text:
    Diedrich Wesselhoeft, Appellee, v. Henry Schanze, Appellant.
    Gen. No. 15,028.

      Deceit—when representations not actionable. A statement not shown to have been untrue when made will not sustain a recovery in an action of deceit, nor will such a statement support a recovery in such an action unless it appears that the plaintiff relied thereon and was damaged thereby.
    Action on the case. Appeal from the Superior Court of Cook county; the Hon. George A. Dtjbuy, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 31, 1910.
    Parker & Righeimer, for appellant.

      Cyrus Helen, for appellee; A. C. Allen, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Appellee brought an action on the case for deceit against several defendants, but before trial dismissed as to all the defendants except Schanze and Dicus. The trial resulted in a verdict and judgment for the plaintiff against said defendants for $2,500, and Schanze appealed.

The suit grew out of the sale by Dicus to plaintiff of 60,000 shares of the capital stock of the Superior Oil & G-as Company, a corporation incorporated under the laws of the Territory of Arizona. The company was incorporated November 5, 1903, with a capital of $1,250,000 in shares of $1 each, and at the first meeting of the board of directors, November 16, 1903, Schanze was elected president and Dicus secretary. The agreement fdr the purchase and sale of said 60,000 shares of said stock was made between plaintiff and Dicus July 11, 1904, and the next day Dicus delivered to plaintiff a certificate for 60,000 shares of said stock, and plaintiff paid him therefor $2,500. Said certificate was signed by Schanze as president and Dicus as secretary. It stated that the said corporation was incorporated under the laws of the Territory of Arizona; that its capital stock was $1,250,000; the shares $1 each; certified that plaintiff was the owner of 60,000 shares of the capital stock of said corporation, “full paid and non-assessable,” transferable, etc., and was dated July 12, 1904. On the same day, and as a part of said transaction, Dicus made and delivered to plaintiff the following agreement in writing:

“I hereby agree that in consideration of Diederich Wesselhoeft purchasing Twenty-five Hundred Dollars ($2,500) worth of Superior Oil & Gras Company stock, that any time within six months from this date, that if he wishes to return his stock that with the giving of sixty days notice, the stock may be returned to me and the said $2,500 will be returned with interest at six per cent per annum from this date until the return of said stock.

J. B. Digits.”

Schanze took no part in the negotiations or transaction between plaintiff and Dicus, and plaintiff did not know Schanze until long after such purchase.

The amended declaration contains two counts. The first sets out a large number of representations which the evidence shows were made by Dicus alone.

The second count alleges Henry Schanze was president and J. B. Dicus was secretary of said corporation; that on July 12, 1904, they conspired to wrongfully and fraudulently induce the plaintiff to purchase other corporate stock and deprive him of large sums of money by false, fraudulent and deceitful assertions, and July 12, 1904, exhibited to the plaintiff a certificate of corporate stock of said corporation for 60,000 shares, signed by Schanze as president and Dicus as secretary; that the defendants caused the certificate to be issued to the plaintiff, and by means of said certificate the defendant falsely and fraudulently represented to the plaintiff that the capital stock of the corporation was $1,250,000; that said 60,000 shares were full paid and non-assessable; that said shares were $1 each, by which false representations the defendants fraudulently induced the plaintiff to deliver Ms check to J. B. Dicus payable to the order of the Superior Oil & Gas Company, for $2,500, which check was paid and charged against the plaintiff; that defendants delivered the said stock and a written instrument dated July 12, 1904, and signed by J. B. Dicus, in which Dicus agreed that if Wesselhoeft purchased said stock, at any time within six months he could return the stock to Dicus and the $2,500 would be returned to plaintiff ; that plaintiff believed said representations, whereas in fact the capital stock was not $1,250,000, but on the contrary thereof its shares of stock, or any of them, had not been paid or subscribed by solvent or responsible persons; that said shares were without value and worthless, the - corporation not possessed of any property and insolvent; that the shares of stock were not one dollar each, but represented no money or valuable thing and were worthless; that “the certificate of sixty thousand shares so delivered to plaintiff was not full paid and non-assessable, nor was any part thereof paid, nor was the same of any value” when said representations were made; that Dicus and the corporation are insolvent; that plaintiff has not been repaid, etc., and_so by means of, etc., defendants have defrauded plaintiff to his damage, etc.

At the trial plaintiff put in evidence said certificate for 60,000 shares of stock, signed by Schanze as president and Dicus as secretary; the said written agreement signed by Dieus to take back said stock and return to plaintiff his money and the record of the proceedings of the board of directors of said corporation at their first meeting November 13, 1903, from which it appeared that on that day Dieus proposed to sell to said corporation an oil and gas lease of lands in Kansas known as the Hottenstein lease, in consideration of 1,245,000 shares of the capital stock of the corporation; that the proposition was accepted by the board and a certificate for 1,245,000 shares of said stock issued to Dieus, who presented to the corporation a certificate for 245,000 shares, to be used by the corporation as the board of directors might see fit.

Dieus testified that he invested in the property $25,000, for which he received, after deducting the 245,000 shares returned to the company, a million shares of stock.

Defendants offered in evidence, and the court excluded, a certified copy of the Articles of Incorporation of said Superior Oil & Gas Company. Art. Ill of said Articles is as follows:

“Article III.

The authorized amount of capital stock of this corporation shall be One Million Two Hundred Fifty Thousand Dollars ($1250000), divided into One Million Two Hundred Fifty Thousand shares of the par value of One Dollar ($1.00) each. At such time as the Board of Directors may by resolution direct, said capital stock shall be paid into this corporation either in cash, services or by the sale and transfer to it of real or personal property for the uses and purposes of said corporation, in payment for which shares of the capital stock of said corporation may be issued, and the capital stock so issued shall thereupon and thereby become and be fully paid and non-assessable, and in the absence of actual fraud in the transaction, the judgment of the Directors as to the value of the property purchased shall be conclusive.”

We think the court erred in excluding the Articles of Incorporation. There is no averment in the declaration that the directors were guilty of fraud in accepting said lease' in payment for the shares of stock issued to Dicus. The evidence excluded tended to show that the shares issued to plaintiff were non-assessable.

The court gave for the plaintiff the following instruction:

“2. If the jury believe from the evidence that the defendants Henry Schanze and John B. Dicus were acting in concert in an effort to dispose by fraud and deceit or by means of false representations of the corporate stock of the Superior Oil & Gfas Company, which was issued and delivered to the plaintiff, and to secure money therefor, for the use of said Superior Oil & Gras Company, or for John B. Dicus, individually, then any representations respecting such subject matter made by either of the defendants while transacting such business and in executing the common purpose, if you find from the evidence there was such a common illegal purpose, would be the representation of each of said persons.”

Dicus sold to plaintiff his own stock, and there is no evidence tending to show that Dicus and Schanze were acting in concert, or that Schanze had anything to do with said sale except to sign as president the stock certificate which Dicus delivered to plaintiff. Plaintiff testified to a great number of oral statements as made to him by Dicus during the negotiations for the purchase and sale of said stock, but we find no evidence from which the jury might properly find that Dicus and Schanze were acting in concert or in the execution of a common purpose. We think that the court erred in giving said instruction.

Plaintiff’s right of action against Schanze, if any he has, is based alone on the certificate which Schanze signed as president and which Dicus delivered to plaintiff. The certificate is in the usual form of stock certificates, and states that the capital stock is $1,250,000 in shares of $1 each, and that plaintiff “is the owner of 60,000 shares, full paid and non-assessable,” of the stock of said Oil Company. By thus authenticating and issuing said certificate the defendants made certain representations which accompanied the certificate, and which, like the offer in a letter of credit, addressed themselves to whoever should purchase the certificate thereafter. Windram v. French, 151 Mass. 547.

The scope of these representations is a matter of construction. We think the representation that the shares were non-assessable furnishes no ground of recovery, because it is not shown that the statement was untrue, or that, if untrue, plaintiff was damaged thereby.

If it be held that the representation of the certificate was that the corporation had received for the shares for which said certificate was issued $60,000 in money, or in property substantially equivalent to money, the evidence fails to show that the plaintiff at the time he received said certificate believed that the corporation had been paid therefor $60,000 in money or in property substantially equivalent to money. The evidence shows that plaintiff agreed with Dicus to buy 60,000 shares and pay therefor $2,500, four cents a share, before he saw the certificate, and that it was a part of the agreement that Dicus should give him back a written agreement to return the money at any time within six months. Dicus testified that he told plaintiff that the oil lease was transferred to the company for stock. Plaintiff denied that he was so told, and further testified as follows:

“Q. Now, you say that Dr. Dicus didn’t tell you how that stock was paid for, did he? A. No, never mentioned it.

Q. Did you ask him how it was paid for? A. Not any further as I really imagined as the property had represented that they have all that amount the payment for the capital stock.

Q. In other words, you imagined that, did you?

A. Tes, that it was paid in that way.

Q. Tou imagined there was $1,000,000 paid for?

A. Well, I took that for granted, as the certificate said it was.

Q. Tou didn’t see the certificate at that time?

A. Well, I asked Dr. Dicus whether it was or not.

Q. What did you ask him? A. I asked him if it was assessable.

Q. What did he say? A. He said it was not, it was fully paid and non-assessable. ”

Plaintiff only eight months after the organization of the company bought his stock at four cents a share, and there is a strong presumption from that fact alone that he did not then take the statement of the certificate as a representation that the company had received par for the stock, and did not then believe that the company had received par in money or its substantial equivalent for the stock. It is well settled that the representations which will enable a plaintiff to recover on the ground of a deceit, must not only be false and fraudulent, but must be believed in and relied on by the plaintiff and form a material inducement whereby plaintiff was induced to part with his money.

The verdict against Schanzé is clearly against the evidence.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Fred G. Borg, Appellee, v. J. B. Strauss, Appellant.
    Gen. No. 15,033.
    1. Contract—of employment, construed. Where one party by a written contract agrees to work for another for the term of one ■ year at a certain salary per month but his compensation is not to commence until a certain contingency happens, and he testifies that after the expiration of the year a verbal understanding was had that he should go on without a contract at an increased monthly salary, held, (1) that the court might properly find a new agreement to exist and (2) that either party might terminate the employment under such new agreement at the end of any month.
    2. Practice—when proposition of law does not involve finding of facts. A proposition which reads that if the court finds certain facts therein set forth to exist, then the law applicable thereto is as therein set forth, does not involve a finding of facts under section 61 of the Practice Act as amended in 1907, but is only a proposition of law.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    Kremer & Greenfield, for appellant.
    McInerney, Power & Byrnes, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of assumpsit tried by the court without a jury plaintiff had judgment for $1,151.90, and the defendant appealed.

October 15, 1903, the parties entered into an agreement in writing, the provisions of which involved "in this controversy are as follows:

“Memorandum of Agreement, made and entered into this day by and between J. B. Strauss, party of the first part, and Frederick Borg, party of the second part, both of the City of Chicago, County of Cook and State of Illinois, Witnesseth:
‘ ‘ That, Whereas, said party of the second part is a Civil Engineer and desirous of obtaining permanent employment as such; and,
“Whereas, said party of the first part is also a Civil Engineer and the inventor and designer of an Improved Bascule Bridge, an Improved Viaduct and other improvements, and the owner of Letters Patent thereon; and whereas said first party is engaged, together with other engineering work, in the promotion and sale of his various designs and improvements;
“Now, Therefore, the parties hereto agree as follows : Said party of the first part agrees to accept the services of said second party as assistant engineer in charge of the office of said first party and in charge of such engineering work as is being carried on from time to time by said first party, but it is distinctly understood and agreed that said second party shall receive no salary or compensation for said services up to such time as said first party shall obtain a satisfactory contract or contracts for the design and erection of one or more of said Improved Trunnion Bascule Bridges, Elevated Structures, or work of like character, but when such contract has been obtained, said first party agrees to pay said second party a salary of One Hundred and Forty Dollars ($140.00) per month, payable monthly, or at such times as may be agreed upon. * * * It is further mutually agreed that this contract shall continue in full force and effect for the period of one year from the date hereof. ’ ’

It is stated in the brief for appellant that the record raises the following questions:

“I. The written agreement was kept in force by the plaintiff by continuing in the service of the defendant after it had expired by its terms.
“II. The act of the plaintiff in leaving the services of the defendant was voluntary abandonment of his agreement of employment, and, therefore, he cannot recover.”

Plaintiff remained in the service of defendant from the date of the contract up to about June 15, 1905, when he went into business for himself and thereafter only did special work for defendant, for which he was paid. Plaintiff testified to a conversation with defendant late in November or early in December, 1904, as follows: “I asked him if we were going to go on the same as we had, or what arrangement would be likely to do, and Mr. Strauss said that he would pay me $150 a month and that we should go on, no contract between us. I said that that was all right, and continued to work on that basis.” On cross-examination as to said conversation plaintiff testified as follows:

“Q. When you had this talk about $150 a month, you say, did defendant not say that he would pay you $150 a month provided he got a profitable contract for one of his designs ?

A. No sir.

Q. Did he say that he would pay you $150 a month absolutely whether he got any bridge to Mild or not?

A. Tes, sir.”

And he further testified that on a former trial of the case he may have testified that the conversation about the $150 a month took place in 1904 between October 15 and November 1.

Plaintiff put in evidence the following statement:

“ 18 1358.30 140 400 720 1758 18 2520 900 3420 1758 1662 due to May 1st, 1905.

By Mr. J. B. Strauss, May 16, 1905.”

He testified that said statement, with the exception of the words, “due to May 1st, 1905, by Mr. J. B. Strauss, May 16,1905,” was in the handwriting of defendant; that it was delivered to him hy defendant about May 16,1905, and that he wrote on it the words above quoted. He further testified that defendant said the figures “18” represented months, the figures “140” dollars, the figures “900” represented dollars, that defendant said “that was 6 months at 150 dollars.”

Defendant was shown said statement and testified that the written words were in the handwriting of plaintiff, but were not written in defendant’s presence. Asked hy his counsel whether the figures were made by him, he answered: “I don’t think so, but I would not say definitely; they don’t look like my figures. I don’t think I ever made that—I don’t know.” He further testified that he never told plaintiff that he would pay him $150 a month.

Defendant submitted and the court held the following proposition:

“2. If the court finds from the evidence that the plaintiff, by verbal agreement with the defendant, continued in the employ of the defendant, after October 15, 1904, the date mentioned therein for the expiration of the written contract in evidence between the said parties, dated October 15, 1903, and up to the 15th day of June, A. D. 1905, without any further or other agreement as to the compensation to be received by the plaintiff for his services, then the court is requested to hold as a proposition of law that the rights and liabilities of said parties, and each of them, as to the compensation to be received by the plaintiff from the defendant up to said 15th day of June, 1905, are governed and controlled by the terms of said written agreement.”

It is insisted on behalf of appellant that the court thereby found that no new agreement was made between the parties whereby plaintiff was to receive ahsolutely $150 a month, but that the rights and obligations of the parties throughout the whole period must be .governed by the written agreement in evidence. Under section 61 of the Practice Act as amended in 1907, in cases tried by the court it is the duty of the court to find specially on any question of fact, when so requested in writing. But the proposition in question does not involve any finding of fact, but is only a proposition of law.

v From the evidence the court might properly find that the parties, after the expiration of the term of service provided for in the original written agreement, entered into a new agreement, whereby plaintiff agreed to employ defendant by the month and to pay him $150 per month for his services. Under such a contract either party might terminate the employment at the end of any month. We think that the questions presented and argued by appellant as reasons for the reversal of the judgment must be determined against the contentions of appellant. The evidence is, we think, sufficient to warrant and support the finding and judgment, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    Joseph Kaukusch, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,924.
    1. Evidence—when exclusion will not reverse. Exclusion of evidence, though erroneous, will not reverse if such excluded evidence had no direct bearing upon any issues of the cause and did not result in harm to the party offering it.
    2. Instructions when refusal to give, to effect that plaintiff alighting from moving car cannot recover, erroneous. If the only negligence charged in the declaration is that the defendant negligently caused the car to be “suddenly started and moved whereby the plaintiff was thrown off,” it is error, where there is evidence tending to support it, to refuse an instruction as follows:

      “If the jury believe from the evidence that the plaintiff attempted to alight from the car in question while the car was moving, then you should find the defendant not guilty.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwkí, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 31, 1910.
    B. F. Richolson and Watson J. Ferry, for appellant.
    Tatge, Abbott & Koepke and Thomas A. Leach, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action for personal injuries in which a jury returned a verdict of $1,150 in favor of the plaintiff. Judgment was entered in accordance with the verdict, from which judgment this appeal is prosecuted.

It is contended the verdict is not justified by the evidence and is against its manifest weight, that the court erred in excluding proper evidence offered in defendant’s behalf and in refusing a certain instruction.

There is evidence tending to show that in the afternoon of July 3, 1904, the plaintiff, having with him his daughter between eight and nine years of age, was riding upon the front platform of a north-bound electric car on Halsted street near Twenty-sixth street. Desiring to get off at that street, plaintiff so indicated to the motorman, who it is said stopped the car on the northwest corner of Halsted and Twenty-sixth streets. Plaintiff’s testimony is that he stepped down on the lower step of the car and “went to turn around to get hold of my little girl, and he started up the car with a jerk and I fell off; that was the whole thing. The car was stopped when I stepped down.” His testimony is to the effect that he was thrown down "by the starting of the car, that as he fell he “turned over and over,” that when the oar was past he jumped up and looked for his daughter, that the car was some distance away, that somebody set the little girl off of the car, that he fell on the back of his head and was rolled in the mud. There is evidence tending to corroborate plaintiff’s testimony that he was “rolling on the street” while the car went on its way, that the car stopped after going a distance of from 75 to 100 feet, that the little girl was put off the car by some one unknown, and that the car then proceeded on its way. There is evidence tending to show that plaintiff received injuries of a permanent character. The defendant claims to have had no information or knowledge of the accident at the time of its alleged occurrence, and contends that the improbability of such an accident having occurred as plaintiff’s evidence tends to show it did is such as to warrant setting aside the verdict and reversing the judgment. But there is evidence which if true fully justifies the finding of the jury upon the questions of fact, and tends to show that such finding is not against the weight of evidence.

We find no error in the action of the court in excluding the testimony of a clerk in defendant’s employ as to the name of the motorman said to have appeared on a lost trip sheet of the car bearing the number said to have been that of the car from which plaintiff fell. The witness testified he had made inquiry to ascertain who was the motorman in charge of car 2714 on the day of the accident and had “made search for Joe Nilson; he is in Oakland, California;” that he had formerly made search for the trip sheet of that date of that car, but did not know where it was at the time of the trial and had made no search for it since the former search. It does not appear whether the witness ever found or saw the trip slip nor that he was familiar with its contents. The evidence excluded had no direct bearing upon the issues, and its exclusion so far as appears was in no way harmful to defendant.

Complaint is made of the refusal of an instruction offered by defendant that “if the jury believe from the evidence that the plaintiff attempted to alight from the car in question while the car was moving, then you should find the defendant not guilty.”

The only negligence charged in the declaration is that after having brought the car to a full stop to enable plaintiff to alight, and while he was in the act of alighting and using due care, the defendant then negligently caused the car to be “ suddenly started and moved whereby the plaintiff was thrown off” and injured. Plaintiff cannot of course recover for negligence not charged in his declaration. If therefore there is evidence tending to show that the plaintiff did, as the defendant contends, step or fall from the car after it had left its last stopping place and while it was in motion at a point more than. a hundred feet north of that stopping place, and was not thrown off by the sudden starting of the car after it had stopped and while he was endeavoring to alight, then the instruction should have been given. Upon a careful consideration of the entire testimony we are of opinion that there is evidence which tends to support this contention, and while it may not be necessarily nor under all circumstances negligence for one to attempt to alight from a moving street car, yet if it should be found that the plaintiff was injured in that way, whether by negligence of the defendant or not, he could not recover under the declaration.

For the error in refusing the instruction referred to, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Schaller-Hoerr Company et al., Appellants, v. Michelo Gentile et al., Appellees.
    Gen. No. 14,965.
    1. Liens—what does not affect subcontractor’s right. If the original contract was made after the Mechanic’s Lien Act of 1903 went into effect, a subcontractor is not deprived of his right to a lien because of the waiver by contract by the original contractor of all of his rights to a lien.
    2. Liens—what essential to establish subcontractor’s. In order for a subcontractor to obtain a lien he must assume and carry the burden of establishing that he has fulfilled all the requirements of the statute conferring upon him such right of lien.
    3. Liens—what does not revive right to. Held, that the putting up of a wire screen, without the request or knowledge of the owner, after the subcontractor’s contract had been substantially finished, after final payment had been demanded and treated as due by him, does not operate to revive a lien the right to which had previously expired.
    ■ 4. Appellate Court—what questions without jurisdiction of. It is not within the jurisdiction of the Appellate Court to determine the question of the validity of an act of the legislature.
    Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walker, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    Walter J. Miller, for appellants.
    Rocco DeStefano, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

Schaller-Hoerr Company filed a petition seeking a mechanic’s lien upon property therein described owned by the defendants, claiming to have furnished material used in the construction of a building upon said premises. The building was erected under a written contract by one John T. Vitullo. The appellant, Frank Scaar & Company, answered the original petition and by an intervening petition prayed for a lien in its own behalf for materials by it furnished and used in the erection of the building. The original -contract made by defendant, Michelo Gentile, owner of the premises, with John T. Vitullo, the contractor, is dated July 8, 1905. By its terms Vitullo agreed to furnish all necessary materials and to erect the building in accordance with “the draft, plans, explanations and specifications” annexed to the contract. The original price was fixed at $2,500, the last payment to be made “upon completion of work and the owner to be well satisfied that the building is free from any lien or any other unpaid bills and that the building is erected according to the plans” attached. The agreement was subsequently modified and the plans changed to include additional improvements. In his answer the contractor, Vitullo, alleges the amount due for the erection of the building to have been $5,277, of'which he was paid $4,014.56; that other sums to the amount of $619.50 were paid by said owner to subcontractors and that $644.06 is still due the original contractor.

It is urged in behalf of defendants that the rights of the subcontractors, complainants herein, were affected by the terms of the original contracts of which they are presumed to have had notice, which contracts it is claimed contained -an agreement by the original contractor to the effect that the .building was to be free from any lien. It is -contended by complainants however that the right of a subcontractor to a lien “is not dependent upon the right of the original contractor to have one,” citing Wood v. Gumm, 67 Ill. App. 518-522. The contracts in this case, original and modified, were made after the Mechanic’s Lien Law of 1903 was in force. By section 35 (21) of that law (R. S. Chap. 82), it is provided that every subcontractor shall have a lien for material or labor furnished for the contractor on the moneys or other consideration due or to become due from the owner under the original contract, “whether or not the original contractor could have obtained a lien on was by contract or conduct divested or deprived of a right to obtain a lien.” If this provision as it now stands is valid, a subcontract tor may not now be deprived of a lien by reason of provisions of the original contract between the owner and the principal contractor. Section 22 of the. Mechanic’s Lien Law of 1895 did not contain the same provision. R. S. 1899, chap. 82, sec. 36 (22). In Keeley Brewing Co. v. Decorating Co., 194 Ill. 580-593, it was said that “the lien of the subcontractor being a direct lien, its existence does not depend upon the existence or non-existence of a contractor’s lien.” In that respect however that case has been overruled in Von Platen v. Winterbotham, 203 Ill. 198-203. The case of Brown Const. Co. v. Cent. Ill. Const. Co., 234 Ill. 397-401, was “brought under the Act in reference to liens upon railroads,” not now in question. But the construction there given (p. 402) of Von Platen v. Winterbotham is “that the right of the subcontractor to enforce a lien is barred whenever the contract entered into by the owner contains an agreement that there shall be no lien.” In the Von Platen case it was said: “It is not to be presumed that the legislature intended to restrict or abridge the right of contract which the owner has, and to give a lien to a subcontractor, where the terms of the only contract to which the owner is a party are such that no lien can arise or in spite of an agreement that there shall be no lien.” The contract in that case was under the lien law of 189.5. Since that decision the Mechanic’s Lien Law of 1903 has been enacted and in it the provision herein-above quoted has been inserted, seeming to indicate that the legislature did intend thereby “to restrict or abridge the right of contract” in that respect, without regard to whether such attempted abridgement shall ultimately bp deemed constitutional or not. Its constitutionality hówever is not for this court to consider. It is our duty to follow the statute while it remains in force, and under it the subcontractor is given a lien “whether or not the original contractor could have obtained a lien or was by contract or conduct divested or deprived of a right to obtain a lien.”

It is contended in behalf of petitioner, Schaller-Hoerr Company, that the only question as to its right to a lien is, was the notice served upon defendant within the sixty days allowed by the statute. There is evidence tending to show that said petitioner’s last delivery of material for the building in controversy was upon November 15, 1905. If such is the fact, then the notice served upon the owner January 13, 1906, was within sixty days thereafter. The master however found that the petitioner’s claim in this respect is not sustained by the evidence. The remedy sought by appellant is purely statutory and the burden is on the petitioner “to prove on the hearing that he had complied with the statutory conditions precedent to his right to enforce the lien.” Crandall v. Lyon, 188 Ill. 86-91. The master finds that the materials claimed to have been delivered November 15th were in fact put into the building at least five days before that date. There is evidence which justifies the master’s conclusion and the court’s decree. In any event a careful scrutiny of the evidence makes it clear that petitioner has failed to make satisfactory proof, the burden of which was his, that the final delivery in question was made upon the date claimed and not prior thereto; has failed therefore to prove compliance on his part with the statutory requirement as to the sixty days’ notice, without which proof he is not entitled to the lien as claimed.

As to the contention of Frank Scaar & Company, it seems to be conceded that said company completed the delivery of all materials furnished by it for the building in question on or before December 1, 1905, except a wire window guard, which it appears was sent over and put on the building March 6, 1906. The intervening petition of the Frank Scaar Company for a lien was filed April 17, 1906. Section 33 of the Mechanic’s Lien Act requires a petition to be filed or suit to be commenced to enforce a lien created by sections 21 and 22 of the Act within four months after final payment is due the subcontractor. Unless this is done no such lien can be enforced. It appears that demand for final payment of the Frank Scaar Company claim was made about December 1, 1905, more than four months before the intervening petition of April 17, 1906, was filed. It appears from the testimony of the Scaar Company’s president that on March 6, 1906, he sent over a wire window guard which he says had been forgotten or overlooked, and had it put in place over a window. His attention he says had been called to the omission several days before when passing the building, and this, he says, “caused me to examine my contract and I thought if legal steps were necessary in the case that I had better finish the contract before beginning same.” No one requested him to send over the wire guard and apparently the owner of the building had no notice that it was to be done. It was not delivered to any one, merely put up without the owner’s permission or knowledge. Evidently it was placed on the building in contemplation of this proceeding to enforce a lien. The company’s president in substance so testifies. Unless something of that kind could be found to revive it, the lien was lost at the time the wire guard was sent over. The work of putting it up, according to the witness who did the work, “consisted of driving staples in the window.” There was absolutely no proof of acceptance by any one. We are of opinion that putting up this wire screen or guard after the contract had been substantially finished, after final payment had been demanded and treated as due by the petitioner, should not be deemed effectual to revive a lien the right to which had previously expired.

The decree of the Circuit Court will be affirmed.

Affirmed.


text:
    Margaret Dwyer, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,971.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Instructions—when will not reverse as erroneously assuming relation of passenger and carrier. Held, that even though the instruction in this case did erroneously assume the existence of the relation of passenger and carrier at the time of the accident, namely, at or about the time the plaintiff had alighted from the defendant’s car, yet such error would not reverse because of the instructions asked and given at the request of the defendant.
    3. Instructions—what need not contain. It is not necessary to repeat in each separate instruction a proposition once clearly stated in others of the same series.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    John E. Kehoe and C. LeRoy Brown, for appellant; John R. Harrington, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

Plaintiff recovered a judgment for $2,500 against defendant in an action for personal injuries. Defendant appeals. The declaration consists of one count charging that plaintiff was a passenger upon one of defendant’s street cars running on Archer avenue, Chicago; that defendant stopped the car to permit her to alight and that while promptly attempting so to do and while in the act of alighting, but before she had fully gotten off the car and while she was exercising ordinary care, and caution for her own safety, the defendant “negligently and improperly started said car forward suddenly and violently” and plaintiff was thrown violently upon the ground, receiving injuries complained of.

It is contended in behalf of defendant that the verdict is not justified by the evidence. There is evidence tending to show that at the time of the accident the plaintiff was over sixty years of age. The version of-the accident given by the evidence in her behalf is that when the car stopped at the junction of Archer avenue and Loomis street she was riding near the middle of the car; that it was an open summer car, the seats of which ran across the car facing each other; that she stepped down upon the foot-board running along the side of the car, and she testifies that she had put her right foot on the ground and her left foot was still “on the running-board of the car ready to step off” when the bell rang and “the car started west with a lurch.” She says she “had hold of the front end of the car” with her hand, but “had no way to recover” herself; that she “was thrown violently” and laid on the pavement until picked up; that she “fell hard and didn’t know anything for a moment.” There is other testimony corroborating plaintiff’s story. One of these witnesses states that plaintiff “was just getting her foot down when the oar started off;” another, that he was on the car, getting off at the same time and was behind her; that he “got off the car and the lady had one foot off and one foot on the foot-board, and the conductor pulled the bell and the car gave a jerk and I went off. She fell.” A third witness testifies that “the oar stopped and the old lady got up to get off and the conductor rang the bell before she was off onto the street, and she fell.”

The defendant’s contention is that the plaintiff had gotten off and was entirely free from the car, apparently standing safely alongside of it, and that just as the car started up again she seized hold of one of the hand-rails, for some reason not appearing. One of defendant’s witnesses testifies that “after the" lady got entirely off the car she kind of lost her balance and she grabbed the handle again and the car started np as she grabbed the handle and she fell.” Another says he did not see plaintiff on the car at all, but first saw her standing on the ground beside the car “about two or three feet back of the front of the car;” and “as the car started up the lady went against the car” and he “thought she intended to get on;” that “the car went on a little ways and the lady fell back into the street backwards;” that he “don’t know that she had hold of the car, but seemed as if she was going to catch ahold of the car.” A third of defendant’s witnesses says plaintiff was on the ground “and it seemed as though she suddenly changed her mind and got ahold of the handle and at that time the conductor gave the bell to start off and she fell.” On cross-examination he says he “did not see her take any step in any direction from the time she stepped off until she fell.” The conductor’s version is that when “everybody was off I happened to see a lady getting off the car. She got off the car and as I saw her let go I gave the bell to go and just as soon as I gave the bell to go she happened to grab hold again. I tried to stop as quick as I could, but in the meantime she had fell before it stopped.” The car only went a little over half its length.

It will be seen from this review of the evidence that it is conflicting as to the position of the plaintiff when the car started. The version of the defendant tends to show that she might have gotten both feet on the ground, but had not gotten her balance, and that to do this and prevent falling she stretched out her hand to the car, which started upon the instant. If we accept this theory it was still a question for the jury whether the ear was negligently started before plaintiff had gotten safely on her feet upon the ground, thus causing her injuries. There is evidence which sustains the verdict on the question of negligence and no reason appears why we should interfere with the finding of fact on that issue.

It is urged that there are errors in the instructions which require reversal. The first of these alleged errors is that an instruction given at plaintiff’s request assumed that plaintiff was a passenger, whereas it is argued, if she had “completely alighted from appellant’s car at the instant the car started, she had then ceased to be a passenger and was not entitled to claim that high degree of care required of a common carrier toward one sustaining the relation of passenger.” Substantially the same instruction was considered in Chicago City Ry. Co. v. Shreve, 226 Ill. 530-539, where it was sustained. It is insisted however that in the case at bar there is a controversy as to whether at the time of the accident the plaintiff had not ceased to be a passenger, and that the instruction in this case therefore is open to objection. But it is the theory of the plaintiff that she was still a passenger when the car started. The relation of carrier and passenger would terminate if the passenger had safely alighted in a safe place. Plaintiff’s contention is that she had not so alighted at the time the car started and was still a passenger, to whom the defendant still owed all the obligations due one occupying such relation. Plaintiff was entitled to have the jury instructed as to the law applicable to her theory of the case. Fitzgerald v. Benner, 219 Ill. 485-499. The instruction however is not in our view open to the objection that it fails to limit the duty of the “carrier to do all that human care, vigilance and foresight can reasonably do” to passengers. It is said in defendant’s brief, “Of course in law such a duty was only to a passenger, but the instruction did not say so.” We think that in substance it does say so. It states that if the carrier neglects its duty as therein defined, it is responsible for such neglect “if the passenger is in the exercise of ordinary care;” that while a common carrier is not an insurer “of the absolute safety of its passengersit does undertake “to exercise the highest degree of practicable care to secure the safety of its passen gers,” and is “responsible for the slightest neglect directly resulting in injury to the passenger.” The instruction did not direct a verdict and the objections urged are not we think well taken. Even if the instruction be regarded as erroneously assuming plaintiff was a passenger at the exact time the accident occurred, we agree with plaintiff’s counsel that the alleged error must be deemed cured by an instruction given at defendant’s request, in which the jury were told in substance that if they believed from the evidence the defendant' allowed the plaintiff time to alight from the car in safety, that she did so alight and was on the ground in a position of safety when the car started, and that afterward her fall was brought about by her own negligence and without negligence of the defendant, then the defendant should be found not guilty. In this instruction there is no reference to whether plaintiff was or was not a passenger, and the question was submitted whether plaintiff was injured in consequence of her own negligence and whether she was in fact clear of the car when injured, and the jury were told that if she was so, she could not recover.

The next instruction complained of told the jury in substance that if they should believe from the evidence that plaintiff while in the exercise of ordinary care was injured as a direct result of negligence of defendant as charged in the declaration, if they believed from the evidence defendant was so negligent, then defendant should be found guilty. A similar instruction is approved in C. & A. R. R. Co. v. Fisher, 141 Ill. 614. It is urged this instruction is erroneous because it ignored “the essential element that plaintiff be a passenger at the time of the injury.” The instructions as a whole did not, as we have indicated, ignore that element. It is not necessary to repeat in each separate instruction a proposition once clearly stated in others of the same series. The instruction complained of referred to “the negligence of the defendant as charged in the declaration.” The negligence so charged is alle'ged to have caused injury to plaintiff as a passenger. The case in our opinion differs materially from C. B. & Q. R. R. Co. v. Mehlsack, 131 Ill. 61, cited by defendant’s counsel. In that case the “main controversy at the trial was as to whether the plaintiff at the time he was injured was a passenger on said train or a, mere traspasser seeking to obtain a ride without the knowledge or consent of the defendant” and “without paying fare.” In the case at bar it is not questioned that plaintiff was a passenger in good faith while alighting from the car. Under the defendant’s own evidence the jury were authorized to believe that even if plaintiff had actually gotten off the car, she might have grasped it again because she had not gotten so firmly on her feet as to secure her balance on the ground before the car was started, and that the starting under such circumstances was negligence toward a passenger who had not then been able to entirely sever the relationship. There is a wide difference between the two cases. In our opinion the alleged error could not have misled the jury, and for this and other reasons is not cause for reversal in the case at bar.

It is urged the damages are excessive. No good purpose can be served by a review of the evidence relating to the nature and severity of the plaintiff’s injuries. It must suffice to say the finding of the jury in that respect is justified by the evidence.

It is urged that there are errors in the admission of evidence relating to an impacted fracture of the neck of the femur on the ground that no connection, as it is claimed, was shown between the accident and this alleged fracture. There is however sufficient evidence to warrant the jury in believing that such fracture resulted from the accident in controversy. There is no reason found in the evidence which warrants belief that it had any other cause or origin, and all the evidence as to plaintiff’s injuries tends to show that the leg was severely bruised and injured by the accident in controversy. It can serve no useful purpose to further extend this opinion to follow counsel in the detailed consideration of the evidence claimed to have been erroneously admitted. We have considered it with care and find no reversible error. The judgment of the Circuit Court must be affirmed.

Affirmed.


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    Edward Scofield, Appellant, v. Marinette Saw Mill Company et al., Appellees.
    Gen. No. 15,009.
    1. Res judicata—when order interlocutory. Held, that the order in question in this case approving the conclusions of the master as to law and fact and referring the entire cause to him to state an account, etc., was merely interlocutory and did not fix and establish the rights of the parties so as to enable the invocation of the doctrine of res judicata.

    2. Corporations—burden to establish misappropriation by officers. A stockholder who charges misappropriation of corporate funds by officers of a corporation must assume and carry the burden of establishing such misappropriation.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 31, 1910.
    Rehearing denied April 10, 1910.
    Statement by the Court. The complainant, appellant herein, filed a bill in the Circuit Court in which among other things it is alleged that complainant was •a stockholder and director of the defendant company, a corporation organized under the laws of Illinois, having a capital stock of $100,000 represented by 1,000 shares, the par value of which is $100 each. Of these shares the complainant owns 250.
    The bill sets forth at considerable length the history of the company, which for the purposes of this case it is not necessary to here relate. It is stated that the business of the Marinette Company since its organization up to the time the bill was filed, has been the operation of two saw mills located at Marinette, Wisconsin, which it purchased and owned, and the disposal of the lumber sawed. The complainant alleges that he was superintendent of these mills and had entire charge of their operation. While they were operated under his direction as superintendent, correct hooks of account were there kept. These books by direction of Turlington W. Harvey, president of said company and a defendant herein, were subsequently forwarded to the general offices of the company at Chicago. General books of account were kept at the general offices under the direction of said Harvey, which it is charged pretended to contain the entire business transactions of the company, but “were not correctly or accurately or honestly” kept. The business is alleged to have been very profitable, and it is averred that out of its business during the first three years of its existence, the company paid $75,000 with interest for the purchase of mill number one; that the mill meanwhile, out of the profits of the business, was largely increased in capacity and value and was well worth $100,000 after the purchase price had been paid in full, and was treated as paying in full the original subscriptions to the capital stock which was then issued to each of the subscribers or their assigns full paid and non-assessable; that in addition the profits enabled money dividends to be declared, which were by common consent of the stockholders left in the treasury of the company, and amounted during said three years to about $10,000; that until January 1, 1891, the business continued to be prosperous so that the net profits averaged at least the sum of $25,000, and in addition the company was enabled to and did purchase and pay for mill number 2 at DePere, Wisconsin, and its removal and reconstruction at Marinette. It is alleged that for the years 1887, 1888 and 1889 there was actually paid out to the stockholders in money dividends more than $70,000, and that there was earned over and above all expenses and should have been declared as dividends during the year 1890 at least $34,000. It is further averred that in the Spring of 1891 complainant leased the mills for the year beginning January 1, 1891, and ending January 1,1892, and that during that year from about April 15th to November 15th he paid the company out of the earnings of the mill as rental about $20,000, and at the close of the sawing season turned over the mills to parties who purchased them in first-class order and repair.
    Complainant further alleges that until he leased the mills he had received a salary of $1,800, and it was his habit in addition to draw money with the consent of the directors as needed by him, and make settlement therefor when dividends were declared; that in 1890 knowing the company to be doing a prosperous business, and with the like consent of the directors, he drew money from time to time, expecting as before to make settlement with the company when 'he should receive the dividend for that year; that the amount so drawn by him was $10,000; that no dividend was declared for that year and no settlement made therefor; that after the agreement to lease the mills to him was made in the Spring of 1891, and after he had entered into large contracts on that account, said Turlington W. Harvey as president of the company refused to execute and deliver the lease as agreed upon until complainant should execute and deliver his notes for the money so drawn by him, with interest; that complainant protested that if a correct accounting was had and a proper dividend declared, he would not be indebted to the company except possibly for a small amount, which he was ready and willing to pay.
    Complainant says that then for the first time he was told by said Harvey that said company was largely indebted to the T. "W. Harvey Lumber Co. for between $60,000 and $70,000; that said Harvey admitted he could not then state on what account said debt had accrued, but would cause an investigation to be made and would explain fully to complainant the business of the company, but that meantime he would decline to execute the lease to complainant unless the latter should execute and deliver said notes; that if this was done and upon final accounting it should appear that anything was due complainant he would be credited accordingly. Complainant says that under protest he did thereupon execute and deliver to the Marinette Company his notes aggregating about $10,000, maturing about July 20, 1891. It is alleged that when said notes matured complainant refused to pay them, until he had a statement of the condition of the company, an adjustment of its business, and credit upon the notes to which an accounting would show him entitled; that said Harvey visited complainant at Marinette and told the latter he need not pay the notes at that time, but could renew them so as to have them fall due at different dates in October and November, 1891, and in the meantime he would be advised of the exact condition of the company’s affairs and credited with whatever a just and fair accounting should show him to be entitled; that relying on this promise he executed arid delivered new notes.
    It is further set forth that there was a subsequent sale of the mills for a total of $67,000, to which complainant reluctantly consented; that the money from the sale was paid to said Harvey, who insisted that all the assets of the company had been or would be exhausted to pay its debts. Complainant alleges that no such legitimate indebtedness existed and that there was never any occasion for the Marinette Company to become indebted to the T. W. Harvey Lumber Co. or any other corporation, the profits of the Marinette Co. having been at all times more than sufficient to pay all legitimate indebtedness.
    Complainant avers that he has persistently attempted to obtain a settlement and accounting with the Marinette Co. without success; that he has been furnished with what purports to be a transcript of the account of the Marinette Co. with the Harvey Lumber Co., which however does not show the items constituting alleged cash transactions; that it is claimed by said Harvey that the T. W. Harvey Lumber Co. furnished the Marinette Co. as its banker with large amounts of • money, for which large interest balances have been charged: that these transactions are fictitious and were run into said account for the sole purpose of cheating and defrauding complainant.
    It is alleged that suit has been brought on complainant’s notes in the federal court in this district, and is charged on information and belief that said Harvey is in great financial straits, and that with the consent of his fellow-directors in the Marinette Co., other than complainant, said directors being his two sons and his father-in-law, he has appropriated money of the Marinette Co. to his own use, on the pretense that said company is indebted to said Harvey Lumber Co., of which said Harvey is the alleged owner.
    Complainant therefore prays for an injunction restraining collection of his said notes, for a receiver to collect the accounts and take charge of the property of the Saw Mill Company, wind up the company and distribute its assets under the direction of the court.
    Defendants answered denying the material allegations of the bill, asserting that the business of the Marinette Co. was not profitable during the years 1889 or 1890,' setting forth at length the manner in which its affairs have been conducted, and denying that complainant is entitled to the relief sought.
    The cause was referred to a master, whose report was adverse to the defendants. Subsequently, February 13,1907, the exceptions of the defendants to the report of the master were overruled and the cause re-referred for such further proof as any of the parties should desire to offer, the master to report the same with his conclusions upon the law and the evidence without prejudice to the right of complainant or defendants hereafter to file objections and exceptions to any and all findings or conclusions.
    Upon the 6th of January, 1893, a stipulation was filed, whereby it appears that a judgment was on January 5,1893, entered in the United States Circuit Court for the Northern District of Illinois in favor of the Marinette Saw Mill Company against complainant for $12,113.35. It Aas stipulated that by consent an order should be entered restraining the Saw Mill Company from levying execution upon and from assigning that judgment, and from commencing any suit thereon at law or in equity until the final disposition of this suit. An injunction was thereupon issued in accordance with the stipulation.
    On March 17,1908, a final decree was entered in the Circuit Court dissolving the injunction order of January 6,1893, and dismissing the bill for want of equity. From that decree this appeal is prosecuted.
    Horace G. Stone and Ira C. Wood, for appellant; Spooner and Ellis, of counsel.
    Herrick, Allen, Boyesen and Martin, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

This cause having been referred to a master, the latter reported among other things that he could not now from the books of the Marinette Saw Mill Company and the testimony make an accurate or complete statement or account showing all the transactions of the Saw Mill Company from the time it began its business until the time of filing the bill of complaint; that complainant is entitled to have from the defendants and principally from defendant, Turlington W. Harvey, a complete and detailed explanation of all the transactions of the Saw Mill Company and of all the items appearing upon the books of the Company, particularly the books kept at Chicago, from the time when the company began business to the time of filing the bill; that there are so many entries that are without any explanation or description that the master could not draw oíf a correct statement of the account that would be clearly supported by the record, and that he thereupon directed that as to all items to which objections were made evidence should be introduced. The record was thereupon on defendant’s motion certified to the court.

The defendant’s objections and exceptions are in part to the effect that the master erred in finding that all the items appearing on the company’s books could not be understood and that an accurate and complete statement cannot be made; that the master erred in finding as a matter of law that complainant is entitled to have from defendants and particularly from Turlington W. Harvey a complete and detailed explanation of all the transactions of the Saw Mill Company and of all the items appearing upon the books of the Company from the time it began business to the date of filing this bill; that the master erred in not finding that the evidence introduced on behalf of the complainant does not sustain the allegations of the bill that the books of the company were fraudulently kept for the purpose of concealing the result of its business, or that the defendants wrongfully profited in the property or assets of the.company for their own benefit; that the master erred in not finding that from all the evidence taken before the master it is shown the defendants have not wrongfully misappropriated any of the property or assets of the Saw Mill Company, and that the report is in other respects erroneous. These exceptions were argued before Judge Honoré, then sitting as chancellor in the Circuit Court, by whom it was ordered of date Feburary 6,1907, as follows: “It is hereby ordered that said exceptions and each of them be overruled; that said master’s report as to the conclusions of law therein contained be approved and confirmed and that this cause be re-referred to the master to take such further proof as any of said parties may desire to offer, and to report the same, together with the evidence heretofore taken in this cause, with his conclusions upon the law and the evidence without prejudice to the right of complainant or defendants hereafter to file objections and exceptions to any and all findings or conclusions of said master which may be made upon further hearing of this cause, or which may be contained in a further or final report filed by said master in this cause.”

Upon the second accounting the master reported inter alia that “there was imposed the burden on the .defendants of producing a valid and complete statement which should embrace all of the transactions shown in said (defendant’s) books and explain the items objected to that did not show what they were.” The master thereupon “ordered the defendants to file such complete report and to produce vouchers or evidence in support of the items objected to by the complainant and as to which the objections were sustained by the master.” This the defendants declined to do and thereupon the master reported that the contentions of the complainant should be sustained and the defendants adjudged “indebted to the complainant in the amount by him named and stated to be $5437.51.” To this the defendants objected and exceptions were argued before Judge Carpenter, then sitting as chancellor, by whom the defendants’ exceptions were sustained and the bill dismissed as herein-before stated.

It is first contended in behalf of the plaintiff that Judge Honoré’s order of February 6, 1907, “was a final order which fixed the liability of the defendants to account for the Marinette Company assets” and that the succeeding chancellor had no power to set it aside on March 17, 1908, when the judgment appealed from was entered. The argument is that the order of February 6,1907, sustained the master in holding that complainant was entitled to “a complete and detailed explanation of all the transactions of the Saw Mill Company and of all the items appearing on the books of the company” from the defendants, that this order finally settled the law of the case in that respect, that it was a final order never appealed from nor vacated, and therefore still in full force and effect, and that it was too late to set it aside when the final decree appealed from was entered. It is said this view was sustained by Klein v. Independent Brewing Co., 231 Ill. 594-603. We are unable to concur in the contention of complainant’s counsel. The order of February 6th, while approving the master’s conclusions of law, contained no express reference to or approval of any other part of the report. It was simply, as we understand it, an expression of approval of the master’s view of the law applicable as expressed in his report, but at the same time it referred the entire cause for further proof without prejudice to the right of the parties to except “to any and all findings or conclusions of the master” upon any and every feature of the case “in a further or final report.” No further proof seems to have been offered and the master thereupon made a final report, to which exceptions were argued upon the final hearing before the chancellor who entered the final order appealed from, which for the first time “finally fixed the rights of the parties.” Klein v. Ind. Brew’g. Co., supra, p. 603. The order of Judge Honoré was in our opinion merely interlocutory.

It is contended in behalf of complainant that the defendants must account. On the other hand it is argued that the only theory upon which the bill can be maintained is as a stockholder’s bill to recover property of the corporation alleged "to have been fraudulently. misappropriated by appellees. It is urged that there is no evidence in the record to establish the allegations of fraud contained in the bill. It seems to be conceded by complainant’s counsel that the books of account of the corporation were honestly kept up to January 2, 1889. But the claim seems to be that from and after that date fraud was committed in that respect. We find no reference to evidence which can fairly be said to establish that contention. It seems to be conceded as a matter of law that “if Scofield claimed that transactions were improper, the burden was on him to prove it;” but it is said that while this is good law “it does not take effect in this case until-defendants produce a set of books or an account which describes those transactions so that Scofield can tell what they were.” No authorities are cited in support of this contention. It is said that Brown v. DeYoung, 167 Ill. 549, was similar to the case at bar and sustains complainant’s contention. An examination of that case does not bear out complainant’s contention. There the misappropriation of the corporation’s assets for salary not authorized was established by competent proof. No competent evidence justifying a finding that there has been any misappropriation in the case at bar for any purpose by any of the defendants has been called to our attention, in this voluminous record. The complainant seeks to recover from the corporation itself as well as the other defendants, assets suspected rather than proved to have been misappropriated, and in effect says to the defendants, “I do not know that you have been guilty of such misappropriation, but I think you must have, been and I call upon you now to prove yourselves not guilty by explaining all the entries in the books of the corporation which seem to me suspicious, although said books appear to have been regularly kept and to have been open to my examination at all times as a stockholder had I so desired.” The master found with reference to the operation of the mills as shown on the Chicago books that the totals agree with the totals on the Marinette books kept under the supervision of the complainant, that these sets of books harmonize, that the books of the company show profits during the first three years of the company’s business which were used in payment for the company’s saw mills and dividends sufficient in amount to pay up the company’s stock; bnt that after that time until the mills were disposed of in 1891 and the active business of the corporation ceased, it appeared from the books and testimony that no profits were realized and that it was this which induced the company to sell the mills and other property; and that the amount realized from such sale, about $67,000, was applied in discharge of existing liabilities of the corporation.

It further appears from the master’s finding that in 1890 the saw mills company acquired logs from the defendant Harvey Lumber Company for about $153,-000, and that said lumber company furnished the Marinette Co. funds to the amount of about $85,000 to purchase other logs; that the Marinette Company did not at any time have sufficient finds on hand to pay for the large quantities of lumber it bought and to meet the expenses of its mills. The Lumber Company as there is evidence tending to show acted as financial agent for the Marinette Company and negotiated its paper. This is undisputed, and without evidence tending to show any wrong doing, it is sought to put the burden upon the Lumber Company and other defendants of explaining the many items of this account in detail, to prove affirmatively that there has been no wrong doing. This does not appeal to us as equitable under the circumstances of the case, especially where as here no fiduciary relation is shown to have existed toward complainant by all these defendants whom it is sought to compel to assume the burden of exonerating themselves from a charge of misconduct as to which there is no competent evidence.

The view of the master that not all the items on the books of the corporation can now be understood is based upon the testimony of certain expert witnesses. This, however, is the extent of their evidence to this effect and furnishes no affirmative proof of wrong doing. It appears from other testimony that the books correctly represent the condition and results of the company’s business, and some of these alleged unintelligible entries appear to have been subsequently explained.

We cannot undertake to review further the evidence in detail. It must suffice to say that inasmuch as no proof of fraud or misappropriation on the part of the defendants appears, we are of opinion the bill was properly dismissed. The" decree of the Circuit Court must therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. Oscar Peterson, Plaintiff in Error.
    Gen. No. 5147.
    1. Jurors—when talesmen may he called to complete panel. If less than twelve of the jurors upon the regular panel are in attendance, it is proper for the court to order talesmen called into the box to fill the panel.
    2. Jurors—when irregularity in selection will not reverse. An .irregularity in the selection of the jurors does not require the reversal of the judgment founded on their verdict, unless it appears that the complaining party has been in some way prejudiced.
    3. Dram-shop Act—what violation of statute prohibiting selling of intoxicating liquors in anti-saloon territory. The taking of orders for intoxicating liquors within anti-saloon territory is a violation of the statute prohibiting the sale of intoxicating liquors. in such territory.
    4. Evidence—when parol evidence of license competent. Proof of a license may be made by the oral testimony of an officer to whom such license was shown by the defendant upon request made at his place of business.
    5. Instructions-—when slight errors mil not reverse. Slight errors in instructions will not reverse if the judgment rendered is just.
    Prosecution for unlawful sale of liquor. Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Opinion modified and refiled, and rehearing denied April 13, 1910.
    J. E. Goembel and Johnson & Johnson, for plaintiff in error; Walter E. Healy, of counsel.
    Harry B. North and Charles W. Ferguson, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Oscar Peterson, plaintiff in error, was convicted in the court below under the 1st and 17th counts of an indictment which charged him with the unlawful sale of intoxicating liquor within the town of Rockford while the same was anti-saloon territory, he not then and there having a permit or license to sell intoxicating liquor for medicinal, mechanical, sacramental or chemical purposes, the indictment being under the act of 1907 concerning anti-saloon territory. Plaintiff in error was sentenced to pay a fine of $100 and tq be confined twenty days in the county jail under the 1st count, and to pay a fine of $50 under the 17th count and was ordered to stand committed till the fine and costs were paid. This is a writ of error to review said judgment. Some of the questions presented by plaintiff in error have been discussed in People v. Brown, 150 Ill. App. 365, and we need not here repeat what was there said.

When the jury was called into the box the trial of this case, only nine jurors responded, the others being absent from the court house so that they could not be brought in without an adjournment of the court. It is implied that twelve jurors were out considering another case. The court ordered three talesmen called into the box to fill up the panel of twelve for the trial of this case, and the jury box was so filled. Plaintiff in error objected to this course and insisted that twelve jurors from the regular panel must be in the box before plaintiff in error was required to go to trial. This objection was overruled and plaintiff in error excepted. Section 13 of chapter 78 of the Revised Statutes, relating to jurors, provides that when, by reason of the absence of any juror for any cause, the regular panel is exhausted, the court may direct the sheriff to summon a sufficient number of persons having the qualifications of jurors to fill the panel for the pending trial. This authorizes the course here pursued. Moreover, it does not appear that plaintiff in error exhausted his peremptory challenges or that he was in any way harmed by the course pursued. An irregularity in the selection of jurors does not require the reversal of a judgment founded on their verdict, unless it appears that the defendant has been in some way prejudiced. Siebert v. People, 143 Ill. 571.

The evidence showed that the town of Rockford became anti-saloon territory as the result of an election held on April 7, 1908, After the anti-saloon territory act became operative in the town of Rockford, plaintiff in error had a place of business, and various witnesses came there for beer and signed beer cards or orders which he procured for them to sign. Some of the witnesses knew that the order was addressed to Franz Brothers Brewing Company of Freeport. Others did not know what the order contained, except that it was “a, steady order for beer.” Within a day or two after plaintiff in error received such an order, he delivered beer in cases to the customer in the town of Rockford. The beer, some of it at least, came in cases shipped from Franz Brothers Brewing Company' of Freeport and addressed to the customer in care of plaintiff in error. Plaintiff in error received and delivered the beer and on the 15th of each month collected the pay therefor. It was proven that this was lager beer and that it was intoxicating. Plaintiff in error contends that under the authority of City of Carthage v. Duvall, 202 Ill. 236, and People v. Young, 237 Ill. 196, the title to this beer passed to the customer in Freeport, and that as Freeport was not charged or proven to be dry territory, no conviction can be had. The question here is not whether the Franz Brothers Brewing Company sold intoxicating liquor in dry territory, but whether plaintiff in error did any of the acts which, under sections -12 and 13 of the act in relation to anti-saloon territory, would make bim guilty of an unlawful selling of intoxicating liquor in dry territory. Among the acts which the statute declares to be such an unlawful selling is the taking of orders for the sale or delivery of intoxicating liquor within anti-saloon territory. It is clear that the plaintiff in error took such orders in dry territory, filled the orders in dry territory, carried the accounts himself, and collected the pay therefor in dry territory. As to some of the orders which plaintiff in error so took and filled, the persons ordering and receiving the beer in dry territory knew no one in the transaction except plaintiff in error. We conclude that the principles laid down in the cases cited do not apply to the facts of this case, so far as the question of the guilt of plaintiff in error is concerned, and that this proof warranted his conviction.

Oral proof was admitted of the contents of a record in the office of the collector of internal revenue in Chicago, or rather, what may be called an examined copy thereof was admitted in evidence, tending to show that O.- W. Peterson, whose place of business was 1301 Fourteenth avenue, Bockford, paid a tax as retail malt liquor dealer on October 1, 1908, and that said record, under the heading “Serial No. of stamp,” had the figures “9005.” It was also proved orally that plaintiff in error was also known as O. W. Peterson; that bis place of business was 1301 Fourteenth avenue, Bockford; that a police officer asked plaintiff in error to see his government license, and that plaintiff in error produced and showed to the officer what the latter called a revenue tax sheet, which bore the stamp number 9005, and which ran from October 1, 1908, to June 30, 1909, and which showed the payment of the same amount of tax as the examined copy aforesaid. This oral testimony of what plaintiff in error showed the officer in answer to his request was competent because plaintiff in error had it in his possession at his place of business and exhibited it to the officer in answer to the call of the latter for plaintiff in error’s government license, and also for the reasons stated in Com. v. Brown, 124 Mass. 318. The issuance of the license was therefore proved.

The people’s instructions were generally drawn .upon the statute, and while some times broader than was required to cover the proof in this particular case, yet we do not regard them as on that account erroneous or misleading when all the instructions given are considered as a series, except that the sixth instruction, given at the request of the people is capable of the interpretation that sales of intoxicating liquor by plaintiff in error had been proven beyond a reasonable doubt. But as the evidence for the people is clear and convincing and is not contradicted, and as the instructions given at the request of plaintiff in error very strongly stated his right to have his guilt proved beyond all reasonable doubt before he could be convicted, we are of opinion that the giving of said sixth instruction should not be considered as reversible error.

It is contended that one of the attorneys for the people made improper remarks to the jury in his argument after the close of the proofs, tending to call attention to the fact that plaintiff in error had not testified. The only language calculated to call attention to that fact was used by the court in seeking to restrain counsel for the people within proper limits, and no complaint is made here or was made in the court below as to the language used by the court. We do not think that the language used by counsel for the people was calculated to bring to the attention of the jury the fact that plaintiff in error had not testified.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


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    H. N. Frederick & Sons, Plaintiff in Error, v. The Commercial German National Bank, Defendant in Error.
    Gen. No. 5153.
    1. Corporation's—when informal transfer sufficient to pass corporate property. It is true that the law is that the title to the corporate property is in the corporation and that the stockholders own', not the corporate property itself, but the shares of stock; it is also true that to make a transaction perfect in form, conveying corporate property, the instrument of transfer should he executed by the officers of the corporation as such, pursuant to the vote of the hoard of directors; nevertheless when all the stockholders, owning the entire interest in the property in fact, have agreed to a certain course of action, and have delivered the property of the corporation pursuant thereto, a suit cannot he maintained by the corporation to recover back the property or its proceeds merely because a vote of the directors was not had and the officers did not sign the papers in their official capacity.
    2. Trover—when action does not lie. Trover does not lie if a bank in accepting the property of a corporation for trust purposes acts beyond the scope of its powers.
    Trover. Error to the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 6, 1910.
    W. T. Whiting, for plaintiff in error; D. R. Sheen, of counsel.
    . Pinkney & McBoberts, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

In this action H. N. Frederick & Sons, a corporation, declared against the Commercial German National Bank in trover for a stock of goods used in the manufacture and sale, by wholesale and retail, in the harness and saddlery business, and for outstanding accounts and bills receivable, which it is alleged that it owned and casually lost and which the bank found and wrongfully converted to its own use and collected the accounts and bills receivable and sold the goods and chattels. A very lengthy itemized bill of particulars accompanied the declaration, setting out the value of each article so misappropriated and making a total of over $50,000. The bank pleaded not guilty. Upon a jury trial the court sustained objections to much of the testimony offered, and at the close of proofs for the plaintiff, instructed the jury to find a verdict for the defendant. Such a verdict was rendered, a motion for a new trial was denied, defendant had judgment for costs, and plaintiff prosecutes this writ of error.

The stock of appellant was divided into 500 shares. It was in embarrassed circumstances. Its board of directors had been three in number, one of them had died, and W. D. Frederick and a Mr. Krenz were the remaining directors. Krenz was not a stockholder. W. D. Frederick was the secretary, treasurer, general manager and general executive officer of the corporation. On or about December 9, 1905, a meeting was held at which it is admitted in the record that all the stock was represented. Those present were W. D. Frederick, owning 188 shares; H. A. Frederick, owning 30 shares; Fannie J. Franks, owning 40 shares; Dan Baum, attorney for the administrator of the estate of H. N. Frederick, deceased, owning 55 shares; and Emma T. Frederick, who signed the agreement hereinafter mentioned as the owner of 187 shares, making the entire stock of the corporation. The shares which Emma T. Frederick represented had belonged to her deceased husband, J. E. Frederick. He had died intestate. At the date named there had been no administration on his estate, and at the trial of this case nearly three years later, there had still been no administration. If J. E. Frederick left no descendants, his widow, Emma T. Frederick-was the owner of all his personal estate, under the statute of descent, and if he left descendants, she was the owner of one-third of his estate. She therefore owned either all or one-third of said 187 shares of stock. As she professed to represent them entirely and nothing is shown to the contrary, we consider that the proof substantially shows that the entire corporate stock was represented at that meeting, and the secretary, treasurer, general manager and general executive officer was present. Erenz, the vice-president who owned no stock, seems to have been absent. The meeting was held as the sequel to various negotiations previously pending. W. D. Frederick had present Winslow Evans as attorney for the corporation. Other stockholders had their attorneys present and the Commercial German National Bank was represented by an attorney. At that meeting the following instrument was executed by all of the stockholders, each signature specifying the number of shares represented thereby:

“Whereas H. N. Frederick & Sons, a corporation, organized under the general incorporation laws of the State of Illinois, having its principal office and place of business in the city of Peoria, in the state aforesaid, is now indebted to divers and sundry persons on its certain just outstanding obligations and in the aggregate sum approximating $26,000.00 and, Whereas, said corporation is unable to meet said indebtedness, now matured or hereafter to become due, and is anxious and desirous to take some means whereby its assets can be so administered as to pay off all its just debts and realize therefrom the largest possible sum to its stockholders; therefore, to that end the stockholders of said corporation in meeting assembled do hereby vote to- authorize and do hereby authorize and instruct the proper officers of this company to convey by due form of law, all its assets, consisting of its stock of goods, patterns, cases, shelving, stencil implements and tools, now owned by it and located at its place of business, 324 South Adams St. in the City of Peoria, Illinois, together with all its outstanding notes, accounts, and other evidence of indebtedness belonging or owing to said corporation, not, however, including its certificates of stock or charter rights, to the Commercial German National Bank, as trustee, to take, hold, administer, sell and dispose of the same in such manner as in its judgment it may deem best calculated to secure the best results therefrom, and out of said proceeds so received said trustee be and is hereby authorized to first pay all its just debts pro rata now outstanding, together with the necessary costs and charges incurred by it in the execution of this trust, and the surplus if any then remaining, to be paid over to such person or persons as the stockholders, as their interests may appear. It is also one of the conditions of this agreement that said trustee is to pay out of the assets of said corporation so far as it may be able all just and lawful debts now owing by it, and to compromise and settle such debts on such terms as it may determine. It is further one of the conditions that upon the acceptance of this trust by the trustee herein all salaries heretofore paid by said corporation to any of its oEcers shall cease. This is not to prejudice rights of stockholders between themselves in suits pending.”

Shortly after the execution of this paper, W. D. Frederick, the general executive oficer and largest stockholder, and H. A. Frederick, another stockholder, went to the place of business of plaintiff in error. A representative of the bank soon after appeared there, and the executive oEcer of plaintiff in error turned over the possession of the property to the representative of the bank and turned over the keys, and the latter changed the locks on the doors and took possession. He hired W. D. and H. A. Frederick to work there and they remained in that employment till the following March. The goods were sold, the accounts and bills receivable were collected, and it is a fair inference from the proofs and from the remarks of counsel of plaintiff in error that the same were applied in professed compliance with the trust created by that agreement. On January 2, 1908, more than two years later, plaintiff in error brought this suit and it seeks to recover the entire value of the goods, accounts and bills receivable from the bank in this action. It contends, and truly, that the corporate powers are vested in the board of directors and cannot be exercised by the stockholders. Upon that basis it argues that this property was never lawfully sold and transferred to the Bank, and that the taking thereof by the Bank and selling the same and converting the same into money was an unlawful conversion. It also argues that the Bank could not lawfully act as trustee under the agreement. At the trial plaintiff in error sought to show that at said meeting the representative of the Bank made certain promises as to the manner in which the business would be conducted and by those promises secured the signatures of some or all of the stockholders, and that the Bank afterwards violated those promises, and also that the bank did not dispose of the property in the most advantageous and profitable manner.

The proof showed that defendant in error received the possession of this property from the general executive officer of plaintiff in error and in pursuance to the paper signed by all the stockholders. It is true that the law is that the title to the corporate property is in the corporation and that the stockholders own, not the corporate property itself, but the shares of stock. It is also true that to have made this transaction perfect in form the paper should have been executed by the officers of the corporation as such, pursuant to a vote of the board of directors. Nevertheless we cannot assent to the proposition that when all the stockholders, owning the entire interest in the property in fact, have agreed to a certain course of action, and have delivered the property of the corporation pursuant thereto, that a suit can be maintained by the corporation to recover back the property or its proceeds, merely because a vote of the directors was not had and the officers did not sign the papers in their official capacity. The bank cannot be held to have unlawfully received this property. It received it lawfully from its real owners and from the executive officer of the corporation, and it converted the property into money in the manner that the stockholders unanimously directed that it should be. We are of opinion that this action cannot be maintained by the corporation. If the Bank violated its trust or failed to use proper care and diligence in the disposition of the property or has paid out money contrary to the directions given by the stockholders, or has been guilty of any breach of duty, an action of trover does not furnish the remedy. If the bank acted beyond the scope of its lawful powers in accepting the trust, that fact would not subject it to an action of trover. We find no reversible error in the rulings of the court upon the evidence. The judgment is therefore affirmed.

Affirmed.


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    William A. Etnyre, Appellee, v. Froila R. Artz, Appellant.
    Gen. No. 5162.

      Instructions—When erroneous will not reverse. Held, that the use of the words “proximate cause” in the instruction complained of in this case, was clearly an oversight, and though improper would not reverse because of the fact that the correct rules of law governing the case were frequently laid down in other given instructions.
    Assumpsit. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 6, 1910.
    William P. Fearer, for appellant; J. C. Seyster of counsel.
    Baxter and Wirick, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee sued appellant for commissions claimed to have been earned in the sale of land for appellant, and recovered a verdict and a judgment for $160, from which judgment defendant below prosecutes this appeal.

The sale was in June 1905. The proof for appellee tended to show that about the first of May, 1904, appellant listed his farm for sale with appellee and authorized appellee to charge $70 per acre, but stated that he only wanted $65 per acre for himself; that appellee thereafter showed the premises' to various parties, including William T. Williams, but that Williams decided that he had all the land he wanted; that in the spring of 1905, Williams went directly to appellant and had a number of conversations with appellant about buying a part of this land, but they came to no terms because appellant desired to sell the entire farm; that in” the summer of 1904, appellant had authorized appellee to cut the farm and sell 160 acres, if he found any purchaser to whom he could make a sale in that way; that in the spring of 1905, appellee heard that Williams had been to see another farm and that Williams had arranged for a sale of his own farm and appellee then met Williams and asked him why he did not buy appellant’s farm, and commended its superior qualities to Williams, and Williams said he. would buy it if appellant would divide it to suit him; that appellee replied that he had the sale of the farm and had authority to divide it to suit a purchaser ; that Williams replied that if that was so, he would buy the farm; that they then started to see appellant, who was not far away, Williams going to his horse and buggy and appellee walking to where appellant was at work in town; that appellee then told appellant that he believed he had a man to take the farm and named Williams to him; that Williams came and asked appellant if he would cut off a certain forty acres and appellant replied that he would; that Williams then said he wanted to go down and look it over, and would go that afternoon, and he went away, and appellee then said to appellant,, “I believe he is going to take your farm,” and asked appellant if it was necessary for him, appellee, to go to the farm, and appellant replied that he did not think it was; and that on that' day a sale was closed and Williams bought 167 acres at $70 per acre. If this testimony was true, the verdict ought to stand. Appellant’s proof tended to show that it was several years before this that he put the farm in appellee’s hands to sell; that he did not put it in his hands in 1904; that appellee did not talk with Williams about it in 1904 and did nothing tending to bring about the sale in 1905. If this proof was true, appellee ought not to recover. The proof was very conflicting on many points. We do not think we should encumber this opinion with the details of the conflicting testimony. The jury believed appellee and his witnesses. The trial judge approved their conclusion. The proof is' in such a condition that a verdict either way, so approved, ought to stand.

It is argued that the court erred in modifying the first instruction given for appellant by adding thereto these words: “unless you further believe from the evidence in the case that the defendant engaged the plaintiff to sell said farm for him, and that such speaking of said Etnyre to said Williams and said Artz was the proximate cause of said sale.” The use of the words “proximate cause” was evidently an oversight on the part of the court, and standing alone they were inapplicable to the case and might be misunderstood by the jury. But the correct rules of law governing the case were so frequently laid down in other given instructions that we are of opinion that the use of these words in the modification did not influence the action of the jury.. We have considered the objections argued against the other instructions and are of opinion that when all the instructions are read as a series, the jury were properly instructed.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.