text:
    Warren M. Stroud et al., Appellees, v. Commissioners of Union Drainage District No. 1, Appellants.
    Gen. No. 5343.
    L Mandamus—rules of pleading applicable to. A mandamus proceeding is an action at law and is governed by the same rules of pleading as are applicable to other actions at law. Therefore, such material allegations of the petition as are not traversed by the defendant’s pleading are in contemplation of law admitted by the defendant to be true.
    2. Mandamus—when judgment requiring drainage commissioners to build bridge not erroneous. Held, that the judgment rendered in this case was according to law in that it was sufficiently definite and did not leave too much to the exercise of discretion by the commissioners.
    3. Drainage—duty of commissioners to maintain bridges. If a bridge erected as provided by statute is destroyed, it is the duty of the commissioners to repair it.
    4. Drainage—what creates new obligation to bridge ditch. Held, that even though the statute of limitations had run in favor of the drainage commissioners initially obligated to reconstruct a bridge over a ditch, yet upon doubling the width of such ditch and upon- the deepening thereof a new obligation to construct a bridge arose.
    5. Statute oe limitations—what tolls running of as against drainage commissioners. Promises by drainage commissioners to repair a bridge which they were obliged to repair tolls the running of the statute.

      Mandamus. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    A. O. Bardwell and M. A. Stiver, for appellants.
    C. L. & 0. E. Sheldon and H. 0. Ward, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellees filed a petition in the court below for a mandamus to compel the commissioners of Union Drainage District No. 1 of the township of Hamilton in Lee county and of the township of Hahnaman in the county of Whiteside to erect a bridge across their drainage ditch to connect the enclosed and tilled land of the petitioners on one side of their ditch with their enclosed and tilled land on the other side of the same ditch, as provided by section 14 of the Farm Drainage Act, under which said District is organized, which is as follows: “There shall be constructed at least one bridge or proper passage way over each open drain where the same crosses any inclosed field or parcel of land, and the cost of construction thereof shall be charged as part of the cost of construction of such drain; and such bridge or passage way shall be maintained by the commissioners from the district funds; Provided, the commissioners may contract with owners of land crossed by such drain to maintain such bridge or crossing.” The respondents filed two pleas, setting up the five years’ statute of limitations, and made no other defense. The replications to said pleas were mislaid and were omitted from this record, but have been by agreement set out in appellee’s brief, and were a general denial of the pleas. A jury was waived, proofs were heard and there was a judgment awarding the writ, from which the commissioners appeal.

A mandamus proceeding is an action at law and is governed by the same rules of pleading as are applicable to other actions at law; and therefore such of the material allegations of the petition as are not traversed by the defendants’ pleading are in contemplation of law admitted by the defendants to be true. People v. Crabb, 156 Ill. 155. The pleas filed by the commissioners did not traverse any allegation of the petition. The commissioners make two contentions here: first, that the petition is barred by the statute of limitations; and second, that the form of the judgment is improper.

The petition shows that the commissioners dug this ditch, and that they built a bridge connecting the two sides of the enclosed lands of the petitioners which had been severed by the ditch, and that afterwards a flood wrecked the bridge and finally carried it away. The statute above quoted makes it the duty of the commissioners not only to erect a bridge under the circumstances stated, but also to maintain it, and it is clear that it was the duty of these commissioners to rebuild the bridge. The petition charges and the proof shows that the petitioners repeatedly urged and entreated the commissioners to rebuild the bridge, and that the commissioners never refused to do so and never denied their duty to rebuild it; but the proof shows that they excused delay on the ground that they expected the highway commissioners to lay out a road across or adjacent to this land and believed that they could share the expense of a bridge with the highway commissioners. After the time when the commissioners now claim the statute had run, the petitioners had correspondence with the attorney for the commissioners, and his letter indicated that it was expected that the dredge would be put through the ditch again, and suggested that it would be better to delay building the bridge till after that was done; and that petitioners replied consenting to such delay. In fact, thereafter and about two years before this suit was begun, the commissioners cut the ditch nearly double its former width through the lands of the petitioners and also made it deeper. If there be any doubt that the promises and assurances of the commissioners prevented the statute from running against the right of petitioners to have the bridge over the old ditch restored, we cannot doubt that when the ditch was made double its former width and much deeper, a new right accrued to the landowners to have a bridge over this wider ditch. If petitioners had lost their right to compel the commissioners to restore the old bridge, we presume it will not be doubted but that they could pass with their teams from the one piece of their land to the other by fording the old ditch, if that had been practicable, or by erecting a bridge across it at their own expense. When the commissioners made the ditch one hundred feet wide, instead of fifty feet, and made it decidedly deeper and provided for more than double the flow of water therein, they made it extremely improbable that it could be forded, and they made it at least twice as expensive to build a bridge across it. We are of opinion that when they created these new conditions, some two years before this suit was begun, a new right accrued to petitioners to have the commissioners bridge this channel. This is in harmony with the reasoning adopted in Commissioners v. Biggs, 134 Ill. App. 239, and in the same case, entitled People v. Commissioners, 231 Ill. 435.

The judgment awarded a writ commanding the commissioners forthwith to build a suitable bridge or passageway over said ditch of sufficient size, strength and capacity to afford the petitioners a reasonably safe passage across said ditch, and directed that it be west of a certain railroad right of way and connect the lands of the petitioners north and south of said ditch in certain named sections, and provided that if there was not sufficient money on hand with which to build the bridge the commissioners should levy an assessment, sufficient in amount to build it. This order left the precise location, of the bridge and its size and its cost to the sound judgment of the commissioners, only requiring that it connect the described lands and be of sufficient capacity to furnish the petitioners with a reasonably safe passage over the ditch, and we are of the opinion that it was proper to leave those matters to the official judgment and discretion of the commissioners. It is objected that it required the bridge to be built forthwith, whether there was any money on hand with which it could be immediately done or not, and also that, if there was not enough money to build a bridge, the commissioners should levy a tax for the whole cost of the bridge, even if they have on hand a considerable part of the money required to build it. We do not think the order should be so strictly construed. It means that the bridge shall be built as soon as the commissioners can build it; that, if they have enough money on hand to build it and which has not been raised for some other purpose, so that it can be lawfully used for this bridge, they shall build the bridge with that money; and if they have not enough money on hand available for that purpose, then they shall levy a tax for so much money as may be neccessary to build the bridge, in view of the present condition of the treasury; and if there is not money enough on hand to build the bridge, it does not require the commissioners to build the bridge until the money has been obtained. Its reasonable meaning is that the commissioners shall proceed at once to do all things that may be necessary for the construction of the bridge. The commissioners knew the state of their treaury, and did not see fit to disclose to the court anything showing that any different order was needed for their protection.

The judgment is affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    M. H. Cartinhour, Appellee, v. Fred G. White, Appellant.
    Gen. No. 5346.
    1. Pleading—when plea of failure of consideration insufficient. A plea of failure of consideration must set up such facts as show that the consideration 'for which the obligation sued upon was given has wholly failed.
    2. Negotiable instruments—when act of 1907 inapplicable. Notes executed prior to the act of 1907 going into effect are not governed thereby.
    3. Negotiable instruments'—what fraud did not invalidate prior to act of 1907. Prior to the aevt of 1907 fraud which went to the consideration rather than to the .execution of a negotiable instrument did not invalidate the same in law.
    Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon G-. W. Patton, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    L. W. Tuesburg, for appellant.
    A. C. Norton and F. A. Ortman, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The record before us contains the fourth count'of a declaration in assumpsit; pleas thereto numbered two and three; a general demurrer thereto and the fourth cause of special demurrer assigned; an order of court showing the withdrawal of all other counts and pleas and causes of special demurrer; an order sustaining the fourth special ground of demurrer; an election by defendant to abide by his pleas; his default and a judgment for the plaintiff; an appeal by the defendant therefrom; the appeal bond; and the assignment of errors.

The fourth count declared upon a promissory note made by appellant to the order of J. H. Earl and by him assigned to appellee and by appellee assigned to Western Trust & Savings Bank; and averred that said Bank presented said note to appellant and demanded payment after maturity, but appellant refused to pay the same, and thereupon appellee purchased said note from said bank for a valuable consideration and the bank delivered the note to the appellee and thereby appellant became liable to pay appellee the amount of said note and being so liable, appellant in consideration thereof promised to pay appellee the amount of said note, but, though requested, appellant has not paid the same nor any part thereof, but refuses so to do. The second plea alleged that the only consideration for said note was a gold bond entered into by the Southern Mutual Investment Company, whereby said Company promised to pay appellant, his personal representatives or assigns, $6,000 in gold coin of the United States, and to pay said bond’s equitable share of the total surplus earnings apportioned to all like bonds maturing the same calendar year, and on the first anniversary of said bond and semi-annually thereafter till maturity said Company would pay appellant interest at 5% per annum on total instalment payments made thereon; that, in reliance on said promises, appellant executed said note to Earl, who was the agent of said Company; that said company thereafter became and still continues insolvent and unable to pay said $6,000 and said equitable share of the total surplus earnings and said Company did not, on the first anniversary of the bond, pay appellant interest at 5% per annum on the total instalment payments made thereon, and is unable to pay said interest semi-annually hereafter, and that said Company was placed in the hands of a receiver, and that there was no other consideration for said note, and that by reason thereof the coneration of the note has wholly failed, and that appellee had notice of these facts when the note was assigned and delivered to him. It will be observed that this plea does not aver when said hond would mature by its terms, and does not aver that any installment payments had ever been made thereon, nor that there were any surplus earnings to be apportioned among the bonds, and therefore does not show that anything had become due to appellant on the bond. It does not aver that said Company was without assets. While the amount of bond was $6,000 the declaration shows that the amount of the note was only $450. For aught that appears it may well be that said bond is worth very much more than $450. It can hardly be that appellant expected to obtain a bond actually worth $6,000 in gold coin of the United States in exchange for his own promissory note for $450. The second plea therefore does not show that the consideration for the note has wholly failed. A plea of total failure of consideration is not supported by proof of partial failure of consideration. Wadhams v. Swan, 109 Ill. 46; Stocks v. Scott, 188 Ill. 266. As the facts stated in the plea could not be proved to sustain the charge of a total failure of consideration, they also are not sufficient allegations to sustain that charge. The plea did not state a defense to the fourth count.

The third plea professes to be a plea of fraud and circumvention. This note was made on July 31, 1905. Under section 194 of the Negotiable Instrument Act of 1907, that act does not apply to this note. Under the statute in force when this note was executed, the fraud which will invalidate a note must be fraud in obtaining its execution, and not fraud affecting the value of the consideration only. Martina v. Muhlke, 186 Ill. 327; Taft v. Myerscough, 92 Ill. App. 560, and cases there cited. The fraud alleged in said third plea is in overstating the prosperity and responsibility of said Southern Mutual Investment Company, and in falsely stating that certain persons named had taken out bonds in said Company to a large amount, and also by the use of an alleged letter which had not been signed by the person who appeared to have signed the same, whereby appellant was induced to buy a $6,000 gold bond of said Company, upon consideration of which appellant gave the note in suit. This plea described the bond, as payable in ten years from July 25, 1905, and charged that the company was not in good financial condition and not able to comply with its promises, and that appellee had notice of those facts when said note was assigned and delivered to him. It did pot charge that the bond was valueless, and for aught that appears in said third plea the bond may have been worth very much more than the $450 which appellant agreed to pay therefor. It is clear that this plea does not show, that the execution of this note was obtained by fraud and circumvention, within the meaning of those terms in the statute governing this case. This plea does not state a defense to the fourth count. As the demurrer was general as well as special and prayed judgment for want of a sufficient plea, we think it was properly sustained. The fourth special cause assigned was that the pleas did not show that the Bank was not an innocent purchaser before maturity for value, and did not show that appellee was the original payee of the note. It is true that it is not charged in either plea that the Bank was not an innocent purchaser before maturity for value nor that plaintiff was the original payee. Appellee contends that regardless of all other defects in the pleas, as the Bank could have sued and recovered on the note unaffected by the circumstances stated in the pleas, therefore when appellee purchased the note from the Bank he acquired the same right. Appellant contends that appellee had notice of these defenses when he first obtained the note from Earl and therefore is subject to the defenses pleaded; while appellee contends that the pleas are to be construed most strongly against the pleader, and therefore are to be taken to mean that appellee had notice when the note was assigned and delivered to him by the Bank and not when he first obtained the note from Earl, and therefore do not deny that he was an innocent purchaser for value before maturity. As we are of the opinion that neither plea presents any defense to the note, the second plea because while it professes to be a plea of total failure of consideration, the facts stated do not constitute a total failure of consideration, and the third plea, because, while it professes to be a plea of fraud and circumvention, it is not of fraud and circumvention in obtaining the execution of the note, we conclude that it is unnecessary to further discuss the question above stated.

The judgment is affirmed.

Affirmed.


text:
    C. F. White, Appellee, v. John Sellmyer, Appellant.
    Gen. No. 5352.
    Brokers and factors—what does not entitle to commissions. 'The fact that a purchaser may to some extent have been influenced in making the purchase does not entitle the broker to commissions; the broker to be entitled to commissions must have effected the same or been the efficient or procuring cause thereof.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    H. G. Greenebaum, for appellant.
    White & Tuesburg, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant owned a coal business in Pontiac which he desired to sell. In June 1901, he placed it in the hands of Brown for sale, and later in the same month in the hands of Buell and then with Biggs in the same month, and in July he placed it with J. M. White, a brother of appellee, and after the 15th of August he placed it with appellee, O. F. White. He gave none of them the. exclusive right to sell. He gave each the same terms, $1,250 cash, of which he should receive $1,200 and $50 should go to the agent who succeeded in making the sale. Shortly thereafter he sold the property to Buell. C. F. White claimed commissions. Appellant refused to pay him. C. F. White brought this suit before a justice against appellant for such commissions. Appellant was successful before the justice, but on appeal to the circuit court two juries have found for appellee and a judgment for appellee has been entered on the last verdict, from which defendant below appeals.

Hot only was the attention of Buell called to the property by being employed to sell it, but it is also clear that Biggs tried to sell it to him before appellee was employed. The testimony of appellant and Buell and Biggs tends to show that Biggs was the” one who brought about the sale and that he gave Buell the benefit of his commissions, so that Buell only paid $1,200. Appellee’s testimony tends to show that he was the one who induced Buell to buy. He has slight corroboration. The apparent preponderance of the evidence is in favor of appellant, nevertheless, after two juries have decided this question of fact for appellee, we should be disposed to let the verdict stand, were it not for the instructions.

In the second instruction appellant requested the court to instruct the jury that to recover appellee must show “that he was the efficient cause of the sale, or in other words, that it was through his efforts that the property in question was sold.” The court modified this to read “that he was the efficient or procuring cause of the sale, or in other words, that it was through his efforts to some extent that the property in question was sold.” In the third instruction requested by appellee, the court inserted “and that the services of plaintiff did not influence Buell at all.” The court amended the fifth instruction requested by appellant by inserting the words “and that Oharles White’s efforts had no effect or influence on Buell in making up his mind to buy the property.” Appellant requested the court to give the tenth instruction in the following words:

“You are instructed by the court that although you believe from the evidence in this ease that the plaintiff performed services in attempting to bring about a sale, still the plaintiff, White, would have no right to recover unless you further believe from the evidence that as a result of his services the witness, Buell, purchased the property in question from the defendant Sellmyer.”

The court modified and gave the same in the following form:

“You are instructed by the court that although you believe from the evidence in this case that the plaintiff performed services in attempting to bring about a sale, still the plaintiff White, would have no right to recover unless you further believe from the evidence that by his services the witness, Buell, was induced to some extent, to purchase the property in question from the defendant Sellmyer.”

By these" modifications, to which exception was duly preserved, the jury were told that in order to constitute a defense it must appear that the efforts of appellee had no influence at all upon Buell in inducing him to buy the property, and that if Buell was influenced to some extent by the efforts appellee made to induce him to buy the property, then appellant was liable. Appellee did have several interviews with Buell in which appellee endeavored to get him to take the property on the terms proposed by appellant, and even though appellee failed in bringing him to those terms and effecting a sale, yet it is very likely that what appellee said to Buell as to the value and desirability of the business and property had some effect upon him in finally deciding him to yield to the proposals of Biggs. Very likely every one of the other agents in whose hands appellant placéd that property for sale said things to Buell that had some influence upon him in inducing him to consider the property desirable and in keeping his mind directed to the subject of purchasing it. We are of opinion that such influence so exerted would not give each of the agents a cause of action for the commissions, but that the only person who would be entitled to commissions would be the one who effected the sale, or through whose efforts the sale was brought about.

For the error in the modification of those instructions, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People for the use of the Treasurer of Knox County, Appellant, v. James W. Davis et el., Appellees.
    Gen. No. 5355.
    1. Statutes of limitation—against whom do not run. Statutes of limitation do not run against the state in respect to public rights, unless the state is expressly included within the terms of the statute, and this rule extends to minor municipalities created by the state as local governmental agencies, such as counties, cities, towns and the like, in respect to governmental affairs affecting the general public; and in all matters affecting strictly public rights, such minor municipalities are exempt from the statutes of limitation. But as to matters involving private rights, counties, cities, towns and other like municipalities are subject to statutes of limitation to the same extent as individuals.
    2. Statute of limitations—when runs against hond. In an action upon the official bond of a sheriff to recover fees alleged to have been unlawfully retained the statute of limitations constitutes a defense.
    Action of debt. Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    A. J. Boutelle and Hardy, Welsh & Hardy, for appellants.
    Williams, Lawrence, Welsh & Green, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

At the time of the judgment in the court below, this was an action of debt in the name of the People for the use of the Treasurer of Knox county against James W. Davis and O. A. Stetson, the only surviving obligors upon the official bond of Bobert G. Mathews, as sheriff of Knox county for a term of four years beginning December 1890. The breach assigned in the declaration was that Mathews, at the expiration of his term of office, retained a large amount of fees, monies, emoluments and earnings collected by him, over and above his lawful salary, clerk- hire and other expenses, lawfully allowed to him as sheriff, and that he wrongfully converted the same to his own use and never paid the same to the treasurer of Knox county. Plaintiff filed a very lengthy itemized bill of particulars from which it appeared that plaintiff’s claim was that in the semi-annual settlements of the sheriff with the county board, numerous items for the expenses of the sheriff’s office, serving papers, conveying persons to the penitentiary, and the like, had been charged against the comity and allowed to the sheriff in incorrect amounts, some for less than was due the sheriff and others for more than was due, and that as a result of a restatement of the entire account for the whole term for which the bond was given, a certain sum remained still due to the county. Davis and Stetson each filed numerous pleas to the declaration. Davis filed plea No. 7, setting up that the several supposed causes of action in the declaration mentioned did not nor did any or either of them accrue to the plaintiff at any time within ten years next before the commencement of the suit. Stetson filed plea No. 7A to the same effect. Plaintiff demurred to these pleas and that demurrer was overruled. Plaintiff elected to abide by its demurrer to the pleas just mentioned and defendants had judgment, from which plaintiff below appeals. There were rulings on demurrers to other pleas, but the errors assigned only relate to the two pleas just mentioned.

Statutes of limitation do not run against the state in respect to public rights, unless the State is expressly included within the terms of the statute, and this rule extends to minor municipalities created by the State as local governmental agencies, such as counties, cities, towns and the like, in respect to governmental affairs affecting the general public; and in all matters affecting strictly public rights, such minor municipalities are exempt from the statutes of limitation. But as to matters involving private rights, counties, cities, towns and other like municipalities are subject to statutes of limitation to the same extent as individuals. Brown v. Trustees of Schools, 224 Ill. 184. We regard Ramsay v. County of Clinton, 92 Ill. 225, as decisive of this case. That was a suit in equity by the county of Clinton to recover allowances made to Ramsay as county clerk for services and expenses of his office, to which it was alleged he was not entitled by law. The answer set up that the county had a complete remedy at law, and also set up the statute of limitations. It was held not only that there was a remedy at law, but also that the statute of limitations was available as a defense. The same principle was applied in School Directors v. School Directors, 105 Ill. 653, and People v. Town of Oran, 121 Ill. 650. The principle is that the people of the State at large are not interested in the amount allowed for these county expenses; that they involve only private rights. We are of opinion that the court properly overruled the demurrer to the pleas of the statute of limitations.

The judgment is therefore affirmed.

'Affirmed.


text:
    The People for the use of the Treasurer of Knox County, Appellant, v. James Rebstock, Appellee.
    Gen. No. 5356.
    This case is controlled by the decision in People for use, etc. v. Davis, ante, p. 438.
    Action of debt. Appeal from the Oircuit Court of Knox county; the Hon Hakrt M. Waggoner, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    A. J. Boutelle and Hardy, Welsh & Hardy, for appellant.
    Fletcher Carney and James W. Carney, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

At the time of judgment in the court below, this was an action of debt in the name of the People for the use of the Treasurer of Knox county against James Rebstock, one of the obligors on the bond of Owen J. Aldrich, as sheriff of Knox county for the term beginning December 1904. This case is in all essential particulars like No. 5,355, People for use, etc., v. Davis, ante, p. 438. In this case, a bill of particulars was filed of similar tenor to the one filed in that case; and Rebstock, as well as another defendant who has since died, filed pleas and amongst them plea No. 7, which set up the ten years statute of limitations. The court overruled a demurrer to that'plea, plaintiff elected to abide by its demurrer, and defendant had judgment. The errors assigned relate only to the action of the court on the demurrer to that plea. For the reasons stated in the Davis case, the judgment is affirmed. .

Affirmed.


text:
    Milo M. Pierce et al., Executors, Appellees, v. S. W. Jacobs et al., Appellants.
    Gen. No. 5357.
    1. Negotiable instruments—when note not merged in judgment. If an administrator of a deceased endorser paid the amount due thereon to the last endorsee, as a result of the allowance of a claim in favor of such last endorsee, the note does not become merged in the judgment, but an action may be maintained thereon against the makers or judgment taken by confession (the note containing an authorizing power).
    2. Evidence—when witness disqualified by interest. Parties in interest are incompetent where the adverse party defends in a representative capacity.
    3. Evidence—what does not waive objection to incompetent testimony. If incompetent evidence is admitted, either over objection or subject to objection, opposing counsel may cross-examine without waiving the question of the competency of such testimony.
    4. Evidence—presumption as to rejection of incompetent. In a trial before the court without a jury it will be presumed that the court considered only such evidence admitted subject to objection as was competent.

      Judgment by confession. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Oabnes, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    S. FT. Hooves and John A. Russell, for appellants.
    Hopkies, Peeeebs & Hopkies and Johe T. Richabds, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

A corporation, named the Western Insurance Company of Aurora, Illinois, reorganized and changed its name to Western Fire, Marine and Plate Glass Insurance Company of Chicago, Illinois, and in July, 1901, had a board of directors composed of S. W. Jacobs, S. M. Farwell, Matt. W. Pinkerton, W. K. Twomey and Edward Pierce, of which board Pierce was president and Twomey was secretary and treasurer. At a semi-annual meeting of the board of directors, held on July 8, 1901, the records of the board show the following action taken:

“Owing to the fact that a good many old bills had accumulated under the management of the former secretary, and his collections not being in shape, it was decided that the corporation should raise the sum of twenty-five hundred dollars ($2,500) to clear up all indebtedness. The following resolution was offered and adopted:

That directors Matt W. Pinkerton, S. M. Farwell, S. W. Jacobs and W. K. Twomey draw a note for the sum of twenty-five hundred ($2,500) dollars in favor of the president, Edward Pierce, payable in ninety days from date at the rate of six per cent. ( 6 % ) interest, and set aside as a guaranty of the payment thereof two certain notes under date of December 10, 1900, being for twenty-five hundred ($2,500) dollars each, one due on or before three (3) years, the other on or before four (4) years, drawn by Isaiah H. Bradford, in favor of Ann E. Pinkerton and by her endorsed; the same being secured by mortgage on certain mineral lands located in St. Louis County, Minnesota, and said note was drawn in accordance with said resolution.”

A judgment note was thereupon drawn for $2,500 payable to the order of Edward Pierce in 90 days, with interest at the rate of 6% per annum, and it was signed by Jacobs, Far-well and Twomey, and at some later date was signed by Pinkerton, who was not present at that meeting. As collateral to this note two notes for $2,500 each, drawn by Bradford in favor of Ann E. Pinkerton and by her endorsed, and a mortgage securing the same and two other like notes on land in Minnesota, were delivered to Pierce. On July 15, 1901, after Pinkerton had signed the note, Pierce endorsed and guaranteed the payment of the note on the back thereof, and the Merchants’ 1STational Bank of Aurora, Illinois, discounted the note and delivered to Pierce a draft for $2,500 which Pierce endorsed to the order of W. K. Twomey, treasurer, and Twomey received the draft and the proceeds thereof were used to pay debts of said Western Fire, Marine and Plate Glass Insurance Company. Pierce died on November 9, 1901, and letters testamentary were issued to his executors by the ‘Probate Court. The Bank filed a claim against the estate of Pierce upon said note and guaranty, and said claim was allowed and paid by the executors. The executors then entered a judgment by confession upon said note against the makers thereof in the circuit court. The defendants obtained an order opening the judgment, preserving the lien, staying the execution and permitting defendants to plead. After-wards they withdrew certain pleas previously filed and filed an amended special plea. The court sustained a demurrer thereto and defendants failed to plead further, and the order opening the judgment, etc., was vacated. This court reversed that order in Jacobs v. Pierce, 132 Ill. App. 547, and the cause was remanded. Thereafter the common counts and certain pleas and replications were filed, issues were joined, a jury was waived, the cause was tried, the issues were found for appellees and the order opening the judgment was again vacated. Three defendants appealed and all the defendants have assigned error as appellants. Appellants mainly rely on three contentions: 1. Appellants contend that the note was merged in the judgment in the probate court and that no judgment by confession could thereafter be entered upon it nor could any suit be thereafter maintained upon the note. 2. Appellants contend that after the note was given Pierce bought fifty shares of stock of the corporation, of the par value of $5,000, and agreed to turn in this note as part payment therefor, and receive a certificate for the shares of stock; and that Pierce thereby became bound to take up and surrender this note to the corporation, which was the sole beneficiary of the note; and therefore, neither he nor his executors can maintain a suit upon said note against appellants. 3. Appellants contend that Pierce held the collaterals as security, not only for himself but also for appellants; that said collaterals were worth much more than is due upon this note; that Pierce allowed the collaterals to go out of his hands; and that thereby the liability of appellants to him and to his estate on said note was extinguished.

1. When this case was first before us in 132 Ill. App. 547, we held that Pierce’s executors, having taken up the note, had a right to erase the endorsement and maintain an action upon it against these appellants, and cited authorities therefor, including Campbell v. Humphries, 2 Scam. 478, where it was held that “if the payee or any assignor has been under the necessity of taking up the note his right of action revives.” In 15 Am. & Eng. Encyc. of Law, 1st Ed., 342, the same rule is thus stated: “While a judgment recovered upon a promissory note or bill of exchange is a merger of the cause of action as between the parties to the suit, the note or bill is not so merged as to prevent the endorsers from paying the judgment, receiving the note and maintaining an action on it against the maker.” In 1 Freeman on Judgments, 4th Ed., sections 227 and 227a, the same doctrine is stated, and it is shown that in such a case the note is not merged in the judgment against an endorser, but the judgment and its payment have no other effect as to the maker than does payment by the endorser without the judgment, and the endorser upon taking up the note may maintain an action thereon. In this case the liability of Pierce to the Bank was not upon the note itself, but upon his contract of endorsement and guaranty written, upon the hack of the note. While the claim filed and introduced in evidence appears to have the original note attached thereto, there is proof it was the copy that was filed and not the original, and that when the executors paid the claim they obtained the note at the bank. But whether the note itself was filed in the probate court or not, we are of opinion that its allowance and payment had no other effect as between the makers and the payee and his estate than would the payment of the note by the executors have without its allowance.1 So far as the makers are concerned, the simple fact is that the executors of the payee paid the endorsee the amount of the note and took it up and then had a right of action against the makers.

2. Appellants’ second contention is that after this note was given Pierce purchased fifty shares of the stock of the corporation and received the certificate therefor and agreed to surrender this note to the corporation as part payment for said shares of stock, and it is claimed that the only reason why he failed to surrender the note was because he was soon after taken fatally ill and died. On this and some other-matters appellants testified. Appellees objected to the testimony on the ground that they were incompetent witnesses. In some instances the court overruled the objection and appellees excepted. In other instances the court indicated his opinion that they were not competent, but permitted the evidence to go into the record subject to objection. It is obvious that under section 2 of the Act in relation to Evidence and Depositions, the defendants are not competent witnesses in their own behalf as to any matter occurring during the life of Edward Pierce. It is argued that some of these facts were brought out by appellees’ counsel on cross-examination. Epon examination of the record, which is not fully abstracted in this respect, we conclude that this was a proper cross-examination upon matters brought out by appellants’ examination in chief, which the court either permitted to be heard subject to objection or overruled the objection thereto. If incompetent testimony is admitted either over objection or subject to objection, we are of opinion that opposing counsel may cross examine without waiving the objection. We are therefore of opinion that the testimony of appellants ought not to he considered where it was so objected to. The competent testimony having a tendency to prove that Pierce purchased fifty shares of stock of the corporation and agreed to surrender this note in part payment therefor, consists chiefly of the testimony of P. F. McGivern, who was a bookkeeper for the corporation, and of Mrs. Clara McGrew, who was stenographer for appellant, Jacobs,- in the office of the corporation, and of J. J. Luck. McGivern testified that some days after this note was given, he heard a conversation between Pierce and Twomey and some one else, in which Pierce either said that he would take fifty more shares of stock or that he would not at that time take more than fifty shares of stock, and that afterwards, at the request of some one, he asked Pierce when he expected to return the note for $2,500 and Pierce replied that he intended to bring it in for cancellation in a few days. Mrs. McGrew testified that after the directors’ meeting of July 8, 1901, Pierce came into the office and told Jacobs that he received the fifty shares of stock which he had agreed to take and that he would send in the note to be cancelled and pay for the balance of the stock; that he was tied up in a real estate deal and when that came easier he would send in the money. She testified that she knew that this meant the $2,500 note signed on July 8, because she knew about that note from the minutes of the directors’ meeting which she wrote up, but she admitted that she did not hear Pierce say that it was the note of July 8. Luck testified that he was a partner of Pierce in another matter, and that in a conversation Pierce told him that this company needed some money and that he had to take some stock and pay a note and was hard up, and that he took $5,000 more stock in this company for,a $2,500 note; that he had taken some stock in place of money he expected on a note. If these conversations related to the $2,500 note here sued on, then they tend to show that Pierce had agreed to take fifty more shares of stock and deliver said note t¿ the company in part payment therefor. But there are many facts and circumstances in evidence to make it doubtful whether, if those conversations occurred, they referred to this note. The proof shows that there had been two other notes of $2,500 each on which Pierce had been liable, connected with the affairs of this corporation. On January 4, 1901, before the re-organization and change of name had been effected, Jacobs and one W. A. Lowell, who was a director of the corporation, gave Pierce a paper signed by them, in which they said, “If we secure control of the charter we hereby bind ourselves to make you good, so far as the two notes of $2,500 each, and any money you may advance at this time out of the business of said company, and after the completion of the new organization will hand you a legal paper covering this ground.” The proof shows that when the re-organization was effected Jacobs and Lowell owned far more than a majority of the capital stock, and they therefore secured the control referred to in said paper. There is no competent evidence that the $2,500 note which Pierce was to surrender in part payment of fifty shares of stock (if he did agree to surrender a note for that amount), was not one of the $2,500 notes referred to in the paper of January 4,1901. Again, according to the record evidence, Pierce did not buy fifty shares of stock after the note in suit was given. The corporation had a bound stock book which contained blank certificates of stock and a blank stub. When a certificate was issued the stub was filled out and remained in the book after the certificate was detached. The last certificate ever issued by this company appears to have been on stub Ho. 222 and according to the stub it was dated and issued to S. W. Jacobs on July 5, 1901. The certificates numbered from 223 to 604 and the accompanying stubs all remained blank in the certificate book at the time of the trial. Under date of June 22, 1901, certificate Ho. 220 for fifty shares was executed to Edward Pierce and the stub states that it was issued to Edward Pierce on June 22, 1901. Appellants called for the certificate itself and obtained it from appellees and offered it in evidence. It was not only dated June 22, 1901, but the revenue stamp upon it, which the law then required, was marked canceled J une 24, 1901. This is strong evidence that the certificate was prepared and executed on June 22, and that the stamp was can-celled on June 24,1901. If so, then the testimony introduced by appellants to the effect that ten days or two weeks after this note was given on July 8, Pierce agreed to take these fifty shares of stock and deliver this note in part payment cannot be true. McGivern testified that this stock certificate was issued some time after July 8, and that by arrangement it was dated back some time in June. He did not, however, prepare this stock certificate nor see it issued, nor have anything to do with the issue of stock certificates, but only testified in reliance on an alleged conversation in which it was proposed to date it back. Ho explanation was given of the fact that following the stub of this certificate to Pierce in the stock book were two certificates dated July 5, 1901, except the statement by a witness of a possible explanation which he did not know to be true. There is other evidence in the record tending to show that the claim that Pierce, a week or ten days after the execution of this note on July 8, agreed to take fifty shares of stock and to turn in this note to the corporation in part payment therefor is an afterthought. The note came due about October 6, 1901. On October 11, Jacobs wrote Pierce that “we” expected to be out to Aurora before this, but that Twomey had been East on business for the corporation and had not yet returned and was expected back Monday or Tuesday and “just as soon as he returns will take care of as much of the note in the bank as possible and pay the interest for another ninety daysthat the writer did not know “how much we can pay when he returns, but we will do the best we can under the circumstances.” On October 17 or 18, 1901, Farwell and Twomey visited the bank, asked for and obtained an extension of sixty days and paid the interest from October 6 to December 6. This was testified to by H. .0. Simmons, the president of the Bank. Appellants sought to prove by Simmons by cross-examination that Farwell or Twomey then told him that there was an arrangement by which Pierce was to pay the note, and secured from him once an answer that he would not testify that such a statement was not made. A reading of his entire examination, however, from the record itself, will show that he frequently denied any recollection of any such statement, and that he gave it as his belief that no such statement was then made to him. On December 12, Twomey came again to the bank and paid the interest from December 6, 1901, to February 6, 1902. Under date of February 4, 1902, Jacobs wrote the bank in part as follows: “The signers of the note of $2,500 which you hold signed by Matt W. Pinkerton, S. M. Farwell, W. K. Twomey and S. W. Jacobs and endorsed by Edward Pierce, which will fall due, we understand, the 6th of February, would like to have it extended ninety days upon payment of the interest.” He also told them that Twomey held the collateral in trust for the holder of the note and was willing to turn it over to the bank on receiving an agreement to produce it in court in Cook county if required. The evidence indicates the entire solvency of Pierce and his estate. The letters are better evidence than the recollection of witnesses. If a week or ten days after July 8, 1901, Pierce had subscribed for and obtained fifty more shares of stock in the corporation and had agreed to pay this note at the bank and surrender it to the corporation, and had received a certificate for such fifty shares of stock, it is not reasonable that this officer of the corporation and maker of the note should have been writing such letters, one to Pierce in his lifetime, recognizing the duty of the makers to pay the note, and the other asking its extension and offering to turn over the collateral to the bank; nor that Farwell and Twomey should have been paying the interest and securing extensions. Moreover, Pierce died and these makers were officers of the corporation and all but one of its board of directors, and if Pierce had not paid for this stock it would have been natural for them to have a claim filed against his estate in the name of the corporation for the amount which Pierce owed the corporation for the fifty shares of stock. This was not done. They knew they were liable to the bank for this note and they took no steps to cause the estate of Pierce to pay it so as to relieve themselves from liability as they would have been likely to do if Pierce had promised afterwards to pay the note and surrender it to the corporation. In view of these and other facts appearing in evidence, we cannot say that the trial court ought to have found that after this note was given Pierce bought fifty shares of the capital stock of the corporation and agreed to take up and surrender this note as part payment therefor.

3. The collateral described in the resolution of the company above set out consisted in two notes of $2,500 each, secured by the mortgage with two other notes of $2,500 and the proof is clear that the mortgaged premises were worth very much more than $10,000, so that this note was amply secured by the collaterals. One special plea averred that before the maturity of the note here sued on, Pierce delivered said collaterals to Ann E. Pinkerton, whereby said collaterals became lost as security for said note, in violation of the agreement of said Pierce to hold said collaterals till the note here sued on was fully paid. The spécial replication denied these allegations. The resolution above set out provided that said collateral notes and mortgage should be set aside as a guaranty of the payment of the note in suit, but it did not state who should hold said collaterals. The evidence seems to show that they were first placed in the hands of Pierce, the payee, but it clearly appears that forthwith they were in the hands of Twomey, one of the makers of the note, and that they remained there till long after the death of Pierce. In a certain chancery proceeding afterwards pending in the superior court of Cook county, Pinkerton and Twomey, two of the defendants thereto, filed on April 23, 1902, a sworn answer, wherein, in reference to the matters now under discussion, they made the following allegations under oath:

“These respondents further answering show that previous to the filing of the bill herein and on the 8th day of July 1901 the sum of $2,500 was borrowed by the directors of said complainant corporation and turned into the treasury of said complainant for the use thereof. That said last named sum of money was borrowed upon a note made by said directors as individuals to the order of Edward Pierce, president of said complainant corporation, and by said Pierce endorsed and negotiated for said money. And thereupon the said several notes in said partition shown as in the possession of said respondent, Twomey, were by said complainant corporation transferred to said Pierce and by said Pierce transferred to said W. K. Twomey to have and hold as security and indemnity for the payment of said sum of $2,500 to the legal holder of the note therefor and to the makers and endorsers thereof. And said note for $2,500 is still outstanding and unpaid and held by a certain Banking Company located at Aurora, Illinois, for value, and said Twomey now and at all times since the day last aforesaid has and still holds the said several promissory notes for the use and benefit of the said pledges under said deposit contract and upon no other right or claim whatever.”

There was oral proof tending to show that Twomey and Farwell also offered the collateral to the bank. Jacobs, in his letter of February 4,1902, to the bank, said that Twomey held the collateral in trust for the holder of the note and offered to turn it over to the bank on certain conditions. Bradford, the maker of the collaterals, testified that he paid them personally to Ann E. Pinkerton on August 3, 1907, but the cross-examination shows that in fact he received the collateral notes and mortgage from Matt W. Pinkerton, one of the appellants herein. It is clear that, during substantially all of the time from the date of this note till long after the death of Pierce, Twomey held this collateral for the benefit of all parties to this note. How he came to place them in the hands of Matt W. Pinkerton does not appear. Pinkerton also was secured for his liability on this note by said collateral, and his answer above mentioned shows that Twomey held it in trust for his benefit with his approval. The proof therefore shows that Twomey held the collateral in trust with the approval of Farwell, Jacobs and Pinkerton; and we think it must be assumed that whatever disposition was made of the sum paid by Bradford in discharge of the collaterals was satisfactory to the appellants. The appellants were competent witnesses as to all that occurred after the death of Pierce. They could have proved when and how and under what arrangement the collaterals passed from the possession of Twomey to that of Pinkerton, and what was done with the proceeds thereof when collected. Pinkerton received them from Twomey with full knowledge that they were held in trust for the payment of this note, as shown by his sworn answer above quoted. The allegations of the special plea that Pierce was the one who surrendered these collaterals to Ann E. Pinkerton is not only unsupported by any proof, but it is also completely disproved, and the trial court could not have found the plea sustained by the proof. 3STo doubt it is true that as between appellants and Pierce on the one hand and the Western Fire, Marine and Plate Glass Insurance Company on the other, all five of the original parties to this note were sureties for the corporation and all protected by this collateral, and it may well be that if the collateral had been lost without the fault of any one and the corporation was insolvent the loss should be divided among all five of the original parties, including Pierce, so that in such a case the appellants would be liable to Pierce for only four-fifths of the loss. But not only is there no plea setting up such a defense by the four makers, but also it is clear that the four appellants were acting, together, that Twomey had the collaterals for them, that he in some way placed them in the hands of Matt W. Pinkerton who knew they were held in trust as such security and who therefore took them as trustee, and that he surrendered them when they were paid. It must be presumed that he was acting for the appellants and that they have had the full benefit of the collaterals in some way satisfactory to them, and which they did not see fit to divulge. We are of opinion that the judgment does substantial justice.

The court kept out no competent testimony offered by appellants. Under a familiar rule it will be presumed that the court considered only such of the evidence admitted subject to objection as was competent. The ruling of the court upon propositions of law presented by appellants was in harmony with the views herein expressed and does not require discussion. We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    William J. Walsh, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5359.
    1. Verdicts—when excessive. A verdict reduced by remittitur to $1,625 is excessive where it appears that the plaintiff at the time of the accident was working for $125 per month, was absent from his employment for five months, seven weeks of which time was spent in bed—no medical testimony being produced to support the claim of physicial injuries sustained.
    2. Contributory negligence—effect of. A person injured is barred of recovery if his own negligence contributed to the accident in question.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. H. E. Worthington, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed with finding of facts.
    Opinion filed October 18, 1910.
    Piekeey & McRobebts, for appellant.
    Daily & Miller, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Monroe avenue in the city of Peoria runs in a northerly and southerly direction and Morgan street crosses it at right angles. Appellant operates a double track street car line upon said Monroe avenue. The cars on the easterly track go north, and it is called the “up track.” The cars on the westerly track go south, and it is called the “down” track. Appellee is a chauffeur. On January 29,1909, a funeral procession, going north upon Monroe avenue on the easterly side of the street between the east street car track and the curb, was moving about four miles per hour. A car upon appellant’s street railway was going north on the up track and stopped above the north line of Morgan street to let off passengers. The rear end of the procession was about opposite said car. Another car was coming from the north on the down track and was approaching Morgan street. Appellee came north behind the procession and street car, driving an expensive automobile owned by his employer. A heavy snow storm.was prevailing. He had groceries in his automobile and wished to go to his employer’s home, which wás on Madison avenue, the next street east of and parallel with Monroe avenue, but several blocks north of Morgan street. He was going north with the east wheel of his automobile east of the street car track and the west wheels west of the east rail. Finding his progress retarded by the funeral and the street car, he turned at or near Morgan street across the other track and his automobile and the south bound street car collided. The right hand front wheel of the automobile, the front axle and the steering wheel, were injured or broken, the glass wind shield was broken, and appellee was injured. He brought this suit to recover damages for the injuries to his person. He had a verdict for $2,225. The court required plaintiff to remit $600 and, that being done, entered a judgment for $1,625, from which the street railway company appeals.

The first count of the declaration charged that the street car was negligently run at a high and dangerous rate of speed. The second count charged that appellant negligently failed to cause a gong to be rung at least one hundred feet before reaching Morgan street and to be kept ringing 'till Morgan street was reached, as required by an ordinance of the city of Peoria. The third count charged a. negligent failure to obey an ordinance of the city which required the driver of such a car to keep a vigilant watch for all teams, carriages and persons on the track, and to stop the car in the shortest time and space possible upon the first appearance of danger to such team or person.

Appellee was working for $125 per month. He was absent five months from his employment after this accident and spent seven weeks of that time in bed. He produced no medical testimony to support his claim of the extent of his physical injuries. At the end of five months he returned to the same line of work for the same employer. We are not satisfied that the amount of the judgment was warranted by the evidence. - ■ - .....

■ Appellee contends that he turned to go west in the center of Morgan street, and claims that he could not see the approaching car because of the car going north, and that he intended to go west on Morgan street to Prairie avenue, the next street parallel with Monroe avenue and west thereof. He did not explain why he did not turn east on Morgan street, which was the direct route to his employer’s house, and cross questions put to him by appellant’s counsel to ascertain why he went west instead of east, when his avowed object was to reach his employer’s home, were objected to by appellee’s counsel and the evidence thereby kept out. Appellee claims that the gong was not sounding on the car which struck him, and that he was proceeding at slow speed, and that the street car was going very rapidly. The clear preponderance of the evidence shows that appellee was running the automobile at a high rate of speed; that the street car was running very slowly, because it was passing the car standing still and discharging passengers; that the gong was sounding, though it did not begin to "ring as far back from Morgan street as the ordinance required. We are satisfied from the very clear preponderance of the evidence that appellee did not attempt to go west on Morgan street, but that he swung behind the standing car for the purpose of going to the left hand side of Monroe avenue and thus getting around the funeral procession; that when the collision occurred the automobile was already several feet north of the north line of Morgan street; and that the collision was due to appellee’s negligence. He was on the wrong side of the street passing behind a standing* car in a blinding snow storm, running at a high rate of speed, and reckless of the consequences which might follow to others who were momentarily obscured from his view by the standing car and the storm. Without describing the injuries to the street car, which were serious, we think it sufficient to say, that upon consideration of all evidence, we are of opinion that appellee was not injured because of any negligence of appellant, but because of his own negligent operation of the automobile.

The judgment is therefore reversed with a finding of facts.

Reversed with -finding of facts.

Finding of facts, to be incorporated in the judgment. We find that the injuries for which appellee brought this suit againts appellant were not caused by any negligence of appellant, but by the negligence of appellee in driving his employer’s automobile.


text:
    Aurora Daily News Company et al., Appellees, v. Lincoln B. Frazier, Appellant.
    Gen. No. 5368.

      Injunction—when lies to restrain prosecution of action at law upon note. An injunction lies to restrain the prosecution of an action at law upon a promissory note made by a corporation as to which such corporation has no defense at law, but as to which there is an equitable defense in favor of the sole owners of such corporation, which defense is one of fraud in the consideration.
    Bill in chancery. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    John M. Raymond and John K. Newhall, for appellant.
    David J. Peepers, for appellees; Albert J. Hopkins, pro se.

   Mr. Justice Dibell

delivered the opinion of the court.

The Aurora Daily News Company, an Illinois corporation, hereinafter called the Company, Albert J. Hopkins and Charles H. Smith, filed a bill in equity against Lincoln B. Frazier. One object of the hill was to secure an injunction against the further prosecution of a suit brought by Frazier against the company on January 21, 1910, in the Circuit Court of Kane county upon a promissory note dated September 2, 1909, payable on demand after date with interest at six per cent per annum, for the principal sum of $2,500, purporting to be executed by the company by Frazier, its president, to the Aurora National Bank, and hy the latter endorsed to the order of Frazier without recourse. A motion hy complainants for a temporary injunction was submitted by complainants upon, the bill of complaint verified by the affidavit of Hopkins; by the defendant, Frazier, upon his affidavit, certain exhibits and the oral evidence of M. E. Plain, secretary of the company, identifying certain records of the company which defendant put in evidence; in rebuttal of which complainants read additional affidavits of Plain and Hopkins and the affidavits of W. W. Clark, then the managing editor, and of one of the expert accountants hereinafter mentioned. It was shown that complainant, Smith, was too ill to make , an affidavit. The court granted a temporary injunction upon the giving of a certain bond, which bond was furnished. Frazier prosecutes this appeal from the order granting the injunction. Frazier’s affidavit admitted many things stated in the bill, denied some, was silent as to some, and gave a different version of others. We are not called upon to determine how far, upon an application for injunction before answer, the affidavit of the defendant denying the allegations of the bill can be heard to prevent a temporary injunction, for the reason that when all the affidavits are considered there is a clear preponderance of proof in favor of most of the material allegations of the bill. The main question is whether a case is stated which entitles complainants to a temporary injunction, or whether complainants have an adequate remedy at law and for that reason cannot resort to equity.

The hill alleged that the company was an Illinois corporation, organized about 1891 and having its principal place of business in Aurora; that its capital stock had been issued, and in 1908 was all owned hy Frazier, except two shares delivered hy Frazier to an employe named Douglas under an arrangement that when Douglas ceased to be an employe of the company Frazier should have the right to purchase said two shares for $213; that Douglas long prior to October, 1908, had ceased to be an employe and Frazier claimed to own those two shares; and also, that in October, 1908, and for many years prior thereto Frazier owned ninety-eight ont of the one hundred shares of the capital stock and claimed to own said other two shares; that the business of the company was the publication of a daily newspaper in Aurora; that for many years prior to October, 1908, the corporate form of the business was disregarded and it was treated as the individual business of Frazier; that Frazier and his wife and a relative were a majority of the board of directors, but the property and business, though technically that of the company, was treated as the property and business of Frazier and he conducted the business as though it were not owned by a corporation but was his private property, and the shares of stock were treated by him as evidence of his ownership of the assets of the company; that, on October 31, 1908, while still the owner of the entire stock and holding and treating the same as above stated, Frazier sold Smith and Hopkins a one-half interest in the property and assets of the company for a valuable consideration; that in the negotiation and sale thereof Frazier treated said business and property as belonging to him, although in transferring said one-half interest he assigned twenty-five shares of said stock to Hopkins and a like number to Smith.

The bill further alleged that in negotiating said sale Frazier stated to both Smith and Hopkins, in answer to their questions, that the company was a going concern, that it had no debts, and that at that time and long prior thereto Frazier had been and was making money in said business; that Hopkins and Smith both relied upon the truth of said representations in purchasing said interest in the business; that thereafter Frazier continued to manage the business till September 25, 1909; that Smith and Hopkins had confidence in the honesty of Frazier and trusted him with the management of the business, but did not authorize him to execute promissory notes or power of attorney upon which a judgment could be rendered against the company, and they each relied upon the statements of Frazier that the income of the company from month to month was greater than its necessary expenditures; that the books and accounts of the business for many years before Hopkins and Smith bought said interest and thereafter until about September 25, 1909, were under the sole supervision of Frazier and he was in sole control of all contracts and documents relating to the income and expenditures of the company; that from time to time between October 31, 1908, and September 25, 1909, Frazier reported to Hopkins and Smith that the company was making more money than was expended from month to month.

The bill further alleged that during the summer of 1909 Frazier sought to sell his remaining interest in the company to Hopkins in order that Frazier might go out of the newspaper business and devote his time to his duties as trustee of his father’s estate, and negotiations were carried on during the summer and fall of 1909 between Frazier and Hopkins for the sale by Frazier to Hopkins of Frazier’s remaining one-half interest in said property and business, during which negotiations Frazier always stated that the business of the company was being conducted with profit; that during these negotiations it was arranged between Hopkins and Frazier, at the instance of Hopkins, that expert accountants should examine the books and accounts of the business, and two expert accountants did so; that Frazier furnished to said accountants access to the books, papers and documents of the company, which were then under the sole supervision and control of Frazier; that upon the information and data furnished by Frazier, said accountants made a report showing that the assets exceeded the liabilities by nearly $2,000 and showing that there were only $497.29 of unpaid bills and accounts and an unpaid note of $1,000 held by the First ¡National Bank of Aurora, and that the unpaid subscriptions, advertising and cash exceeded the liabilities by $1,913.04; that Frazier personally examined said report after it was made and stated to Hopkins that it correctly represented the financial condition of the company and business so far as liabilities were concerned, and that there were unpaid subscriptions, aggregating nearly $1,900, which should be added to the assets of the company; that during the time from October 31, 1908, to September 25, 1909, though the business was technically conducted by the corporation, it was treated as the individual business of Frazier, Hopkins and Smith, Frazier owning one-half and Smith and Hopkins each one-fourth of the said business.

The bill further alleged that on September 25, 1909, Frazier sold his remaining one-half interest in the property and assets of the business to Hopkins for a valuable consideration ; that in said sale said one-half interest in said property was treated as belonging to Frazier; that though Frazier then assigned the remaining shares of stock in the company to Hopkins, yet this was merely as a convenient way of making the transfer; that Hopkins in buying said remaining interest in the business from Frazier did so in reliance upon Frazier’s statements to him as to the financial condition of the company and business, and upon Frazier’s statement of the correctness of the report of said accountants and upon the statement made to Hopkins by Frazier before and at the time of the purchase that no new or other indebtedness had been created and no new obligation had been made, and relying thereon, Hopkins paid Frazier for said remaining interest in the business.

The bill further alleged the commencement by Frazier of said suit against the company upon said note for $2,500 above described; that when Hopkins bought said remaining interest in the business from Frazier he had no knowledge of the existence of said promissory note or that any such indebtedness existed, and first learned thereof about ¡November 9, 1909, long after he had paid Frazier for such remaining interest; that though said note was negotiated by Frazier at said Aurora ¡National Bank on September 2, 1909, and though Hopkins and Frazier talked over the financial condition and indebtedness of the company and said accountants’ report between September 2 and September 25, 1909, yet Frazier concealed from Hopkins the facts concerning the execution and negotiation of said note and stated to Hopkins that no new or additional indebtedness had been created since the examination by said accountants, which was on August 10, 1909; that Frazier now claims that said note was made for old debts of the company, but he did not advise said accountants of any such indebtedness, and the books, accounts and papers of the company contain no entry of the existence thereof; that the company carried on its banking business with the First National Bank of Aurora and had never carried on any business with Aurora National Bank, and that Frazier negotiated said note at the latter bank to prevent knowledge thereof coming to Hopkins or Smith or the company; that Frazier never caused any entry to be made on the books of the company of said transaction with the Aurora National Bank; that Smith and the company had no knowledge or information of any indebtedness of the company, except as set forth in the report of said accountants, and no knowledge of the making of this note, and that Frazier had no authority to execute the note and power of attorney thereto attached; that when they learned of the note Smith and Hopkins repudiated it and insisted that it was the indebtedness of Frazier; that thereupon Frazier paid the note and took it up and instituted this suit in his own name against the company; that said suit at law is an attempt to recover said indebtedness against said Hopkins and Smith and that if said note should go to judgment in said suit it would be in effect a recovery against Smith and Hopkins in proportion to their respective interests in the property, and that it is inequitable and unjust that Frazier should prosecute said suit against said company, and that the equitable defenses herein shown cannot be availed of in said suit at law.

The bill further alleged that after Hopkins purchased said remaining interest of Frazier on September 25, 1909, a large number of bills and accounts were presented against the company which were outstanding when said accountants examined said books and which were not shown upon the books,, and the existence of which was concealed from the complainants, and Frazier did not tell the accountants nor Hopkins thereof; that said debts and liabilities so concealed amounted to $6,000; that the company was compelled to pay them and they depreciated the value of the interest so purchased by Smith and Hopkins from Frazier; that in equity Frazier is estopped from denying his liability to pay said claims as well as said note, and that by his silence concerning said liabilities and his assurances above stated and by his conduct when he sold his interest in the company he in law assumed to pay all indebtedness not stated in the report of the accountants and ought in equity to be decreed to reimburse the company or Hopkins or Smith for the payment of said sums of money; that when they bought the interest on October 31, 1908, Frazier agreed with them to keep accurate books of account of said business and show the receipts and expenditures thereon from day to day; that Hopkins and Smith were engaged in other occupations and relied upon Frazier to keep accurate books of account and to show the receipts and liabilities of the company, but that he did not perform his agreement but received large sums of money, amounting to over $8,000, belonging to the company and in which Smith and Hopkins were interested, which he diverted to his own use and did not enter upon the books of account. .The averments of the bill were much more full than we have above stated. The bill prayed for an accounting between complainants and Frazier, and that Frazier be decreed to pay complainants whatever was due from him to the complainants or any of them upon such accounting, and they offered to pay Frazier what, if anything, should be due from them to him; and the bill prayed for a temporary injunction against the prosecution of said suit at law, and that upon the final hearing such injunction he made perpetual, and for other and further relief.

Frazier in his affidavit stated that he only owned ninety-five shares; that three shares had never been issued, and that1 two shares had been issued to Douglas, wh'o had assigned the same to I. C. Copley, and that the latter claimed to own said two shares; and that there was pending in the circuit court a mandamus suit brought by Douglas and Copley against the company and Frazier, its then president, and Plain, its secretary, to compel the transfer of said stock from Douglas to Copley on the books of the company. But Frazier also intoduced in evidence the answer of the company and of Frazier and of Plain to said petition for a mandamus, wherein they stated that the delivery of said certificate to Douglas was a gratuity on the part of the company and its president, and that said certificate stated that it was issued to Douglas, not in his individual right, but as an employe of the company, and that if Douglas should cease to be an employe of the company, the president should have "the option to take back said shares of stock on paying six per cent premium on the par value of the same, and that the stock could not be transferred to any other person than one first approved by the board of directors. Said answer in the mandamus case further stated that Douglas had left the employ of the company and entered the service of a rival newspaper, and that Frazier as president of the company had exercised the option to take back said shares from Douglas and had paid him therefor its par value and the six per cent premium, and that said shares thereby became the property of the president, and Douglas had no further interest therein and no power to transfer said shares to Copley, and that said alleged transfer to Copley was void and gave Copley no right to said shares. Frazier also offered in evidence the records of the company, and among them certain by-laws which allowed the transfer of shares of stock only to some person first approved by the board of directors; and which provided that where shares were held by an employe of the company, the president at his option should have the right to buy such shares upon the termination of employment at the price which the employe paid therefor. If three shares had not been issued there were in fact but ninety-seven shares. Upon this application for a temporary injunction it must be considered as established that when Frazier negotiated for the first sale to Hopkins and Smith he reirresented himself to be the sole owner of the business and property of the company. He claims in his affidavit that what he negotiated and sold to Hopkins and Smith in 1908 and to Hopkins in 1909 was shares of stock in the company; but not only does the sworn bill allege a very different state of facts, but also Plain in his affidavit in rebuttal states that in 1908 Frazier sought for and obtained his services to interest Hopkins and Smith in the business and to induce them to buy a one-half interest, and that he did so act and did bring about the first sale, and that nothing was said to him by Frazier about selling any shares of stock nor were the value of such shares of stock stated or discussed, but that Frazier treated it as a business and property owned by him and that he wished to sell a one-half interest in said business and property to Hopkins and Smith; that in 1909 Frazier again sought his assistance to sell his remaining interest in the property to Hopkins and that he did assist in such sale, and that there was then no discussion of the capital stock but only of his remaining interest in the business and property. If the record of the company introduced in evidence is the entire record of the meetings of the stockholders and of the board of directors, then it is evident that the corporate existence and control had always been a mere matter of form during the legal existence of the corporation. Some times such meetings were held once, twice or three times a year. Sometimes they were two years apart and once, between three and four years. Several meetings were held just before and just after the purchase of the one-half interest by Hopkins and Smith in 1908 so as to give Hopkins and Smith representatives on the board of directors. Thereafter, while Frazier managed the business for all three, no corporate meetings were held, and the proof is that when Frazier desired advice or assistance he did not apply to the board of directors, but to Hopkins and Smith.

Frazier stated in his affidavit that he used the proceeds of the $2,500 note partly to pay former debts of the company and that the rest was put into the treasury of the company. He does not state the amounts or the names of the owners of such former debts so paid, nor when they were incurred. He does not deny that he borrowed this money and gave this note after the expert accountants had made their report and when the negotiations for the sale of his remaining interest were far advanced. He does not deny that he procured the loan at a bank with which the company had not previously done business.- He does not deny that he failed to have the transaction entered on the books of the company and that he failed to tell Hopkins anything about it. His affidavit gives no reason why he went to a strange bank, why he did not cause the transaction to be entered on the books, and does not explain why he failed to tell Hopkins about this new outstanding obligation of the company. His conduct and his silence when he should have spoken raised an unfavorable inference against him. His affidavit shows that Hopkins and Smith each paid him $15,000 for the interest bought at the first purchase, and that Hopkins paid him $10,000 for the interest bought at the second purchase, so that he has received $40,000 in cash for what he sold. It is obvious that if the allegations of the bill are true, Frazier defrauded Hopkins in the sale to him of the last one-half interest in the business. If the debts so paid by the proceeds of said $2,500 note were incurred before the purchase of the first one-half interest, then both Hopkins and Smith were defrauded. So too, the existence of a large amount of indebtedness not shown upon the books was a fraud, either upon Hopkins alone, or upon Hopkins and Smith, if the allegations of the bill are true. If the business had not been in a corporate form and Frazier were suing Hopkins and Smith, and the other facts stated in the bill were true, then either Hopkins and Smith, by recoupment or by set-off, could have complete relief in the suit at law brought by Frazier, or equity would take jurisdiction and give them relief. But, because of the corporate form under which the business was nominally conducted, it is contended that the corporation must pay this note in suit at law where Hopkins and Smith, the sole owners of the corporation, cannot be heard to set up these defenses, and that Hopkins and Smith must be left to seek relief against Frazier in one or more actions for deceit. It is obvious that, under the facts alleged, this would be a serious injustice to Hopkins and Smith. We are of opinion that in view of the allegations of the bill as to the manner in which the business was in fact conducted and as to the sale by Frazier of the property and business, the corporate form ought not to be permitted to operate -to protect this apparent fraud, under the principles laid down in Donovan v. Purtell, 216 Ill. 629; Chicago & Grand Trunk Ry. Co. v. Miller, 91 Mich. 166; Des Moines Gas Co. v. West, 50 Iowa 16, 25; Jones v. Bolles, 9 Wall. 364; and Given v. Times-Republican Ptg. Co., 114 Fed. R. 92, which decision the Supreme Court virtually approved by denying a petition for a writ of certiorari therein in 189 U. S. 513. In Donovan v. Purtell, supra, our Supreme Court quoted with approval from First National Bank v. Trebein, 59 Ohio St. 316, where that court held that the fiction that a corporation exists apart from the individuals composing it has been repudiated by the'Courts in all cases where it has been insisted on as a protection to fraud or any other illegal transaction. In Chicago & Grand Trunk Railway Co. v. Miller, supra, the railway company brought suit in equity to restrain two suits at law against it brought upon claims assigned to the plaintiffs in said suits by one Bancroft. The Supreme Court of Michigan held that the bringing of the suits at law was against equity and good conscience and that they were properly enjoined, and in so holding said: “The stockholders of the complainant company apparently purchased in good faith, and without any knowledge or notice of these claims, and after examination of the books of the company, and upon representation by Mr. Turner that no such indebtedness existed, and after repeated assurance by Mr. Bancroft to Mr. Hickson and others that the right of way was fully paid for, and that there was no indebtedness against the company except for current expenses.” In Des Moines Gas Co. v. West, supra, the Supreme Court of Iowa thus stated the principle under consideration: “The legal'rules which regard a corporation as an artificial person, to be bound only by acts done in accord with its character,, which permit it to hold property as a natural person, and limit the interest of the stockholder therein to his shares, must all go down when they are attempted to he used as instruments of fraud by the dishonest, and stand in the way of equity.” In Given v. Times-Republican Printing Co., supra, a suit in equity brought by the corporation and the owner of all its shares of stock ag'ainst the former owner of said shares to restrain a suit at law brought by the latter against the corporation upon claims which he had concealed when he sold the shares, the court said: “The acts of Given in the management of the business of this corporation, in the treatment of his account with it, and in the preparation of the statement of its resources and liabilities for the purpose of making a sale, without including therein any • statement of his account, and his silence concerning any indebtedness of the printing company to him during his negotiations with McFarland, when it was his duty to speak out and give warning of his unknown notes and his concealed claim, were well calculated to lead a reasonably prudent man to believe that the corporation owed him no debt or obligation. The evidence is convincing that McFarland was induced by these acts and this silence to entertain this belief, that Given intended that his acts and silence should have this effect, and that, in the absence of this belief, McFarland would never have paid or agreed to pay the sum of $19,000 for this stock. Here is every element of an equitable estoppel. McFarland has acted on the belief which Given intentionally induced him to form, and he cannot now be permitted to deny its correctness, and to mulct him in the sum of more than $8,000 because he relied on his acts and his silence.” In Jones v. Bolles, supra, a similar case, the Supreme Court of the United States said: “It is objected that a court of equity has no jurisdiction of the case because the law affords a complete remedy in damages. This objection is groundless. Equity has always had jurisdiction of fraud, misrepresentation and concealment; and it does not depend on discovery.” As Smith will be interested in the litigation if the debts which Frazier alleges that he paid with the proceeds of said $2,500 note were incurred before he purchased, and as the company is interested in preventing its property from being taken on execution under a judgment which Frazier ought not to be permitted to collect if the averments of the bill are true, there is no impropriety in all the complainants joining in the bill. We are of opinion that the court did not err in granting the temporary injunction. Of course, we are only considering ex parte affidavits. It may be that the examination and cross-examination of witnesses will give the case a different aspect. We are not called upon to determine now whether, if the bill is sustained by the proofs, Frazier should be enjoined from collecting any part of the note or only a certain proportion thereof, nor what relief will be required concerning said other debts of the company not appearing on its books.

The order is affirmed.

'Affirmed.


text:
    Eva Kehl, Appellee, v. Louis A. Burgener, Appellant.
    Gen. No. 5371.
    1. Assault and battery—lurden of proof. Where the general issue and pleas of justification are filed, the true rule is that under such ..pleadings the plaintiff is required to prove the assault by the defendant; that when such assault is proved the burden of establishing a prior assault by the plaintiff is upon the defendant.
    2. Verdicts—when excessive. Held, in an action of assault and battery, that a verdict of one thousand dollars was excessive, it appearing that the assault in question was provoked by a prior assault made by the plaintiff upon the child of the defendant.
    Action in case. Appeal from the Circuit Court of Kane county; the Hon. Mazzini Sltjsser, Judge, presiding. Heard in this court at the April term, 1910.
    Affirmed upon remittitur.

    Opinion filed October 18, 1910.
    Mighell & G-ttnsel and Sears & Solfisburg, for appellant.
    William E. Brand and T. J. Merrill, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee brought this suit on the case against appellant to recover damages for an alleged assault and battery by him upon her. Appellant pleaded not guilty, and also a prior assault upon Angeline Burgener, daughter of appellant, a child of tender years, and that appellee undertook to beat, bruise and ill treat said Angeline, and threatened to cut off her head with a carving knife then in the possession of appellee, and that appellant defended said Angeline as he lawfully might, and in so doing necessarily and unavoidably struck appellee and pushed her away from said Angeline to save the latter from being seriously beaten, and that these were the same trespasses in the declaration mentioned. Appellant also filed a plea that the supposed trespass was in necessary defense of an assault by appellee upon him. Appellee filed replications to the special pleas, alleging that appellant committed said assault of his own wrong and without the cause mentioned in the pleas. There was a trial and a verdict for appellee for $1,000, a motion by appellant for a new trial, which was denied, and a judgment on the verdict, from which defendant below appeals.

The second instruction given for appellee told the jury that under the pleadings the burden of proof was upon appellant to show by a preponderance of the evidence that the assault was made in necessary self-defense of his own person or of the person of his child and that in making such assault he used no more force than a reasonable man would consider necessary under the circumstances. The fifth instruction given for appellee told the jury that under the pleadings an assault upon the plaintiff was admitted by the defendant, and then stated the claim of appellant that the assault was justified and stated that appellant must show that he used no more force than was reasonably necessary to repel the assault or threatened assault which he alleged that appellee made. These instructions were not correct. Notwithstanding the special pleas, appellant was entitled to the benefit of the plea of not guilty. The special pleas could not be used to supersede the necessity of plaintiff’s proving her declaration, which was denied by the plea of not guilty. Swigart v. Ballou, 106 Ill. App. 226; Wells v. Englehart, 118 Ill. App. 217; 1 Chitty’s Pl. 562, 563. The true rule is that under such pleadings the general issue requires the plaintiff to prove an assault by the defendant; but that when that assault is proved the burden of proving a prior assault by plaintiff is upon defendant. But while it was incorrect to say that the pleadings admitted an assault by appellant upon appellee, that inaccuracy was not harmful to appellant for the reason that he testified that he grabbed appellee by both arms and pushed her backward and held her arms. This was an assault. The burden of justifying the assault under the special pleas was upon appellant, and it was a question for the jury whether his defense was made out. It was necessary for him to show in defense that appellee made a prior assault, either upon himself or upon his infant daughter, and that he used no more force than was reasonably necessary to repel that assault. It was for the jury to determine whether he had established the defense, and we do not feel warranted in disturbing their conclusion in favor of appellee upon that subject.

The damages awarded were, however, largely punitive and under the circumstances of this case we consider them excessive. Appellant is the husband of appellee’s daughter, and the little girl is appellee’s grandchild. Appellee and appellant had been litigating for years over certain questions of property. Kehl v. Burgener, 106 Ill. App. 336. As a result of foreclosure proceedings, a house and lot formerly owned by appellee had become the property of appellant and he had been put in possession by the sheriff, and some personal property owned by appellee had been locked up in a barn on said premises. On the day of the alleged assault Angeline Burgener, some ten or eleven years old, was going along a public street drawing a little wagon, in which were some articles of personal property covered up. -Appellant, her father, was near by. Keither of them was molesting appellee in any way. Some one told appellee, who was in her own house a half a block or a block away, that the little girl was drawing some things in a wagon, and appellee suspected that it might be some of her personal property left in the barn. She rushed out upon the street, evidently in great anger, for the purpose of ascertaining if it was her property and of rescuing it if it was. We do not doubt that she caught hold of the wagon and of the little girl, and tore her dress, and called her “a little devil” in loud tones. Appellant then arrived, upon the scene and caught hold of his mother-in-law’s arms and held her, and the little girl started on. Appellant released appellee and she immediately started after the little girl again, and appellant caught appellee again, and such events happened that appellee fell upon the ground. She claims that appellant struck and kicked her. He denies it. The striking was seen by others, and the kicking was not supported except by proof by the physician that she had bruises upon her limbs afterwards. Appellee was sixty-five years old, and we do not feel warranted in disturbing the conclusion of the jury that appellant used more force than was necessary to protect his daughter. But in view of the fact that she clearly began the trouble and made the first assault, and evidently in great anger, and that $200 or $300 would compensate her for all physician’s bills, hospital and nursing expenses, and loss of time, we are of opinion that the verdict was excessive and that appellant ought not to be mulcted in so large a sum as damages.

This opinion will be lodged with the clerk and counsel advised thereof, and if within seven days appellee remits $400 the judgment will be affirmed in the sum of $600 at the costs of appellee. Otherwise it will be reversed and remanded.

Afterwards, appellee having filed a remittitur in the sum of $400 the judgment is affirmed in the sum of $600 at the costs of appellee.

1Affirmed upon remittitur.