v. Minges, 198 Ill. 513. A decree which retains the cause for the future determination of matters of substantial controversy between the parties is not final and appeal-able.”

These definitions of a final decree are clear, and tested thereby most decrees are manifestly final or interlocutory; but special cases arise where it is difficult to determine whether the decree is final or interlocutory. If upon a reference to a master the things to be done, or the facts to be ascertained, are in execution of the decree, then the decree is final; but if the things to be done or the facts to be ascertained are preparatory to a decision and final decree, then the decree is interlocutory. The failure to observe this distinction sometimes causes confusion. On the other hand, with the distinction clearly in mind, it seems that the courts have disagreed in some instances whether the things to be done or ascertained on a reference were in execution of a -final decree or preparatory thereto. In Gray v. Ames, 220 Ill. 251, the court say (p. 254): “Where the chancellor fails to fix the principles by which the accounts are to be stated and judicial action on his part is contemplated and necessary, or where some equity other than that involved in the accounting remains for further adjudication, then such decree is interlocutory, unless the status of the account or other matter to be thereafter determined is apart from the equities involved.” (Citing authorities.) In Caswell v. Comstock, 6 Mich. 391, the court entered a decree finding a certain deed of conveyance was a mortgage and a certain contract security for the payment of certain sums of money, and referred the case to the master to take proof of damages on an alleged breach of contract; to take proofs of sale, disposition or conversion of certain real estate and personal property, and the court on appeal held such decree interlocutory. It would seem this case is similar in principle to the ease at bar.

The counsel for appellant urge that under the ruling of the court in DeGrasse v. Gossard Co., 236 Ill. 73, this decree is final. The court there say that the decree appealed from was a final adjudication of the rights of the parties and of appellant’s liability as charged in the bill, and that there was then due and owing a certain fixed sum and also an additional sum of four francs for each corset in excess of the minin-mm number manufactured under the contract in question, and referred the cause to the master (so far as the point under discussion is involved) to determine the number of corsets so manufactured and state the account. We do not think this authority governs. In the case at bar the court finds that the appellant entered into the said contract with the appellee, as alleged in the bill. It is evident that this question is the principal and controlling one in the case, and had not the appellee sustained this contention the bill could not be maintained upon the theory under which it was drawn. The right to maintain the bill being found and so decreed by the court, it does not, however, follow that on this record as a matter of law there is anything due and owing the appellee by the appellant. The reference is not only for an accounting to determine that question, but in connection therewith for a discovery; and many matters of substantial controversy put in issue by the pleadings pertaining to the securities involved are not determined, and, as we understand it, can only be determined by a hearing thereon and a decree adjudicating the rights of the parties in relation thereto. In other words, the reference is not in execution of the decree appealed from, but, as it appears to us, preparatory to a final decree. Tested also by the definition of a final decree, quoted from Rosenthal v. Board of Education, supra, we conclude that while the decree here appealed from did terminate the litigation between the parties of a portion of the merits of the case, yet the said decree retained the cause for future determination of other matters of substantial controversy between the parties, and the appeal must therefore be dismissed.

Appeal dismissed.


text:
    Manchester Lumber Company, Plaintiff in Error, v. B. Hanson and H. A. Hanson, trading as Hanson Bros., Defendants in Error.
    Gen. No. 16,609.
    1. Evidence—of agent as to agreement. In an action for the price of lumber delivered under a contract, where defendant alleges that a subsequent agreement was made with an agent of plaintiff whereby only the suitable lumber from the quantity delivered was to be used and paid for, testimony by such agent that such an agreement was made with defendant is erroneous and highly prejudicial where the evidence tends to show that such agent had no authority to bind plaintiff.
    2. Evidence—when admissions of agent competent. In an action for the price of lumber delivered, where defendant alleges breach of warranty as to quality, testimony as to statements made by - an agent of plaintiff as to the quality is erroneously admitted where the evidence tends to show that such agent had no authority to bind plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Wtt.t.tatmt H. Hinebaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed December 30, 1912.
    Holt, Wheeler & Sidley, for plaintiff in error.
    Adams, Bobb & Adams, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called plaintiff, brought suit in the Municipal Court of Chicago against the defendants in error, hereinafter called defendants, to recover $771.35 for lumber delivered under a contract between the said parties. The defendants admitted an indebtedness of $300.26, and made a tender thereof, together with $15 costs, which was refused by the plaintiff. On a trial the jury returned a verdict for the plaintiff, assessing its damages at $356.50, and the court entering judgment thereon, the plaintiff sued out this writ of error.

The defendants admitted purchasing of plaintiff a certain quantity of yellow pine lumber at an agreed price, and that said quantity of lumber was delivered; but claimed that they rejected same, and subsequently an agreement was made by the defendants with a Mr. Clark as agent of the plaintiff, whereby they were to use such of said lumber as they could, paying only therefor; and for the lumber so used they admitted their liability and made tender of the price thereof. Mr. Clark testified that he examined the lumber in question and over defendants’ objection was allowed to testify to an agreement with the defendants in substance as claimed by them, without any competent evidence establishing his agency or his authority to make such an agreement binding upon the plaintiff. In fact the evidence tended to show that Mr. Clark had no authority whatever to bind the plaintiff. Under such circumstances his testimony in relation to the said so-called agreement was clearly erroneous and highly prejudicial to the plaintiff. The evidence that the parties entered into a new contract, as claimed, is, on this record, untenable.

The defendants further urged a warranty and a breach thereof, in that the lumber was of a quality inferior to that agreed upon. In this connection Mr. H. A. Hanson was permitted to testify to statements made by Mr. Clark pertaining to the quality of said lumber, on the theory that he was the agent of and representing the plaintiff. This was error. The evidence as to the damages that the defendants are entitled to recoup on the defense of breach of warranty, even if it should be held that said defense was established by the greater weight of the evidence, is not of a nature that would justify the court in sustaining this judgment. We think the errors mentioned, in the language of the Municipal Court Act, substantial and “directly affecting .the matters at issue,” and accordingly the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Society Operaia San Cristoforo Di Ricigliano, Inc., Defendant in Error, v. Frank Rock, Plaintiff in Error.
    Gen. No. 16,637.
    1. Principal and surety—what constitutes contract. An instrument reciting an obligation to answer for defalcations, stated to be a formal declaration of obligation and guaranty, that is drawn in the form in use in the civil law and contains no condition of defeasance, is not a bond, but, the obligor declaring himself as surety, expressly binding himself to be “directly” responsible and to “answer directly” to the -obligee, it is a contract of suretyship, although the word “guarantees” is used therein.

      2. Appeals and errors—harmless error. In an action against a surety of a financial secretary of an organization which is tried before the court, testimony of a member of an auditing committee who claimed to have examined the secretary’s books and accounts and to have interviewed members and made a report of a shortage, is inadmissible, and likewise the report itself, but the admission of such evidence will not reverse where sufficient competent evidence of a shortage is admitted, since it will be presumed that the incompetent evidence did not influence the court.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Girtbn, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    William Schreider, for plaintiff in error.
    Brown & Navigato, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, brought suit against the plaintiff in error, hereinafter called defendant, to recover three hundred dollars on a written instrument as follows:

“Formal declaration of obligation and guarantee.
“In the year 1908 on the 7th day of January, in Chicago, U. S. of A.
“Before me, Pasquale Schiavone, notary public, duly authorized to take instruments and contracts in the City of Chicago, County of Cook and State of Illinois, having an office at No. 388 South Halsted street, personally appeared: Guiseppe Tolve of Barile Province of Potenza, Kingdom of Italy, now domiciled and residing in the City of Chicago and precisely at No. 121 Vernon Park Place, who has declared and hereby declares to occupy an office of trust as financial secretary of the worthy society ‘San Cristoforo di Ricigliano.’
“Frank Rocchi, a land owner and uncle of above named constituent, also of Barile, Potenza, now domiciled in this City of Chicago, who in confirming and proving the assertion as to the office intrusted to his said nephew Guiseppe Tolve, as secretary of the society ‘San Cristoforo di Eicigliano;’ in virtue of this public declaration he hereby declares himself to become a surety and directly responsible to the social body of said society; and he guarantees his nephew Tolve for the sum of $300.00 to be paid to said society at any time said Guiseppe Tolve should become insolvent in his capacity as financial secretary.
“Without further ratification the said Frank Bocchi shall answer directly to the said worthy society ‘San Cristoforo di Eicigliano’ for whatever damages, deficiency or insolvency of the said financial secretary, the said Guiseppe Tolve.
‘ ‘ The said declaration has been embodied in the present act that has been read to and approved by the parties hereto in the presence of witnesses, having all legal qualifications, has been duly subscribed by said parties hereto by the witnesses and lastly by me, the notary.
“Signed:
‘ ‘ Guiseppe Tolve,.
“Frank Eock,
“Giovanni Yevetucci, Witness.
“Antonio Bozza, Witness.
“Pasquale Schiavone,
“ (Seal) Notary Public. ’’

The cause was submitted to the court without a jury and a fiTiding and judgment for the plaintiff for the sum of three hundred dollars was rendered.

The instrument in question is apparently drawn in the form in use in the civil law. The defendant contends that, it containing no condition of defeasance, under the authority of Fitzgerald v. Staples, 88 Ill. 234, it is not a bond. In this we agree. We are, however, of the opinion that the said instrument is a contract of suretyship, wherein the defendant declares himself as surety and expressly binds himself to be “directly responsible” and “shall answer directly” to the plaintiff, although the word “guarantees” is used therein. Brandt Suretyship Guaranty (3d Ed.), pages 9-13, with notes thereto.

There is some conflict in the testimony pertaining to the signing of said contract, hut we think the greater weight of the evidence supports the contention that the same was signed by the parties thereto at the same time and place and as stated by the defendant; that he signed said instrument at Tolve’s request, who stated to him he had been elected financial secretary of plaintiff society, and had to have the same signed before he could be the said financial secretary. For his services in this position he was paid a small compensation.

The defendant insists that the court erred in admitting the testimony of a member of an auditing committee who claimed to have examined the books and accounts kept by Tolve, interviewed many members of the society and made a report to the society that Tolve was short in his accounts $455.13, which said report was also admitted in evidence over the defendant’s objection. This evidence was all clearly incompetent and should not have been admitted. However,, the cause was tried by the court, without a jury; and if there was sufficient competent evidence to justify the judgment, it will be presumed by the reviewing court that no improper or incompetent evidence influenced the court in reaching a decision. Merchants’ Des. Transp. Co. v. Joesting, 89 Ill. 152; Kreiling v. Nortrup, 215 Ill. 195; Pratt v. Davis, 224 Ill. 300. There are also a large number of appellate court decisions to the same effect. In the case at bar the book of the plaintiff society showing the collections from its members made by Tolve and kept by him in his official capacity , of financial secretary and in his own handwriting, showed receipts by him of nearly $1,100. The treasurer, to whom Tolve was to pay the money collected by him, testified that he had received from Tolve $746.37. This left a balance due from Tolve to the plaintiff of more than three hundred dollars. This evidence was practically undisputed.

Without considering in -any manner the improper and incompetent evidence admitted by the court, we are of the opinion that the competent evidence was of the greater weight, and clearly sustains the finding of the court, and therefore the judgment is affirmed.

Affirmed.


text:
    Frank F. Kellogg, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 16,661.
    Munich?An courts—when statement of facts is insufficient. A purported statement of facts by a judge of the Municipal Court of Chicago that is merely a statement that a witness gave testimony in relation to certain things is not sufficient.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Harry Brown and George Emmicke, for plaintiff in error; Lemuel M. Ackley, of counsel.
    George A. Mason and Edgar H. Hart, for defendant in error; Edward J. Brundage, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error began a case of the fourth class in the Municipal Court of Chicago against the defendant in error to recover the sum of $64.84 and interest thereon claimed to be due him as rebate on a special assessment. The cause was submitted to the court without a jury. The court found for the defendant and entered judgment thereon, and the plaintiff sued out this writ of error.

There is in the record neither a correct stenographic report of the proceedings at the trial nor a correct statement of facts by the trial judge, as required by the Municipal Court Act. What purports to he a correct statement of facts is manifestly not a statement of the facts by the judge as required by the law, but merely a statement that a witness gave testimony in relation to certain things.

The record disclosing no reversible error, the judg- • ment is affirmed.

Affirmed.


text:
    Channing W. Barrett, Plaintiff in Error, v. H. G. Nye, Defendant in Error.
    Gen. No. 16,698.
    1. Appeals and errors—harmless error. Improper exclusion of evidence as to elements of damage sustained when an automobile is injured in a collision will not necessarily work a reversal if the jury finds there was no liability.
    2. Appeals and errors—record must contain instructions given. Error in the giving of instructions will not be reviewed where instructions appear in the abstract of the record and none are contained in the record.
    Error to the Municipal Court of Chicago; the Hon. Mancha Bruqgemeyeb, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    H. R. Lloyd and P. R. Boylan, for plaintiff in error.
    Albert H. Meads, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error claimed that while driving Ms automobile in Dearborn Avenue, Chicago, with due care, etc., the defendant in error carelessly and negligently drove his automobile against the automobile of plaintiff in error, breaking same, etc., thereby causing certain damages, to recover wMch he brought smt. On a trial before a jury a verdict was returned for the defendant in error and the court entered judgment thereon.

The plaintiff in error urges that the court erred in refusing to admit competent evidence offered by plaintiff in error to show “the time he was out the use of his automobile” and “the value of the use of the automobile while being repaired” as elements of damages for which he was entitled to recover. If it be conceded that the rulings complained of were erroneous, it does not necessarily follow that the judgment should be reversed therefor under the circumstances in this case when the jury found there was no liability. In Oak Island Hotel Co. v. Oak Island Grove Co., 165 Mass. 260, where the same objection was urged, the court say: “The short answer to this exception is, that the jury found a verdict for the defendant.” We refer to that case for a more extended discussion of the question. To the same effect are First Nat. Bank of El Paso v. Miller, 235 Ill. 135, and Doyle v. Cavanaugh, 139 Ill. App. 359.

The only other errors argued by the plaintiff in error relate to the instructions to the jury claimed to have been given by the court. The record contains no instructions. In the abstract of the record appear what is said to be the instructions given by the trial court upon which plaintiff in error bases his arguments. We are at a loss to understand how counsel could insert into an abstract of a record that which is not contained in the record, without expecting and inviting the condemnation of the court. We shall, however, say nothing further in this respect, for we prefer to imagine some charitable excuse rather than consider a wilful attempt was made to mislead or impose upon the court.

The judgment is affirmed.

'Affirmed.


text:
    Charles Trevisani, Defendant in Error, v. Postal Telegraph-Cable Company, Plaintiff in Error.
    Gen. No. 16,735.

      Telegraphs—hearsay evidence. Where a labor agent sues a telegraph company for failure to deliver a telegram, whereby laborers that he had procured in another city were not met on their arrival at their destination, evidence by plaintiff that he had been told that the men had left their city and had arrived at their destination is incompetent.
    Error to the Municipal Court of Chicago; the Hon. William H. Hinebattgh, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed December 30, 1912.
    William E. O’Neill, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, the defendant in error, who files no brief in this court, brought suit against the defendant, here the plaintiff in error, to recover damages claimed to have been suffered by him by reason of the failure of the defendant to deliver a telegram sent by the plaintiff from Philadelphia to his agent at his Chicago office. A jury was waived and on a trial before the court a finding was entered for the plaintiff for $141.92, and a judgment rendered therefor.

The plaintiff’s business was that of securing laborers for railroad companies and he was called a labor agent. The evidence conclusively shows that the plaintiff sent a telegram by the defendant and it was not delivered, as alleged by him, and that he was damaged thereby. The plaintiff claimed, as one of the elements of damages, that he had an order from the Northern Pacific Railroad Co. to furnish it as many laborers as he could get to go to North Dakota to work for said company. Not being able to get men in Chicago, he went to Philadelphia to try and secure them. While there he arranged by telephone with parties at Pitts-burg to send men from Pittsburg to Chicago, and it was in reference to meeting these men and securing them for the said Railroad Company that he wired his agent at his Chicago office. The plaintiff’s agent at Chicago, not receiving the said telegram, because of defendant’s negligence, did not meet the said men the plaintiff claims arrived at Chicago from Pittsburg, and he thereby lost the sum of three dollars for each of the said men so secured, and the court so found. There is no evidence in this record that any men left Pittsburg or arrived in Chicago, as claimed by the plaintiff, except the testimony of the plaintiff, who was in Philadelphia at the time. He insisted, however, that he knew his statements in relation thereto were true because he was so told. This testimony was manifestly incompetent and furnished no basis upon which the court could properly assess damages.

The ¡judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    National Brake & Electric Company, Defendant in Error, v. George E. Hibbard, Plaintiff in Error.
    Gen. No. 16,739.
    1. Contracts—performance. Where a person contracted to build an engine from blue prints and instructions furnished by the owner, and a mistake was made in the construction, under conflicting evidence as to which party was responsible for the mistake, a verdict for the contractor was sustained.
    2. Appeals and errors—contents of .record where witnesses testify from drawings. Where, on an issue of fact whether an owner or a contractor was responsible for a mistake made in building an engine from blue prints furnished by the owner, four large blue prints of detailed drawings are in evidence and much testimony is introduced concerning the drawings by witnesses indicating thereon the object of their testimony, the record should show what they were testifying about and connect their testimony to the exhibits to which reference was being made.
    Error to the Municipal Court of Chicago; the Hon. Max Ebbskabdt, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Chase & Smoot, for plaintiff in error.
    Defrees, Buckingham, Ritter & Campbell, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The parties hereto made a verbal agreement whereby the plaintiff, here the defendant in error, undertook to build for the defendant, here the plaintiff in error, a turbine engine in accordance with his instructions and certain blue print drawings furnished plaintiff by the defendant, and for which it was agreed the defendant would pay the plaintiff the usual cost price of materials used with an additional sum of ten per cent, thereof, and sixty cents per hour for the time taken to so construct the said engine. The plaintiff claimed the cost thereof under the contract was $2,562.40, of which the defendant had paid $1,862.90, and brought suit to recover the balance, $699.50. The defendant denied his liability therefor and claimed a set-off of $1,000, in the language of counsel for defendant, “for money paid to it for work and material made worthless by the negligence and misconduct of defendant in error.” The court tried the case without a jury and found the issues for the plaintiff and assessed its damages at $699.50, and entered judgment therefor.

That part of the engine, the construction of which is in dispute, is described by counsel for defendant as follows:

“Briefly stated, the engine consists of a shaft enclosed, except as to its projecting ends, in a cylindrical chamber. Fixed upon the shaft and revolving with it are twelve perforated discs, each formed of fifty-two overlapping blades set in an inner and outer rim, as are the spokes in a wheel, the inner rim closely encircling and being firmly secured to the shaft. Each such disc, so made up of fifty-two blades and so attached to and revolving with the shaft is called a rotor.”

The plaintiff constructed the said twelve rotors each with forty-two blades instead of fifty-two, and also in setting them into the rims inverted them so that the convex side or the back thereof was presented to the incoming steam instead of the concave or the front side of the blades, thereby greatly reducing the power and efficiency of the engine. The question in the case is, who was responsible for these mistakes.

The question is one of fact. The plaintiff introduced testimony tending to show that it followed the drawings so far as it could from those furnished it prior to the time the particular work was done thereunder, together with the instructions of the defendant pertaining thereto given at various times. The defendant introduced testimony tending to show that he did not instruct plaintiff as claimed, and that the drawings furnished by him were not followed by the plaintiff, but it was by reason of the careless and negligent work of the defendant that said work was not properly done. There are in evidence four large blue prints of detailed drawings, and much testimony was introduced concerning these drawings, wherein the witnesses would indicate thereon to the court the object of their testimony, without the record showing about what they were testifying, or even the exhibit to which reference was being made. The result is that it is impossible to understand some of this testimony as it appears here in the abstract and additional abstract of the record, and testimony that seems important in the determination of the question before us. No good purpose can be subserved by an analysis of the evidence on the controverted questions of fact, which on the record are very difficult of solution and concerning which we are by no means free from doubt. After a careful consideration of the case, we do not feel that we should hold that the judgment was clearly and manifestly against the weight of the evidence, and must therefore affirm the judgment.

Affirmed.


text:
    D. E. Lucas, Defendant in Error, v. Frank Lincoln Johnson, Plaintiff in Error.
    Gen. No. 16,777.

      Set-off—demands must be mutual between all the parties. In an action on a joint liability of a husband and wife, the husband cannot set off a debt due himself though the wife is not served with process, since the wife can be brought in by scire facias and made a party to the judgment.
    Error to the Municipal Court of Chicago; the Hon. Askold Heap, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Julius A. Johnson, for plaintiff in error.
    Charles Daniels and Sumner Palmer, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, began a suit against the defendant, here the plaintiff in error, and his wife, for services rendered in attendance as a physician upon the defendant and his family. Mrs. Johnson was not served and the cause proceeded to trial against the defendant, Mr. J ohnson, who admitted the cause of action and an indebtedness of sixty-eight dollars, for which the court entered judgment. The defendant offered to prove a set-off against the plaintiff for services rendered by him to the plaintiff in a real estate transaction. On objection this evidence was excluded and this the defendant contends was error. The suit was brought jointly against the defendants, and on the record here presented Mrs. Johnson could be brought in on a scire facias and be made a party to the judgment. The plaintiff bringing a joint action and establishing a joint liability, the court properly sustained the objection to the evidence offered tending to establish a right of action on the set-off in behalf of Mrs. Johnson only against the plaintiff. “Demands, to be the subject-matter of set-off, must be mutual between all the parties to the action.” Priest v. Dodsworth, 235 Ill. 613, and authorities there cited.

It is not necessary to discuss the other errors assigned and argued, for the cause here presented is determined on the ground indicated.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Richard McMahon, Appellee, v. Louis F. Owsley, Receiver, Appellant.
    Gen. No. 16,452.
    1. Master and servant—no duty on a street car company to maintain street lights at switches or curves. There is no obligation on a street car company to keep street lights at the switches or curves and no negligence in failing to do so.
    2. Contributory negligence—questions for fury. The question of whether plaintiff, a street car conductor, was guilty of contributory negligence in being on the front platform is for the jury.
    3. Contributory negligence—street car conductor on front platform. A street car conductor is not guilty of contributory negligence in being on the front platform when there to turn in his trip sheet and money at the request of the night foreman acting as motorman.

      4. Master and servant—where negligence of vice principal and fellow-servant is concurrent. "Where a night foreman acting as motorman is guilty of negligence as a fellow-servant in approaching a curve at improper speed, concurrent with his negligence as a vice principal in requesting the conductor to come to the front platform to turn in his trip sheet, and such combined negligence is the proximate cause of injury to the conductor, a recovery against the company is properly allowed.
    5. Limitations—amended declaration. In an action by a street car conductor for personal injuries, where the declaration is amended more than two years after the accident, to the effect that the motorman was not a fellow-servant of the plaintiff, a new cause of action is not stated and plaintiff’s demurrer to plea of the statute of limitations is properly sustained.
    6. Pleading—declaration to be construed liberally after verdict. A declaration alleging that plaintiff was injured while engaged in the exercise of his duties as conductor, that the car was being operated under the management of the defendant, that the defendant improperly ran and directed said car by its servant and that by the improper conduct of the defendant by its servant the plaintiff was thrown out and injured, will be construed as sufficient to sustain a verdict based on the negligence of the motorman acting in the double capacity of vice principal and servant.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Walter W. Ross, for appellant.
    H. J. Toner, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of $6,250 by the Superior Court of Cook County rendered on the verdict of a jury in a personal injury case.

The plaintiff, Bichard McMahon, was a conductor on an electric interurban railroad owned by the Suburban B'ailroad Company but operated at the time of the accident and for a considerable time before by the defendant Owsley as receiver.

On the night of September 1, 1907, McMahon was the conductor of a car which ran in from LaGrange to the Chicago terminus at the corner of Forty-eighth Avenue and Harrison Street. The route of the car between these two points took it by the car barns of the road. They were at the corner of Harlem Avenue and Twenty-second Street. At that point the car stopped and the motorman on it left it and went home. It was about midnight. To take his place a young man named Johnson twenty-one years old boarded the car and announced his intention of running it during the rest of the trip, which was to be from the barns to the corner of Forty-eighth Avenue and Harrison Street, and back by the barns, as the testimony would seem to indicate, to LaGrange. In any event the car was to go to the corner of Forty-eighth Avenue and Harrison Street, four miles distant, and at least back to the barns.

The plaintiff testified in this case that he remonstrated with Johnson for attempting to run the car, telling him that he was no motorman and unable to do so. Johnson swore, however, that there was no such conversation.

Johnson was the bam boss or night foreman, and as he himself testified in complete charge of everything at the barns after the superintendent left in the early evening. He also had orders from the superintendent on the particular night in question to relieve the motorman on this car at some time in the evening. Johnson had, without previous experience, obtained employment with thé Car Company on his coining to this country four years or so before and had continued in the employment as car repairer and boss of' other car repairers and cleaners up to the time of the accident. But he had other functions. It was customary for the night conductors to hand to him the money and trip checks which they had to turn in on night runs. The plaintiff testifies that he had orders so to do, and Johnson himself testified that there was nobody but him in authority at the barn after the superintendent left, that he was “in charge of everything.” It seems plain from the evidence tha^ Johnson had a certain authority concerning the disposition of the men on the night cars, as to when and where they should be relieved and how and when they should turn in the trip sheets and money. It also seems that especial authority was given Mm to take charge of the particular car in question on this night, and that tMs would include authority to send the motorman home and to arrange for the plaintiff’s relief at an earlier hour than it would otherwise be possible for him to qmt. In orders given in pursuance of tMs authority he would be a vice principal representing the company, wMle as a motorman running the car he would be a fellow-servant of the conductor.

The competency of J ohnson to run a car as a motorman, or, in other words, the sufficiency of Ms experience to justify Ms employment by the company to run a car as a motorman, was a matter in dispute in tMs case.

J ohnson himself testified that during the four years that he worked as car repairer at the barns he had frequently taken out cars over the road as a motorman, but that although as a rule motormen employed by the company were sent out as students for several days, he had never served any time as a student on the road. He explained Ms taking cars out on the road by saying that when the “extra” men wanted to be relieved early, he would run cars out on short trips, taking them home and bringing the car back again.

The superintendent of the road testified that Johnson’s business was general repair work and handling cars in the yard and on the road when it was necessary; that he had experience in running cars in the yard and on the road from the time he went into the service of the company.

Roder, a witness for the plaintiff, testified that he was in the employment of the Suburban Railroad as motorman for about a year before the second of September, 1907; that Johnson was night boss, telling the motormen where to put the cars, inspecting the cars and things like that, and that he never knew him. to run cars on the road and thinks he should have known it had it happened. He further testified that he, Eoder, had to work six or seven days as a student under instruction as to day and night runs separately. On cross-examination he said it was the custom of Johnson, when the car was brought into the bams, to inspect them and shunt and run them inside the barn as far as was necessary.

Thompson, another witness who had been for several years in the employ of the road as a conductor and who was called for the plaintiff, testified that Johnson would frequently take out a car and run it for several miles so as to relieve men living at the west end of the line, and allow them to get home on the last car leaving the eastern terminus. The plaintiff swore that during the four months that he had been working for the defendant prior to September 2, he had never heard or known of Johnson “as a motorman out upon the road.”

There were two routes which the car could take between the barns at the corner of Harlem Avenue and Twenty-second Street and the terminus at the corner of Forty-eighth Avenue and Harrison Street.. It could go north on Harlem Avenue and turn east on Harrison Street and run to Forty-eighth Avenue, or it could go east on Twenty-second Street, turn north on Fifty-second Avenue to Harrison Street and then turn east. The first was the route taken on the trip east from the bams, but on the return the car turned south on Fifty-second Avenue. At the curve or switch at the corner of Fifty-second Avenue and Twenty-second Street the accident occurred which is the basis of this suit.

The plaintiff testifies that all passengers in the car got off at Harrison and Forty-eighth Streets and that he and Johnson “straightened out the car, put up the trolley,” and were ready to go back, there being no passengers on the return trip, when Johnson came to him and said, “We are going down Fifty-secopd Street this trip.” Plaintiff says that he asked, “Why not go Harrison Street?” and that Johnson insisted on the route he had mentioned. Johnson denied this conversation. The plaintiff testified that the road was rough on Fifty-second Avenue between Sixteenth Street and Twenty-second Street, but there is no evidence of its being peculiarly or more greatly so than it may have been on the other route. The evidence indicates that it was expected that McMahon would leave the car at the comer of Austin Avenue and Twenty-second Street, a point a mile and a half east of Harlem Avenue and a mile and a half nearer his home than the car barns.

The superintendent and Mr. Johnson, acting under the superintendent’s previously given instructions, wished McMahon to get home as early as possible, especially because of the anticipation of an unusually hard day following, it being a holiday.

According to the plaintiff’s testimony the car ran generally on this return trip at about twenty-five miles an hour. There were no passengers. The car ran west on Harrison Street, turned safely into Fifty-second Avenue and slowed down at Twelfth Street to see if there was a Twelfth Street car approaching. It then ran to Sixteenth Street and stopped. The plaintiff got off the car to see if the railroad crossing there was clear. He went ahead of the car and then signaled for it to come on. As it crossed the tracks he stepped on the front platform, where was the motorman Johnson. Johnson then asked him if he had his trip sheet made out and on being answered in the negative, said, as the plaintiff swore: “You go in and make it out right there—make out the trip sheet. Mr. Whitsell says he wants to put you on for a big day tomorrow, and I want you to make the statement out and come out again.” The plaintiff then shut the door from the car into the front vestibule, went to the back of the car, took down the figures from the register there, and thus having completed the trip sheet, which he had partly prepared before reaching Sixteenth Street, returned to the front end of the car, opened the door into the front vestibule, went out into it and stood at the right hand of that door, near the rear right hand comer of the vestibule. He says he asked Johnson whether he was ready for the money and trip sheet, and Johnson said yes. McMahon gave him two bills and the trip sheet, and leaning back against the car, put his hands into his pocket to get the additional sum in change which was required, when Johnson exclaimed, “Look out,” and the car, going at the rate of twenty-five miles an hour, without slackening speed struck the switch curve at the corner of Twenty-second Street and Fifty-second Avenue and the plaintiff was ‘thrown across the vestibule and out through the open door at the left hand side, landing on the track and receiving very severe and permanent injuries. He was with difficulty carried to the car by Johnson and brought to the car bams. It is not necessary to detail the injuries received. If the defendant was liable for the injury to the plaintiff, the damages were not excessive.

The statement of facts which we have made rests largely on the plaintiff’s testimony and is inconsistent in some particulars with the testimony of Johnson. Thus the latter not only denies that the plaintiff remonstrated with him about running the car as a motorman, and denies that he assumed control of the car and insisted on running it on Fifty-second Avenue against the objection of the plaintiff, but he also denies that he had any conversation with the plaintiff about taking the money and the trip sheet after leaving Sixteenth 'Street. He admits, however, that he had such a conversation half a mile north of Sixteenth Street, before McMahon got off the car. The witnesses differ as to other matters. Johnson says that he did slack up the car at Twenty-second Street, shutting off the power before he reached it, and that McMahon poked Mm in the ribs just then and offered him money and thus led him to take Ms hand off the brake. The defendant claims that this was the cause of the accident.

Johnson admits, however, that the car was going about twenty miles an hour when it struck the curve; that it was a very heavy steel car, and that he did not know he was so close to the switch. The plaintiff says that he did not touch Johnson before or on speaking to him and asking him if he was ready to take the money.

There was a light in the front vestibule which belonged to a cluster of lights in the front end of the car, wMch were turned off and on by a single key. There was a tin socket to put over the vestibule light when the light in the cluster was turned on, the object of the tin covering being to prevent the light in the vestibule making a reflection in the front window and rendering it difficult for the motorman to see ahead.

The plaintiff McMahon said that as he stood feeling in his pockets for money at the time he was thrown, the light was on but with the tin shade over it, and that he could not say who placed the shade in position. “The motorman,” he said, “generally fixed it to suit Mmself.”

Johnson, on the other hand, swore that the tin was over the light when he got the car from the motorman at the barns, but that at Forty-eighth Avenue he changed ends and took the tin off the vestibule light and laid it in the car and that it was never on the front vestibule light on the way back. He says that when McMahon boarded the car on the front platform at Sixteenth Street the lamps in the forward cluster were not lighted, but that shortly after McMahon turned the light on in them and stood there counting Ms money, and that he, Johnson, couldn’t see very well up the track in consequence, notwithstanding the headlight on the front of the car.

It was proven that the vestibule lamp could not have been lighted without the other lamps in the forward cluster being lighted also, and there is some confusion in McMahon’s testimony as to whether those other lamps were or were not burning.

The suit was originally brought against the Suburban Railroad and the original declaration filed in the cause December 27, 1907, alleged that the defendant allowed the car to be operated by an incompetent man, who was not in the habit of exercising the duties of a motorman, and that in consequence, through the incompetent and careless operation of the car by said incompetent servant of the defendant, the accident occurred and therefore the defendant was liable.

An amended declaration was filed April 30, 1908, which contained four counts, the first, second and fourth practically alleging the same matter as the single count of the original declaration. The third count alleged that it was the duty of the defendant to establish and maintain a light or signal of warning at the intersection of Fifty-second Avenue and Twenty-second Street, and that the defendant had for some time previous to the accident so established and maintained a light there, but that said light on the date of the accident had been negligently removed, and the point of danger allowed to remain unlighted, and that in consequence the defendant was liable.

On January 15, 1909, by leave of court, all the papers in the cause, including the declaration, were amended so as to substitute Owsley, receiver, as defendant, and on January 17, 1909, further amendments of-the declaration were allowed, which inserted statements therein that the plaintiff at the time of the accident was in the exercise of due care for his own safety and that Johnson, who was acting as motorman at the time of the accident, was not then a fellow-servant of the plaintiff.

The plea of the general issue filed to the original and amended declarations was allowed to stand to the declaration as finally amended, and a further plea of the statute of limitations was filed, alleging that the supposed causes of action “set forth in the amendments in the said declaration as amended January 17, 1910,” did not accrue within two years.

To this plea the plaintiff demurred ore terms and the demurrer was sustained. The cause was submitted to a jury, who found a verdict for the plaintiff for $6,250, and judgment was rendered on the verdict after a motion for a new trial and a motion in arrest of judgment had been overruled. After the plaintiff’s evidence and at the close of all the evidence, motions for a peremptory instruction for the defendant were denied.

The plaintiff’s contentions in the court below, were, first, that the defendant was negligent in furnishing an inexperienced and incompetent motorman; second, that this incompetent motorman negligently ran the car at a high rate of speed into the curve at Twenty-second Street; third, that the proximate cause of the accident was the negligent management of the car by Johnson concurrently with his direction or order to McMahon at that time to come out into the front vestibule and give him the money and trip sheet.

The negligent and incompetent management of the car at this point by the motorman, if a fellow-servant, it is argued, would not have injured the plaintiff had he not, under the direction of a “boss,” a vice principal therefore, been at the place of danger.

The fourth contention of the plaintiff was that the defendant was guilty of negligence in failing to maintain a light on the street crossing at the place of the accident.

The contentions of the defendant were:

First: That there was no obligation on the defendant to keep the street lights at the switches or curves, and no negligence, therefore, in failing to do so. With this position we agree, and the matter of street lights is eliminated, therefore, from our consideration of the case.

Second: That Johnson, who acted as motorman on the night in question, was an experienced man and that in committing the car to his operation, the defendant was guilty of no negligence.

The majority of the court hold that there was no evidence on which the jury could he justified in holding that the defendant had reason to believe Johnson incompetent, and therefore that the verdict and judgment cannot be upheld on the ground that the defendant was responsible to the plaintiff because of the improper employment of an incompetent motorman on the car in question.

Third: That the plaintiff, under the evidence, should be held guilty of contributory negligence as a matter of law.

The position is based on the view that the plaintiff’s duty as a conductor was to be on the rear platform of the car as it reached the curve; that he voluntarily and deliberately went to the front platform, knowing that the left hand door of the vestibule was open, and stood counting the money he had received from passengers on the preceding trip; that he turned on the light when he knew that his doing so would interfere with the view of the motorman; that as the car was about to pass the curve at Twenty-second Street, he founded or otherwise attracted the attention of the motorman and thus withdrew him from his duties and the control of his power or brake.

With this contention we are unable to agree. We think that the jury in the conflict of evidence was at liberty to find that Johnson had been placed in a position of authority over the plaintiff on the night in question, and was exercising that authority; that it was the purpose and desire of the defendant that in view of the work anticipated on the following day, the plaintiff should be sent home from the nearest available point on the route in this trip; that his trip sheet and money returns were expected by Johnson before he should^ leave the car and were demanded by Johnson after and not before he left Sixteenth Street; that he was specifically ordered by Johnson to go inside the car and make ont the statement and bring it ont; that the vestibule light was already lighted and had a shade over it and was not turned on by him.

Between the two versions of what took place there is a marked difference, and the jury we think 'were at liberty to choose. We should not feel justified in interfering with their conclusion if it inhered in their verdict that the one rather than the other was accepted by them.

If the version we have last given be the correct one, the plaintiff was not guilty of contributory negligence occasioning the accident, but was in the line of his duty, notwithstanding his presence on the front instead of the rear platform, where a conductor usually stands and where he would have been safe. The jury were in several instructions properly advised as to the law in relation to contributory negligence and as to the necessity of the plaintiff’s exercise of due care, and we think the questions involved in the case concerning the plaintiff’s contributory negligence and want of due care, as alleged by the defendant, were properly left to them.

The fourth contention of the defendant was that even assuming the accident to have been proximately caused by the negligence of Johnson in driving the car at a great and improper speed onto the curve, yet as Johnson and McMahon were fellow-servants, McMahon cannot recover from the defendant.

On this ground the defendant says the cause should have been taken from the jury by the court below. In this court he insists that we should reverse the judgment without remanding the cause.

We think that it is on our view of this contention that our disposition of the cause must turn.

There seems to us no room for doubt or argument that Johnson, as motorman, was negligent in driving the car. If he were not a man experienced enough and with knowledge enough of the road to have been entrusted with this car at night on the route taken, the defendant would be liable for entrusting it to him. If he were so experienced, he knew the distance from Sixteenth Street to the curve and the time necessary to run over it; he knew that the conductor standing on the front platform and busy with his money and statement would be likely to be injured by the driving of the car into that curve at the rate of twenty or twenty-five miles an hour, and he was negligent in not knowing, to use his own language, that he “was so close to the curve.”

But it is equally undeniable, under the decisions of this state, that if this negligence of Johnson in driving the car as motorman stood by itself in isolation as the only cause proximately causing the accident to McMahon, and McMahon had no other relation to Johnson at the time and place in question than that which normally and usually exists between a conductor and a motorman on the same car, then they were fellow-servants in such a sense that McMahon could not recover from the defendant for the effects of tins negligence.

A nice question is presented, however, concerning concurrent negligence in this case. The proximate cause of the injury to McMahon, it appears to us, was his presence unbraced on the front platform of the car, where the left-hand door was always open, combined with the negligent driving of the car by Johnson at full speed into a switch curve. With either of these factors in the situation absent, the accident would not have happened. As a conductor’s usual and proper place, as the evidence shows, was on the rear platform, it is argued with force by the appellant that his presence at that time in that place, if voluntary, was ids own negligence, directly and materially contributing to the injury. If, on the other hand, the jury were aAiberty to find and, to support their verdict, must be presumed to have found, that his presence at that time and place was involuntary and under the directions and orders of a vice principal, who had authority to give them, was not the vice principal in ordering the plaintiff into that place at that time guilty as vice principal of negligence concurrent with his negligence as fellow-servant in driving the car? And did not that negligence as vice principal contribute as materially and proximately to the injury as the negligence of the plaintiff could be said to have done if his presence had been voluntary?

And can the defendant escape the consequences of the concurrent negligence of the vice principal because the other necessary factor in the accident was the negligence of the same person in his capacity of fellow-servant?

It might perhaps be argued that directing the presence of the plaintiff on the front platform as the car was approaching a curve was not negligence, for if the car had been going slowly his position would not have been dangerous; but does it lie in the mouth of the vice principal (for whose action the defendant must answer) to say that he did not know that the car would approach the curve at an improper speed, when as “fellow-servant” he was himself responsible for that speed?

Must not the vice principal, as vice principal, be held to have known that as fellow-servant he was so managing the car that the order or instruction as vice-principal would bring about a dangerous situation for the plaintiff?

These questions are not free from difficulty, but we think their answer must be in favor of the plaintiff’s view.

The negligence of Johnson as vice principal seems to us concurrent with that of Johnson as fellow-servant in causing the injury, and the result as to the liability of the defendant is the same as though the vice principal and servant had been different persons.

In such a case of concurrent negligence, as the opinion in Wabash, St. L. & P. R. Co. v. Shacklet, 105 Ill. 381, says, it is “a long and well-established principle” that each of the wrongdoers is severally liable, and the plaintiff has his election to sne all jointly or bring his separate action against any one.

And the reasoning of the opinion in Pullman Palace-Car Co. v. Laack, 143 Ill. 242, leading to the propositions that where the negligence of two persons results in an injury to a third, which the negligence of neither was sufficient in itself to produce, the negligence of both is to be held in combination as the proximate cause of the injury; and that in that case “the negligence of the master and that of the fellow-servant were concurrent causes and combined were the proximate cause of the injury, and that the servant might recover” although the injury was the combined effect of the negligence of the master and of the fellow-servant (pp. 261-262), seems to us logically as fairly in point in the case at bar as it would be were the “vice principal” and the “fellow-servant” not identical.

While many of the assignments of error are disposed of by our view of the conclusions that the jury were at liberty to draw from the evidence and by our opinion as to the application of the law thereto, before indicated, other questions in the case arise on the pleadings. One assignment of error is that the court erred in sustaining the plaintiff’s demurrer to defendant’s plea of the statute of limitations. As heretofore pointed out, the amendment to the declaration, made more than two years after the accident, to the effect that Johnson was not a fellow-servant of the plaintiff, was the only occasion of the plea. If this amendment did not make the declaration state a different cause of action from that before set forth, the demurrer was properly sustained. We do not think that a new cause of action was thereby stated. We reaffirm the decision of this court on this point in Mott v. Chicago & M. El. R. Co., 102 Ill. App. 412.

There is another question, however, arising on the pleadings, which cannot be said to be free from doubt.

If -a construction at all narrow or technical is to be put on the declaration, it is difficult to determine exactly wherein the combined negligence on which the verdict and judgment in favor of the plaintiff can, according to our view, alone he based, is charged. But we are not disposed, in view of the very liberal rules laid down by our supreme court as to intendments and presumptions in favor of a declaration after verdict, to give to the one in the case at bar such a narrow or technical construction. See, for example, Chicago, B. & Q. R. Co. v. Harwood, 90 Ill. 426; Keegan v. Kinnare, 123 Ill. 280; Chicago & A. R. Co v. Clausen, 173 Ill. 100, and Sargent Co. v. Baublis, 215 Ill. 428. The declaration alleged that the plaintiff was injured while engaged in the exercise of his duties as conductor; that the car was being operated under the management of the defendant; that the defendant improperly ran and directed said car by its servant, and that by the improper conduct of the defendant by its servant the plaintiff was thrown out and injured, and we must hold that “these terms” were “sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict.” This is made by the cases which we have cited the test of the sufficiency of the declaration after verdict to support the judgment.

The jury were properly instructed, and we do not think that in the refusal of those tendered instructions which were refused, or in the modifications of those modified, the court below erred. We agree with counsel for appellee that the legal principles involved in the refused instructions were covered by those given, and that the modifications in those modified were unimportant. They were proper enough in any event.

The court, we think, committed no error in ruling out the question as to Mr. Whitsell’s opinion of Johnson’s competency as a motorman. Even if the ruling had been erroneous, it would have been immaterial in the view we have taken of the issues and the evidence.

The judgment of the superior court is affirmed.

Affirmed.