author: Mr. Justice Chytraus

text:
    David Robinson et al. v. Martha J. Ruprecht et al. Percival Steele, Receiver, Appellee, v. Martha J. Ruprecht, Appellant.
    Gen. No. 14,433.
    1. Dismissal—when does not terminate litigation. Chancery litigation is not terminated with the dismissal of the original bill. An appeal is a continuance of the cause and not a new suit.
    2. Receiverships—effect of dismissal of hill. When a hill upon whicn a receiver has been appointed is finally dismissed, without appeal, merely the legal occasion for a receivership ceases, not the receiver’s duty to the court. The duty to the court ceases only with the receiver’s discharge. The discharge should, ordinarily, concur with the entry of a final decree between the parties, but there are instances when it does not.
    3. Receiverships—when orders allowing fees not final. Receiver’s fees upon interlocutory accountings are not final. Neither are orders apparently not intended as final conclusive of the right of a party in interest to object to the aggregate claim for fees made upon the final accounting.
    4. Receiverships—propriety of allowance of counsel fees. Receivers are entitled to the aid of legal counsel if necessary for the benefit of the trust or the preservation of the fund or to protect the receiver or the estate against unjust or unreasonable attack, even by the beneficiaries of the trust; his reimbursement or allowance of expenditures for counsel, or for litigation expenses, does not depend wholly upon the result of any such attack, but the reasonableness or unreasonableness of his position taken must be considered.
    5. Receiverships—how question of fees determined. A receiver in chancery is only entitled to just and reasonable compensation for services actually rendered and no more. Chancery does not recognize that there is a profession of receivers fixing fees and there is no such thing as a customary charge which is binding upon a chancellor in determining the amount of the allowance to be made.
    6. Pbactice—what necessary to support final orders. In order to support a final order findings of fact must be contained therein or else a certificate of evidence filed which supports such orders.
    Partition. Appeal from ihe Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 4908.
    Reversed and remanded.
    Opinion filed March 26, 1909.
    ¡Statement by the Court. This is an appeal by Martha J. Bnprecht from an order of the chancellor disposing of her objections to a report of Percival Steele, receiver, in the partition suit of Bobinson v. Bnprecht. The litigation in which Steele was appointed receiver originated in a bill, filed March 4, 1896, between two brothers, a sister and four nieces of Cnrtis E. Bobinson, Sr., who died on April 20, 1892, for partition of numerous pieces of real estate of which he died the owner. To that bill» Martha J. Bnprecht, Curtis E. Bobinson, Jr., and Bessie L. Bobinson, now Howison, children of Curtis E. Bobinson, were made parties defendant and it was charged that their claim of legitimacy created a cloud upon the title to the property. However, on July 14, 1899, a decree was entered dismissing the original bill and finding the aforementioned three children to be his only heirs at law. This decree was affirmed by the Supreme Court June 21, 1901. Robinson v. Ruprecht, 191 Ill. 424.
    On May 28, 1897, Percival Steele, appellee herein, was appointed receiver of the real estate involved, being some thirty or forty pieces, a very few of which were vacant, upon the motion of the original complainants. The appointment was by consent of all the parties and he immediately filed his bond in the penal sum of $50,000 and took possession of the properties. The order of appointment required Mm to care for, manage and control the real estate; in other words, his duties were to collect the rents and manage the real estate under the control of the court.
    Although a decree, as already stated, was entered, on July 14, 1899, dismissing the original bill and vesting the title of the properties in the three children, yet the receiver continued in possession and acted as receiver, until April 12, 1902, when, under an order of court, entered upon agreement of all the parties, he turned over possession to one Caroline A. Dyckman. In that order it was provided “that the question of the settlement of said receiver’s account, and his discharge, be reserved.” During the administration of his trust the receiver filed twenty-one reports, or one each four months, as required by the order of appointment. Notice of the filing of these reports seems to have been given. No objection was filed by any one to any of the reports and accounts prior to the twentieth and those prior reports and accounts were' all approved. But, in no instance was there any contest or hearing upon these approvals. The orders of approval contain no findings of specific facts nor was there any certificate of evidence made in respect to any one of them. The twentieth, sometimes mistakenly called the final, report and account was filed on November 3, 1903. Martha J. Buprecht filed her objection to this report as follows:
    “First. Objects to said report in so far as the same seeks an allowance of $2,500 for services.
    Second. Objects to the various sums in said report mentioned, aggregating $3,000 as having been paid by said receiver to himself for his services for the year 1901.
    Third. Objects to all items paid the receiver- as salary of collector and bookkeeper.
    Fourth. Objects to all sums of money previously paid by said receiver as shown by his former accounts and reports, on account of receiver’s compensation and salary of bookkeeper and collector.”
    On June 21, 1904, the receiver, Steele, filed what is called an exception to Martha J. Buprecht’s fourth objection, “for the reason” as stated “that said objection is taken to former reports and accounts of said receiver, whereas the order of the court in this behalf directed the parties hereto to file objections to the receiver’s twentieth and final report”. On September 26, 1904, the court entered an order sustaining this exception so interposed by the receiver and directed that the report with the exceptions and objections be referred to a master “to take proofs and report his conclusions on the law and facts.” Pending the reference the master’s term expired and he was appointed special commissioner to continue hearing the matter. The commissioner’s report upon the aforesaid objections (and also upon objections by Curtis E. Bobinson and Bessie L. Howison) was brought into court on April 29,1907. In that report he finds, as to Martha J. Buprecht’s first objection, that on January 2,1902, the date of the receiver’s nineteenth report, he, the receiver, had on hand $887.58; that from that date to and including November 3, 1903, the date of this twentieth report, he collected $10,374.85 and disbursed $7,223.42, and, in addition, credited himself with $377 paid a collector and bookkeeper, thus showing an aggregate of $7,600.42 for disbursements, which left $3,662.01 on hand; that from January 2, 1902, until in April, 1902, when the possession of the property was surrendered to Caroline A. Dyckman, there were from 120 to 150 tenants, a large number of whom paid small monthly rentals of from $5 to $10 per month, and the premises were largely old frame buildings, which required constant attention from the receiver both as to tenants and as to repairs; that after the surrender of possession in April, the receiver’s services largely consisted in the collection of delinquent rents and “in winding up the receivership”. The commissioner recommended that the receiver be allowed $250 per month, i e. $875, for his services up to the surrender of possession in April, and $600 for the remaining period np to and including November 3,1903, a total of $1,475. The commissioner overruled the second objection of Mrs. Euprecht (which was to the payment by the receiver to himself of sums aggregating $3,000, in 1901, for services), because the sums “were allowed said receiver pursuant to an order of court”. Her third objection was sustained and $377, paid for salary of bookkeeper and collector, disallowed. As to the fourth objection the commissioner said, “I have disregarded the fourth objection of Martha J. Euprecht, as not referring to the twentieth report of receiver”. Everyone filed objections to this report of the commissioner, and these objections were ordered to stand as exceptions. Afterwards, on July 1, 1907, they were all' overruled and the report confirmed. As a net result of the objections to the receiver’s twentieth report, so far as the merits were passed upon, two items charged by the receiver were affected, the $2,500 for fees was cut down to $1,475 and the $377 for collector and bookkeeper was wholly disallowed. The costs of the reference were ordered to be paid one-half by the receiver and the other half by the objectors. This reference lasted about two years and considerable expert testimony was taken, 185 pages of testimony on behalf of the receiver and forty-four pages on behalf of the objectors to his report. The character of some of the testimony will later be referred to.
    It appears that, on June 5, 1905, after service of ' notice, an order was entered, upon the oral motion of the receiver, authorizing him to employ counsel in the - matter of the twentieth report and account then standing referred to a master, and, also, in the matter of a petition by Mrs. Euprecht for an adjustment of the receiver’s accounts, which petition prayed for the vacation of all the orders entered allowing fees to the receiver. Mrs. Euprecht’s petition was later eliminated, however, because dismissed by her without any hearing upon the merits. On April 1, 1907, the receiver reported to the court his employment of counsel for the aforesaid purposes and, further, that his counsel so employed had presented him with a bill for $500 for services to January 28, 1907, which the receiver asked that he might be allowed to pay. To this report and request Mrs. Ruprecht Immediately filed an answer objecting. In that answer she set up that the only question involved was the settlement of the receiver’s own compensation; that the receiver was himself a lawyer, and that the order allowing the employment of counsel was erroneous. The matter of this petition was then referred to another master. On September 30, 1907, this master filed his report allowing the sum of $500 asked saying, substantially, that no question was raised but what the services rendered were worth that sum and predicating his finding in favor of the receiver upon the fact that the court had empowered the receiver to employ a solicitor. Objections and exceptions to this report were filed and overruled; and the receiver was authorized to pay his solicitor the sum of $500, to pay the costs of this last reference, including $100 for the master’s fees, and authorized to credit himself accordingly out of the funds in his trust. The chancellor also, at the same time, ordered the receiver to file his final report within thirty days. On December 2, 1907, the receiver filed his twenty-first and final report. This report and account covers the four years from November, 1903, to November, 1907. The receiver debits himself with money on hand November 3, 1903, $3,662.01; the bookkeeper and collector’s item disallowed him, as aforesaid, returned $377; half of master’s fees, in connection with his twentieth report, charged to him by the chancellor $85.81, and collections for the trust estate $191. He credits himself with his fee allowed him $1,475; his solicitor’s fee allowed by the chancellor $500; total of the master’s costs upon the reference of his twentieth report $171.62; total of the master’s costs upon the reference as to his solicitor’s fee $129, and other disbursements for the trust estate $223.20. Thus we find receipts of $4,315.82, disbursements of $2,498.82, and a balance on hand, November 5, 1907, of $1,817. He asks that he be allowed to pay his solicitor a further sum of $300 for services rendered and that he be allowed to pay himself a reasonable sum for services rendered. To this final report Mrs. Euprecht filed objections and, upon a hearing by the chancellor, the report and account was approved except as to an item of $20 which was disallowed. By the final order entered on December 11, 1907, closing the administration of this receivership, the receiver was allowed to pay a further amount of $175 to his solicitors and $100 to himself and he was directed to make final distribution and terminate the receivership by distributing the $1,562 remaining in his hands, after making the payments allowed, in equal parts to Martha J. Euprecht, Curtis E. Bobinson, Jr., and Bessie L. Howison. From this final order approving the final report and accounting and thus closing the receiver’s administration of his receivership the three beneficiaries prayed and were allowed appeals to this court. Mrs. Euprecht, only, perfected her appeal by the filing of a bond.
    Mason & Wyman, for appellant.
    Charles Lane, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

Appellant takes the position, in argument, that upon the entry of the decree of July 14,1899, dismissing the original bill for partition, the receiver’s office and duties terminated ipso facto. It is contended that the receiver’s function and duty terminated by that action of the chancellor so that thereafter the receiver’s possession of the properties in question was wrongful and he could, thereafter, charge nothing for his services- as receiver. In the first place, counsel in taking such broad and radical position overlooks the fact that the cause did not terminate by the order of dismissal. The litigation did not cease with the dismissal of the original bill. An appeal is a continuance of a cause and not a new suit. When the bill was dismissed the defeated parties prayed and were allowed an appeal to the 'Supreme Court. That appeal was perfected and the cause thus taken to the Supreme Court continued pending there until an opinion was filed, on June 21,1901, and, thereafter, until a petition for rehearing was denied on October 23, 1901. Until the remanding order Was filed in the Circuit Court the cause was not so pending in that court that the chancellor could discharge the receiver. Flaherty v. McCormick, 123 Ill. 525, 531; Smith v. Chytraus, 152 Ill. 664. The receiver, acting as an officer of the court, had no power or authority to surrender to any one the estate entrusted to bim by the court until the chancellor had authorized or directed him to surrender it.

The property in the possession of the receiver was in custodia legis. Hooper v. Winston, 24 Ill. 354, 364. WThen a bill is finally dismissed, without appeal, merely the legal occasion for a receivership ceases, not the receiver’s duty to the court. The duty to the court ceases only with the receiver’s discharge. True, the discharge should, ordinarily, concur with the entry of a final decree between the parties; but there are instances when it does not.

A question arises as to the finality of the several orders of approval of the receiver’s reports prior to that upon the receiver’s final report. Appellant contends previous orders of approval were not final in respect to her present contentions. Appellee contends the previous orders were final and, therefore, under the doctrine of res adjudicata, preclusive of inquiry into the subjects in regard to which appellant desired inquiry to be made when the twentieth and twenty-first, or final, reports were acted upon. When the twentieth report was acted upon, and at other times, appellant contended for, but was denied by the chancellor, an investigation of the reasonableness of the previous receiver’s charges for his own services and his expenditures for fees of his solicitor. These solicitor’s fees were, substantially all, for services in defending the receiver in the contest upon the approval of his twentieth report. Certain expenditures for a bookkeeper and collector were also complained of by appellant but these were disallowed and do not seem now to be in question.

In respect to the approvals of the first nineteen reports the record shows notices were served upon those interested that the reports would be presented, but, so far as the record shows, when they were severally presented no evidence was adduced of their correctness or of what services the receiver had rendered or as to the propriety of his charges for services; in fact there was no hearing whatever upon the approval of either of these reports. Vouchers seem to have accompanied the reports, but nothing was shown as to the correctness of the vouchers and none of the reports was verified by the receiver himself. When the twentieth report was filed appellant filed objections thereto and raised issues not only upon items therein but, in connection with objecting to the item of receiver’s fees contained therein, she also contended for an investigation into the reasonableness of all amounts he had paid himself for fees appearing in previous reports. The issues raised upon that report were referred to a master and after a full hearing a report was made by the master and exceptions thereto heard by the chancellor and the master’s report was confirmed. In his twentieth report the receiver stated that no allowance had been made to him for receiver’s fees since January 11, 1902, that then an order had been entered authorizing him to pay himself, as receiver, the sum of $3,000, for his services as receiver “for the year 1901”, and he asked that he might be authorized to pay himself $2,500 for his services from January 1, 1902, to date, November 3, 1903. The receiver was mistaken in stating the purport of the order of January 11, 1902. That order was that he might pay himself the sum of $3,000 “on account” of the fees for services as receiver, generally, not for services “for the year 1901”. However, in the hearing upon the twentieth report the amount of his claim for services, from January 1, 1902, to November 3, 1903, was cut down, as heretofore stated, and appellant was refused a hearing in respect to receiver’s fees previously allowed. It is fair and just that appellant should be heard in respect to previous allowances and she was entitled to a hearing in that respect unless estopped by previous adjudication. Upon a hearing in that regard it might have developed the receiver had not been paid sufficient, or it might have developed that he had been paid more than sufficient for all his services during his entire administration. Either at that time or upon the final report she was entitled to be heard upon the aggregate of allowances and upon the aggregate value of his services. The administration of a receivership or other trust is one and a continuous matter. An order entered therein by the chancellor may or may not be final. Whether or not it be so depends both npon the intent or design in the entry thereof and upon what was actually done or considered at its rendition. If it be an intermediate order, during the administration of the trust, entered upon no evidence whatever, except the report of the receiver, or trustee, himself, it is not to be supposed that the order was intended as a final one. Here the record shows that some, if not all, of the previous allowances for receiver’s fees were “on account”. This precludes the idea of finality in respect to the allowance of receiver’s fees, so far as such orders are concerned; and the effect thereof, was to leave the subject open until the final allowance of receiver’s fees. Ad interim petitions, reports and accounts of receivers, for advice and to advise the court and the parties, are not only convenient but often necessary. Yet, to hold a judicial inquiry involving a hearing and the taking of evidence and, perhaps, an order of reference upon each separate act, report or account of a receiver or other trustee, made in the course of his administration, would be unnecessarily cumbersome and expensive. Under such practice the chancellors would be overwhelmed with intermediate hearings and the courts of review with appeals from final orders. Pinal orders are necessary, of course, upon distributions and in instances where the rights of any of the parties litigant or intervenors are finally passed upon; but they are not-necessary upon the entry of orders allowing payments, for services and incidental expenditures, to receivers. One final adjustment is sufficient in that behalf. In the case at bar, so far as the first nineteen reports and accounts are concerned, the orders confirmatory do not show that they were entered upon hearings of the parties where evidence was. adduced. Neither do these orders contain any findings of fact nor are there any certificates of evidence to sustain them, as is required in chancery procedure, in respect to final orders. This rule includes orders entered in the administration of receiverships. Heffron v. Rice, 40 Ill. App. 244, 257; Hayden v. C. T. & T. Co., 55 Ill. App. 242. We cannot regard these orders as having been rendered in invitum and, therefore, apply the doctrine of res ad judie ata. The provision that the receiver’s fees were allowed “on account” clearly indicates that such items were to be further considered. We are of opinion that the confirmatory orders upon the first nineteen reports are not preclusive upon appellant, and there was error in refusing to inquire into the items or class of items complained of and contained in those reports.

There was error in-sustaining the “exception” to the appellant’s fourth objection to the receiver’s twentieth report. The same error intervened in the refusal to sustain appellant’s exception to the commissioner’s report, in respect to this same fourth objection. By the sustaining of the “exception” to appellant’s fourth objection aforesaid, appellant was denied a hearing upon her complaint in respect to the items, or class of items she objected to in the first nineteen reports.

The chancellor had full power and authority, when the final report of the receiver was filed, to investigate and determine the correctness of all his accounts, notwithstanding previous approvals of reports and accounts for parts of the period of the receiver’s administration. Standish v. Musgrove, 223 Ill. 500, 507.

There is no room in such case as this for the invocation, by the receiver, of the doctrine of equitable estoppel.

The compensation of a receiver, as contended by appellee, must be determined according to the circumstances in each particular case. Such compensation should not be based upon the testimony of witnesses who may be willing to testify as experts upon receiver’s fees generally. Equity does not know and cannot be controlled or influenced by any custom established of a usual and customary charge, generally, by receivers for their services as receivers. Chancellors cannot recognize that there is a profession of receivers fixing its fees, as such. One of the evils that would result from so establishing a standard for receivers’ fees is shown in the case at bar. The witnesses, as here, who would testify to the custom, would nearly always be witnesses largely influenced by their selfish interests, because they themselves would be in the business of being receivers. Unfortunate litigants should not be compelled to contend against such a custom. One of the expert witnesses here testified before the master that he was the manager of the receivership department of a certain corporation and knew the usual, reasonable and customary fees allowed receivers for services rendered. Testifying upon the reference of the twentieth report and account he said that for the first year covered by that report such customary fee would be $2,000, and for the second year $1,000, and then something additional for legal services. According to the abstract he testified that, in certain of the courts here a custom in regard to such fees prevailed; that in one court the custom prevailed in derogation of the law; that in this matter, involving the collection of rents and managing these properties, “in estimating the value of the receiver’s services in the year 1903 at $1,000, I did not take into account that the receiver collected less than $500. But I do not think the value of the services could be changed. There would be $1,000 worth of services rendered, no matter what the amount might be’’. Another like witness testified: “I cannot say whether it is customary to allow for unnecessary services by receivers. The fact that the receiver gave a $50,000 bond makes a good deal of difference. Assuming the receiver gave a $5,000 bond, that ought to make a difference of $400 or $500 a year. I think a receiver should be allowed several thousand dollars compensation because he has a large bond, even though there are individual sureties”. And later: “I think the receiver ought to draw something because he was receiver, no matter whether he rendered any services or not. Sometimes it is worth a good deal to be receiver when you do not do anything for it. I don’t fix the charge as to the actual time spent.” And, referring to the charge for the second year in the twentieth report: “The important element is that he was still receiver. I have known of receivers getting paid when they did not do anything. There is a custom of that sort.” Then, referring to the period between April 15,1902, and November, 1903, this witness said: “He [the receiver] certainly should have compensation whether he did any work or not. Because the receiver is still in office and has not been discharged, the compensation ought to be still running on.”

All this evidence was incompetent and worse than useless because it took up the time of the master, the court and the parties and created an expense in the taking, transcribing and reporting to the court. Beceivers are entitled to just and reasonable compensation for services actually rendered and no more. This compensation is to be ascertained and fixed by considering the specific and particular services rendered and by ascertaining the fair, reasonable and customary charge for the rendition of such services—not, however, adding anything because rendered by one who happens to be a receiver. If the services rendered involve any clear and definite element of responsibility, that of course, when shown, would, without specification, naturally be considered in fixing the above mentioned fair, reasonable and customary compensation. Bonds of receivers are fixed in advance and frequently in anticipation that the money or property which will come to his hands will be more than subsequently does come to his hands or possession. At all events, the amount of the bond is fixed in advance when the knowl-' edge of the chancellor is not the same as it is when he finally fixes the receiver’s compensation. Therefore the penal amount of the bond should not control or have any influence in determining the amount of the receiver’s compensation. Much more fair and just data is always obtainable. There may, of course, be an allowance of any actual and reasonable expenditure in connection with procuring the surety upon the bond, if the receiver is obliged to have such expenditure.

Beceivers are entitled to the aid of legal counsel if necessary for the benefit of the trust or the preservation of the fund (Platt v. Archer, 13 Blatchf. U. S. 352), or to protect the receiver or the estate against unjust or unreasonable attacks—even by the beneficiaries of the trust. His reimbursement or allowance of expenditures for counsel, or for litigation expenses, does not depend wholly upon the result in any such attack, but the reasonableness or unreasonableness of his position taken must be considered.

So far as the record herein discloses, there was no evidence whatever adduced upon the hearing of the final report and account. The final order contains no finding of facts upon which the adjudicatory part thereof can be.sustained; neither is there any certificate of evidence in that connection. How and upon what basis the chancellor determined that $175 was a just and reasonable compensation for the receiver’s solicitor for services rendered, or how the chancellor could know that the solicitor rendered any services whatever for this $175, this record leaves totally undisclosed. It would make no difference were it otherwise, but it may be mentioned that the receiver’s final report is not verified. Nothing is shown as a basis for allowing the receiver $100 additional for services.

The final order of the chancellor, of December 11, 1907, is reversed and the cause is remanded that such further proceedings may be had as may be necessary and not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Greene-Grieb-Sherman Company, Defendant in Error, v. John C. Quinlen Company, Plaintiff in Error.
    Gen. No. 14,391.
    1. Corporations—power to deal in corporate stock. Corporations in thig state are not authorized to purchase and own corporate stock hut they may lawfully act as brokers or agents in the buying and selling of such stocks.
    2. Evidence—how fair cash value of coirporate stock established. It is competent to establish, prima facie at least, the fair cash value of corporate stock by the testimony of a witness who has duly qualified as to his knowledge of such value.
    3. CoNTBACTS^to/mi question of interpretation for court. Whether or not" two transactions of sale and purchase are independent or not, is a question of legal construction to be determined by the court and not by the jury.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 26, 1909.
    Statement by the Court. In the Municipal Court defendant in error sued plaintiff in error for breach of contract in failing to accept and pay for certain corporate stock purchased. Besides denying the breach of contract claimed, plaintiff in error presented a counter claim for loss of profit sustained because defendant in error had failed to deliver certain corporate stock it had sold to plaintiff in error. Upon a trial before court and jury there was a verdict for $302.04 returned in favor of defendant in error, and a judgment was rendered upon that verdict. Plaintiff in error now prosecutes this writ to reverse that judgment.
    Both parties are corporations and are stock brokers dealing in stocks not listed on any stock exchange. Plaintiff in error is an Illinois corporation, doing business in Chicago, and defendant in error is a Wisconsin corporation, doing business in Milwaukee, Wisconsin.
    On September 19, 1907, plaintiff in error sent to defendant in error the following telegram:
    “Chicago, III., Sept. 19th.
    Greene-Grieb-Sherman Co.,
    45 Milwaukee Nat. Bank Bldg., Milwaukee.
    We make you firm bid 2,000 Universal Pneumatic Transmission seventeen cents. Wire confirmation.
    John C. Quinlen Company.”
    Grieb, secretary for defendant in error, on the same day this message was received, called up plaintiff in error and stated that the stock could not be supplied at seventeen cents but it would be at seventeen and one-half cents and it was accepted at that price.
    Thereafter, on September 20, 1907, defendant in error sent the following telegram to plaintiff in error, viz:
    “September 20, 1907.
    To John C. Quinlen Co.,
    Offer you 2000 additional Universal Pneumatic 17%.
    Greene-Grieb-Sherman Co.”
    Upon which followed a reply and • confirmation as follows:
    “From Chicago, September 20, 1907.
    To Greene-Grieb-Sherman Co.
    We take 2000 additional Universal Pneumatic Transmission 17 1/2 confirm.
    John 0. Quinlen Co.”

      “From Milwaukee, September 20, 1907.
    To John C. Quinlen.
    Sold you 2000 additional Pneumatic Transmission 17 1/2.
    Greene-Grieb-Sherman Co.”
    A telegram, which, from the evidence, clearly relates to the 2000 shares additional, was also sent by defendant in error to plaintiff in error, as follows:
    “Milwaukee, Wis., Sept. 20th, 1907.
    John C. Quinlen Co.
    Chicago, Ill.
    In accordance with your wire order of the 20th inst. we have purchased for your account and risk the following: 2000 shares Universal Pneumatic Transmission price 17 l/2c, total $350.00.
    Faithfully yours,
    Greene & Grieb Company.”
    On the same day, plaintiff in error sent defendant in error the following letter:
    “September 20th, 1907.
    Greene-Grieb-Sherman Company,
    45 Milwaukee Nat. Bank. Bldg.,
    Milwaukee, Wis.
    Gentlemen :—
    Regarding 4000 Universal Pneumatic Transmission at 17 l/2c which we bought of you, we should like to have this in Chicago for delivery not later than Mon- ■ day morning early.
    In case you cannot make delivery by that time, wire us what day you can make delivery. This is important.
    Tours very truly,
    John C. Quinlen Company,
    By J. C. Quinlen, Prest.”
    On the next day, September 21, 1907, defendant in error sent plaintiff in error the following telegram and letter relating to the forwarding or delivery of the 2000 shares first sold:

      “From Milwaukee, September 21st, 1907.
    'Shipping 2000 Transmission to-day balance next week * * * .
    Greene-Grieb-Sherman Co. ’ ’
    “Sept. 21st, 1907.
    Messrs. John C. Quinlen Company,
    Chicago, Ill.
    Gentlemen :—
    Replying to yonr favor of the 20th inst. we have to-day shipped two certificates of one thousand shares each Universal Pneumatic Transmission stock to the Central Trust Company, 152 Monroe Street, Chicago, with our sight draft on you for $350.00 attached. Kindly honor same promptly on presentation.
    Advice regarding the delivery of the additional 2000 shares which you have purchased from us has not been received as yet. However, we expect the stock Monday or Tuesday and will not delay in forwarding it to you. If you can use more stock at this price, please advise. * * *
    Tours very truly,
    Greene-Grieb-Sherman Co.”
    The 2000 shares were sent to The Central Trust Company, Chicago, on September 21, 1907, and with the stock was enclosed a sight draft upon plaintiff in error for $350. The instructions to the bank were to deliver the stock upon payment of the draft. The draft was never paid.
    The following letters are self-explanatory :
    “Sept. 25th, 1907.
    The J. C. Quinlen Co.,.
    Chicago, Ill.
    Gentlemen :—
    Referring to your order for Universal Pneumatic Transmission stock, 2000 shares of which was forwarded to your bank on the 21st inst. we are at a. loss to understand why our draft accompanying same is unpaid. Our obligation ends with the delivery of the stock at Chicago and we must expect you to promptly honor our drafts on presentation. We have 2000 shares more here, but we see no inducement to put our money into this, unless we can secure prompt results. We have wired and telephoned you about this matter to-day, without securing a satisfactory explanation, which is rather a matter of surprise to us._
    We urge your immediate attention to this.
    Yours very truly,
    Greene-Grieb-Sherman Co.”
    “September 25th, 1907.
    Greene-Grieb-Sherman Co.,
    45 Milwaukee National Bank Building, Milwaukee, Wis.
    Gentlemen :—
    Pursuant to the conversation you had with our firm over the phone to-day, we understand that you do not propose shipping the other 2000 shares Universal Pneumatic Transmission until you receive draft for $350.00 in payment of the first 2000, and as you informed us you cannot hold the stock‘for us until tomorrow and we being unable to take it to-day, we shall have to call the deal off.
    We presumed when we bought the stock of you last week that you would be able to make delivery Chicago by Saturday, Sept. 21st, as we had promised it on that date and as we explained to you over the phone today our party has gone to New York and we did not presume there was any hurry in taking up the first 2000 shares, inasmuch as you had not completed the order, which was for.4000 shares.
    Very truly yours,
    John C. Quinlen Company,
    By J. C. Quinlen,
    President. ’ ’
    “Sept. 26, 1907.
    Messes. John C. Quinlen Co.,
    Chicago, Ill.
    Gentlemen :—
    Your favor of the 25th inst. is received and contents noted. We beg to state evidently you misunderstood our statement over the telephone yesterday as regards holding the 2000 shares over for you until tomorrow. We did not refuse such request and as far as we can recall, no such request was made of us; in fact we were unable yesterday to secure a definite statement as to the time of payment of our draft. We did say, however, that we could not hold the matter open indefinitely and we do not understand on what grounds you expect us to do so. The relations between you and your clients are not of interest to us; our contract is with you and constitutes a cash sale. Tour refusal to honor our draft upon presentation is a repudiation of the contract and your view of calling this deal off, upon our refusal to hold the matter open for a further length of time, is considerably out of line.
    We regret that you presumed delivery would be made Saturday and we must state definitely that we did not lead you to make any such presumption and are not responsible for the results of such a presumption. We are rather surprised also at your presumption that there was no hurry in taking up the first 2000 shares, inasmuch as the entire 4000 had not been shipped. We wish you would appreciate that there is cause for hurry in honoring our drafts and you will undoubtedly comprehend this more readily if you will place yourselves in our position as shipper. As far as the completion of the order is concerned, we desire to state that these lots were purchased under separate dates and as far as our information goes, we were hardly in a position to take it for granted that the latter 2000 shares was the completion of the order of the previous day.
    As stated to you over the phone to-day, the 2000 share lot will still be at your disposal at your bank today and in accordance with your promise, we expect that our draft will be paid promptly this morning. Regarding the latter 2000 shares, we also expect you to fulfill your contract with us and we are prepared to follow the shipping instructions which you stated would be furnished later in the day.
    Tours truly,
    GrEENE-GrIEB-ShERMAN Co. ”
    Thereafter the draft was returned to defendant in error, protested for non-payment, and defendant in error sent a letter to plaintiff in error as follows:

      “Sept. 27, 1907.
    To The J. C. Quinleh Co.,
    Chicago, Ill.
    GrEHTLEMEH :-
    The 2000 shares Universal Pneumatic Transmission stock recently sold you was returned this morning with out protested draft. It is evident that you did not carry out your promise made to us by phone yesterday, that payment would be made the first thing yesterday morning. You also failed to give us further instructions regarding the 2000 shares, which we are holding here.
    Your bank advises us that payment vas refused because entire lot was not shipped. We cannot allow such a palpable misrepresentation to pass unchallenged, nor do we think your course in repudiating your contracts .as either safe or prudent, for beyond the consequence of having such obligations fixed on you by the courts, the publishing of such facts will place you in a very unfavorable position as regards your clientage and connections. In order to continue a successful business it is essential that your record on your contracts be clean.
    We do not desire to be hasty in a matter of this nature, but you must understand that you cannot throw a loss on to this office which is caused by your arrangements. We trust you will find a way to provide for the taking up of this stock promptly and will await your reply to this letter. If we do not receive a prompt reply we will take such action as we see fit in the case.
    Yours very truly,
    Ureehe-Urieb-Shermah Co.”
    Mr. Glrieb testified that upon the return of the 2000 shares by the bank, be began looking around for a purchaser for those shares. He offered them to brokers and sent out letters. He tells us he saw or wrote to about twenty-five or thirty persons. He, later, somewhat stultifies himself and weakens his testimony by asserting he knew the market price through trades and offers made and then, when forced upon cross-examination, admitting he knew of none. However, on October 9, 1907, he sold these 2000 shares to one Frank H. Petrie, for ten cents per share. This, he testified, was the best and only offer he could get through all his efforts. With reference to the 2000 shares additional, as he testified, defendant in error obtained an option from one Eubly for those at sixteen cents per share, but this option was never availed of. The two Eubly transactions, the sale and the option, do not seem to have been given very much consideration by counsel as tending to show value of the stock.
    Mr. Quinlen, on behalf of plaintiff in error,' testified that the plaintiff in error was in business as broker in stocks and bonds and that this stock bought from defendant in error was bought for and on behalf of one Backus, a customer, and not for the plaintiff in error itself.
    The court instructed the jury orally, inter alia, as follows:
    “There is a point at issue here in reference to whether or not this 4000 shares was one sale or whether it was two separate sales, the defendant claiming that it was one single transaction, and that it was not required to pay for the first 2,000 shares until the second 2,000 shares should have been delivered.
    “If you find that it was one single transaction, that the defendant should not pay for the same until the whole of the stock should have been delivered, then the refusal of the defendant to pay for the first 2,000. until the second 2,000 had been delivered would be justified under the law. But, on the other hand, if you find under the terms of this agreement, a communication between the parties, the defendant was to pay for the first 2,000 shares when it was delivered, then the refusal of the defendant to pay for this 2,000 shares when delivered would be a complete justification for the plaintiff in refusing to deliver the other 2,000 until the first 2,000 was paid for.
    “Mr. Booth, attorney for defendant in error: Will the court instruct the jury that even if they did find, as the defendant contends, that the sale was 4,000, that would not justify the defendant in refusing to accept the second tender of 2,000 shares? .
    “The Court: No, I think that is a correct statement of the law. The defendant would not be justified in refusing to accept the second 2,000 shares of stock under any conditions shown by the evidence in this case.”
    Lee, Lee & Schucharot, for plaintiff in error.
    Sherman M. Booth, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

It is perfectly clear that here there were two contracts, each for the sale of 2,000 shares of stock.

Plaintiff in error claims error in the judgment because both parties are corporations and were not, therefore, authorized to purchase and own corporate stock, and, consequently, the whole transaction was illegitimate. That is rather an unconscionable defense ; yet, if supported by law and evidence, the court would be obliged to sustain it. But here it appears, with reference to the 2,000 shares first sold, that both corporations were merely acting as brokers or agents in buying and selling. They acted for undisclosed principals. There was no intent or purpose on the part of either party to become the owner of corporate stock; hence, the rule of law invoked is not here applicable.

As to the 2,000 shares sold first it must be conceded that, upon the record, the evidence is sufficient to prevent our disturbing the verdict of the jury for including in their verdict the difference between the purchase price of 17 1/2 cents and the price of 10 cents at which those shares were sold.

The point that there is a lack or insufficiency of competent evidence in respect to proof of damage is not well taken. The stock involved was unlisted stock which has no recognized value upon any general stock market or exchange but, therefore, the plaintiff in a suit upon a broken contract of purchase is not without remedy. Prima facie, at least, the fair cash value thereof can be established by testimony of one dealing in such stocks and who qualifies himself as Grieb, the witness herein, qualified himself. Plaintiff in error made no effort to show that the fair cash value was other or different from what Grieb testified it was, and the plaintiff in error had a full and fair opportunity of so doing. By his testimony, in this respect, Grieb covered the time from the return of the stock until the day of sale, October 9, 1907.

With reference to the 2,000 shares additional, the evidence does not show the defendant in error to have lost 17 1/2 cents per share. The defendant in error cannot, as a mere broker in the transaction, justify a verdict for the difference between the purchase price of the plaintiff in error, viz.: 17 1/2 cents, and the price of 10 cents at which the other shares were sold to Petrie. According to the evidence the defendant in error was not acting as a broker in this transaction but was seeking to “scalp” a profit by itself making a purchase of Eubly, the owner, who was willing to sell at 16 cents and then selling to plaintiff in error, who was willing to buy at 17 1/2 cents. This we hold the defendant in error, as a corporation, could not do ; for we understand the law to be that a corporation may not exist for the purpose of buying and selling corporate stock for its own use. The ordinary rule is that a corporation cannot become a stockholder in another corporation unless such power is given by its charter. Dunbar v. American Telegram Company, 224 Ill. 9. In the case at bar defendant in error did not show itself to possess such charter power. The law of this state prohibits defendant in error from making or availing itself of the transaction with reference to the 2,000 additional shares and plaintiff in error is not and never was obligated to aid or enable defendant in error to carry it out.

The instruction of the trial court first quoted above is erroneous, because the two transactions of sale and purchase were independent, not interdependent. The question whether or not they were so, being a question of construction or interpretation of a contract, was a question for the court and not for the jury. Gettys v. Marsh, 145 Ill. App. 291. The instruction last above quoted, relating to the 2,000 additional shares, is also erroneous. It practically amounts to a direction of a verdict in favor of defendant in error, except in amount, so far as those shares are concerned.

What has already been said disposes of the counterclaim made for damages because defendant in error did not deliver stock purchased.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


author: Me. Justice Chytbaus

text:
    Ben T. Hosking, Defendant in Error, v. Southern Pacific Company, Plaintiff in Error.
    Gen. No. 14,402.
    1. Municipal Court—how long jurisdiction continues. If a motion to set aside a judgment is made in the Municipal Court in due time, the jurisdiction of such court over such judgment continues until the motion to set aside has been disposed of and until the disposition of the motion the time for the taking of an appeal or the suing out of a writ of error does not run.
    2. Common carriers—when liability as to baggage attaches. Responsibility of a common carrier begins with the actual delivery by the owner of the property involved. A baggage check is but a receipt and as such it is not conclusive upon the carrier. The possession of a baggage check or receipt is only prima facie evidence that an article in question has actually come into the hands or control of the carrier. The carrier may rebut this prima facie proof or it may appear from the evidence adduced by the plaintiff, when considered altogether, that the check or receipt was obtained by him without the article in question actually passing into the hands of the carrier. Proof, however conclusive, of constructive possession in the carrier, does not satisfy the requirements of the law in such case. The delivery of a trunk to a common carrier for carriage is not complete while the trunk remains in the traveler’s private dwelling, although a check or receipt therefor may have been issued by the carrier.
    Tort. Error to the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied April 2, 1909.
    Reversed.
    Opinion filed March 26, 1909.
    Statement by the Court. Ben T. Hosking, defendant in error, brought suit in the Municipal Court against the Southern Pacific Company, a common carrier, to recover the value of a lost trunk and contents. A trial, without a jury, was had and a judgment rendered against the Southern Pacific for $997.50 and costs. The writ of error now before us was sued out by the company to reverse that judgment.
    Mr. Hosking and his wife were traveling in California upon round-trip tickets from Chicago and had two trunks with them. They were in San Francisco, at the St. Francis Hotel, on and prior to April 18, 1906, the day of the earthquake in that city. Their plan was to leave San Francisco for Salt Lake City on that day and, accordingly, they had secured accommodations upon the train which left at 9 o’clock in the morning on the Southern Pacific Railway. The earthquake, however, occurred at 5:15 o’clock in the morning, and Mr. Hosking and his wife were thereby delayed so that they did not leave until on the 19th, the day following. The conflagration in San Francisco, which accompanied the earthquake, reached and destroyed the St. Francis Hotel the morning of the 19th of April.
    When Hosking and his wife first arrived in San Francisco they sent one of the two trunks to the Union Transfer Company’s office and the other to the St. Francis Hotel. The Union Transfer Company was engaged in the business of transferring baggage in the city of San Francisco and it maintained an office in the hotel. One C. M. White was in charge as checking agent for the Transfer Company at the office in the hotel. White, being called on behalf of Hosldng, testified that, as such agent, he handled all baggage transferred in or out of the hotel by the Union Transfer Company and issued checks therefor. In preparation for leaving San Francisco, Hosking went to the hotel clerk to get his baggage attended to. The clerk referred him to the “checker”, meaning White, and with him Hosking made his arrangements. According to Hosking, who is very positive, this was about eight o’clock on the morning of the earthquake, the 18th, but according to White it was in the evening of the 17th of April. It is not very material which is correct, but Hosking is probably right. When Hosking spoke to White, one of the trunks still remained in charge of the Transfer Company and was either at its office or at a terminal or ferry station, and the other was in Hosking’s room in the hotel. He gave the checking agent a transfer check which he had, showed him his railroad tickets and received, as he says, “two checks for two trunks; one was, I suppose, at the terminal or the ferry and the other was in St. Francis Hotel.” The one of the checks then handed Hosking, which we are now concerned with, is as follows:
    “Card Special........................Form 807.
    Southern Pacific
    Company. duplicate.
    State.
    To Salt Lake Ogden Junction
    Via Eio G-rande 65101E point,
    (printed on back thereof)
    Notice to Passengers.
    To avoid paying storage charges, baggage should be claimed immediately upon arrival at destination.

      Passengers should take memorandum of the numbers of .their baggage checks. In the event of duplicate checks being lost, such information will facilitate the obtaining of delivery at destination.
    No single piece of baggage weighing more than 250 pounds will be forwarded.”
    The trunk not at the hotel was subsequently searched for, discovered and, about four months later, delivered to Hosking by the Southern Pacific Company and, therefore, it is not now involved in this controversy. The trunk which was at the hotel is the one for the value of which and its contents this suit is brought. So far as this record shows, that has not been seen or heard of since Hosking saw it in his room that morning. Hosking, at about 8 o’clock on the morning of the earthquake, asked the checking agent if the baggage would be down from his room and the checking agent said it would. About 9 o’clock in the morning of the 18th Hosking and his wife left the hotel and of their movements on that day or the next the record discloses nothing, except that they left San Francisco for Salt Lake City on the train the morning of the 19th. The evidence shows that on the day of the earthquake the elevators in St. Francis Hotel were not running and that no trunk or baggage was permitted to be carried down the stairways; but, otherwise, the hotel was open and doing business.
    When Hosking arrived at Salt Lake City and also when he arrived home in Chicago, he made demands for his trunks. There was some correspondence between him and the Southern Pacific in relation to the matter. The letter of earliest date introduced in evidence, which covers the material part of the correspondence, is as follows:

      “Southern Pacific Company.
    In reply, refer to No. 7931.
    E. B. Carson, General Baggage Agent,
    Office, New Ferry Depot, Foot of Market St.,
    San Francisco, September 4, 1906.
    Mr. B. T. Hosking,
    14 & 16 Biver Street, Chicago.
    Dear Sir:—
    Under date of August 29th Mr. Taylor writes me advising delivery to you of one of your trunks you had in San Francisco at time of the recent disaster.
    Owing to destructions of all records the Union Transfer Company who were handling your baggage were unable to give us any information.
    In making search for various pieces of baggage missing, we came across this trunk and believing it to be one of your pieces, forwarded it accordingly and I am very glad it turned out to be your property.
    This trunk, it seems, was the one you left with the Union Transfer Company and instead of being placed in their office was brought to the Ferry baggage room, hence not destroyed.
    So far as I have been able to learn relative to the second piece which you had at the Hotel, this was in the hotel the night of April 17th and as everything in the St. Francis Hotel was destroyed there is every reason to believe that the missing trunk was also burned.
    Should I find anything whatever, I would be only too glad to advise you accordingly.
    Tours truly,
    E. B. Carson.”
    There is no material conflict in the evidence.
    John Maynard Harlan and M. C. McGiffin, for plaintiff in error.
    Sheriff, Dent, Dobyns & Freeman, for defendant in error.
   Me. Justice Chytbaus

delivered the opinion of the court.

Defendant in error raises the objection that this court has no jurisdiction to entertain this writ of error. The objection is based upon the procedure in the court below. The judgment complained of was rendered and entered of record on December 24, 1907. At that time plaintiff in error made an oral motion for a new trial which was overruled and, after such ruling, a motion in arrest of judgment, which was also overruled. On January 18, 1908, plaintiff in error filed a written motion as follows:

“Now comes the defendant, by its attorney, John Maynard Harlan, and moves the court to set aside its findings and judgment heretofore rendered and to grant a new trial in said cause for the following reasons, to-wit:”

Certain specified grounds were assigned, following the motion. The court recognized and entertained this motion and ordered it continued and set to be heard on February 1,. 1908. On that date the court again ordered the hearing upon the motion continued and set it to be heard on February 8, 1908. Then, on February 8, ' 1908, the court overruled the motion. When the motion was overruled the court granted plaintiff in error thirty days in which to file its stay of execution bond and to present its bill of exceptions. On February 17, 1908, plaintiff in error presented its stay of execution bond which was duly approved by the court and, on the same day, the plaintiff in error sued out of this court this writ of error. The writ of error was not sued out of this court ’ until more than thirty days after the judgment was rendered and entered of record, but within thirty days after the motion to set aside the findings and judgment was disposed of. This was too late, it is contended, to permit this court to take jurisdiction. If, in contemplation of law," there was a finality, on December 24, 1907, to the judgment then rendered and entered, this court is without jurisdiction to review that judgment. But, was that judgment a finality on that day?

By the Municipal Court Act, in Section 19, it is provided the practice in the Municipal Court, in so far as we are at present concerned, shall be the same as that which at the passage of the act was prescribed by law for similar suits or proceedings in the Circuit Courts.

Section 21 of said act provides:

“That there shall be no stated terms of the Municipal Court, but said court shall be always open for the transaction of business. Every judgment * * * of said court, final in its nature, shall, for the period of thirty days after the entry thereof, be subject to be vacated, set aside or modified, in the same manner and to the same extent as a judgment * * * of a Circuit Court during the term at which the same was rendered in such Circuit Court.” And then follows a provision that after the lapse of thirty days such judgment shall not be vacated.

Section 23 of the act provides that the final orders and judgments of that court, of the fourth class, shall be reviewed by writ of error only and that ‘ ‘ The time within which a writ of error may be sued out in any such case shall be limited to thirty days after the entry of the final order or judgment complained of.” Thus, by the act establishing the court, stated terms are not created but a thirty day period, after the rendition of every judgment final in its nature, is provided for, which takes the place of the period remaining of the judgment term after the rendition of a judgment in the Circuit Court. The practice in regard to vacating, setting aside or modifying judgments shall be the same as in the Circuit Courts. Whatever the effect may be, as regards the finality of the judgment, of a motion made in a Circuit Court, during the judgment term, to set aside a judgment and for a new trial, that is the effect of the motion made in the court below, on January 18, 1908, upon the judgment of December 24, 1907. The court had the power either to entertain or refuse to entertain the motion. After it was entertained, the court below was no more obliged to dispose of it within the thirty days than a Circuit Court is obliged, under the law, to dispose of a like motion within the term when made. "When the court entertained the motion and took it under consideration for argument or otherwise, the court obtained such absolute power over the judgment that it was thereafter in fieri and not final. It was" thereafter final only in form, not in substance. The record of the court was thereafter open and the entire matter was thereafter sub judice in the fullest sense; and it remained under judicial consideration and undetermined until the court, on February 8, 1908, disposed of the motion to set aside and for a new trial. It is settled as the law of this state that when such motion has been made at the same term at which a judgment has been rendered the judgment remains under judicial consideration and the court has full power over that judgment at subsequent terms, precisely the same as during the judgment term. Hibbard v. Mueller, 86 Ill. 256; Windett v. Hamilton, 52 Ill. 180; Watson v. Le Grand R. S. R. Co., 177 Ill. 203. In People v. Gary, 105 Ill. 264, the question arose whether a judgment rendered became final at the December term 1879 or on February 2, 1880. It appears the case was tried, upon default, on December 17, 1879, and a judgment was rendered against defendant on that day. On December 24 following, at the same term of court, defendant appeared and entered a motion to vacate and for a new trial. This motion was continued from time to time by the court until February 2, 1880, and then overruled. The Supreme Court there held “the legal effect of the motion for a new trial, when regularly continued, was to stay final judgment until the motion was overruled”, and that the judgment entered did not become final until February 2, 1880. In Hearson v. Graudine, 87 Ill. 115, the question arose as to the effect of a motion, made in apt time, for a new trial upon a judgment entered at a former term—whether it stayed the finality thereof. The Supreme Court there held: “There could be no ‘final judgment’ in the technical sense, until that motion was determined.” The precise question now before us was settled, adversely to the contention of defendant in error, in Kingman v. Western Mfg. Co., 170 U. S. 675. The syllabus correctly states the decision in that case as follows: “A judgment is not final, so that the jurisdiction of the Appellate Court may be invoked, while it is still under the control of the trial court, through the pend-ency of a motion for a new trial.” The same rule has frequently been announced by the federal courts upon interpositions of petitions for rehearing and otherwise. Brockett v. Brockett, 2 How. (U. S.) 238; Northern Pacific R. R. Co. v. Holmes, 155 U. S. 137; Aspen M. & S. Co. v. Billings, 150 U. S. 31; Clarke v. Eureka Co. Bank, 131 Fed. 146. We hold that, after the trial court recognized and entertained the motion made on January 18, 1908, to set aside the judgment of December 24, 1907, and for a new trial the judgment was sub judice and not final until the court, on February 8, 1908, overruled that motion. Therefore, this court has jurisdiction to review that judgment. We recognize that a motion for a new trial, in cases tried without a jury, is entirely useless so far as preserving any question for review is concerned; but that is beside the present question. We know of no rule of law prohibiting a trial judge from entertaining such motion and it is, in effect, an application for a rehearing which, when entertained, suspends the finality of the judgment already entered so that the question of the finality of the judgment is thereafter under judicial consideration.

Defendant in error contends the Southern Pacific Company is liable, as a common carrier, for the loss of the trunk. The responsibility of a common carrier begins with the actual delivery by the owner of the property involved. A baggage check is but a receipt and as such it is not conclusive upon the carrier. M. S. & N. I. R. R. Co. v. Meyres, 21 Ill. 627; Davis v. M. S. & N. I. R. R. Co., 22 Ill. 278, 280; C., R. I. & P. R. R. Co. v. Clayton, 78 Ill. 616. “When it is once established the baggage is in the hands of the carrier to be transported to the destination of the passenger, its [the carrier’s] liability as an insurer becomes fixed, in case loss should occur.” C., R. I. & P. R. R. Co. v. Clayton, supra. The real point in controversy, upon the merits, is whether the trunk did in fact come into the possession of the carrier; although the contentiousness of counsel, upon the admissibility of evidence, has considerably obscured that question. The possession of a baggage check or receipt is only prima facie evidence that an article in question has actually come into the hands or control of the carrier. The carrier may rebut this prima facie proof; or, it may appear from the evidence adduced by a plaintiff, when considered altogether, that the check or receipt was obtained by him without the article in question actually passing into the hands of the carrier. When defendant in error closed his proof herein his evidence left the trunk in his room in the St. Francis Hotel. True, he then had a trunk check of the plaintiff in error. But the most that can reasonably be argued therefrom is that although in fact the trunk was then in Hosking’s room yet, by legal construction, after he had obtained the check therefor, the possession thereof was in the Southern Pacific. Even that contention, should we agree with it, which we do not, is riot sufficient to fasten responsibility upon plaintiff in error as a common carrier. Proof, however conclusive, of constructive possession in the carrier, does not satisfy the requirements of the law in such case. The burden was upon defendant in error to prove actual delivery of the trunk into the possession of the carrier. Proof, as here, that it was left at a place where the carrier had a right to and might go and obtain it is not sufficient to create liability on the part of the carrier. The delivery of a trunk to a common carrier for carriage is not complete, while the trunk remains in a traveler’s private dwelling, although a check or a receipt therefor may have been issued by the carrier. In Mo. Pac. Ry. v. McFadden, 154 U. S. 155, the court said: “Whilst the authorities may differ upon the point of what constitutes delivery to the carrier, the rule is nowhere questioned that when the delivery has not been made to the carrier, but, on the contrary, the evidence shows that the goods remained in the possession of the shipper or his agent after the signing and passing of the bill of lading, the carrier is not liable as carrier under the bill.”

We can indulge in no presumption that the carrier, •under the circumstances and conditions existing at the time in question in San Francisco, went to Hos-king’s room and obtained the trunk, even assuming that the Union Transfer Company was the agent of the Southern Pacific Company. White, the checking agent at the hotel, was the agent and representative of the Union Transfer Company. The Transfer Company is, evidently, a separate entity from the Southern Pacific; but its relation, either to that company or to Hosking, the record leaves considerably at large. It had the check of the Southern Pacific which it delivered to Hosking, but whether it was to transport the trunk to the depot for Hosking for hire and, although an independent concern, had the privilege of issuing the Southern Pacific’s checks for baggage handled as a convenience for passengers and itself, or, whether it was an agent and representative of the Southern Pacific transporting baggage from hotels for that company, is not clearly shown. As it issued the checks of the Southern Pacific we have treated it as the representative of that road. For the reasons appearing in this opinion we find the Southern Pacific not to be liable for the trunk in question and its contents and the judgment of the Municipal Court will therefore be reversed, and judgment for the Southern Pacific will be entered here.

Reversed.