text:
    Francis W. Dunbar et al., Defendants in Error, v. American Telephone & Telegraph Company et al., Plaintiffs in Error,
    Gen. No. 14,422.
    1. Contracts—when transactions contrary to public policy not absolutely void. Transactions which are absolutely void for some purposes may he binding and effectual for ail other purposes.
    2. Decrees—upon what must be predicated. A decree which undertakes to adjust equities between the parties to litigation is erroneous if no pleading exists upon which such equities may he adjusted.
    - 3. . Corporations—when vote cannot be predicated upon stodc.
      The transferee of stock who has received the same in violation of the public policy of the state cannot after the illegal transfer has been adjudicated vote such stock, nor can such stock be voted by the assignor of the same until such time as the sale by him has been set aside. (Dunbar v. American Telephone Co., 224 Ill. 9, interpreted.)
    4. Corporations—how vote of stoolc must Be made. It being provided by resolution that voting at a corporate election shall be by written ballot, one who seeks to question the legality of the result declared because of the failure to count his vote, must show that he voted by written ballot.
    Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed June 30, 1908.
    Statement by tie Court. Upon the reversal of a decree of the Circuit Court sustaining demurrers to the amended hill in this record (Dunbar v. American Telephone Co., 224 Ill. 9) such of the defendants as had not answered the bill filed answers; and the cause being at issue was heard before the chancellor who rendered the decree, to reverse which this writ of error is prosecuted.
    The decree finds that the facts alleged in paragraphs II to XI, inclusive, of the amended bill are proven to be true, except certain allegations not material here to be mentioned. The decree finds that on January 4, 1902, pursuant to a written contract between them, the defendant Barton purchased from defendant Milo Gr. Kellogg 3,306 shares of the capital stock of the Kellogg Switchboard & Supply Company (hereinafter called the Kellogg Company) and that Barton in making the purchase acted, not in his own behalf, but in the behalf of, and as the agent of the defendant Ameriican Telephone & Telegraph Company (hereinafter called the American Company), a corporation organized under the laws of New York, which furnished the money necessary to make said purchase; and that later the American Company attempted to purchase and received the certificates of shares of the Kellogg Company from other defendants, making its total holdings of 4,311 shares of the stock of the Kellogg Company; that the necessary operation of said purchases at the time they were made tended, and tends to materially suppress competition, and created in said' American Company and its licensee companies a monopoly in rendering telephone service to the public throughout the United States, and that such was the purpose of the American Company in making each and all of said purchases, and that such purchases were contrary to the public policy of this state and were void, and no title to said stock passed to the American Company or to Barton.
    The decree further finds that in December, 1906, the Kellogg Company declared a dividend of fifty per centum- upon all its capital stock, and paid to the American Company or to its representatives $215,550 as dividends upon said 4,311 shares of stock. That on January 21, 1907, the day fixed for the annual meeting of the stockholders of the Kellogg Company by the by-laws of the company, for the election of directors, the annual meeting convened at the office of said company, and at this meeting 4,970 shares of stock were represented by the shareholders in person or by proxy; that at said meeting Milo GL Kellogg was present in person, and in the election for directors tendered his ballot as a stockholder of said company for the said 3,306 shares of stock, and also for 100 other shares owned by him; and others of said shareholders representing 331 shares, for the following persons as directors for the ensuing year: F. W. Dunbar, K. B. Miller, CL L. Burlingame, Milo Gr. Kellogg, Leroy D. Kellogg, James GL Kellogg and J. B. Edwards; and that Barton and Driver as representatives of said American Company by proxy tendered in said meeting their ballots for the 4,311 shares of said stock so claimed to have been purchased by the American Company, for six other persons as directors of said company and for J. B. Edwards as a seventh director, as did also the owners of 228 other shares, and the defendant DeWolf, who was acting as chairman of the meeting, received the ballots of the representatives of the American Company and refused to accept said ballots of Kellogg for 3,306 shares; and declared Wallace L. DeWolf, Clarence Buckingham, J. B. Edwards, F. J. Dommerque, Hopkins J. Hanford, E. H. Brush and M. Lester Coffeen, for whom the representatives of the American Company cast their ballots, elected as directors of the company for the ensuing year; that thereupon the complainant Dunbar assumed to act as chairman and declared those persons for whom Kellogg and his associates voted duly elected as directors.
    The decree finds that Kellogg was entitled to be recognized as the owner of the stock which he had sold, and that the representatives of the American Company were not entitled to be recognized as such stockholders or to have their ballots counted; and that by reason of said election Dunbar, Miller, Burlingame, Milo Gr. Kellogg, Leroy D. Kellogg, James Gr. Kellogg, and Edwards (hereinafter called the Kellogg directors) were duly elected and are the directors of the Kellogg Company; that by the charter and by-laws of the company its board of directors consists of seven members, all of whom are required to be elected annually.
    The decree then adjudges and declares that Milo Gr. Kellogg, Clarence Buckingham, Wallace L. DeWolf, Katharine W. Wright, Adolphus Busch, Charles Nagel, Hopkins J. Hanford and Scott Hanford are still the owners of said 4,311 shares of stock so attempted to be purchased by the American Company, and enjoins the Kellogg Company, its directors and officers, from rejecting the votes of any of, or refusing to recognize, said persons or their assigns as the owners of said shares except as said injunction is thereinafter modified, and also from recognizing or treating the American Company or its assigns as the owner or owners thereof, or permitting the American Company or any of its assigns to vote any of said 4,311 shares.
    The decree makes the temporary injunction issued in the cause permanent, and enjoins the American Company, the Western Electric Company, Enos M. Barton and George F. Baker and all other persons claiming ownership of or interest in said 4,311 shares by assignment or transfer, from either of said last named parties (since the institution of this suit) and their agents from claiming ownership of or any interest in any of said shares, and also from attempting to vote said shares at any annual meeting of the stockholders of the Kellogg Company, and from claiming by reason of said shares to be stockholders of the Kellogg Company, and from attempting to sell, transfer or vest ownership in others of any of said shares, and from in any way interfering with Milo G-. Kellogg’s ownership or control of, or his right at any meeting of stockholders of the Kellogg Company to vote said 3,306 shares belonging to him, or the like ownership or right of Buckingham in respect to the 262 shares, or the like ownership of DeWolf in respect to the 203 shares, and Mrs. Wright respecting 12 shares, and Busch respecting 215 shares, and Hanford respecting 259 shares, and Nagel respecting 42 shares, and Scott Hanford respecting 12 shares.
    DeWolf, Buckingham, Bommerque and Hopkins J. Hanford are each permanently enjoined from acting as, or claiming to be, directors of the Kellogg Company, or interfering with the management or property of the company, until he or they shall, after the entry of the decree, be duly elected or appointed such director, officer or agent of the company; and also from interfering with the Kellogg directors.
    DeWolf is enjoined from acting as president of the Kellogg Company, and from interfering with or preventing the election of any person as president by the Kellogg board of directors.
    Dommerque is restrained in like manner from acting as secretary of the Kellogg Company, and from all interference with the business or property of the company or with any secretary or other officer elected or appointed by the Kellogg directors.
    The American Company, the Western Electric Company, and the Kellogg Company and each of its officers and agents, are permanently restrained from interfering with or obstructing the Kellogg directors and their successors when duly elected or any officer or agent duly designated by them, in the possession or control of the property and business of the Kellogg Company, which with its officers and agents is directed to turn over and deliver, upon request of the Kellogg directors, all the property, books, papers, etc., of the Kellogg Company to the Kellogg directors.
    The decree then makes elaborate directions with reference to the deposit of the stock certificates for the 4.311 shares with the clerk of the court to make distribution thereof according to the decree, and the manner and conditions of disposing of said shares. It is not necessary to state these provisions of the decree. The decree then provides that if the American Company fails to comply with its provisions as to depositing the certificates of stock, the same are canceled and held for naught and the Kellogg Company is directed to issue and deliver to the clerk of the court new certificates for said shares, such new certificates to be for the several numbers of shares as will permit the distribution of the stock in the manner and upon the conditions contemplated by the decree; and the American Company is ordered to repay to the Kellogg* Company the $215,550 paid to it as dividends upon the 4.311 shares of stock.
    A. N. Waterman, Holt, Wheeler & Sidley, Tenney, Coffeen, Harding & Shearman, Wilson, Moore & McIlvaine, John J. Herrick, and Aldrich & Mc Auley, for plaintiffs in error.
    Henry S. Robbins, for defendants in error.
   Mr. Justice Smith

delivered the opinion of the court.

The Supreme Court (Dunbar v. American Telephone Co., 224 Ill. 9) held that the material facts alleged in the amended bill were sufficient, if proven, to justify a decree giving complainants, defendants in error, some relief. The first question then for us to consider and decide is—are the material averments of the amended bill supported by the evidence?

The evidence as condensed in the abstract of record fills nearly one thousand printed pages, and it is manifestly difficult for us here to discuss it analytically. It would serve no useful purpose to do so; and we shall simply state our conclusion. In our opinion the evidence sustains the material averments of the bill, and under the law, the complainants are entitled to relief.

We come now to the question of the scope and extent of the relief to .which the complainants are entitled. The law of the case as to the right to relief on this bill is settled by the Supreme Court. The bill was before that court on demurrers, and the court was not called upon to decide, and did not decide, the question now presented. But the character, scope and •extent of the relief to be granted upon the pleadings and evidence in this record must depend in a large measure upon the situation and rights of the parties and the principles of law to be applied thereto, as determined and adjudicated in Dunbar v. American Telephone Co., supra. Counsel in their oral and printed arguments in this case take widely divergent views of the purport and effect of that decision, and these irreconcilable views are pressed upon our attention with great earnestness and ability.

The decree of the court below proceeds upon the theory that the complainants are entitled as stockholders of the Kellogg Company, having no ownership or interest in the 4,311 shares disposed of by the decree, not only to an injunction restraining the American Company and its agents and attorneys from voting at any meeting of the Kellogg Company the shares of stock purchased by it, and from all participation by it or its agents in the management and control of the company and its business, but, that the complainants have also the right to have the ownership of the stock in question settled and determined as between the American Company and the sellers of the stock, without any cross-bill filed by such seller or sellers, and issue formed thereon between them and the American Company. Proceeding upon this theory the decree declares that the purchases of the shares of stock were null and void and of no effect, not only as to any right of the American Company or its agents to attend and vote such stock at any meeting of the stockholders of the company, but that such purchases and transfers were absolutely null and void and without force or effect as between the contracting parties, and that the title to the stock and the right to vote the same remained in the sellers, Milo G-. Kellogg, Clarence Buckingham, Wallace L. Be Wolf, Mrs. Wright, Adolphus Busch, Charles Nagel, Hopkins J. Hanford and Scott Hanford, who have received and still hold respectively the full consideration paid therefor, as fully and completely as if no sales and transfers thereof had been made. This theory of the rights of the complainants and the legal situation of the parties is urged upon us by counsel for complainants, and by counsel for Milo Q-. Kellogg, and it is urged that the opinion of the Supreme Court clearly and without reasonable question or doubt holds'it as the law of the case.

• In our opinion the decree is fundamentally erroneous as to the equitable rights of the complaining stockholders, and the legal and equitable rights of the defendants to the bill.

Without doubt there are expressions in the opinion in the Dunbar ease which, apart from the precise question being considered by the court, and standing alone by themselves, support the view of the decree and the position of counsel for complainants and for Kellogg, that the transaction between Kellogg and Barton was ineffectual for any purpose whatever and that Kellogg remained the owner of the stock exactly as he was before the transfer was made and as if nothing whatever had happened or had been attempted to be done. But if the opinion is studied as a whole we do not think it supports this view. Beading the opinion with the point in mind which the court was discussing when the expressions or terms were used, we think the meaning of the court is clear: Le Moyne v. Quimby, 70 Ill. 399, 404. When the court was discussing the question, at page 26 of the opinion, whether minority stockholders can take advantage of the illegality in the transaction between Kellogg, and Barton representing the American Company, and restrain the voting of the stock at any meeting of the stockholders of the Kellogg Company, and any interference in the management and control of its business by the American Company, it sustains that right in the complainants upon two grounds, the first of which is stated to be that the ■ attempt to acquire an ownership of the stock for the purpose of voting it, and thereby control the management and business of the company, “was absolutely null and void, as being in excess of its chartered powers.” As we read the language used the court intended to say, and did say, that as between the minority stockholders and the American Company the attempt of the latter to hold and vote the stock for the purposes charged in the bill was absolutely null and void as against the complainants.

After stating the second ground upon which the complainants were entitled to maintain the bill, the court takes up the question of the decree on Kellogg’s cross-bill, and in affirming the decree, dismissing it, says:

“No necessity whatever for that bill is shown. At most, Milo G-. Kellogg was a mere nominal party to the original bill. No relief was prayed against him, and if a decree granting the prayer of that bill had been rendered he would have obtained all he was in equity entitled to.”

When the averments of the original bill and the cross-bill and the prayers for relief in those bills respectively are considered, we think the above statement in the opinion that a decree granting relief under the original bill would give Kellogg “all he was in equity entitled to,” warrants the conclusion that all that is said in the opinion of the court as to the nullity of the purchase and transfer of the stock is said with reference to the claims asserted by the complainants as minority stockholders; and that the invalidity or nullity of the stock purchases extended only so far as it was necessary for the protection and the enforcement of the rights of the complainant stockholders. It has no reference to the legal status between the American Company and any seller of the stock.

We think the additional opinion rendered on consideration of the petition for rehearing also supports this view.

That transactions which are absolutely void for some purposes may be binding and effectual, for all other purposes is familiar law. Campbell v. Whitson, 68 Ill. 240; Le Moyne v. Quimby, supra; Anderson v. Roberts, 18 Johns. 513; Ewell v. Daggs, 108 U. S. 148.

In the last cited case, the court, referring to a statute of Texas making a contract of loan and interest above a specified rate “void and of no effect as to the interest,” said: “All that can be meant by the term, according to any legal usage, is that a court of law will not lend its aid to enforce the performance of a contract which appears to have been entered into, by both the contracting parties, for the express purpose of carrying into effect that which is prohibited by the law of the land. ® ® * And the effect is the same if the contract is in fact illegal, as made in violation of the statute, whether the statute declares it to be void or not.”

Considering that part of the opinion which declares the stock sale absolutely null and void, and the particular expressions therein in which those terms are used, in the light of these authorities, arid keeping in mind that the court was discussing the question. whether the objection to the transaction that it was ultra vires could be raised by private individuals having the relation to the corporation of stockholders, or only by the state, we think it is clear that the court intended to hold that in view of the relation of the complainants to the corporation as stockholders, the illegal contract of the corporation might be challenged by them, and restrained at their instance, and to that end and for that purpose, and as to the complainants the transaction was null and void.

. As stated above, we think the decree is erroneous in that it recognizes in the complainants the right to have the titles to the 4,311 shares of stock determined and adjudicated upon their bill. The decree extends the relief to which complainants as minority stockholders are entitled too far. It recognizes certain equities as between the sellers and the American Company and attempts to adjust them without any proper pleading in the case as a basis. In this respect the provisions of the decree are, in our opinion, inconsistent, and cannot be reconciled with each other. What equities were there to be adjusted under complainants’ bill if the finding and adjudication in the first part of the decree be true: “that no title to said stock passed thereby from any of said sellers to said American Company or said Barton, but that despite said attempted sales each of said sellers still remains the owner of the shares of stock so attempted to be purchased from him?” Surely there were no equities to be adjusted at the instance of complainants if the status of a continuing ownership in the sellers had existed and Kellogg was entitled to vote the stock attempted to be sold by him at .the annual meeting of the stockholders in January, 1907, and the Kellogg board of directors were then duly elected, as declared by the decree. While the decree declares that the sales and transfers of stock to the American Company were null and void and ineffectual to pass titles, it seems, nevertheless, to give them sufficient legal life and effect to support equities in favor of the American Company against the sellers and seeks to adjust and protect such equities. This, we think, is not in consonance with either the practice or the principles of equity.

By the decree DeWolf, president; Dommerque, secretary, and Hanford and Bucldngham, also members of the board of directors, were removed from office, and enjoined from exercising any of the powers or rights attached to their respective offices, and from interfering with the Kellogg board of directors (which directors are declared duly elected) in the management of the company, its property or business. The right of the Kellogg directors to act as directors of the company is básed on what occurred at the stockholders’ meeting held on January 15, 1907.

The record shows that DeWolf, Hanford and Buckingham were elected directors of the company long before the sale of the Kellogg stock on January 4, 1902, and at each annual meeting after that date they were unanimously re-elected as directors. At the annual meeting held a year or so after the sale, Dommerque was elected a director and was re-elected at each annual meeting thereafter. At no time prior to the annual meeting in January, 1907, were any other candidates proposed, and the entire vote of the stockholders was cast for them without objection or question. Irrespective, therefore, of whether the title to Kellogg’s stock passed to Barton or the American Company, and whether the voting right to that stock was in Kellogg or the purchaser from him, the legality of the election of plaintiffs in error to their respective offices was beyond reasonable question, prior and up to January 15, 1907.

The by-laws of the company provided that officers and directors should hold their offices until their successors were elected and qualified. Plaintiffs in error, therefore, being thus legally elected and installed.'in office, would hold their offices respectively until they were displaced by the legal election of their successors. Their right then to the offices does not depend merely upon whether they were duly elected in January, 1907, but whether they were put out of office by the election of others as their successors. This question does not depend merely upon the right of Barton or the American Company to vote the stock, or whether that right was vulnerable and would be denied if attacked. It depends primarily upon the existence in Kellogg at that time of the right to vote the 3,307 shares which he had sold; and, secondarily, whether he exercised his voting right at the meeting by casting written ballots. The burden of proving the right in Kellogg, and that he exercised it according to the resolution, passed unanimously, that the voting should be by ballot, was upon the complainants in the bill.

Without going into the details of the record of the meeting of January 15, 1907, it appears without controversy that a total of 4,970 shares of stock were represented there by the owners, in person or by proxy. When the roll was called and Mr. Barton’s name was reached (he being the record owner of the shares sold to him by Kellogg), Mr. Holt, holding a proxy for these shares and for 528 shares standing in the name of W. B. Driver on the books of the company, cast the ballots for all the shares so represented by him for plaintiffs in error for directors. Thereupon, Milo Gr. Kellogg announced that he was the owner of 3,307 shares standing in the name of Barton, and that he represented them in person, and that he cast his ballot for 3,305 shares for each of the Kellogg directors, naming them, but did not in fact cast the ballot.

The ballots were then counted and plaintiffs in error were declared elected as directors, Kellogg’s announcement of his vote for the Kellogg directors being ignored. Dunbar then announced the election of the Kellogg directors by a vote of 3,700 shares for them out of a total vote of 3,900 shares.

In our opinion, Milo G-. Kellogg had no right to vote the 3,307 shares sold by him to Barton or the American Company and standing in the name of Barton; nor did Barton or the American Company have the right to represent and vote those shares. Eliminating, then, these shares of stock as not being represented legally at the meeting, there was no election of directors, for the reason that the by-laws. of the company provide that a majority of the entire stock of the company is necessary to constitute a quorum at a stockholders’ meeting.

Kellogg had parted with the title to the shares of stock sold by him to Barton by a transaction which was so far good between the parties that it was and is in force and effect until it is set aside. It has sufficient validity to require a rescission before Kellogg can be restored to the ownership of the stock. An essential part of such rescission is a return of the consideration. (Dunbar v. American Company, supra.) In our opinion the decree dismissing Kellogg’s cross-bill was an adjudication that as between himself and the buyer of the stock he had no right to it. Gould v. Evansville R. R. Co., 91 U. S. 526; Reynolds v. Mandel, 175 Ill. 615; Wright v. Griffey, 147 id. 496; Attorney General v. C. & E. R. R. Co., 112 id. 520; Nickless v. Pearson, 126 Ind. 486; Lindsley v. Silver Star Mining Co., 115 Fed Rep. 47; 1 Herman on Estop., par. 273, 470.

It follows, we think, from the record in this case standing by itself, and upon the authorities cited, the complainants have failed to prove that the old board of directors, of which plaintiffs in error are members, were superseded and ousted by the election of the Kellogg board and that the decree in declaring the Kellogg board elected is erroneous.

There are other erroneous provisions in the decree which we cannot take the time to point out specifically, but we shall proceed to state the relief which, in our opinion, the complainants are entitled to. They have no standing to insist upon any relief beyond that which is necessary for their own protection against injury. Such protection from injury will be fully met and that relief will be fully answered by an injunction upon findings warranted by the evidence against Barton and the American Company and his or its agents or officers from voting the 4,311 shares of the Kellogg Company stock purchased from Milo Q-. Kellogg and others, and from acquiring or attempting to acquire further stock of the Kellogg Company and vote it at any stockholders’ meeting of said company, and from exercising or attempting to exercise any control, direction, supervision or influence whatsoever over the acts and doings of the Kellogg Company by virtue of the holding of such stock therein; and by enjoining the Kellogg Company, its officers, directors and agents, respectively and collectively, from permitting the stock to be voted by the American Company or in its behalf by its agents or attorneys at any corporate election for directors or officers of said Kellogg Company, and from paying any dividends to be hereafter declared on account of such stock to the American Company or to any person or corporation for it. This was the relief given in United States v. Northern Securities Co., 120 Fed. Rep. 721, 723, and affirmed by the U. S. Supreme Court, 193 U. S. 197, and it has reason and authority to support it.

The decree of the Circuit Court is reversed, and the cause is remanded with directions to the Circuit Court to enter a decree in accordance with the views herein expressed.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Sarah E. Donaldson, Executrix, Appellee, v. Oliver Donaldson, Appellant.
    Gen. No. 13,920.
    1. Partnership—presumption as to correctness of boolcs of account. While the presumption obtains as between partners that firm books are correct, such presumption is one which may he rebutted by proof.
    2. Partnership—what error in stating account. In stating an account between partners it is error for a master to fix an arbitrary date as a starting point in the absence of evidence that there had been, at that time, a settlement between the partners.
    3. Pabtkebship—when accounting will not be awarded. If the hooks of account are admittedly inaccurate and in a state of contusion which precludes the reaching of a reasonably correct conclusion, the bill in such case will he dismissed.
    4. Pabtkebship—when boolcs not admissible upon accounting. To entitle firm hooks to be admitted upon the statement of an account between the partners, it must appear that the entries contained therein are contemporaneous with the transactions recorded.
    Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Hokobe, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed July 6, 1908.
    Francis E. Croarkin, for appellant; Edward F. Bogart, of counsel.
    George W. Barker, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In June, 1865, Bobert Donaldson, Samuel H. Donaldson and Oliver Donaldson, brothers, formed a partnership at Chicago for the purpose of carrying on the trade and business of ship-smiths and ship-carpenters. There was no written contract of the partnership at any time. The firm was first dissolved by the death of Bobert, which occurred September 12, 1883. The two remaining brothers, Samuel H. and Oliver, bought the interest of Bobert in the firm from his administratrix, each paying one-half of the purchase price, and continued the business as partners. The firm was finally dissolved by the death of Samuel H., in January, 1903. The activities of the business of the firm were discontinued November 5,1901. During the time intervening between that date and the death of Samuel H., the business was in process of liquidation and settlement. About fifteen months after the death of Samuel H. this bill was filed by appellee, as executrix of Samuel H.’s will, for an accounting. The books of the firm were kept by Samuel H. and his two sons, Oliver H. and Bobert P. Donaldson. • Oliver did not participate in the bookkeeping or in the management of the finances of the firm. The evidence conclusively shows that Oliver was a blacksmith and constantly worked as such in the firm’s business, and that he was no bookkeeper and did not understand bookkeeping. We also gather from the proofs that Samuel H. made no claim in his lifetime that Oliver was indebted to him, in any manner, on partnership account, and that the firm business was treated as virtually settled for some time prior to his death. Oliver answered, denying that appellee was entitled to an accounting, but afterwards filed a cross-bill, claiming that owing to inaccuracies in the books of the firm, the estate of Samuel H. was indebted to him in a considerable sum of money. The cause was referred to a master to take proofs, and he, after an extended hearing, found that appellant was indebted to Samuel’s estate on partnership account in the sum of $1,921.94, and recommended a decree for that amount. Objections of appellant were overruled by the master, as.likewise exceptions to the master’s report by the chancellor, and a decree entered in favor of appellee, according to the recommendations of the master, and that appellant take nothing by his cross-bill.

Appellant in argument mainly rests his defense upon the contention that the books of the firm offered and received in evidence are in such confusion and so inaccurate that everything in relation to the accounts is left in such doubt and uncertainty that justice cannot be done between the parties by rendering a finding in favor of one or the other of them, •and that consequently the parties cannot invoke the aid of a court of equity, and the bill should have been dismissed.

That all of the books and documents received in ' evidence are of an uncertain and unsatisfactory character is apparent from the findings of the master and the observations of appellee’s counsel contained in his brief. The master says in one of his findings—B. p. 54: “I find it impossible to reconcile the bank’s pass-books with the account of Donaldson Brothers on any other hypothesis than that from time to time moneys received on account of work done by the firm prior to January 1, 1891, were deposited in bank and from time to time withdrawn by check and divided between the brothers, without keeping any memorandum thereof.” Then the master proceeds to state an account from the books and loose-leaf accounts, excluding the bank’s pass-book, from January, 1891, to September, 1902.

By this method, the account, in place of being based upon properly kept books of the firm, is stated in spite of them, and the ultimate finding rests in conjecture and surmise. Notwithstanding appellant did not keep the books and was not, by reason of his ignorance of bookkeeping, cognizant of their contents or accuracy or inaccuracy, he is made to bear the brunt of all the defects and irregularities so admittedly appearing from an inspection of the accounts and documents in evidence. This becomes more open to criticism when it is borne in mind that the parties, by their actions in relation to the firm accounts and their conduct with each other, treated them as settled and the partnership at an end.

While it is true that a presumption obtains that as between partners the firm books will be regarded as correct prima, facie, yet such presumption may be rebutted by proof to the contrary. That the books and documents of the firm in evidence are incorrect and unreliable cannot be seriously disputed. The evidential facts plainly and conclusively, we think, so demonstrate. Appellee’s counsel say in his brief: “It is true there were many errors and the system was crude, but there were mistakes on both sides of the account.” But with what conscionable reason can these mistakes be imputed and charged to appellant? Appellee, in the right of her testate, is charged with the responsibility for these errors—not appellant. The uncertainty and unfairness of the accounting is further illustrated by these quotations from the argument of appellee:

“Out of the last small bundle of documents produced by Mrs. Donaldson, the wife of Samuel IT., we found paid checks and paid bills amounting to over $300, which had been omitted from the expense account. Mrs. Donaldson testifies that entirely inadvertently, and not knowing their probable value as evidence in her favor, she destroyed many checks and paid bills. It is certain that amongst them we might have found other evidences which would have increased the expense account in this accounting, and we might have found evidence of many omissions to charge his brother’s withdrawal account with items. It is a great deal more easy to omit to enter charges than to make them, and Sam’s carelessness in this respect was not confined to the record of collections and expenses alone; in all human probability he gave his brother hundreds of dollars which he never entered at all.” So glaring a confession of inaccuracies is somewhat startling. They cannot be overcome and wiped out by the assumption that all the errors were against appellee’s testate and in favor of appellant. The argument is ingenious, but far from removing the difficulty so confessedly encountered.

And again counsel say: “Sam was undoubtedly a poor bookkeeper, for he was a blacksmith and hammered out his bookkeeping as he did his iron, but he was honest and did the best he could.” However honest or however crude Sam’s methods of bookkeeping may have been, he undertook to keep the books and the law imposed upon him the duty of keeping them correctly. Now that he has passed away without having made any claim against his surviving brother on partnership account, is no reason why the living brother should be compelled to pay to the deceased’s surviving kin an amount arrived at by chance and guesswork, because his inaccurate method of keeping the firm books makes it impossible to state an exact and accurate account. It was erroneous for the master to state the account by fixing an arbitrary date as its starting point, in the absence of evidence that there had been at that time a settlement between the partners. The firm composed of deceased and appellant started after the death of Bobert in September, 1883. At that date, without proof of a subsequent settlement, should the accounting have started.

We have examined all the accounts in the books and documents appearing in this record, and we find them in such a disorderly condition as to be wholly untrustworthy as evidence from which an account between the parties can be correctly stated and justice done to either of them. The loose leaves are clearly inadmissible on the theory that they form a part of the firm’s accounts! No plausible reason is shown why the items there appearing, being correct, should not have been kept in the firm book, in which there was plenty of room to make the entries. The credits in the bank pass-books should have been used from which to check up the items appearing in the check-book. The seven loose sheets were clearly inadmissible as evidence for either party. The evidence develops as a fact that appellant never drew hut one check upon the firm bank account, and that for cash to pay the firm’s workmen in the absence of the deceased.

The bill here seems to have been inspired because appellant proved a claim against the deceased’s estate on a note for $2,000, which note was given in renewal of a similar note of date ten years preceding. There is nothing in this record impeaching the bona fides of that transaction. The books and documents upon which the master founded his recommendations are so unsatisfactory and in such confusion, with interlineations and erasures, and so confessedly inaccurate, as to be insufficient to support the master’s findings.

The accounting made is far from being a just or complete account between the parties. The burden of correctly, stating the account by competent evidence rested upon appellee in the first instance. The proof offered by appellee and admitted fell far short of fulfilling such requirements, and the testimony offered by appellant added nothing to its probative force. The account as stated is, by all the evidence in this record, too uncertain and problematical to justify a decree in favor of either party.

The book accounts proffered by appellee were not admissible as evidence under the ruling in Marshall v. Coleman, 187 Ill. 556, that to entitle such books to be received in evidence in favor of the party offering them, it must be shown that the entries were made contemporaneously with the transactions recorded. This rule applies to the books and entries of a deceased person. The imperfections in the books and accounts are chargeable to the partner who kept them or under whose direction they were kept. In this case the deceased is the responsible party, and appellee cannot advantage through errors, mistakes or irregularities imputable to the deceased partner.

The books, papers and documents found in the record do not show with accuracy or precision the true state of the accounts between the deceased and the surviving partner. Brockman v. Aulger, 12 Ill. 277.

In this condition of the record neither party is entitled to a decree under the original or cross-bill. The answer of appellant does not seek an accounting, but denies appellee’s right to one, and while he interposed a cross-bill, it has the characteristic quality of a defensive pleading rather than the declaration of facts constituting an affirmative claim. We think the rule announced in Vermillion v. Bailey, 27 Ill. 230, that “On a bill filed for a settlement of partnership accounts, where the proofs and statements leave everything in such doubt and uncertainty that it is impossible to do justice, the bill should be dismissed,” is applicable to this case, and consequently the decree of the Circuit Court will be reversed and an order entered here dismissing the bill and cross-bill for want of equity.

Reversed and judgment here.


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      Sally Lefkovitz, Appellant v. City of Chicago et al., Appellees.

      Gen. No. 13,924.

    Real property-what does not constitute actionable injury to. Loss of rents resulting from the vacation by a tenant of private property due to an obstruction temporarily erected by a city in front thereof in connection with a public improvement, lawfully in course of construction, does not confer a cause of action, it not being charged either that there was (1) permanent injury, (2) physical invasion or (3) an injury not borne in common by other property owners along the line of and contiguous to the improvement in question.
    Action in case. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.

      William J. Lacey, for appellant.
    Robert N. Holt and George W. Miller, for appellee; Edward J. Brundage, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court sustaining a general demurrer to the declaration and dismissing the suit. Appellant did not ask leave to amend, but elected to stand by her declaration. The City of Chicago is the only appellee who has followed this appeal and filed briefs.

The action is case and is based upon loss of rents of certain realty in Chicago, occasioned by the alleged unlawful maintenance by appellees of an obstruction in front of appellant’s premises, impeding ingress to and egress from the buildings situate thereon. The obstruction complained about consisted of a large platform about fifteen feet high constructed over the sidewalk and in front of appellant’s premises. The occasion of its construction was the digging of an underground tunnel running in a northerly direction from Potomac avenue. An alley adjoining appellant’s premises was likewise obstructed, completely cutting off • access thereto from appellant’s property. No claim is made of permanent damage to the premises or the buildings situate thereon. The damage claimed arises from loss of rents for three years, during which time the obstruction was allowed to remain as a barrier to ingress to and egress from appellant’s property, causing the tenants to vacate and preventing a reletting.

It is not claimed by any averment of the declaration that the property of appellant is permanently damaged or injured by reason of the acts of appellees done in the construction of the public improvement or in the maintaining of the obstruction in front of appellant’s property on the public highway, or that any part of appellant’s said property has been taken for such public improvement. We do not think it can be said, from any count of the declaration, that the actions of appellees resulted in the taking of private property for public use within the meaning’ of section 13, article 2, of the State Constitution. The obstruction complained of is temporary, not of a permanent nature, and such is the interpretation of the charge in the declaration. The nature of the public improvement from which the injury is said to arise is not stated in such terms that from them we can say there is any injury of a permanent character, or that appellant suffers any damage which is not borne in common by other property owners along the line of and contiguous to the improvement. The nature of the tunnel, its size or dimensions, are not stated, nor the purposes or uses to which it is intended to be put when completed.

It is clear that this case falls within the ruling in Osgood v. City of Chicago, 154 Ill. 194, and is akin to it on law and fact.

It is axiomatic that all property is held subject to any burden which may be imposed from the fact of its being situate in the vicinity of or adjacent to a public improvement. The constitution provides no remedy in the way of an award of damages for temporary obstructions when streets are being repaired or public improvements installed in such streets, notwithstanding during the time of doing such work access to abutting property is cut off, with resulting damage to the owner.

In the Osgood case, supra, it was distinctly laid down as the law that no recovery could be had for loss of rents arising through obstruction to access to and egress from a building adjoining a public improvement during the progress of the work. This is the conceded limitation of appellant’s claim for compensation. The declaration thus circumscribed does not state a cause of action cognizable at law.

The demurrer to the declaration was properly sustained, and the judgment of the Circuit Court is consequently affirmed.

Affirmed.


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    The People for the use of National Plating Company, Defendant in Error, v. Bernhard Loeff et al., Plaintiffs in Error.
    Gen. No. 13,930.
    1. Executions-who disqualified from executing. An officer having a vested interest in an execution is thereby disqualified from executing it.
    2. Official bonds-what no defense to action upon constable’s bond. An agreement by which a constable is to receive a commission in excess of the amount allowed by statute does not constitute a defense which may be urged by his sureties to an action upon the bond, of such constable for failure to turn over the proceeds of the amount collected under such execution.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Rehearing denied July 16, 1908.
    Louis Greenberg, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action ag’ainst the plaintiffs in error as sureties on the bond of Frank Whalen, a Cook county constable. The evidence discloses that one John W. Mills delivered to Frank Whalen an execution from the office of J. K. Prindiville, a justice of the peace in Cook county, which, including costs, was for $87.70; that Mills agreed with Whalen, the constable, that he would pay him as fees for his services in making such collection twenty per cent, of the amount he should collect; that the execution was returned satisfied in full of the whole amount; that Whalen paid $49.44 to Mills, which, after crediting twenty per cent, of the amount of the judgment for collection fee, as agreed, plus $2 costs, left a balance of $18.16 due from Whalen, the constable, to the plaintiff in the execution, for which amount judgment was entered.

The sole contention of plaintiff in error is that the agreement to pay Constable Whalen a commission upon the amount collected by him, being variant from and in excess of the fees allowed by statute, is forbidden by law as being against public policy, and that the effect of such an agreement is to release the sureties upon the constable’s bond.

The trend of the authorities is unquestionably to the effect that an officer interested in the subject-matter of process is thereby disqualified from executing it. The law will not permit a party to be his own executioner. He cannot, being a party, execute legal process in his own favor. In O’Conner v. Wilson, 57 Ill. 226, the wife of the officer making the sale was the purchaser who had joined in a conveyance and was liable on his covenants. In this condition it was held that he could not, because of his interest and assumed lack of impartiality, amend the return upon the process under which the property bought by his wife was sold. In Zschocke v. The People, 62 Ill. 127, the defendant was indicted, charged with having stolen certain bank notes, the proceeds of the sale of property taken under an execution. The goods were sold at private sale and not in virtue of the execution. A conviction was reversed because the court held that a levy vested in the officer making it a special property in the goods levied upon until a sale was made according to law; that a plaintiff in an execution acquires no property in the goods by the seizure; that when a sale is made pursuant to law, the title of the judgment debtor becomes divested and the proceeds are in the custody of the law until paid over to the plaintiff; that the specific money realized from the sale while in the hands of the officer is not the property of the plaintiff and does not so become until paid over to him; that while Zschocke was not the bailee of the plaintiff, yet his conduct merited severe punishment, but he could not be adjudged guilty of stealing the bank bills received for the property taken on the execution and sold in .violation of law at private sale.

In Snydacker v. Brosse, 51 Ill. 357, the constable attempted to justify a trespass in making a levy under a writ of retorno habendo which ran to himself, and the court say:

“In this case, however,, there is a fatal objection to the justification, by Comfort, under the writ of retorno habendo, as it was in favor of himself and Snydacker. We are aware of no case in which the law authorizes a person to execute process in his own favor. To permit such a course of practice would lead to great oppression, wrong and irregularity. The law has wisely entrusted the decision of disputes bétween citizens to persons wholly disinterested, and free from bias and the acrimony of feeling so frequently, if not uniformly, engendered by litigation; and the same is equally true of the persons selected to execute the process necessary to the adjustment of such disputes. The law will not entrust the power to a person to render or execute a judgment in his own favor. The writ of retorno habendo, therefore, could form no justification for any act done under it by Comfort, whatever it might have been to any other constable having no interest in the litigation.”

While unconditionally yielding our assent to the doctrine so forcefully stated in case, supra, and our approval of all the arguments advanced in illustration of such doctrine, a majority of the court are unable to see that it is applicable to the facts found in this record.

Whalen, the constable, was not a party to the process; he was simply the officer under the statute to execute it. He had no vested interest in the judgment or title to any part of it. No one is claiming to have been injured by any act of Whalen in collecting the amount of the execution, or to have suffered any hardship or extortion at his hands. Neither does it appear he collected or attempted to collect any more than the lawful amount due under the execution. No irregularity in the conduct of "Whalen in making the collection appears, and none is claimed. No one has been injured as the result of any act or conduct on the part of Whalen in the collection of the amount due. A breach of his official bond occurred, however, when he failed to pay over the amount due less the charge agreed upon for his service. That such compensation was in excess of the fee allowed by statute, in place of working any loss to the sureties on the bond, was to their distinct financial advantage.

None of the cases cited by counsel for plaintiff in error as upholding his contention are similar to the case at bar, but are clearly distinguishable from it upon the facts. In every case the officer appears to have had a distinct vested interest in the cause or the process. Here there is no such interest.

In Erwin v. Bowman, 51 Texas, 513, the action was by the execution debtor against the officer for making an excessive levy.

In Samuels etc. v. Commonwealth, 22 Ky. 173, the execution was assigned to the deputy sheriff, and it was sought to make the sheriff responsible for a failure of the deputy to make collection under the writ.

In Riner v. Stacy, 8 Humphrey, 288, the officer was the owner of the judgment in the execution by assignment.

The execution in question at no time was process in favor of Whalen, nor was he in any manner interested in the cause of action in which the execution was issued prior to its collection. Whalen was free to act without bias, and there is nothing in this record to the contrary or challenging his conduct in any action taken by him resulting in the payment to him of the amount' due upon the execution in' his hands for collection. The judgment of the Municipal Court is affirmed.

Affirmed.


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    Kristine Petersen, Administratrix, Appellee, v. Elgin, Aurora & Southern Traction Company, Appellant.
    Gen. No. 13,939.
    1. Passenger and cabbies—when relation established. Pay* ment of fare is not essential to the establishment of the relation of passenger and carrier if no refusal to pay has taken place and there is no evidence impugning the bona fldes of the intention of one who has boarded a car.
    2. Passenger and cabbieb—what not obligation of former to avoid injury. “A passenger in a railway train does not owe a duty to the company to push and crowd his way in order to get an advantage over other passengers in securing a place within the cars, and it does not follow as a matter of law that he will be guilty of neligence in not so doing. Nor will his duty to the company require that he shall wholly disregard the usual and ordinary courtesies and amenities of life. In fact, it is not necessary and as a matter of law negligence to stand aside and allow ladies to occupy the safest and most desirable positions in a public conveyance.” Quoted with approval from C. &. A. R. R. Co. v. Fisher, 141 Ill. 614.
    3. Passenger and carrier—extent of duty of latter to furnish safe place to ride. It is the duty of those in charge of a traction car, which is crowded to overflowing, to know of the presence of a passenger upon the step of such car, and knowing that such place is fraught with peculiar danger, to furnish him with a safe place to ride or to warn him to retire from his perilous position, and a liability results from an injury which arises either by reason of such passenger being pushed from such car by virtue of its overcrowded condition or by being struck by a passing car while in such position.
    4. Evidence—when complaint cannot be made of permitting rule to be shown by parol. Error cannot be predicated either upon the fact" of the proof of the existence of a rule or upon the proof of such rule by parol, where such rule was so proven without objection upon the cross-examination of the complaining party’s own witness.
    5. Ordinary care—how question of, to he determined. Whether a passenger was in the exercise of due and ordinary care for his own safety at the time of his injury is a question for the jury to determine from the evidence.
    6. Instructions—when question of existence of relation of passenger and carrier not ignored. Held, that the question of the existence of the relation of passenger and carrier is not ignored in the following instruction.
    “The court instructs the jury that if they find from the evidence that the plaintiff has made out her case by a preponderance of the evidence, as alleged in the first, third, fourth and sixth counts of the declaration, or in either of said first, third, fourth or sixth counts, then the jury should find the defendant guilty.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Albert H. Frost, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Statement Iby the Court- This is an action on the case against appellant for negligently causing the! death of appellee’s intestate, and is brought pursuant to the statute for the benefit of the next of kin of the deceased.
    The declaration filed consisted of nine counts, but went to the jury on the first, third, fourth and sixth counts, the other counts having been withdrawn from the consideration of the jury on the motion of appellant.
    The negligence charged in the first count, after averring that the deceased was a passenger and that it was the duty of appellant to furnish him with a safe place upon which he could ride upon its cars, is, that appellant wholly neglected its duty in that behalf, but provided, kept and had an unsafe and dangerous place for deceased to ride upon said car, viz: the step of said car, at the front end of said car, on the left-hand side of the front vestibule of said car, which was in close proximity to other cars of appellant passing in an opposite direction upon its tracks, which place was dangerous and unsafe, and a menace to the life and limbs of deceased, so that while he was then and there, with all due care and diligence, riding as a passenger upon said car, upon the said step of said car, and having no notice, knowledge or information of the dangers of so riding, deceased, if hile exercising due care and diligence for his personal safety, was then and there struck by one of appellant’s cars then and there passing in the opposite direction upon its tracks, and was caught, squeezed, rolled and crushed by and between said cars, at the intersection of Downer place and Eiver street, in the city of Aurora, and killed.
    The third count charges negligence in appellant in that the place where deceased was riding was dangerous and unsafe and a menace to the life and limbs of deceased; that appellant knew and had notice of such dangers, and that deceased had no such knowledge, but was ignorant of the dangers attendant upon riding in that place; that appellant’s duty was to have warned deceased of such dangers, but it did not.
    The fourth count charges inter alia that deceased was a passenger riding on the front end of the car on the step at the left-hand side of the vestibule, said car at the time being propelled over and along the tracks of appellant at the intersection of Downer place and Eiver street in Aurora; and that appellant was then running over and along its adjoining tracks another one of its cars, in an opposite direction, which while so passing the car upon which deceased was riding, was in close proximity to said latter car and within four inches from it;, that it was a menace to the life and limbs of deceased and other passengers similarly situate for said cars to pass each other upon the tracks of appellant at the place last mentioned; that it became the duty of appellant to stop the ear upon which deceased was riding and to keep said cars from passing each other while deceased was so riding upon its car as aforesaid; alleges a breach of such duty and the resulting knocking, of deceased from his position on the step of the car, killing him.
    The sixth count, after averring that deceased became a passenger on appellant’s car at Aurora, bound for St. Charles, alleges that it became the duty of appellant to carry deceased safely from Aurora to St. Charles upon its car, but that appellant did not use due and proper care and diligence to do so, but through its servants and employes conducted itself so carelessly, negligently and unskillfully in that behalf that by and through its neglect, etc., the said car upon which deceased was riding, in the exercise of all due care and diligence for his own safety, was caused and permitted to come in contact and close proximity with another car of" appellant then and there being propelled at a high rate of speed in the opposite direction over and along an adjoining track of appellant; that by reason thereof deceased was struck and rolled off said car and so injured that he subsequently died, etc.
    Three of these four counts also contain an averment that deceased left him surviving a widow and three minor children.
    Appellant pleaded not guilty, and a trial before the court and jury resulted in a verdict and judgment for ten thousand dollars, in an attempt to reverse which this appeal is prosecuted.
    The evidence is not in serious conflict. The defenses interposed rest mainly for their support upon the application of the law to the facts in proof. Deceased was a moulder living with his family in Chicago. The date of the accident was September 7, 1903. It was a holiday known as “Labor Day,” when the mechanic, the artisan and laborer cease from their toil. Deceased and his friend, the witness Eric Nelson, started from Chicago for a journey to Aurora and St. Charles and back again to Chicago. They chose as the route of their travel the Interurban electric roads running to those cities. Aurora was reached in due season, a little time prior to nine o’clock in the morning, and the road of appellant running from Aurora to St. Charles was selected by the two men as the means of travel to the latter place. The cars of appellant were at that time much in demand by travelers, so that in addition to the usual schedule extra cars were provided to run between the two cities named. The deceased and Nelson boarded the ear, upon which the former met his death, at Broadway and Fox street, Aurora. There were more passengers than the car could accommodate, and the rush and crowding for a place ensued familiar to all patrons of electric cars. The deceased and Nelson seem to have lost the opportunity to procure places on the inside of the car by waiting and permitting men accompanied by women to get inside of the car ahead of them.. The car was a large closed car with spacious vestibules at each end, with folding doors on each side of the vestibules, which were reached by a step below the platform of the vestibules. Passengers crowded into the car from both sides of the vestibules. The deceased and Nelson, just before the car started, being unable to get into the car, stood upon the front step of the car on the left-hand side. The doors of the vestibule were open. On this side of the car as it was running from Aurora on its journey toward St. Charles, there were car tracks upon which were run the cars of appellant entering the terminus of the road at Aurora. After the car upon the step of which deceased and Nelson were standing had progressed some little distance on its way, a car on the adjoining track was met and passed in safety. At the juncture of Downer place and Biver street a■ car of the appellant, passing the car on the step of which the deceased and Nelson were riding, struck the deceased and knocked him off, squeezing him and crushing him between cars so badly that he soon afterwards died.
    The tracks at the point of the accident are so close together' as to make the step of the car an unsafe place on which to stand and ride. The car on which the deceased was riding did not stop from the time it started from Aurora until after the accident happened, and then in consequence thereof. It is in evidence that neither the motorman nor conductor of the car saw deceased or Nelson or knew of their presence upon the car step until after the accident. No fare had been collected from passengers up to the time of the accident, and this for the reason that it was not the custom of conductors to collect fares until after passing Downer place. The car was so crowded that after it started the deceased and Nelson were not able to get off the step into the car. After the car started Nelson remarked to the deceased that their position was one fraught with danger, but deceased made no reply. Neither deceased nor Nelson had been in Aurora before. Neither the conductor nor motorman gave any warning to the deceased or Nelson of their perilous position, or said anything to them. Nelson was also struck upon the shoulder by the passing car, but managed to keep his hold and save himself from falling from the ear.
    The custom of appellant was to keep the vestibule doors closed on the side nearest the tracks on which cars ran in an opposite direction.
    Error is predicated and' argued by appellant for the failure of the trial judge to direct a verdict at the close of appellee’s proofs and again at the close of all the proofs, in the admission of oral proof of appellant’s rule requiring vestibule doors next to the south track to be closed, in the giving of certain instructions at the request of appellee, in refusing to direct the jury to find appellant not guilty as to counts 1, 3, 4 and 6, that deceased was guilty of neligence which contributed to cause the accident, and, finally, that the verdict is contrary to the weight of the evidence.
    Hopkins, Peppers & Hopkins, for appellant.
    Henry N. Miller and Lee Mighell, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The liability of appellant in this case is predicated upon its negligence in failing to furnish appellee’s intestate a place on its car where he could ride in safety. The law imposed the duty on appellant to use the utmost diligence consistent with'the practical operation of its road to carry its passengers safely and to do all necessary things and provide all appliances essential to that end. This is its duty to its passengers. The primary inquiry is, therefore, was appellee’s intestate a passenger? That he had not paid his fare is admitted. That he had not been asked for his fare is conceded. That the point where, by the custom of the conductors, collection of fares is commenced had not been reached prior to the time when deceased was knocked from the car is gathered from the testimony of appellant’s conductor in charge of its car. That the deceased was not ready and willing to pay his fare upon request, there is not the slightest suspicion arising from the proof. There is nothing in the proof impugning the bona fides of the deceased’s intention to become a passenger on appellant’s car when he boarded it, or showing that he intended to avoid payment of the fare, according to the company’s schedule of charges. It was not essential to the creation of the contract of carrier and passenger that deceased should have paid his fare. It is common knowledge that fares are not collected of passengers immediately upon their boarding a street car, and if it was not so, the proof of appellant establishes the fact that the point of collecting fares had not been reached according to the custom of appellant’s conductors at the time of the accident, and that no demand for a fare had been made. The proof affirmatively establishes that deceased was by implication of law a passenger on the car of appellant at the time he received his mortal injuries. North Chicago Street Ry. Co. v. Williams, 140 Ill. 275.

The authorities cited by appellant’s counsel in cases where the injured party was attempting to steal a ride or indulging in what is commonly known as “flipping” cars, have no application to the case at bar.

The four vestibule doors of the car were open, inviting people to enter the car through them and become passengers. The proof shows that deceased was a stranger in Aurora, never having been there before, and was, we must assume from this fact, unacquainted with the construction of the tracks of appellant’s road and with the lurking dangers to-be confronted, if any there were. Neither was he chargeable with notice of appellant’s regulations in relation to the management of its traffic, but had a right to act upon conditions as he saw them and enter the car through the doors which the servants of appellant had left open, impliedly for such purposes. The day of the accident was one given over to a holiday by working people, many of whom observed the day by traveling, to one place and another upon electric and other cars. Appellant had recognized that there would be an increased demand for its passenger cars and provided additional cars to meet it, and the evidence shows that the car in question was filled to overflowing. True it is that deceased might have reached a place of safety within the car by crowding, and not have been left to risk his life upon the step; and we think the observations in C. & A. R. R. Co. v. Fisher, 141 Ill. 614, peculiarly pertinent to the condition of deceased, where the court says: “A passenger in a railway train does not owe a duty to the company to push and crowd his way in order to get an advantage over other passengers in securing a place within the cars, and it does not follow as a matter of law that he will be guilty of negligence in not so doing. Nor will his duty to the company require that he shall wholly disregard the usual and ordinary courtesies and amenities of life. In fact, it is not necessary and as a matter of law negligence to stand aside and allow ladies to occupy the safest and most desirable positions in a public conveyance.” But it is urged that the servants of the company did not know of the presence of the deceased upon the step of its ear, and that consequently he was not accepted as a passenger, and that he voluntarily assumed the risk of so dangerous a riding place. We say that it was the duty of the servants of the company to have known of the deceased’s presence upon the step of the car, and knowing that the place was fraught with danger, to have furnished him a safe place or warned him to retire from his perilous one. It stands to reason that in the physical condition of the parallel tracks of appellant, it was chargeable with knowledge of the dangers attendant upon the passing of cars going in opposite directions to persons on the step of the vestibules of such cars on the side of the bar next to the passing car. Regardless of whether the company had a rule or not so providing, its servants should have closed the vestibule doors on the side nearest the tracks on which cars were run in an opposite direction, and have seen to it that no passengers were riding upon the step of the car, before starting on the trip, and if any persons were found upon such steps, to either provide a place for them upon the inside of the car, or, not being able so to do, to warn them off and refuse to suffer them to ride in such a position of danger. Failure so to do is negligence, for, as said in Booth on Street Railways, sec. 355, “If the company permits its cars to become so crowded that passengers • are compelled to ride on the footboards, and attempts to run them in that condition by other cars which cannot be passed without a collision and injury to passengers, it is guilty of culpable negligence, for the result of which the risk assumed by the passengers will constitute no defense.”

The law requires a carrier of passengers like appellant “to see and know, before putting a car in motion, that'no passenger is in a position which would be rendered perilous.” Miller v. St.Paul City Ry. Co., 66 Minn. 192.

Nelson, after the car started, realized the perilous position he and deceased were in and mentioned it to the deceased, but how the deceased regarded the situation we can never know, for he made no reply. But however perilous the position at that time, deceased was powerless to avoid such perils. The servants of the company were inside the car, which was speeding-on its way, and there is nothing in the evidence from which it can be said that any effort of deceased or Nelson, if made, would have resulted in stopping- the car before the accident happened.

The four counts under which the cause was submitted to the jury are sufficient to charge appellant as guilty of the negligence shown by the proofs to have been the proximate cause of the injury tb appellee’s intestate. The léarned trial judge therefore did not err in refusing to instruct the jury to find a verdict for appellant at any of the three times he was moved to do so by counsel for appellant. A careful examination of all the evidence found in this record satisfies us that the verdict of the jury was warranted from such proofs, and that the manifest weight of the evidence supports the verdict.

We think that it is immaterial whether appellant had any rule requiring the vestibule doors of cars on double tracks in Aurora, nearest adjoining ear tracks, to be closed or not; or, if it had, that it was error to prove it by the oral statement of Boy Green, its assistant superintendent. In the first place, it was negligence, regardless of there being any rule upon the subject, to run the. car without closing- the vestibule door next to the track on which cars were run in an opposite direction. But if there was anything- in the objection, appellant waived it when it permitted the existence of the rule to be proven on cross-examination of its own witness, Baynor Benton, the conductor of the car, without objection.

While the evidence may be in such a condition as to leave it in donbt whether the deceased was knocked off the step by the passing car or pushed against the passing car by the act of some other passenger, induced by the overcrowded condition of the car, still whichever cause operated to bring about the accident, they are equally imputable to the negligence of appellant charged in the declaration; for, as said in Booth on Street Railways, supra, “Nor will the wrongful act of passengers, who throw another to the ground and injure him while rushing past to leave the car with reckless haste, relieve the company from the consequences of overcrowding its car and failing to control its passengers.”

Whether the deceased was in the exercise of due and ordinary care for his own safety at the time he was injured, was a question for the jury to determine from the evidence; for, as said in C. & A. R. R. Co. v. Fisher, supra, “We know from common sense and ordinary observation and experience that under some circumstances it is culpable negligence to stand or sit upon the platform or steps of a moving car, and that under other circumstances it is not, and unless the case be one where the implication of negligence necessarily arises, it follows that what in a given set of circumstances would be negiigence, and what would he the exercise of ordinary care, are conclusions of fact to be deduced from the circumstances of the particular case. It would seem that a jury of twelve men of ordinary judgment and experience is particularly well equipped to determine whether under a set of circumstances detailed before them by witnesses, a particular line of conduct was ordinary care—in other words, such care as an ordinarily prudent and cautious man would exercise under the circumstances.”

It was the province of the jury to determine from the surroundings of the deceased at the time he boarded the car, his lack of knowledge of the dangers to be encountered from his position on the step of the car, and the action of appellant in impliedly inviting him to take passage on the car and to ride upon its step, whether he was at the time of the accident in the exercise of due care for his own safety. Under the proofs in the record, we are unable to say that the finding of the jury on this element of the case is so manifestly contrary to the probative force of the evidence as to call for our interference.

Complaint is made of certain instructions given by the court to the jury at the instance of appellee. We have critically examined all of the instructions given to the jury, and are of the opinion that they were sufficiently instructed on the law applicable to every theory upon which the case was tried. All the instructions requested by appellant were given, and they are numerous and comprehensive, and submit to the jury the law applicable to the proofs of appellant on every phase of its defense.

The following instruction is said to be erroneous, because it ignored the question of whether or not deceased was a passenger:

“The court instructs the jury that if they find from the evidence that the plaintiff has made out her case by a preponderance of the evidence, as alleged in the first, third, fourth and sixth counts of the declaration, or in either of said first, third, fourth or sixth counts, then the jury should find the defendant guilty.”

From the reading of the instructions it is clear .that the contention of appellee was that her intestate was a passenger at the time of the accident, and the jury were plainly told a person becomes in law a passenger by implication arising from his acts and that of the carrier; so that the jury squarely had the question of whether or not the deceased was a passenger before them. The instruction referred to the counts of the declaration under which the cause was submitted to the jury, and was so worded as to relate back not only to the questions of due care of deceased and negligence of appellant, but to the averment that deceased was a passenger. Traction Co. v. Lowenrosen, 222 Ill. 506.

A similar instruction has been frequently approved by the Supreme Court. By a number of instructions prepared by appellant the question of deceased being a passenger was submitted to the jury, and in one instruction they were told that if they believed deceased was a trespasser and not a passenger, they should find in favor of appellant. If the deceased was not a passenger, he was a trespasser, and appellant owed him no duty except not to wilfully injure him. Had deceased been a trespasser, he would have assumed the risk of any accident happening, to him while such trespasser. The instructions must be regarded as a whole and so read. Following this rule, we find the jury were informed upon every point and theory about which appellant now complains.

We think the trial was a fair one; that no material right or interest of appellant was curtailed or injuriously affected by any rulings of the trial court on the questions before him, and that there is in this record no error calling for a disturbance of the judgment of the Circuit Court, and it is therefore affirmed.

Affirmed.


author: Mb. Presiding Justice Holdom

text:
    W. C. Walsh & Co., Appellee, v. Robert Taylor, Appellant.
    Gen. No. 13,956.
    Use and occupation—when recovery may be had for, notwithstanding absence of relation of landlord and tenant. On proof of ownership by plaintiff and occupation by defendant, the owner is entitled to recover the reasonable rental value for the time of such occupancy unless an agreement is proven to exist between the parties that the occupancy was to be without rent. Fender v. Rogers, 97 Ill. App. 280, distinguished.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Wyeth & Cooney, for appellant.
    David O. Dunbar, for appellee.
   Mb. Presiding Justice Holdom

delivered the opinion of the court.

This is an action for the use and occupation of a barn by appellant for the last eight months of the year 1905. Appellee was the lessee of the fee owner, and had, at the time appellant entered, withdrawn physically from possession of the barn. Appellant leased premises contiguous to and adjoining the bam, and finding the barn vacant moved into it and used, occupied and enjoyed the possession thereof during the months above mentioned. Appellant contends that as the relationship of landlord and tenant did not exist between him and appellee, no action can be maintained for use and occupation. Where one party occupies the premises of another, without any agreement for the payment of rent, the law implies a promise on the part of the occupant to pay for the use and occupation of such premises the reasonable rental value thereof.

On proof of ownership of plaintiff and occupation by defendant, the owner is entitled to recover the reasonable rental value for the time of such occupancy, unless an agreement is proven to exist between the parties that the occupancy was to be without rent. Oakes v. Oakes, 16 Ill. 106; Rose v. Day, 21 Ill. App. 139.

Where the relation of landlord and tenant does not exist a contract to pay rent will be inferred from the mere occupation of the premises, and an action of assumpsit may be maintained for use and occupation. Alexander v. Alexander, 52 ibid. 195.

Appellant makes no claim that the rental value of the bam is not in the sum fixed by the verdict of the jury and the judgment of the court.

Aside from the presumptions of law, the statutes of this State in terms give the same remedies- to owners against occupants where the relation of landlord and tenant does not exist, as such owner would have if such relationship existed.

Section 1, chapter 80, R. S., provides “That the owner of lands may sue and recover rent therefor, or a fair and reasonable satisfaction for the use and occupation thereof, by action of debt or assumpsit, in any court of competent jurisdiction, in any of the following cases. * * * Second, when lands are held and occupied by any person without any special agreement for rent.”

Section 14 is applicable to the situation of the parties in this suit. It is: “ The grantees of any demised lands * * * shall have the same remedies by entry, action or otherwise * * * for the recovery of any rent as their grantor or lessor might have had.”

Appellee, though a lessee of the fee owner, had a right to prosecute an action for use and occupation against appellant for the time he occupied the premises during the term of appellee’s demise.

It follows from what has been said that the court properly refused to instruct the jury that the law does not imply a contract to pay rent so as- to support an action for use and occupation, unless the relation of landlord and tenant exists between the parties. Instructions proffered to this effect, or containing such a pronouncement, not being the law, were properly refused ; and although appellant contends that other instructions proffered by him and rejected by the court should have been given, yet, as counsel has failed to argue any reasons for his contentions, his objections must be regarded as waived.

There is no conflict between the law here announced and that laid down in Fender v. Rogers, 97 ibid. 280.

Here there are no divergent claims of title, while in the Fender case the whole dispute rested in conflicting claims of title. The occupant sued for use and occupation, holding possession and claiming title hostile to that of the plaintiff. In this it is clearly distinguishable from the case at bar.

The judgment of the County Court being without error is affirmed.

Affirmed.