author: Mr. Presiding Justice Dibell

text:
    Anna Platt, Plaintiff in Error, v. William J. Williams, Jr., Executor, etc., Defendant in Error.
    Gen. No. 5,558.
    1. Executors and administrators—citation is proper against executor claiming money as gift. Where an executor claims money as a gift from the testator, the Probate Court has jurisdiction conclusively to settle the rights of the parties in interest, by the exclusive method of citation, under the Administration Act, sections 81 and 82, against the executor, to require him to inventory the money, and the court cannot require the sum to be inventoried, and then appoint an administrator pro tern, to sue the executor in an action at law, where a trial by jury may be had.
    2. Jury—no right to jury trial on citation to require executor to inventory money. A citation against an executor, under the Administration Act, sections 81 and 82, to require him to inventory money, which he claims as a gift from the testator, does not deprive the parties of a right to a trial by jury.
    3. Executors and administrators—charges and credits. An executor of his father’s estate had contracted to erect a building for his father, received a payment in advance, did some foundation work, and ceased work on discovering his father would live but a short time. He also paid out money as an executor. Held, that he should be charged with the advance payment, less the amount spent on the foundation, and the matter of the credits for expenditures in other transactions should he left to take their ordinary course in the Probate Court.
    4. Executobs and administbatobs.—when money received by son from father is a loan. On a hearing on a citation to require an executor to inventory money he claims as a gift from his father, an instrument in evidence recited the father had given the son the money in consideration of certain monthly payments. The father was very old, in poor health, could not read or write, and there was no evidence that the instrument was read to him, or that he clearly understood its purport, and the attorney who prepared the paper did not see the father, or know what the transaction was. There was evidence that the father had stated he had given his son the money, but' the witnesses did not distinguish clearly the meaning of the word “give.” Brothers, sisters, and relatives of the executor testified to conversations with him before and after the father’s death to the effect that he admitted the money was a loan, which was denied by the executor. Held, the money was received as a loan.
    5. Witnesses—to Tie» executor incompetent to testify in proceeding to require him to inventory money claimed as a gift. On a hearing on a citation to require him to inventory money he claims as a gift from the testator, the executor is under R. S. c. 51, § 2, incompetent to testify as to any fact occurring in the lifetime of the testator, except as to conversations or transactions testified to by the opposite party, or party in interest, as having occurred between them and himself.
    6. Witnesses—when testimony by parties in interest malees incompetent witness competent to testify. Where a father, leaving children, dies intestate as to his personalty, and his will appoints a son executor, on a hearing on a citation to require the executor to inventory money which he claims as a gift from his father, the other children, testifying to conversations and transactions between themselves and the executor, are parties in interest, and the executor is competent to testify as to such conversations and transactions.
    7. Witnesses—incompetency of husband malees wife incompetent to testify for him. Where a husband is incompetent to testify for himself, his wife is also incompetent to testify for him.
    Error to the Circuit Court of La Salle county; the Hon. Edsab Eldkedge, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed April 25, 1912.
    Rehearing denied October 9, 1912.
    Butters & Armstrong, for plaintiff in error.
    Duncan, Doyle & O’.Conor, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

William Williams died in La Salle county on November 24, 1906, leaving a last will, which gave his real estate equally to his four children, William J. Williams, Jr., James Williams, Anna Platt and Mary Monson, and which did not dispose of his personalty, which personalty therefore became intestate estate to be shared equally by said four children. William J. Williams, Jr., became the executor and during his administration of that office divided $4,000 equally among the four children, including himself. Afterwards Mrs. Platt filed a petition in said estate in the Probate Court of La Salle county, in which she alleged that the executor had received a large sum of money belonging to the testator, which he had not inventoried, and that the executor was indebted to the testator in large sums which he had failed to account for. A citation was issued, and there was a hearing and an order in the Probate Court, and an appeal to the Circuit Court, where, upon a hearing, the court adjudged that the $2,500 was a gift by deceased to his son, William, in his lifetime, and that said $2,500 was no part of the estate of the deceased, but was the sole property of William J. Williams, Jr., and that he was not required to inventory the same, but that he should charge himself with $500 and be credited for moneys he had lawfully expended as executor, for which he had not been credited. This is a writ of error sued out by Mrs. Platt to review the order of the Circuit Court.

It is contended that the court had no jurisdiction to conclusively settle the rights of the parties in this proceeding, but that the court should have required the executor to inventory this $2,500 and then appoint an administrator pro tem. to sue the executor in an action at law where the parties could have a trial by jury. We consider Day v. Bullen, 226 Ill. 72, conclusive that the Probate Court had no power to appoint and administrator pro tem., but that the rights of the estate and of the executor could be determined only by means of a citation against the executor, under sections 81 and 82 of the Administration Act. In Martin v. Martin, 170 Ill. 18, and in Coffey v. Coffey, 179 Ill. 285, the rights of executors in large amounts of property were conclusively determined under such citations. It is argued that thereby the parties are deprived of a trial by jury. The executor here demanded a jury in the.Circuit Court and afterwards withdrew that demand. Plaintiff in error did not ask a jury, but, in fact, there is no right to a jury trial in any proceeding under said sections 81 and 82, as held in Martin v. Martin, supra, and other like cases. There can be no recovery at law in this case, because, under Day v. Bullen, supra, an administrator pro tem. cannot be appointed while the regular executor is acting, and therefore the only snit at law possible would be William J. Williams, Jr., Executor, v. William J. Williams, Jr., and a party cannot sue himself at law, and under such circumstances an equitable proceeding was necessary, and this is in substances an equitable proceeding.

Defendant in error is a building contractor. He made a contract with his father to erect .a certain building for $1,200, and received $500 in advance upon it and did work upon the foundation, amounting in value to $15 or $20 and then it was discovered that the father would live but a very short time and defendant in error ceased work under the contract. The Circuit Court charged him with the whole $500,- but directed that he be allowed credits against that sum for any money which he might have paid out as an executor and with which he had not been credited. We are of opinion that he should be allowed $15 for what he spent upon the foundation, or, in other words that he should be charged with $485, and the matter of any credits growing out of any other transaction should be left to take their ordinary course in the Probate Court. There is some evidence that a house built by deceased stands upon land owned by the executor, and it is urged that he should charge the value of that house against himself as executor. There is, however, other evidence tending to show that the title to that lot is in another person, not a party to this suit. We conclude that the evidence on that subject is insufficient to justify an order against the executor.

Defendant in error was erecting a building in February or March, 1906. It blew or fell down, entailing much loss upon defendant in error. His father caused $2,500 to be paid to him to enable him to rebuild that house. The main question is whether that was a gift by the father to the son or a loan of money. Defendant in error and his wife testified upon the subject in the Circuit Court. We are of opinion that, under section 2, of chapter '51 of the Revised Statutes, defendant in error was not competent to testify in this proceeding as to any fact occurring in the lifetime of his father, except as to conversations or transactions testified to by the opposite party or party in interest as having occurred between them and defendant in error. The term “party in interest” here should include not only Mrs. Platt, but her brother James, and her sister, Mrs. Monson. Where the husband is incompetent to testify for himself, his wife is also incompetent to testify for him. Treleaven v. Dixon, 119 Ill. 548; Bevelot v. Lestrade, 153 Ill. 625; Wickes v. Walden, 228 Ill. 56, 73. We therefore exclude from our consideration the evidence of defendant in error that his father gave him this money, and the evidence of his wife concerning the signing of the paper. Defendant in error went to a lawyer and caused a paper to be prepared and that paper bears the signatures of defendant in error and his wife. There is evidence that two crosses were also placed upon it, and that the testator, who could not read or write, said that that was the way he wrote his name, but no crosses are upon said instrument as set out in this record. The body of the writing was as follows:

“This agreement made and entered into this first day of March, A. D. 1906, between William Williams, party of the first part, and William J. Williams, party of the second part. Witnesseth that the party of the first part has this day given to the party of the second part, $2,500 the receipt of which is hereby acknowledged and the party of the second part in consideration of the foregoing consideration entered into on the part of the party of the first part hereby agrees to pay to the party of the first part the sum of $12 per month during his life and in the event of his death to give the sum of $12 per month to J ane J ones during her life time.”

It will be observed that the language of this paper is that the testator had “given” his son $2,500. Defendant in error called a number of witnesses who testified that about that time the testator said in their hearing that people thought his son was broke because this building had fallen down, but that he had given him $2,500 with which to rebuild it and would give him more if necessary, or words to that effect. That these witnesses did not distinguish clearly the meaning of the word “give” is shown by the fact that one witness, after testifying “that testator said he had given his son $2,500, when asked to •repeat the conversation, testified that the testator said he had let his son have $2,500 and afterwards again said that the testator said he had given him $2,500. Defendant in error called a real estate agent and examined him with reference to a conversation he had with testator, and this witness testified that the testator- told him that his son, William, had had bad luck, that the wind had blown down a building and he needed some money, and he had let his son have $2,500, and his son had agreed to pay the testator interest at $12 per month for the use of that money and at his death to pay $12 per month to Mrs. Jones, an old lady who had been the testator’s housekeeper for 33 years. Plaintiff in error produced the three children and their husbands and wives, and other relatives, who testified to an interview with defendant in error in his father’s bedroom and sitting room when his father was very ill, about 20 days before he died, in which the other children, who had learned that William had received $2,500 from his father, were urging that a new will should be made by their father, obviously to rectify this apparent inequality and that defendant in error assured them that no new will was necessary, that he had received his share and more too and would have some to pay back, and that there would probably be about $2,200 or $2,300 for each child, in which case he would have to pay back $200 or $300 which he had received more than his share. Some of these witnesses testify to one or more interviews after their father’s death, wherein defendant in error repeated the same statement. Defendant in error was a competent witness as to these conversations and he denied that he had ever made any such statements. There was a very clear preponderance of the evidence against him on that subject and we are required by the state of the record to believe that he did say that his father had loaned this money to him, that he was paying his father interest on it at the rate of $12 per month, and that it was more than his share of the estate apd that the excess would be paid back to the estate.

The testator was very old when this transaction occurred and had been in poor health for about a.year and a half and could not read or write. Defendant in error had the paper prepared by an attorney without the attorney seeing the testator or knowing from him what the transaction was. There is no proof that the writing was read to the testator at or before the time when it was delivered to him, or that he realized any more of its contents than that he had let his son have $2,500 and his son was to pay him $12 a month interest thereon and thereafter $12 per month interest to Mrs. Jones, the housekeeper, while she lived, if she survived the testator. In this state of the proof we conclude that the statements by defendant in error to the other members of the family must be regarded as establishing as against him that the real transaction was a loan of money, and that therefore .he should be required to inventory it, subject to the rights of Mrs. Jones to be paid $12 per month during her life, since the death of the testator. The proof seems to show that defendant in error paid $12 per month to the testator during the rest of his life and has undertaken to give Mrs. Jones something as a substitute therefor since the testator’s death.

The order of the Circuit Court is therefore reversed and the cause is remanded with directions to dismiss the petition as to the house without prejudice; to require the executor to inventory and charge himself with $485, money received upon the unperformed contract, as of the date of his father’s death; and to require the executor to inventory and charge himself with $2,500, subject to such rights as Mrs. Jones may have to receive $12 per month therefrom during the rest of her life after the death of the testator, unless it shall be shown that her rights have been satisfied or discharged, and to direct that the executor be removed from that office if he does not obey said order within thirty days after the same is entered. A certified copy of that order should be transmitted to the Probate Court for enforcement there.

Reversed and remmded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell Dibell, P. J.

license: Public Domain

text:
    B. F. Zinser, Appellee, v. The Sanitary District of Chicago, Appellant.
    1. Appeals and ebbobs—when exceptions necessary. Where an action for damages against a sanitary district was tried, and judgment rendered prior to the act going into force July 1, 1911, dispensing with the necessity for an exception, matters not excepted to are not open to consideration.
    2. Appeals and ebbobs—jurisdiction of Appellate Court to review case involving freehold. One who has appealed to the Appellate Court, assigned and argued errors on numerous points, and nowhere contended that the court was without jurisdiction to review a case involving a freehold, cannot, for the first time on a petition for a rehearing, question the jurisdiction of the court.
    3. Appeals and ebbobs—fictitious plea involving a freehold. Where an issue of fact is joined on a plea involving a freehold, and defendant does not offer any evidence to support it, and does not claim, on appeal, that there was any supporting evidence, and does not assign any error which raises any question under the plea, the defense under the plea is a fictitious defense, and the Appellate Court is not deprived of jurisdiction by the fact that the fictitious plea was filed.

      4. Appeals and ebbobs—invited error. Where it appears that counsel were willing to lead the trial judge into a course of questions and remarks, upon which an assignment of error might be based, error in such questions and remarks will not reverse, if it appears that the judgment is substantially just.
    5. Appeals and errors—when exclusion of map is cured. The exclusion from evidence, of a map of a farm having the words, “corn,” “marsh,” "woods,” and the like, written thereon, as being written statements of disputed facts, is not harmful where another map is admitted, containing substantially the same things, except that instead of the words designating the crop, the word “cultivated” was used.
    6. Appeals and ebbobs—changes in hill of exceptions. WThere an appellant files a brief and an abstract, upon the assumption that a bill of exceptions would he signed exactly as prepared, and when it is finally settled and signed it does not contain many things contained in the abstract and in the brief, the Appellate Court has no power to make an order requiring the trial judge to make changes in the bill of exceptions.
    7. Appeals and errors—when brief criticising trial judge may not he stricken. A brief of a party claiming to have been wronged by the demeanor and language of the trial judge and seriously criticising the judge, will not be stricken from the files, as not being respectful to such judge.
    8. Sanitary districts-—validity of title of owner of overflowed land may not be questioned. It is not the intention of the Sanitary District Act, section 19, that a district shall be permitted to question the strength and validity of the title of those who are injured by an overflow of water, produced by the waters of a district channel.
    9. Sanitary districts—defective title of owner of overflowed lands will not prevent recovery. Where plaintiff is injured by the overflowing of waters upon lands which he holds by a conveyance and which he possesses, he cannot be defeated of a recovery against a sanitary district by pleas and proof that his title is not perfect, and that there are outstanding interests which he has not acquired.
    10. Sanitary districts—all damages may be recovered where title to overflowed land is perfected after part of damage. Where a person obtains a deed and a bond, for a conveyance from a widow for land belonging to her minor children who execute a deed, when they become of age, and the main damage from overflows caused by a sanitary district occurs after the ratification deeds of the minors, the owner, having been in possession and paying taxes, may recover for all the damages.
    11. Depositions—may be suppressed for laches. Where after a cause has been at issue for five and one-half years, a party on ascertaining that an aged nonresident witness will attend the trial, if physically able, has the trial set for certain day and gives notice to take a deposition of the witness in another state on oral interrogatories on the same day, a deposition so taken in the absence of the adverse party and not returned until the trial has been in progress for three weeks, is properly quashed.
    12. Depositions'—when notice is insufficient. Where under the statute ten days’ notice is required, a notice mailed to an attorney on the tenth day before the suing out of the dedimus, so late in the afternoon that in the regular course of mail it did not reach him until the ninth day, is not sufficient and the deposition was properly suppressed.
    13. Continuance—purpose of talcing depositions. Where a cause has been at issue for five and one-half years, and a party having ascertained that an aged nonresident witness will attend, if physically able, has the trial set for a certain day and gives notice to take on the same day a deposition of the witness on oral interrogatories, the delay will preclude continuing or postponing the cause until the deposition can be taken. .
    14. Sanitary districts—plea denying plaintiff’s ownership of overflowed land is demurrable. In a suit for damages to land overflowed by water flowing into a river from a channel of a sanitary district, a plea denying ownership in the plaintiff, amounts to the general issue, and is demurrable.
    15. Sanitaby disteicts—when plea in suit by landowner for overflowing is double. Where a land owner sues a sanitary district for damage from an overflow produced by the waters of a district channel, a plea which avers that the channel was built and opened by lawful authority, and is a lawful permanent improvement, and further, that when the channel was opened, the plaintiff was not the owner in fee simple of the realty described in the declaration, is double, and is subject to a special demurrer.
    16. Sanitaby distbict—when plea in suit by landowner for overflowing is a departure. Where a declaration avers that a plaintiff, suing a sanitary district for damage from an overflow, was the owner and was in possession» of the lands, and does not aver that he was owner in fee simple, a plea asserting that he was not the owner in fee simple is a departure from the declaration and does not state a defense.
    17. Evidence—height of water in river. A diagram showing the rise and fall of a river at a certain point for twenty-five years, based on records of gauge-readings taken at points equidistant from the point in question, is based on speculative evidence, where the witness who prepared the diagram, undertook to determine what the head of the water would be at the point in question, by the head of the water at the equi-distant points, and by determining the slope of the river, and how much of the slope was above, and how much below the point, it being conceded that, the slope of the river differed as the quantity of water differed.
    18. Evidence—when statements on map render it inadmissible. The words, “corn,” “marsh,” “woods,” and the like, on various parts of a map of the land of an owner suing a sanitary district for damages from an overflow of water, make it incompetent as containing statements which may be taken by the jury as proofs of disputed facts.
    19. Evidence—when foundation for admission of map inadequate. In an action for damages for an overflow from a river, caused by a sanitary district, a sufficient foundation for the admission of maps, plats and diagrams showing the amount of rainfall over a valley tributary to the river, is not laid where the documents are partially based upon records of rainfall kept at various stations, and also based upon the absence of any records, and upon the assumption of what the rainfall must have been at the various other places.
    20. Sanitaby disteicts—evidence of purchase price of lands overflowed is inadmissible when improvement has been made. In an action for injury to land by an overflow produced by the waters of a sanitary district channel, evidence as to what the owner paid for the land is inadmissible, when he has put in six miles of tile and ditches at a great expense, whereby the land has been greatly improved, and larger crops may be raised.
    21. Evidence—when old records of height of water in river may be excluded. Where records of gauge-readings showing the height of water in a river, each day from 1867 to 1910, are offered in evidence by a sanitary district sued for causing an overflow, the records prior to twenty-five years back may be excluded, since it is improbable that there are witnesses who could testify to the correctness of the earlier records, and where also in the latter twenty-five years, the tile drain system has greatly changed the flow in rivers.
    22. Evidence—ora general offer of competent and incompetent evidence the whole may be excluded. Where a diagram showing the rise and fall of a river over a long period of years, and based on the records of gauge-readings for the entire period is offered in evidence, but the earlier records on which it is based have been excluded by the court, it is incompetent evidence as to the period covered by the excluded records, and it being a general offer of competent and incompetent testimony, it may be excluded as a whole.
    23. Evidence—when photograph of flood conditions on other rivers inadmissible. In an action for damages from the overflow of a river, caused by a sanitary district, photographs taken at various places on other rivers contributory thereto are not admissible, where there is no evidence of how long the flood conditions had existed before or after the photographs, or of the depth of the streams.
    24. Evidence—when diagrams based on oral testimony are inadmissible. In an action for damages to a farm, from the overflowing of a river, caused by a sanitary district, diagrams showing the rise and fall of such river for years, based upon the conclusions of a witness, drawn from records of gauge-readings, and diagrams showing the depth and character of the farm soil, based upon the testimony of a witness who dug test holes, are inadmissible; being an attempt to incorporate oral testimony into written form, which under the Practice Act, section 76,' the jury could take to their room; and it is immaterial that no request was made that the papers should be sent to the jury room. ,
    25. Evidence—judicial notice. Where land bought in 1894 is damaged by ah overflow of water, caused by a sanitary district in 1900, judicial notice will be taken that there was a large rise in the value of real estate generally, throughout Illinois, after the land was bought.
    26. Damages—measure of damages where land overflowed. Where land is overflowed by water produced by a sanitary district channel, and at the time the channel was opened no water had reached the land, the measure of damages is not the depreciation in the value of the land just after the channel was opened, hut the question is, how much has the fair cash market value of the land, as it was prior to the opening of the channel, been depreciated by the opening and operating of the channel.
    27. Damages—when for damage by overflowing not excessive. Where by the overflow of farm land by a sanitary district, its productivity of corn was reduced from eighty bushels per acre to almost nothing, a verdict for $15,000, a trifle over $34 an acre, was not excessive.
    28. Damages—elements of damage on permanent injury by overflow of water. In an action for damages for the permanent injury to land overflowed by water, the jury have a right to consider what the subsequent result, in fact, has been.
    Appeal from the Circuit Court of Woodford county; the Hon. G. W. Patton, Judge, presiding.

      Oertiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 7, 1912.
    Rehearing denied June 27, 1912.
    Frank J. Quinn, for appellant; John 0. Williams, B. M. Chipereield and Walter E. Beebe, of counsel.
    Barnes & Magoon, for appellee; Thomas Kennedy, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

B. F. Zinser sued the Sanitary District of Chicago to recover damages for injuries which he alleged were caused to 440 acres of his farm in the Illinois river bottom across the river from Chillicothe and a couple of miles below, His declaration alleged permanent injuries to the land by the overflow of said land by waters flowing into the Illinois river through the channel of the Sanitary District. Numerous pleas were filed and issues were joined thereon except one plea and upon a jury trial Zinser had a verdict of $15,000. A motion by the Sanitary District for a new trial was denied and judgment was entered on the verdict and the Sanitary District prosecutes this appeal- therefrom.

Appellant filed a plea denying ownership in appellee and a demurrer was sustained thereto. The plea amounted only to the general issue and the demurrer was properly sustained.

When the time arrived for filing a complete record and abstracts and briefs by appellant a bill of exceptions had not been signed. Appellant was granted by this court an extension of the time in which to file a complete record, and the abstracts and briefs. As the time approached the bill of exceptions had not yet been settled nor signed though a copy thereof had been placed in the hands of the trial judge. Instead of applying to this court, or to the judges thereof in vacation and obtaining, as appellant might have done, a further extension to a suitable period beyond the time when the bill of exceptions should be settled and signed appellant made an abstract of a copy which it had of that which it had tendered as a bill of exceptions and prepared briefs upon the assumption that the bill of exceptions would be signed exactly as prepared. In fact some 90 objections were made by appellee to matters in the bill of exceptions and when it was finally settled and signed many things contained in the printed abstract and in the briefs of appellant were not contained in the bill of exceptions.. If anything was omitted from the bill of exceptions which appellant had a right to have inserted or if anything was inserted which appellant had a right to have omitted the law furnished appellant a legal remedy which appellant did not pursue. Instead, appellant sought to have an order entered in this cause requiring the trial judge to make various changes in the bill of exceptions. We had no power to make any such order in this case and that application was denied. The course pursued leaves in the abstract and in the argument of appellant numerous matters not supported by the bill of exceptions. Appellant has very seriously criticised the trial judge, and appellee has sought to have appellant’s briefs stricken from the record, because, as appellee claims, it is not respectful to the trial judge. We have not granted the motion to strike such briefs from the files because we conceived that if appellant had been wronged by the demeanor and language of the trial judge it had a right to have the matter investigated. Upon a consideration now of the things complained of we find that a considerable portion of them are not in the bill of exceptions. The trial judge is the sole arbiter of what actually occurred at the trial and of what shall go into the bill of exceptions and appellant not having sought any legal method of correcting the same the bill of exceptions as signed must be taken by us as true and correct. That therefore eliminates one portion of the matter complained of. As to another portion of the matters complained of no exception is preserved in the bill of exceptions. This cause was tried and judgment rendered prior to the act going into force July 1, 1911, dispensing with the necessity for an exception, and the case is no doubt governed by the statute as it was before that date. The matters not excepted to are therefore not open to consideration. In another portion of the matters excepted to the trial court was within its rights in questions propounded and matters said in ruling. In still another portion the things said and questions put cannot be fairly said to have been injurious to appellant. As to the remaining things of which complaint is made it is difficult to say where the real responsibility rests. There are things in the bill of exceptions which tend to show that some of counsel for appellant were willing to lead the trial judge into a course of questions and remarks upon which appellant might base an assignment of error. And we conclude upon an investigation of all these matters and in view of the conduct of counsel that we ought not to reverse this judgment on the ground of any questions put or words uttered by the trial judge, if it shall appear that the judgment is substantially just.

On the day set for trial appellant had given notice to take a deposition at Bellwood, Nebraska, on oral interrogatories. Appellee and his counsel attended the trial and did not attend the taking of said deposition. The trial began on September 6, and on the same day appellant caused an attorney to appear at Bell-wood and take said deposition. The deposition was not filed until September 29, and on that day appellee moved to quash it and that motion was granted. Appellant contends that the court should have postponed or continued the cause till said deposition could have been taken and that it should have had the benefit of said deposition on the trial and that the deposition should not have been quashed.

This suit was begun on January 6, and service had on January 7, 1905, more than five and one-half years before the trial. Issues were joined in the case years before the trial. The witness at Bellwood was an old man and no reason is shown why his existence and desirability as a witness should not have been known to appellant years before; he being a former owner of part of the land in question. Early in the summer of 1910 and after the case had been specially set for the first day of the September term, 1910, by the express procurement of appellant as shown by the bill of exceptions, appellant’s attorney ascertained that this witness would come to the trial if he was physically able. We are of opinion that appellant could not wait more than five and one-half years and fail to take the deposition of an old man, whose health might at any moment fail and who could not be compelled to attend, and then disarrange this important trial and postpone the day of the trial by giving notice to take this deposition in Nebraska on the very day set for the trial. Appellee was not required to abandon the trial nor to employ so large a force of attorneys that one could try the case while another was taking this deposition. Moreover appellant did not give the notice required by law of the suing out of the deposition. Ten days’ notice was required and on the tenth day before the suing out of the dedimus appellant mailed a notice to appellee’s attorneys so late in the afternoon that in the regular course of mail it did not reach them until the ninth day. Due notice not having been given the deposition was properly suppressed and for laches in not taking the deposition long before the court properly refused to delay the trial.

It is argued by appellant that appellee’s cause of action for permanent injury to his land arose on January 17, 1900, the day when the water of the Sanitary District was turned into the Sanitary District channel at Chicago and that appellee did not on that day own the entire interest in all of these lands and that therefore he should not have been permitted to recover for all the damages.

Appellee bought a part of these lands in 1892 and a part in 1894. A part of that bought in 1894 was owned by two minors. Appellee bought and paid for the land and obtained a deed therefor and a bond by the widow, Mrs. Meister, agreeing to procure a conveyance by her two minor children when they arrived at age. Appellee then took possession thereof and continuously thereafter occupied and farmed the entire land. One minor became of age in 1899 and then executed a deed to appellee and the other minor, Mary Meister, came of age in 1901 and in 1902 executed a deed to appellee. But a comparatively small amount of water was turned into the Sanitary District channel during the first two or three years and the main damage was inflicted after Mary Meister made the deed. We are of opinion that appellee having a deed for the land and having a contract for the conveyance of the Maiy Meister interest to him and being in possession of all of the land and paying taxes thereon had a right to institute this suit as to all of the land; and that Mary Meister having ratified the contract made in her behalf and conveyed the land to him in 1902, no legal obstacle is shown to the maintenance of this suit by appellee and his recovery of all the damages.

Appellant argues that the court erred in not permitting it to prove what Zinser paid for this land in 1892 and 1894; and then elsewhere it argues that it has proved how much he paid and thereon based an argument that the present verdict is excessive. The record is so voluminous that we have not been able to ascertain how appellant got the price paid into the record. But we are of opinion under the facts of this case that it was not proper to compel appellee to state what he paid for the land. After he bought it he put in over' four miles of tile and dug a deep ditch, about two miles of which was in the land here involved, to receive the discharge from the tile and expended in that manner $2,465, besides the cost of hauling the tile and filling in the ditches. The proof shows that within two years after this tiling was done the land was greatly improved and that appellee thereafter raised 80 bushels of corn per acre. Wé think the court may also take judicial notice that there was a large rise in the value of real estate generally throughout the state of Illinois after appellee bought this land. We therefore conclude that the court did not err in refusing to permit him on cross-examination to be asked what he paid for this land in 1892 and 1894.

Appellant offered in evidence a mass of maps, charts, records of water gauges, diagrams, diagraphs, photographs and other papers of various kinds. Some of these were admitted and some of them were not. It is impossible to discuss them all in this opinion but we will give a few as illustrative of the character of this proof generally.

Appellant offered in evidence a record professing to have been kept by different departments of the' United States Government showing the height of the water above a certain low water plane once each day on each day of each month from the years 1876 to 1904 inclusive as taken at Peoria; and also a record of gauge readings at the Peoria dam of the Peoria Water Works Company once each day on each day of each month in the years 1895 to 1904 inclusive, and also a record of the readings of a gauge kept at the Santa Fe Railway bridge at Chillicothe giving the like details there for the years 1903-1904; and a record of gauge-readings at Lacón kept by the IT. S. Government for 1904; and also a record of gauge-readings kept by the State of Illinois at Henry, Illinois, once each day for each day of each month of the years from 1869 to 1904 inclusive. The court admitted these gauge-readings for the years 1885 and the subsequent years but declined to admit those prior to 1885. We approve of these restrictions. The trial was in 1910, and the court let in all gauge-readings for the preceding twenty-five years, so far as appellant offered them. Obviously appellee had no means of disputing these readings or showing any imperfections therein if he desired to do so except by the memory of living individuals and if the readings had gone back further than twenty-five years it is extremely improbable that witnesses .could be found whose reliable memories would give appellee any information as to whether these earlier records were correct or complete or the water was at any different stage from that shown by said records. Moreover it is a matter of common knowledge that the tile drain system has greatly changed the flow in the rivers and that it has mostly been installed since 1867. After the gauges from the years 1885 down had been admitted appellee called a witness who had prepared a paper which appellant then offered which is styled a hydrograph of the Illinois River at the Santa Fe Railway bridge at Chillicothe. This was a diagram by which it was sought to show the rise and fall of the Illinois River at that point for the years 1867 to 1899 inclusive by means of a wavy line. The court refused to admit the paper. To begin with, the witness had no independent knowledge upon the subject and had drawn this from the gange-readings already referred to. As the gauge-readings prior to 1885 had not been admitted the basis of this hydrograph for the period prior to 1885 was not in evidence and the hydrograph was therefore incompetent for those years. The offer was only a general offer of the paper or document for the whole period. All of it was incompetent prior to the year 1885, and where there is a general offer of competent and incompetent testimony in one offer the court is not obliged to distinguish it but may properly reject the whole. The rule is thus stated in Jones on Evidence, 2nd Ed., sec. 894: “When the offer of testimony includes that which is admissible with that which is not, and the competent and the incompetent are blended together, it is not the duty of the court to separate the legal from the illegal, but the whole may be rejected when objection is made.” The court therefore did not err in sustaining the objection. But there were other reasons for seriously doubting the propriety of this testimony, if the offer had been confined to the years 1885 and subsequent thereto. No gauge-readings at Chillicothe had been put in evidence, except for a single year. Henry and Peoria are nearly equi-distant from this land, Henry above and Peoria below. This witness undertook to determine what the head of the water would be at this land by its head at Henry and at Peoria by these gauge-readings. He assumed to determine the slope of the river and how much of that slope was above and how much below appellee’s land. He conceded that the slope of the river differed as the quantity of the water differed; and his conclusions on that subject were extremely speculative, and their correctness had not been determined by any test offered in evidence. But further, by offering this paper appellant sought to get on to a paper and into evidence the testimony of this witness as to the conclusions drawn by him, and to have that paper in a position where it would be entitled'to be sent to the jury room when the jury retired to consider their verdict. We doubt if this testimony of this witness was of such a character that appellant had a right to thus project it into the jury room, where the language of his witness could not be taken in writing under the law prevailing in this state.

Appellant caused a witness to dig a number of test holes or pits in different parts of appellee’s farm and had this witness testify to the depth of vegetable mould, soil, sand, clay, etc., which was found by him in each hole. The witness then produced certain colored diagrams by which he had sought to illustrate and put on paper his testimony, and also another diagram in which in words such as sand, shale, clay, black soil and the like he embodied his testimony as to each test hole. These diagrams were offered in' evidence and rejected. If they had been admitted in evidence then appellant would have been entitled to have them go to the jury room. Appellant might just as well have caused the evidence of this witness to be reduced to writing and then have introduced this writing in evidence and procured its transmission into the jury room. We are of opinion that this skilful attempt to put the substance and meaning of the testimony of appellant’s witnesses into diagrams and charts and thereby prepare them* to go to the jury room, where these witnesses could not go, was properly refused in this and numerous other cases in this record.

Appellant offered certain maps or plats of appellee’s land upon which the draughtsman had placed the words “corn,” “marsh,” “woods,” and the like, in various parts of his land. We think that these statements upon the plats or charts made them incompetent under the suggestions in Justen v. Schaaf, 175 Ill. 45, where it was held that the court must see that the plat or map does not contain any written statements which may be taken by the jury as proof as to disputed facts. But the court admitted another plat which contains substantially the same thing, except that instead of the words designating the crop the word “cultivated” was placed upon different parts of the farm, and we are of opinion that appellant had all that it was entitled to upon that subject.

Appellant offered maps, plats or diagrams which were supposed to show the amount of rain fall over the valley tributary to the Illinois river, but the entire examination of the witness who prepared it showed that while it was partially based upon records of rainfall kept at various stations, it was also based upon the absence of any records and upon assumption of what the rainfall must have been at various other places, and we conclude that the foundation laid for this was inadequate and the objection properly sustained, where these documents were not admitted.

Appellant offered photographs taken at various places on the Desplaines river and at various places on the Kankakee river in Indiana and Illinois, many of which the court did not admit. These were views of the conditions existing at the particular moment of time when the photograph was taken, and to a large extent were without any evidence to show how long these conditions had existed before or existed after the photographs. Such photographs can easily be deceptive. That which looks like a great flood may be the spreading out of a small amount of water over a wide, flat surface. The depth of the stream where these photographs were taken was not shown and the jury could not know how great the volume of water then was. It is obvious too, that appellee could not in the midst of the trial call people from Indiana and other places to prove how deep this water was, how great its volume, how swift its current, or how long continued it had been and we think this class of evidence of facts so remote would have been of very little value in enabling the jury to determine the facts.

The observations we have thus generally made apply in various ways to many papers which the servants and witnesses of the Sanitary District had prepared whereby to put into the case and into the jury room many things, which, if competent, should have been proven only by oral testimony.

The most important question is whether this judgment is excessive. Plaintiff has a valid cause of action and his land has been much injured. In the early part of our investigation of the evidence we were much impressed by the claim of appellant that the damages awarded were excessive. A further study of the evidence has brought us to a different conclusion. The verdict is well within the range of the evidence. The testimony introduced by appellee would warrant a verdict for twice the amount here rendered. The jury have not been governed by passion or prejudice. The exceedingly meager estimate placed upon the injury by certain witnesses is evidently very much too low. When the evidence of those who are most familiar with the land and its history and its productive capacity is considered we conclude that appellee has been injured to the amount of the verdict. The evidence was very voluminous and the limits of an opinion will not admit of a recital of the testimony. The verdict was a trifle over $34 an1 acre for the land involved in this suit and there is much evidence to support that conclusion. By the tiling the land had been made exceedingly valuable for the raising of corn, according to the evidence. Prior to the coming of the Sanitary District water the land was usually overflowed in the spring and in the autumn but the spring floods went away so early as to enable the tile to dry the land in time for the planting of a crop of corn, and the fall floods did not come on till after the corn had matured. These floods coming in that way of course enriched the land. Occasionally there were severe floods at short times which destroyed or greatly injured the crops in a particular year, and on the other hand a very dry season made this especially productive because it was calculated to withstand the drouth. The Sanitary District water came so high and" flooded the land so long as to make it of slight value in the production of corn.

Complaint is made of the action of the court on certain instructions, especially upon the measure of damages. It is the contention of appellant that the measure of damages is the difference between the fair cash market value of this land just before and just after the waters were turned into the Sanitary District channel at Chicago on January 17, 1900. It is obvious that a strict application of that rule would be most unjust, because at that time no water had reached this land, and only a comparatively small amount of water was turned into the channel at first. No one knew then how the flow of that water would affect the Illinois Eiver. The true question is, how much has the fair cash market value of this land as it was prior to January 17, 1900, been depreciated by the opening and operating of the channel óf the Sanitary District of Chicago, and that is a matter which has developed as the years went by. It is clear that where the suit is for permanent injuries the jury have a right to consider what the subsequent result in fact has been, as held in Suehr v. Sanitary District of Chicago, 149 Ill. App. 328, and 242 Ill. 496. While some of the instructions upon that subject may have been awkward in expression yet we believe they were calculated to lead to a correct conclusion and to an ascertainment of the injury which appellee has in fact sustained.

Affirmed.

Dibell, P. J.

In a petition for a rehearing appellant argues that we have no jurisdiction to decide this case, but should have transferred it to the Supreme Court under the statute. Appellant appealed to this court; it assigned errors here; it argued those errors; and no where contended that we were without jurisdiction. It did not move to transfer the case to the Supreme Court. It sought to have us reverse the judgment and remand the cause, and was ready to accept from' us a favorable judgment. Thirty of the thirty-one errors it assigned raised questions which did not involve a freehold. We doubt if appellant should be permitted for the first time on a petition for a rehearing to question our jurisdiction, but rather are of opinion that the rule should be applied that, having appealed to this court and assigned errors of which we had jurisdiction, it must be held that it waived any error of which we did not have jurisdiction.

Appellant filed seven pleas, the first the general issue, and the seventh an ordinary plea of liberum tenementum in which appellant alleged that the close in the declaration mentioned was at the several times when, etc., the close and freehold of the defendant, and that it committed the several supposed trespasses in the said close as it lawfully might. That seventh plea involved a freehold and an issue of fact was joined thereon. But appellant did not offer any evidence to support it, nor does it now claim that there was any evidence to support the plea; and it has assigned no error which raises any question under that plea. It begins its original brief here by stating that appellee purchased this land, part of it in 1892 and the rest in 1894, and it everywhere concedes him in possession of the land from that time on. A defense under that plea was clearly abandoned, or rather this was a fictitious defense which it never sought to sustain ; and we are of opinion that we were not deprived of jurisdiction by the fact that this fictitious plea was. filed. This would furnish an easy way to avoid the jurisdiction of this court in all such cases.

The thirty-first assignment of error is that the trial court in sustaining the demurrer of plaintiff to defendant’s plea denying title in plaintiff to the lands described in the declaration at the time the cause of action arose. This refers to the second plea. The demurrer thereto was general and special. Among the special causes assigned were that the plea amounted to the general issue, that it was double, that it concluded improperly, and that it pleaded conclusions instead of facts. The plea was double. It alleged that the channel of the Sanitary District was built by authority of the law of the State of Illinois and in strict accordance therewith, and was opened January 17, 1900, in accordance with law, and then was and from thence hitherto has been and still is a lawful, permanent structure and improvement. It then alleged that on said date when the channel was opened plaintiff was not the owner in fee simple of the real estate described in the declaration or any part or portion thereof. It is obvious that this is an attempt to set up two different defenses. Again, the declaration did not aver that plaintiff was the owner in fee simple. It averred in certain counts that he was the owner and in possession of the lands, and in other counts that he was the owner and in lawful possession of the lands. If he had proved a less estate than a fee he would have been entitled to recover. This plea therefore which asserted that he did not have the fee simple title was a departure from the declaration and did not state a defense to the declaration. Moreover, so far as it answered the declaration it was merely equivalent to the general issue, for plaintiff averred that he was the owner and possessor of the land, and was required to prove that allegation in order to recover, since the general issue denied the allegations of the declaration. There is a great difference between this second plea and the seventh plea above stated which was indeed a plea of liberum tenementum.

Since the Appellate Courts were organized there have been many suits in this state against railroads, drainage districts, sanitary districts and the like for overflowing land of the plaintiff. In every such case the plaintiff has been obliged to allege and prove that he owned the lands overflowed. It has never been supposed that thereby the Appellate Courts were deprived of jurisdiction of such cases, but on the contrary they have been taken to the Appellate Courts instead of the Supreme Court, and often from the Appellate Courts to the Supreme Court, and the jurisdiction of the Appellate Court has never before been qustioned because plaintiff was obliged to prove ownership in order to recover. The second plea was in bar of the whole declaration, and there is no pretense that there is any state of facts in this record which would entirely bar appellee’s recovery. What appellant claims is that appellee did not have the entire title to the land when the waters of the Sanitary District were turned in, but that a fragment of the title was afterwards acquired by him. The fact is that he bought these lands in 1892 and 1894 and paid for them and obtained deeds for the entire property and took possession and has ever since held possession as the owner. There was an outstanding interest which was not then conveyed to him, though his deeds described and purported to convey the entire land. He had possession, which is in itself a title. The Sanitary District Act, Sec. 19, requires the Sanitary District to compensate those it injuries by the increased flow of water. We are of opinion that it was not the intention of that act that the Sanitary District should be permitted to question the strength and validity of the title of those who are injured by the overflow of water produced by the waters of the Sanitary District channel.

Suppose appellee had never acquired this outstanding interest. Suppose that the two minor children in question, knowing that their mother had obtained full payment for the land, had never asserted any right to a share in the title to these lands. Could the Sanitary District make that contention for them? Suppose that some where in the claim of title from the H. S. Government to appellee there is a missing link or a flaw in some conveyance. May the Sanitary District when sued for damage by a person occupying and claiming to own land which its waters have injured, be permitted to prove that there is some person in existence who possibly might sue the party in possession of the land and wrest it from him? We are of opinion that the Sanitary District Act does not confer upon the Sanitary District the right to litigate such questions, and that where a plaintiff is injured by the overflowing of waters upon lands which he holds by a conveyance and which he possesses, he cannot be defeated of a recovery by the Sanitary District by pleas and proof' that his title is not perfect and that there are outstanding interests which he has not acquired.

In support of the ruling of the court below that the oral evidence of witnesses could not be incorporated into diagrams and diagraphs and other papers and admitted in evidence in that written form and thereby reach the jury room, we further cite the recent case of C. & W. I. R. R. Co. v. Heidenreich, 254 Ill. 231. Appellant argues that it had not yet requested that these papers be sent to the jury room and might not have made that request at all, and therefore the papers should have .been received in evidence even if they were not competent to go to the jury room. Section 76 of the Practice Act authorizes all such documents, other than depositions, to be carried from the bar by the jury, and if they had been properly admitted in evidence appellant would have had a right to insist that they go to the jury room. Because they contained matter which was not proper to go to the jury room, they therefore were not competent evidence.

The petition for a rehearing is denied.


text:
    Charles H. Myerhoff, Appellee, v. F. S. Tinslar et al., Appellants, impleaded with George W. Eastburn.
    Gen. No. 5,590.
    1. Conspiracy.—fraud and deceit. An action on the case for conspiracy, fraud, and deceit, is maintainable against the directors of a company and their broker, where it appears that at a director’s meeting, they voted in favor of a scheme to raise money, proposed by the broker, whereby district sales managers were to be hired at an attractive salary and commission on condition that $5,000 worth of stock be taken and paid for in cash, with such provisions, that made it certain that the salary and commission could not be earned, and would not be paid, and where it further appears that the plaintiff was induced to become such a manager and purchase the amount of stock required, because of padded financial statements, misrepresentations as to dividends and earning capacity, and because certain watered stock was represented as paid for in cash, etc.
    2. ■ Corporations—when directors responsible for false representations though not personally made. Where the directors of a corporation vote to authorize the selling of stock in a fraudulent manner, they are responsible for all that is done, although they do not personally make false representations.
    3. Judgments—where one defendant not served. Where a judgment is entered against “the defendants,” and one of them was not served and did not appear, the judgment is valid against all except such person.
    4. Appeals and errors—index to abstract. Appellate Court Rule 16, regarding the indexing of exhibits and documents in evidence, should be closely followed.
    Action on the case. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.
    John S. Stevens and Cooper & Hobbie, for appellants; Clarence S. Darrow, of counsel.
    Ralph R. Lounsbury, Philip J. Maguire and Amos H. Robillard, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This was an action on the case for deceit, brought on December 21, 1909, in the Circuit Court of Kankakee county, by Charles H. Myerhoff, of Evansville, Indiana, against F. S. Tinslar, Bobert W. Wilkinson, B. F. Myers, William B. Fleager, F. L. Munroe and George W. Eastburn. Service was not had on East-burn and he did not appear or defend. There was a trial and a verdict finding the defendants guilty and assessing plaintiff’s damages at $7,475.80; a motion for a new trial was overruled; and all the defendants except Eastburn appeal to this court from, the judgment entered upon the verdict.

The declaration consisted of an original count and of an additional count, which were amended, and in which it is charged that the defendants conspired together to defraud plaintiff of the sum of $5,000 by misrepresenting the financial condition of the Kankakee Manufacturing Company and the value of its capital stock, through a large number of representations and allegations of fact set out at length-in the declaration and which the declaration avers were each false and at that time known to the defendants to be false, coupled with which were certain promises by the company to plaintiff which defendants caused to be made for the purpose of deceiving and defrauding plaintiff, and which defendants and the company knew would not be fulfilled and performed and did not intend should be fulfilled and performed, and which defendants then intended to prevent the company from fulfilling and performing; and that thereby defendants did defraud and deprive plaintiff of $5,000 and of the use of that sum from April 11, 1907, and put him to great trouble, loss, damage and expense. The various statements and representations by the defendants which are alleged to have been false and their various acts which were alleged to have been fraudulent and intended to deceive are set out at great length in the declaration and are .too numerous to be stated in full here. They are the acts, statements and representations detailed in the evidence, which is of great length. The plea was “not guilty.”

The proof establishes without' question many of the following facts, and the others are shown by a preponderance of the evidence. All the defendants except Munroe were directors of the Kankakee Manufacturing Company, located at Kankakee, Illinois. This concern was originally organized in 1891, under the name of the Perfection Paper Bag Holder Company, of Sheldon, Illinois, with a capital stock of $20,000, its charter running for twenty years and authorizing only the business of manufacturing paper bag holders. Its powers, so far as relates to the business it was authorized to carry on, have never been enlarged or changed, but in 1894 its name was changed to Sheldon .Novelty Company. In 1899 the company increased its capital stock to $50,000 and changed its location to Kankakee, Illinois. In 1906 it changed its name again to Kankakee Manufacturing Company, hereinafter called the company, increased its capital stock to the sum of $150,000, and engaged in the manufacture of various articles of furniture and heating apparatus. Eastburn, Fleager, Myers and Wilkinson had been stockholders in the company from its inception. Tinslar first became interested in the concern in 19Q2.. The company had apparently been prosperous during the years in which it was located at Sheldon, and for a time after removing to Kankakee, but the change in location involved the purchase and equipment of a much larger plant, and the earnings of the company, for a few years after the removal, went into payments for the new plant, at least in part. At the close of the business year 1905, the books of the company showed an apparent surplus of $63,259 and directly thereafter, or oh February 26, 1906, its capital stock was increased, as above mentioned, to $150,000, and a stock dividend of one hundred per cent, on the then capital stock was declared, that is, $50,000 of the increase was issued as a dividend to the stockholders, leaving another $50,000 of stock unissued.

Early in June, 1906, at an informal meeting of the directors of the company, various plans were discussed for selling its capital stock. At this meeting appellant Munroe, of Chicago, a stock broker, was present and proposed a plan for selling the stock which was finally adopted; and at a later meeting of the directors, when all the defendants were present, a contract was authorized and entered into between the company and Munroe, by the terms of which Munroe was to establish selling agencies for the company’s products, the managers of such agencies were to be required to purchase stock in the company at par on their making contracts of employment with the company, and Munroe was to be paid for his services all that was received for said stock in excess of seventy per cent, of its par value, and Munroe was to have the exclusive right to sell said stock for one year. Shortly after this contract with Munroe was entered into another stock dividend of $50,000 was voted, thus covering all of the increase of stock authorized in February, 1906, and thereafter, and at the same meeting it was ordered that the company’s capital stock be still further increased to $250,000. The stock dividends of 1906 went to those who were then stockholders, chiefly the defendants, and this last increase of $100,000 was the stock which was to be sold by Munroe under the terms of his contract with the company. • It is in evidence that Munroe sold the entire $100,000 worth of stock, that he was paid $30,000 for selling it, and that there were thereby created twenty-one such managers of selling agencies.

In March, 1907, appellee noticed an advertisement by the Kankakee Manufacturing Company in certain newspapers published in Evansville, Indiana, where he lived, and, as he was seeking for employment, he responded at once. The advertisement was as follows :

“Wanted: Large, well established manufacturing company making, staple line of goods widely known, wants satisfactory man with $5,000 cash to establish and carry on branch business. $250 per month salary and all expenses with share of profits extra. Unusually safe investment,, permanent engagement, and high class business. Good for $5,000 per year or better, with big future increase. For particulars, furnish references and address J. Barton, Trude Bldg. Chicago.”

There seems to be no evidence in the record concerning the identity of J. Barton, but that this advertisement was published by Munroe for the Kankakee Manufacturing Company appears from the fact that the reply to appellee’s original letter of inquiry was signed: “Kankakee Manufacturing Co. by F. L. Mun-roe, Mgr. Dept.,” and that it referred to “Your recent inquiry addressed to our advertising agents.” Appellee had written his first letter of inquiry on March 25, 1907, and the reply from Munroe was dated March 26th. This reply was on the letter head of the Kankakee Manufacturing Co. at Chicago, and was of considerable length, and contained many representations as to the business of the Kankakee Manufacturing Company, among which were the following:

“Sole manufacturers of Cook Heating System, which is considered altogether the most economical and satisfactory heating apparatus for general use. * * * Is operated at great saving of fuel, especially adapted for heating public buildings or private houses. You can see our products are in line of every-day necessities, and large market for them throughout your section with local dealers in towns, villages, hardware, furniture and general stores, also with builders and private consumers; thoroughly established, large profitable trade. * * * Paid capital stock was $150,000 with net assets considerably in excess of that amount. * * * Expect to pay substantial dividends each year. * * * Are able to compete favorably with anyone in our line. Make strictly first class goods; in many respects far in advance of competitors. * * * Would want yon to invest $5,000 and become stockholder. Will appoint successor to take your interest in company off your hands at original cost at expiration of term of engagement, in case anything should prevent your continuing with us. * * * Want to be satisfied of your ability to fill place successfully, and would reserve right to terminate agreement and also to purchase your stock in case you should prove unfitted for position or unable to do a reasonable amount of business. Willing to pay salary of $250 per month and all necessary expenses of carrying on business. Also extra 10% on net sales. This alone would make you from $3,000 to $5,000 a year to start with, in addition to regular salary. * * *”

As the result of this and other correspondence with Munroe in the course of which plaintiff was referred to the last annual statement of the company, and to the rate books as evidence of its financial standing, plaintiff had an interview with Munroe at his office in Chicago on April 10, 1907. Munroe told plaintiff that the company was increasing its capital; that it was going to do a larger business; that business was good; that the company was doing a business of $450,000 a year; that the stock paid six per cent, dividends. Plaintiff then went to Kankakee, where he met Eastburn and Tinslar, the former the president and the latter the secretary, treasurer and general manager, and was shown around the plant. Eastburn told plaintiff that the company had done a business the last year of $250,000. Plaintiff also consulted the rating books of Dun and Bradstreet and found the assets of the company listed at from $20Q,000 to $270,000. Thereafter plaintiff returned to Chicago, signed the required contract with the company, paid Munroe $5,000 and received from him a certificate for plaintiff’s fifty shares of the capital stock of the company. By the terms of this contract, which contained other provisions not necessary to be here stated, the company employed plaintiff as its special sales manager .in Evansville and as much territory contiguous thereto as he could properly handle for three years from April 11, 1907; required the company to furnish plaintiff with catalogues, circulars, samples, and such instructions, suggestions and advice, as would enable plaintiff to carry on his business with the highest degree of success; allowed plaintiff various discounts (the deduction of which would leave a certain “net price”) and a salary of $250 per month and ten per cent, of the net receipts, and his necessary expenses, including rental for headquarters, salary for clerical help, postage, etc. It required that, upon signing the contract plaintiff should buy fifty shares of the company’s capital stock and pay it $5,000 therefor. It provided that plaintiff, at his option, might renew the contract for another five years, but that if he did not, the company or his successor in the position should buy and he should sell his fifty shares of stock for $5,000 in cash. It also provided that, if plaintiff and his agents did not sell at least $1,000 worth of goods per month, at said special net price, then the company could, at its option, treat the contract as void, and plaintiff agreed, if requested, to sell his stock to the company or to his successor for $5,000. There was also a provision that, if the company canceled the contract before its expiration, it would immediately buy plaintiff’s stock for $5,000 in cash.

The record contains much evidence showing the efforts thereafter made by plaintiff to secure business for the company. He made a thorough canvass of the trade in and around Evansville, but with little success. He had been urged to push the sale of the Cook Heater and had been promised that a sample of that article would be furnished him at once, but such sample was not sent him until a considerable period of time had elapsed, and when received by him it was so broken and incomplete as to be of no use to him. Various supplies of stationery, etc., which had been promised him before the contract was entered into were not furnished. His monthly sales were less than $1,000 in each month during which he worked for the company, and the company refused to pay him the salary of $250 stipulated in the contract, but reduced his salary to the proportion made by his sales. These reductions in salary were accepted by plaintiff under protest. Plaintiff also attempted to establish a market for the goods of the company through the efforts of salesmen in the country surrounding Evansville, but with very little success. On May 25, 1907, he Wrote the company, in part as follows:

“I am now satisfied I cannot make a living out of my efforts under present conditions, and think it best that the contract between us be annulled after the end of the month that expires on the 11th of June, 1907, and the return of $5,000 in cash for the stock. * * • * Trust you will see necessity of me looking for another place.”

Further correspondence ensued, but the company refused to purchase plaintiff’s capital stock. Plaintiff considered himself out of the employ of the company after June 11, 1907, but was unable to sell his stock, and, ¿fter protracted negotiations, commenced this suit in an action on the case for fraud and deceit against the directors of the company and Munroe, the agent who assisted in persuading him to enter into the contract and to buy the stock, for the fraudulent representations of fact, whereby he was induced to buy stock in the company; and he claims that these fraudulent representations were made to him by the officers, directors and agents of the company, and were the direct consequence of a conspiracy entered into by such persons for the purpose of defrauding plaintiff and others.

At the time plaintiff entered into the negotiations which led up to the execution of the contract, he was told by Munroe and also by others of the defendants various things with regard to the financial condition of the company and the amount of business it was doing and expected to do in the future. He was told that the stock was worth more than par, and that it was paying six per cent, dividends. In fact it had not earned nor paid any dividends from 1901 to 1906. In the six months preceding this transaction with plaintiff it had declared two quarterly dividends of one and one-half per cent, each, but the jury were warranted in finding that there had been no profits, and that there was a serious deficit, and that these dividends were a part of the fraudulent scheme to delude unwary persons into buying this stock. Plaintiff was also referred to the commercial agencies of Dun and Bradstreet, and he obtained from those concerns information with regard to the company, which information had been furnished to them by the company itself, through its officers, defendants here. These financial statements were misleading in many respects. Among the assets were listed “Accounts at realizable value, $32,689.32,” whereas, the proof showed that in this item was included at least $7,000 worth of accounts which had formerly been given up by the company as uncollectible and had only been restored to the company’s books shortly before- this statement was made, for the apparent purpose of untruthfully padding the statement and thereby deceiving those who resorted to that source of information. Another item was: “Beal estate and buildings owned by the company with equipment as appraised by American Appraisement Co. of Milwaukee, $112,760.26;” while the proof showed that, in making such appraisement the appraisement company valued everything, buildings, machinery and all, as if new, though the buildings were old and the machinery, or at least most of it, not new, and the' real value was about $30,000. Another item in this financial statement was: “Other assets, consisting of drawings, patents, cuts, photos, miscellaneous, etc., $48,410.01.” The evidence shows that, shortly before the making of this financial statement, the bookkeeper under orders from some one or more of the defendants, had placed upon the company’s books as an asset, the item of “good will” and valued it at $40,000; that such an item had never before been listed as an asset; and that it appears in this financial statement under the name of “miscellaneous.” The financial statement from which we have just quoted was made by defendant Tinslar under date of January 23,1907, and was received by Dun & Company that same month, and it is entitled: “Statement as to basis for credit made to the Mercantile Agency, E. Gr. Dun & Co., for the use of its subscribers only, by Kankakee Manufacturing Company, a corporation.” This statement was made at a time when its business was decreasing and when its profits had entirely disappeared. The books were made to show a gain of over $36,000 in 1906 by setting down “G-ood Will” at $40,000 and another fictitious item of $4,500 when in fact there had been a loss instead of a gain in that year. Defendants proved that this company, or its predecessor, Sheldon Novelty Company, had been very successful and had paid large dividends during the years from 1895 to 1901, but it is clear, from the evidence, that after 1901 the prosperity of the company suffered a serious decline. As al-. ready stated, from 1901 to 1906 no dividends of any kind were paid; and though in 1906 quarterly dividends were declared, they were not based upon any profit earned and received by the company. This is the time when a financial statement was furnished to the mercantile agencies which was inflated by the inclusion of bills receivable which were in fact uncollectible, and by valuations of old buildings and equipment as new and modern, and by an item of “goodwill” placed at $40,000. It is clear that, if this financial statement had not been made under these conditions and in this manner, the statement would have revealed a deficit instead of a surplus. It is also clear, from the evidence, that before this statement was issued, the defendants held a meeting, as directors and officers of the company, to devise means for raising money for the company, and that they there conceived and adopted and each voted for and authorized the plan of appointing district sales managers at an attractive salary and commissions, but with the requirement that such persons first purchase a large amount of capital stock in the company and pay for it in cash, and with provisions which made it certain that the salary and commissions could not be earned and would not be paid. Discussion then by several defendants shows that they considered that it was the provision for a salary of $250 per month which would sell this stock, and that they knew that they could not do this with experienced salesmen, and that they expected that some who entered into this contract could not sell the required amount of goods and that they knew that the company could not make the goods which would be required if all the stock was sold to agents who could perform on their part. There is evidence that several others besides plaintiff bought stock and became district sales managers and employees of the company; in fact, the entire $100,000 of capital stock was disposed of in this way. These managers or agents were to be paid a salary of $250 per month on sales of $1,000 worth of goods, together with a commission of 10%, expense money and supplies. The proof tends to show that this would mean a selling expense to the company of at least 40%. The evidence shows that the manufacturing cost alone, that is, the cost of labor and material, was 66.53% of the amount of sales in 1906, and that, in 1907, the year plaintiff entered into this contract with the company, the manufacturing cost alone was 70.77% of the amount of the sales. It will be seen that the company could not carry out its contract with appellee without a loss on every sale. The manufacturing cost continued to increase and in 1909 had reached the point of being 136% of sales, which added to selling cost would amount to 170%, which means that, under the terms of the contract with appellee, it would cost the company $1.70 to make and sell every dollar’s worth, of its goods. When we further take into consideration that the defendants were so anxious to sell stock and raise money that they were willing to pay Munroe $30,000 for selling stock amounting to $100,000, it becomes plainly apparent that the defendants knew the company was not making money, but was being operated at a loss each year, and that it must continue to do so. To induce investment in the stock, the company’s contracts were made attractive by the promise of large salaries and commissions, together with a clause purporting to promise a repurchase of the stock at the price paid for it if the contract was canceled. The experience of plaintiff makes it plain that the company sought to evade this promise by hindering plaintiff in his employment so that he could not make a living wage, thereby causing plaintiff himself to sever his connection with the company as its employe. The officers and directors of the company, that is, the defendants, must be considered to have known that the company could not live up to the terms of its contract with plaintiff without such a great and continued loss that no concern could endure it, especially a company as weak financially as this was. Another circumstance tending to show that the defendants did not expect or desire that the plaintiff would prove a salesman who would work with profit to the company and himself is the fact that he was 65 years of age at the time the contract was entered into. It is not usual for successful manufacturing establishments to employ salesmen who have already reached the age at which many are forced to retire rather than continue in the active pursuit of business. This was much better known to defendants than to plaintiff. The charter of the company was to expire in 1911, so that when defendants planned in 1906 to offer such a contract, and when, pursuant to these plans, this contract was offered to and urged upon plaintiff ,in 1907, no power existed in this company to grant an extension for five years of this contract for three years, and the defendants must be presumed to have known that fact.

With the company’s affairs in the condition above stated, defendants held an informal directors'’ meeting in June, 1906, at which was discussed the matter of selling stock. Munroe was present and said: “I do not know anything about your business, but if you want stock sold, I can sell it.” A stockholder, named Potter, was present at this meeting and opposed such a method of selling stock, telling the others that it was not right; that it would jeopardize the standing of the company; that it would be practically impossible for such an agent, in a restricted territory, to sell $1,000 worth of goods a month, for his own sales as a general agent, covering the entire country, were only $14,000 a year, and that, if such agent could do such a volume of business, it would exceed the capacity of the plant. In reply he was told that “they did not expect all of them to make good.” This indicates that defendants did not care so much to secure agents who would do a large volume of business, as they did to secure the money which would come to the company from the sales of stock. However that may be, at a formal directors’ meeting on June 5, 1906, the officers of the company were authorized to make the proposed contract with Munroe for the sale of stock. It is in evidence that all of the defendants were present at this meeting and voted for this action. At this time there remained in the treasury, unissued, $50,000 worth of capital stock, but this stock was not turned over to Munroe for sale, but was divided among the then stockholders in the shape of a stock dividend, and then the. capital stock was increased by another $100,000. These two stock dividends of $50,000 each were not based upon any increase in the value of the property, and the then stockholders paid nothing into the treasury of the company for it. It was simply watering the stock. It was a fraud upon any who bought any of the last issue of stock without knowledge of this gift to the prior stockholders. In the statement to Dun & Company which plaintiff examined before he entered into this contract this watered stock was listed as “paid in cash.” This deceived plaintiff, who had been expressly referred by defendants to Dun & Company for that information.

We conclude that plaintiff’s $5,000 was obtained from him by fraud and deceit by means of the foregoing statements, representations and contracts, devised by Munroe for the purpose of bringing about sales of this additional capital stock of the company at prices far beyond the value of such stock, and adopted and authorized by the appellants, and that they knowingly authorized and became a party to all that was done, and that they are liable to plaintiff in this action for conspiracy, fraud and deceit, under the principles laid down in Miller v. John, 111 Ill. App. 56, and 208 Ill. 173, and in the authorities there cited. The contract of the company with Munroe, the various forms of contract which they authorized him to make, which were substantially alike except as to the amount of stock to be bought and salary to be paid, and the contract with plaintiff, were each competent as showing the nature of the scheme which defendants adopted and the manner in which it was to be and was carried out. The evidence of subsequent events was competent to show what the real value of this stock was and what the intention of defendants really was. The trial lasted about three weeks and it may be that not all rulings upon the evidence were exactly correct, but no substantial error appears in that regard.

We find no substantial error in the giving dr refusal of instructions. It was proper to refuse the 44th instruction requested by appellants, because the statements made by the company to Dun & Company were false and were made for the purpose of deceiving any person to whom they might be communicated by Dun & Company, and plaintiff was requested by some of the defendants to make inquiries of Dun & Company, and he did make such inquiries and obtained the information communicated by this false statement and was influenced thereby. We conclude that the case stated in the declaration and established by the evidence warranted the infliction of punitive damages and that therefore the giving of the 7th, 8th and 9th instructions was warranted, and therefore, if any such element entered into this judgment, it is not erroneous. Three of the defendants did not personally make false representations to plaintiff, but they approved and voted to authorize the steps which were afterwards taken and, having entered into the conspiracy with the other defendants to sell this stock in a manner and on a basis which was fraudulent and calculated to deceive, they are responsible for all that was done.

The verdict found “the defendants” guilty, without naming them. The judgment was against “the defendants,” also without naming them. Defendant Eastburn was not served and did not enter an appearance. Appellants contend that this is a judgment against Eastburn and that it is void as to him and therefore must be reversed. In McCall v. Lesher, 7 Ill. (2 Gilm. 47), certain defendants had not been served and had not appeared. The record recited: “The parties come by their solicitors.” It was held that this entry only embraced those previously before the court. In Pardon v. Dwire, 23 Ill. 573, a judgment against the defendants in an ejectment suit, where one of them had not been served, it was held that the judgment was proper as against the one served who appealed and simply void as to the other defendant, and that, if it had been rendered against defendant in the singular number, it would have been held applicable to the defendant who was served and who was making defense. In Gardner v. Hall, 29 Ill. 277, a case against four defendants, one of whom was not served, the clerk recited in the final order that the defendants appeared and it was held that this entry would be referred to those only who had been served. In Dawson v. Bridges, 19 Ill. App. 280, a suit against five defendants, two of whom were not served and did not appear, and the judgment was against the defendants, as here. It was held that the judgment was only against those who, by their own act or by the act of the law, had been made the subjects of jurisdiction. In 1 Freeman on Judgments, sec. 155, it is said that in all cases where the expression in the judgment is general, it will be confined to the parties served with process. That and other text books show that the rule is otherwise in some states. See also Hronek v. People, 134 Ill. 139 on pp. 146, 147.

We conclude that under the rule adopted in this state this is not a judgment against Eastburn.

Our rule 16, 137 Ill. App. 625, 626, requires that “The index must give not only the number of each exhibit and document in evidence, but must also name or describe it by its character, parties, date, etc., so as to distinguish it from every other exhibit or document in that record.” The index to the abstract in this case is a gross violation of this important rule. It refers to 154 exhibits, introduced by plaintiff. Most of these are letters and it only uses the word “Letter,” without any statement of the date and from whom and to whom it was written. Several of these exhibits are records of the corporation, but no date is given. Several are statements, but only that word appears. Several are contracts or forms of contract, but only the word “contract” is given. This index is of no value and we have been compelled to search the entire abstract to find any document desired. Many material matters are entirely omitted from the abstract or are insufficiently stated therein. We denied a motion to strike this abstract from the files, but we are satisfied now that we should have granted it. We call attention to this matter in order that attorneys may hereafter more fully observe said Eule 16.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Michael Reilly, Plaintiff in Error.
    Gen. No. 5,621.

      Indictment—use of initials. The use of the initial letters in an indictment instead of the full Christian name of the person alleged to have been injured, is sufficient where it appears that he was usually known by such initials.
    Prosecution for assault with intent to kill. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscab E. Heard, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.
    Louis Greenberg, Martin J. Dillon and John J. Coburn, for plaintiff in error.
    W. H. Stead, Franklin J. Stransky and Frank T. Sheean, . for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Reilly was indicted for an assault with intent to kill and pleaded not guilty, and was tried by a jury and was found guilty of an assault with a deadly weapon with intent to inflict a bodily injury where no considerable provocation appeared, as charged in the indictment, and was sentenced to imprisonment in the county jail for one hundred days and to pay a fine of $100 and the costs, and it was ordered that he stand committed to the county jail till the fine and costs were paid. He sued out a writ of error and attached to the record fifteen assignments of error, which are not now relied upon, and afterwards additional assignments that the court erred in refusing to quash the indictment and in refusing to arrest the judgment. Though the record is lengthy, only the indictment and judgment are abstracted; and the only contention is that the indictment is insufficient to support a conviction because it describes the person injured as “M. C. Connors.”

The People contend that the record does not contain the motion to quash the indictment and that the bill of exceptions does not contain the motion in arrest of judgment. In fact, the record does contain a motion to quash the indictment and its denial and an ex-' ception, and the bill of exceptions does not contain a motion in arrest of judgment and its denial and an exception. The question is presented whether the indictment is fatally defective because the person injured is named by his initials only in the indictment. Such an indictment was held insufficient in Willis v. People, 2 Ill. (1 Scam.) 399, and the general principle on which that decision was based was approved in Aldrich v. People, 225 Ill. 610. On the other hand, it was held in Durham v. People, 5 Ill. (4 Scam. 172), that, in stating the name of the person on whom the offense was committed, certainty to a common intent only is necessary, and that the name by which he is usually known is sufficient. In Lee v. Mendel, 40 Ill. 359, Charles W. Clayton was sued upon an instrument signed ‘ ‘ C. W. Clayton, ’ ’ and there was no averment that Charles W. Clayton signed it by the name and style of C. W. Clayton. It was held that this was not to be regarded as another name, but simply as an abbreviation of the full name. In Vandermark v. People, 47 Ill. 122, an indictment for assault with intent to commit murder, the initials only of the person assaulted were given in the indictment, and the court said that when the person is described by the initials of his Christian name and he is as well known by that as by his full name, the object of the rule requiring his name to be set out in the indictment has been obtained, and that it is a question for the jury whether he was known in the community as well by that as by his full name. In Little v. People, 157 Ill. 153, the name of the person injured was stated in the indictment as “John F. Hinckley.” The evidence was only that “J. F. Hinckley” was injured. Several authorities are there cited, and the conviction was affirmed, and the court there said:

“The use of the initial letters in place of the full Christian name has become general among all classes of people, and a judgment of conviction, otherwise free from error, ought not to be reversed because in the evidence the Christian name of the owner of the property stolen was proved only to the extent of the initials. No question was raised on the trial that the witness J. F. Hinckley, who testified to the theft of the diamond from his person, was not the John F. Hinckley named in the indictment. There can be no reasonable doubt as to the identity, and it will be presumed that the John F. Hinckley named in the indictment and the J. F. Hinckley mentioned in the proof as the owner of the property are one and the same person. There is no substantial variance, and an unsubstantial one cannot operate to reverse the judgment.”

The people filed an additional abstract here, from which it appears that the person injured testified that his name was M. C. Connors, and four other witnesses, including plaintiff in error, called him M. C. Connors, and in eight instructions given at the request of plaintiff in error, the person injured was called by plaintiff in error M. C. Connors. It therefore appears that that is the name by which he was usually known. In fact, we are not cited to any evidence which shows that he has any other name. It is merely a presumption from common usage that these initials represent,some full Christian name. If the person injured is as well known by that name as by any other name, he is in no danger of being unable to prove this indictment and conviction in defense to another indictment for the same offense upon the same person, and that danger is the only reason for requiring the name to be stated in full. Since Willis v. People, supra, was decided, section 9 of division 11 of the Criminal Code has been enacted, which provides that no writ of error shall be sustained for any matter not affecting the real merits of the offense charged in the indictment.

The judgment is affirmed.

Affirmed.