text:
    George A. Neeves, Appellant, v. Thomas R. Warner, Appellee.
    Gen. No. 17,458.
    Appeals and eebobs—when appeal from interlocutory order dismissed. An appeal from an interlocutory order must be perfected within 60 days from the entry of such order, otherwise it will be dismissed.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Appeal dismissed.
    Opinion filed April 7, 1911.
    Geoege A., Jr., & Leeland K. Neeves, for appellant.
    Rudolph D. Huszagh, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellee moves the court to dismiss the appeal in this case, on the ground that the order appealed from is an interlocutory order continuing the receiver in possession of the premises involved during the period of redemption from a sale of the mortgaged premises; that the appeal was not perfected within sixty days from the entry of such order as provided by the statute.

The record shows that the order appealed from was entered December 20, 1910, and that the appeal was not perfected in this court until March 8, 1911. The appeal was not perfected in the sixty days allowed by the statute and it must be dismissed.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Marcus Sachs, Appellee, v. Simon Sachs, Appellant.
    Gen. No. 17,450.
    Appeals and eeboes—failure to perfect joint appeal. An appeal perfected by one defendant only, pursuant to granting of a joint appeal, will be dismissed on motion.
    Appeal from the Circuit Court of Cook county; the Hon. Richaed S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Appeal dismissed.
    Opinion filed April 7, 1911.
    Brown & Navigato, for appellant.
    Wheeler, Silbes, & Isaacs, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellee, Marcus Sachs, moves the court to affirm the decree of the court below or to dismiss the appeal for the reason that the appeal was prayed jointly by all the defendants and allowed to all the defendants, and that only one of the defendants, Simon Sachs, signed the appeal bond or perfected this appeal.

The record shows that the appeal prayed and allowed was a joint appeal by all of the defendants and that only one defendant filed the appeal bond. The appeal must therefore be dismissed. Damages to the amount of forty dollars are awarded to appellee.

Appeal dismissed.


author: Mr. Justice Clark

text:
    Charlotte E. Bennett et al., Appellees, v. Minnie M. Woolsey, Appellant.
    Gen. No. 15,081.
    Appeals and errors—what final and appealable order. A decree in favor of the complainants on the merits and awarding an accounting is final and appealable before the account has been taken.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed April 7, 1911.

      Statement by the Court. On October 9, 1902, the appellees, Charlotte E. Bennett and Horace C. Bennett, hereinafter called the complainants, executed a bill of sale to Minnie M. Woolsey, appellant, hereinafter called the defendant. The bill of sale was in the usual form, the consideration being “one dollar and other good consideration, ’ ’ and the property being described as follows, to wit:
    “All our right, title and interest in and to the capital stock of The Credit Guide Company, being Thirteen Thousand Dollars ($13,000.00) in amount, and which is now in the possession of Masterson, Haft and Dandridge, attorneys at law, and is there pledged as security for a loan of Twelve Hundred Fifty Dollars $1,250.00), and also all our interest in and to the property of every kind and nature of said The Credit Guide Company; and also, we hereby sell.and assign to said party of the second part any and all claims we may now have against said The Credit Guide Company. Said second party agrees to pay all the debts of said The Credit Guide Company.”
    On the same day certificates for 1,170 shares of the capital stock of The Credit Guide Company were issued to Mrs. Woolsey to take the place of a certificate of 690 shares which theretofore stood in the name of the complainant Charlotte E. Bennett, and 480 shares which, previously had stood in the name of Anne E. Warren but never had been delivered to her.
    On October 9,1902, the complainant Horace C. Bennett was the president of The Credit Guide Company, and the defendant was secretary.
    On January 20,1903, the complainants filed their bill asserting that they were the owners of 2490 shares of the capital stock of The Credit Guide Company, a corporation organized under the laws of Illinois, with a capital stock of $25,000, divided into 2,500 shares of $10 each; that on the said ninth day of October, 1902, The Credit Guide Company being in need of money, the complainant, Charlotte E. Bennett, authorized her husband, Horace C. Bennett, to enter into an agreement with the defendant, substantially as follows :
    “Mrs. Woolsey is to, in the immediate future, advance or furnish enough money to The Credit Guide Company to pay all its present liabilities, and receive as security for its repayment the capital stock of said company, including the interest of Mrs. Bennett in thirteen hundred (1,300) shares pledged to Masterson, Haft & Dandridge to secure a loan of twelve hundred and fifty dollars ($1,250).
    “In case the profits of the business, or Mr. and Mrs. Bennett shall repay such money so advanced, within two years, then Mrs. Woolsey is to reconvey the stock so pledged as security, and when the money so advanced is paid, Mrs. Woolsey has the option to purchase absolutely one-third of the stock for a sum not less than $2,000, nor more than $4,000.”
    The bill further alleged that under the agreement Mr. Bennett was to receive “in the meantime” a salary of $150 per month, and Mrs. Woolsey a salary of $100 per month; that on the said ninth day of October, 1902, the complainant, Horace C. Bennett, entered into an agreement with the defendant, substantially as above set forth, and that the complainant, Mrs. Bennett, pursuant to the agreement, assigned to the defendant, as security for any money that she might advance, pursuant to the agreement, 1170 shares of the capital stock of The Credit Guide Company, and executed a bill of sale, tbe essential portions of wbicb are set forth in tbe opening of this statement.
    Tbe bib further alleged that tbe defendant bad paid but a small portion of tbe debts of tbe Company, though frequently requested to pay tbe others, and that tbe defendant seeks now to defraud tbe complainants out of 2,480 shares of stock of tbe company by claiming absolute ownership.
    Tbe bill prayed an injunction to restrain defendant from disposing of tbe stock; prayed that an accounting be bad and tbe amount, if any, paid by tbe defendant on tbe debts of tbe company be fixed and determined.
    Tbe complainants in tbe bill offer, when such an amount should be ascertained, to pay tbe same to tbe defendant; prayed that tbe bill of sale before referred to be cancelled, and that tbe firm of Masterson, Haft & Dandridge be restrained from delivering tbe 1300 shares to tbe defendant or any other person.
    Tbe answer denies that tbe complainant, Charlotte E. Bennett, is tbe owner of 2490 shares; denies that tbe defendant ever entered into tbe contract, as set forth in tbe bill with tbe complainants, and asserts that tbe transfer of tbe stock certificates to her and of tbe bill of sale executed by tbe complainants were absolute; that on said October 9, 1902, tbe complainant, Horace C. Bennett, stated to tbe defendant that it was utterly impossible for him to continue tbe business of Tbe Credit Guide Company, and if tbe defendant would place in tbe treasury of the Credit Guide Company sufficient moneys to meet its outstanding obligations and relieve him from various obligations of tbe Company on wbicb be was individually liable as guarantor and otherwise, and save himself and bis wife, Charlotte E. Bennett, from tbe disgrace of having tbe business-of Tbe Credit Guide Company pass into bankruptcy, that tbe complainants would assign and set over to tbe defendant absolutely all their right, title and interest in and to tbe capial stock of tbe Company, with tbe exception of 20 shares, wbicb should be re-tamed by the complainants, and that thereupon they did set over by proper endorsement and delivery 1170 shares of the capital stock and executed the bill of sale before referred to. The answer further declares that on January 16th and 17th, 1903, she twice tern dered to Masterson, Haft & Dandridge the amount due them and for which they were holding the stock as collateral, and demanded that they turn over the stock to her, but her offer was refused and she was informed by the said firm that the complainant, Charlotte E. Bennett, had served them with written notice not to deliver the stock to the defendant. She denied that she had paid but a small portion of the debts of the Company, but on the contrary stated that she had paid all the debts that were due and owing, and that she had placed in the treasury of the Company out of her own funds sufficient money to pay the debts of the Company, upon which the complainant, Horace C. Bennett, was personally liable.
    In March, 1903, the defendant filed a cross-bill against the complainants, asserting her right to all of the stock of The Credit Cuide Company, excepting 20 shares standing in the name of one Anne E. Warren, a sister of the complainant, Charlotte E. Bennett, which 20 shares of stock she alleged on information and belief to be the property of the complainant, Horace C. Bennett.
    The cross-bill alleges that Mrs. Woolsey had fully complied with her agreement with the complainants, and that she stood ready to pay the note to Masterson, Haft & Dandridge. The cross-bill makes the members of the firm of Masterson, Haft & Dandridge defendants; prays that the cross-complainant may be adjudged and decreed to be the owner of the stock and the property in the bill of sale described, and that Masterson, Haft & Dandridge be decreed to cancel and surrender the note of The Credit Cuide Company and deliver the certificates of stock to the cross-complainant.
    Answers were filed to the cross-bill, the original bill of complaint was amended and a supplemental bill of complaint was filed. •
    Afterwards on March 9, 1905, an order was entered dismissing the suit as to the defendants Masterson, Haft & Dandridge, and on March 16, 1908, a decree was entered in favor of the complainants, adjudging that the above bill of sale before referred to is a mortgage or pledge; that an accounting be had between the complainants and the defendant, and referring the cause to a master in chancery to make the accounting.
    The defendant prayed an appeal to this court, which was allowed. An order was entered in this court affirming the decree but on motion of the appellant a rehearing was granted. At the time of making the motion for the rehearing, a motion was made by the appellant to dismiss the appeal, to which objections were made by the appellees, the determination of the motion being reserved to final hearing of the case.
    William J. Candlish, Glennon, Cary, Walker & Howe and Newman, Northrup, Levinson & Becker, for appellant.
    I. T. Greenacre and Fred D. Bangs, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

The first matter to be decided is the motion of the appellant for a dismissal of the appeal. This motion is objected to by the appellees, and after having given the matter full consideration we have reached the conclusion that the decree is a final order, and therefore appealable. (Stahl v. Stahl, 220 Ill. 188.)

We come now to consider the case on its merits. The testimony discloses that on October 9, 1902, and for some time prior thereto The Credit Guide Company, the capital stock of which was almost entirely owned and controlled by the complainants, was in a desperate financial condition. Mr. Bennett had built up a considerable business for his company, as a mercantile and collection agency, but the condition of the company had reached snch a pass that he was obliged to borrow money at exorbitant rates of interest. He had personally guaranteed, as he states in his testimony, practically all of the obligations of the company. He had been advised by friends to seek shelter in the bankruptcy court. His standing as an honest business man had always been good, and he naturally shrank from taking an action which lie felt would place him in disgrace in the business world. He had hopes that he could weather the storm. He had on several occasions negotiated with the defendant, who had been associated with him in business for some years as a clerk, bookkeeper and manager of the office, for the purchase of an interest in the business, but they came to no understanding irntil in October, 1902. On October 6th, 7th or 8th, the complainant, Horace C. Bennett, says that he told Mrs. Woolsey that he had tried to get the Dandridge note, so-called, extended, but that he had failed. He further testified that she had on the day previous agreed to furnish the company some money to take up the note, if he would secure her. He said he wrote on some telegraph blanks, at Mrs. Woolsey’s request, what his proposition was, and that the last he saw of them they were in Mrs. Woolsey’s possession. He testified that there was written upon these blanks in substance that her salary was to be increased to $100 per month; that he (Bennett) was not to draw to exceed $1,800 per year; that whatever money Mrs. Woolsey advanced was to be paid back within two years, and if during that time she desired to purchase an interest in the business she could do so at not less than $2,000 nor more than $4,000 for one-third interest. This memorandum was not signed by him. He made out a bill of sale. This was not satisfactory to Mrs. Woolsey, and later she had one drawn by her attorney, which was signed by the complainants and is the one heretofore referred to.

Mr. Bennett is an attorney and has been practicing, as we understand it, more or less for many years in Chicago. The certificate of stock which stood in his wife’s name, he procured to he assigned by her to Mrs. Woolsey. He and his wife, the co-complainant, signed the bill of sale which had been prepared by Mrs. Woolsey’s attorney covering their interest in the other shares of stock. The transfer of the certificate of shares of stock appeared to have been made in the usual way. The only unusual thing in the bill of sale which might suggest that it was not intended to be absolute in its nature was the language—“said second party agrees to pay all the debts of said The Credit Guide Company.” It seems to us that the fact that Mr. Bennett was a guarantor, as he testifies, of practically all of the indebtedness of The Credit Guide Company is a sufficient reason why he should insist that these words last quoted be incorporated in the bill of sale. He was anxious, naturally, that the indebtedness of the company, so far as it was guaranteed by him, should be fully paid, so that if at a later date the company should become bankrupt he could not be personally held on such guarantees.

There is no claim made by the complainants that the defendant gave to them anything in writing to show that the bill of sale was not absolute, nor is there any claim made that the complainants agreed in writing to indemnify the defendant for any money that she might advance to the Credit Company, and no mention of interest was made. The rule is well established, that in order to overcome the presumption arising from a written instrument, like a bill of sale, absolute in its nature, the evidence must be full, clear and satisfactory to the mind of the court. (Leigh v. Laughlin, 211 Ill. 192; Burgett v. Osborne, 172 Ill. 227.)

As said by the Supreme Court of the United States in Howland v. Blake, 97 U. S. 624—“In each ease the burden rests upon the moving party to overcome the strong presumption arising from the terms of a written instrument. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing, beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. A judgment of the court, a deliberate deed or writing are of too much solemnity to be brushed away by loose and inconclusive evidence.” Citing Story Eq. Jur., sec. 152.

In the very recent case of Stnbbings et al v. Stubbings et al., 248 Ill. 406, our own Supreme Court had occasion to consider the kind of oral testimony required to authorize the court to set aside a written instrument absolute in its terms, and held “To authorize the court to impress a trust upon property upon oral testimony it is essential, even though the Statute of Frauds be not pleaded, that the facts be established by clear and convincing proof, and unless the testimony is of that character the court is justified in denying the relief.”

The oral agreement claimed by the complainants to have been made is of itself very uncertain. By its terms the defendant was to have the option of buying within two years, at not less than $2,000 and not more than $4,000, a one-third interest in the company.

It clearly appears from the evidence that the defendant had what little money she possessed well invested. It is hardly natural to suppose that the defendant, who appears to have good business capacity, would loan this money to the corporation (admittedly in desperate financial condition) without interest and without any agreement on the part of the complainants to reimburse her, and with only the dubious expectation of receiving at any time within two years one-third of the capital stock of the company, on the payment by her of an indefinite amount, not less than $2,000 and not more than $4,000. She showed her dissatisfaction with the form of the bill of sale prepared by Mr. Bennett, and with him went to the office of another lawyer, who prepared the bill of sale now sought to be set aside. She testifies that nothing was said tending to indicate that it was to be otherwise than an absolute sale of the interest in the stock.

Is it not reasonable to suppose that Mr. Bennett, himself a lawyer, would have required something in writing from Mrs. Woolsey to evidence the fact that the assignments of the shares of stock and the bill of sale, all absolute on their face, were not intended to be absolute but merely security for a debt?

The solicitors for the complainants have urged that it is a significant fact that the defendant, who kept the cash book of the Credit Company, should have placed upon the book such entries as this:

“Oct. 9-2.
This money was put in the Credit Guide Co. by M. M. Woolsey as per agreement with H. C. Bennett & Credit Guide Co.
$515.00.”

In so far as Mrs. Woolsey advanced money to the company, it was perfectly proper that the books of the company should show a credit to her, and it was in exact consonance with the language of the bill of sale, in which she agreed that the debts of the corporation should be met when due, and that thereby Mr. Bennett be relieved from his guarantee of such debts.

In our opinion, the decree should be reversed and the case remanded with directions to the Superior Court to enter a decree dismissing the original bill for want of equity, and decreeing upon the cross-bill the relief therein prayed for, declaring that Mrs. Woolsey is the absolute owner of the stock assigned to her, including the stock in the hands of Masterson, Haft & Dandridg'e, upon payment to them of the indebtedness, for which the stock is held as security, with interest thereon up to the date of the tender.

Reversed and remanded with directions.


text:
    William Ledwell, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,396.
    1. Evidence—when refusal to strike irresponsive answer will not reverse. Erroneous refusal to strike an irresponsive answer will not reverse in the absence of hardship appearing to have resulted.
    • 2. Teiae—effect of remarks addressed to court. A remark by counsel addressed to the court in the presence of the jury will not necessarily constitute ground'for reversal; the proper practice is for the complaining party to ask an instruction removing the effect of such remark.
    3. Tbial—conduct of court. A display of irritation by the court will not work a reversal unless prejudice appears to have resulted.
    4. Teiae—what remarks of counsel will not reverse. Certain language reflecting on the defense made, held, not ground for reversal; likewise that it was not improper for counsel to specify the size of the verdict which he thought should he rendered.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodobe Beentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed April 7, 1911.
    George W. Miller, for appellant.
    James C. McShane, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

The appellee, hereinafter called the plaintiff, brought suit against the appellant, hereinafter called the defendant, for injuries alleged to have been sustained while boarding a car on its line in the city of Chicago, in April 1906.

The declaration contained but one count, which seems to have stated in a proper manner the plaintiff’s claim.

There was a trial before the court and jury, resultingin a verdict for the plaintiff. The case is before us on an appeal by tbe defendant, which insists that the judgment rendered upon the verdict should be reversed because the weight of the evidence is in favor of the defendant ; because the court committed error in the admission of evidence, and because of improper remarks alleged to have been made by plaintiff’s counsel in his argument, and the alleged error of the court in ruling on objections to some of them.

The plaintiff’s testimony was to the effect that the car which he was about to take was moving in a northerly direction on Halsted Street; that as the car approached he signaled for it to stop, and that the car when it reached the usual place of stopping on the north side of the cross street, Garfield boulevard, was going at a very slow rate of speed, not faster than a man could walk; that the plaintiff was standing about forty or fifty feet north of Garfield boulevard and was waiting for the car as it approached; that he reached for the right handle bar with his right hand, took hold of the left handle bar with his left hand, lifted himself up, and as he got his two feet on the first step the car started with a jerk, which threw him off; that there was a man standing beside him and that he struck this man with his right shoulder, fell on the ground on his left side and fractured his left hip.

On behalf of the defendant there was evidence tending to show that when plaintiff boarded the car the car had already reached a point about 105 to 110 feet north of the cross street and was going at a rate of about seven miles an hour, and it is insisted by the defendant that the evidence shows that there was such contributory negligence on the part of the plaintiff as that he should not be allowed a recovery.

We have carefully read the abstract of the testimony of the five witnesses on the part of the plaintiff, and the four witnesses on the part of the defendant, who testified as to the manner in which the accident occurred, and are unable to agree with the appellant that a preponderance of the evidence is not in favor of the plaintiff. While there was sharp conflict in the testimony in some respects, we think that the verdict of the jury should be allowed to stand, if reversible error is not shown to have been made in the admission of testimony or in rulings on objections made to statements of the plaintiff’s counsel.

On the re-direct examination of the plaintiff, he was asked this question: “From the time the ear jerked— or when the car jerked, did you have a chance or opportunity to hold tight?” Objection was made by the defendant to this question on the ground that it was asking for a conclusion of the witness. The objection was overruled, and exception by the defendant taken. Thereupon the plaintiff’s attorney added to the question the words, “To tighten your hold or not,” and the answer came, “JSTo, I don’t think I had.” This question was called out on the re-direct examination by reason of the cross-examination to which the witness had been subjected in regard to the matter. In the case of Casey v. Kelly-Atkinson Company, 240 Ill. 416, a witness was allowed to testify that there was plenty of time between a certain conversation and the time the traveler started to run, in which the traveler could have been fastened; the traveler being a mechanical contrivance the operation of which was alleged to have caused the death of the intestate. Objection was made that this was a mere conclusion of the witness. The court held:

“We do not so regard it, and do not see any substantial difference between the statement as given and giving the time between the conversation and the moving of the traveler, and the time necessary to fasten the traveler.”

Upon this authority, we think the trial judge was justified in holding that the question propounded to the witness in the present case was not improper as calling for a conclusion. Furthermore no objection was made to the question as amended and therefore the point was not preserved.

It is to be noted also that in replying to a question by the defendant’s counsel—“So that all you had to do was to tighten the muscles of your hand, wasn’t it?” witness answered—“Yes, if I could tighten them quick enough,” and no objection was taken.

On cross-examination one of the plaintiff’s witnesses, a police officer, was asked, “How long was he on that step in point of seconds before the car gave the jerk?” Answer: “Probably one second.” Question: “Did he make any effort that you saw to lift either of his feet from that first step up to the platform of the car ? ’ ’ Answer: ‘ ‘ He didn’t have time. ’ ’ A motion to strike the answer out as not being responsive was overruled. While we think that the motion should have been sustained, we do not think that the refusal of it worked such hardship on the defendant as to require a reversal of the judgment.

A witness for the defendant named Zoller had been visited by someone in behalf of the plaintiff before the trial, and it was alleged he had signed a statement. On his cross-examination plaintiff’s counsel started to ask him some questions based on what was alleged to be in the statement. On objection being made by the defendant’s counsel, the attorney for the plaintiff stated, “It is to show he didn’t say any of these things he now says, it is a whole statement of—it is significant by its silence.” This statement is objected to as having been made in the presence of the jury. The statement was addressed to the court.

If an instruction had been requested by the defendant to the effect that the jury should not allow themselves to be influenced by remarks addressed to the court by counsel,- it undoubtedly would have been given. It is true that where statements are made to the court with the obvious intention of influencing the jury, they sometimes constitute reversible error (Wiersema v. Lockwood & Strickland Co., 147 Ill. App. 33), but we are unable to gather from this record that such was the purpose in making the statement just referred to.

Complaint is made that in this same connection the trial court prejudiced the defendant by interrupting defendant’s counsel in the middle of a sentence and saying—“Take an exception to the court’s ' ruling then.” While it may be that the court showed irritation, as claimed by the defendant’s counsel, we do not think that the remark was calculated to influence the jury in such a way that it should cause a reversal.

Objection is also made to the method and manner of plaintiff’s counsel in the cross-examination of the witness as to other matters apparently referred to in the statement. However, in most instances he denied that he had made the statement, and the paper itself was not allowed in evidence.

In our opinion, the answers did not and could not have prejudiced the defendant, and we think the court committed no error in his rulings upon the objections made.

Objection lastly is made to statements of plaintiff’s counsel in his argument to the jury. Referring to the testimony of one of the defendant’s witnesses, the motorman, counsel for plaintiff stated:

“He is interested in shielding himself from blame. He practically stands alone in this case in support of this crazy defense, but it is the only one that the case will stand. And they will have a defense, you know. They won’t tell yon what it is, but yon can bet your life that up their sleeves some place they have got something that looks like a defense.”
Defendant’s counsel objected, whereupon the court said, “It is not very elegant language. I will sustain the objection.” Plaintiff’s counsel then said, “I only mean they urge this as a defense. It is not a defense. It is not one that good, sane men could believe.”

We have carefully examined the cases referred to by the- appellant—Wiersema v. Lockwood & Strickland Co., supra; C. U. T. Co. v. Faurot, 136 Ill. App. 347; I. C. R. R. Co. v. Seitz, 111 Ill. App. 242; and other cases cited by the appellee, N. C. St. R. R. Co. v. Cotton, 140 Ill. 486; West Chicago St. R. R. Co. v. Annis, 165 Ill. 475; Com. El. Co. v. Rose, 214 Ill. 545, and are of the opinion that the case should not be reversed because of the remark.

In the case of The People v. McCann, 247 Ill. 130, the Supreme Court quoted with approval the language used in Spahn v. The People, 137 Ill. 538, as follows:

“While arguments of that character are not to be approved or looked upon with favor, still they will not ordinarily be deemed sufficient to necessitate a reversal of the judgment unless they are of such a character as to raise an inference that the jury were probably misled or improperly influenced thereby.”

The court also quotes with approval the language used in Bulliner et al. v. People, 95 Ill. 394:

“The matter is one which must in any case be very largely entrusted to the discretion of the presiding judge.”

Complaint is made also of the language used by counsel for. the plaintiff—“I am going to ask you when the right time comes—it is my claim that this evidence warrants a verdict in this case, if it warrants a cent, of at least $7,500.”

A similar statement by the plaintiff’s counsel in the case of Graham v. Mattoon City Ry. Co., 234 Ill. 483, was held to be proper.

We find no reversible error in the record.

Judgment affirmed.


text:
    Joseph Kestin, Administrator, Appellee, v. Northwestern Elevated Railroad Company, Appellant.
    Gen. No. 15,429.

      Verdicts—when set aside with finding of facts. Notwithstanding the trial court is required to submit a cause to the jury where there' is some evidence to support the plaintiff’s declaration, yet the Appellate Court is not bound by the same rule and it should if it finds the verdict not supported by the evidence render a judgment of reversal with a finding of facts. Borg v. C. R. I. & P. Ry. Co., 162 Ill. 348, followed.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of fact.
    Opinion filed April 7, 1911.
    Statement hy the Court. On May 31,1907, Morris Manhoff was killed upon the tracks of the Northwestern Elevated Railroad Company in the city of Chicago. Suit was brought by Joseph Kestin, administrator of his estate, hereinafter called the plaintiff, against the Railroad Company, hereinafter called the defendant, seeking to hold the defendant for damages under the statute.
    The declaration originally consisted of six counts, all of which have been abandoned except the fifth.
    The alleged negligence upon which the liability of the defendant is predicated, is that the defendant allowed a certain portion of a plank in the walk which plaintiff’s intestate was required to use in the discharge of his duties to become and remain defective and broken, and that plaintiff’s intestate necessarily and unavoidably tripped, stumbled and fell upon, against and over said defective and broken plank, and his body then and there and as a result thereof was thrown upon and across the tracks of the defendant, and defendant’s train of motor cars ran against plaintiff’s intestate, causing’ his death.
    Manhoff was a towerman employed in what was known as the Montrose tower house on the defendant’s railroad, the north terminal of which railroad was at •Wilson avenue, about one block north of Montrose boulevard.
    Fred Rahling, a witness for the plaintiff, testified that he knew the decedent and had worked with him about a year and a half on the defendant’s railroad; that the only buildings at Wilson avenue consisted of the station and a dispatcher’s office, where the guards, switchmen and other men reported to take out their trains; that the dispatcher’s office was at the south end of the platform; that at Wilson avenue the tracks of the elevated railroad came down to the street level; that there were two inclines, one on the east and one on the west. On the east incline there were two tracks at the time of the accident, May 31, 1907, and a board walk was between the tracks; that the walk was about three feet wide and of common boards about one inch thick and two inches apart, the boards being laid lengthwise and resting on two-by-fours; that the walk led towards the office, which is at the foot of the incline, just at the south end of the platform; that there is a space between the north end of this walk and the station platform, in which there are no boards but simply ties. On the night of the accident the witness, who was a guard, said he had just come in with his train, at about 8:05, when he was informed of the accident by Ast, who was a switchman for the company, and his assistance requested by Ast; that he went over to the platform or walking-way where Manhoff had been run over; that there was a cross-over switch near the foot of the incline, and a one-arm semaphore and signal; that it was between the semaphore and the cross-over that he and the others picked up Manhoff—south of the cross-over and north of the semaphore; that the tracks of the elevated railroad are about twenty or twenty-two feet above the ground before the incline begins, and that just before reaching Wilson avenue they go down to the ground; that in going to where he found Manhoff he had to walk on the ties, there being “no boards at all up to that point;” that when he reached Manhoff, Cagwin, another switchman, was there, and no one else. Ast afterwards came up. Manhoff’s legs were between the ties, between the running rail and the third rail; that it was about 75 feet from the south end of the station platform to the point where he found Manhoff.
    Frederick Muhlberger, a police officer, testified that he arrived at the scene about 8:30 or 8:35, and helped carry the man’s remains across the street to an undertaking room.
    Samuel J. Bloomenthal, a stenographer who knew Manhoff in his lifetime, testified that the day after the accident, just before the inquest was held, he went to the place where he understood the accident happened; that he went under the structure between the cross-over and the semaphore; that the bottom part of the structure was a couple of feet above his head; that he and the others with him found a pool of blood underneath the place, and almost directly over it and a little off to the east there was a broken plank; that he did not go on top of the structure.
    Dr. Budan, after testifying to the condition in which he found the body on the night of the accident, testified that on the next day he went with Bloomenthal and others under the incline; that the hole was somewhere between the cross-over and the target light, perhaps five or six feet' north of the target light; that he thought the hole was in the second board; that it looked as if it was formed in a rotten board and that there were small pieces of wood hanging down; that the hole was perhaps three or four inches wide at the widest point and about an inch or two wide at its narrowest point. This witness did not go on top of the structure. On cross-examination he said: “The ties were between four and eight inches apart, and the hole was between the ties as we looked from below, and pieces of wood were hanging down under it.”
    Joseph Kestin also testified that he examined the place with others on the day after the accident, but did not go on top of the structure; that the hole was in the first or second board from the west, and was about four inches wide at its widest point; that he could not recollect the shape of it; that it was an old, rotten board. On cross-examination he says: “This break was about the middle of the board between its two ends, running north and south. The board was broken right down there in the middle. The hole was not at the end of the board. The hole was probably eight or ten feet north of the track;” that he looked only from the bottom.
    Jacob Lurie testified that he went with Kestin, Doctor Budan and Bloomenthal to the place where the accident is said to have occurred, and went under the structure; that he saw a board broken “right through the structure;” that there were four boards, and the broken one was the first or second from the west; that it was in the middle of the board, and that the edges of the board were irregular.
    Marcus Budan, a witness for the plaintiff, testified that he also went underneath the structure the day after the accident; that he saw the plank, which seemed to be rotten, broken and drooping down; that this plank was about fifteen or eighteen feet north of the target light; that the piece that was broken was dropped down and was two or three feet long. The plank was ten inches wide; there was blood on it.
    Nathan Kestin testified for the plaintiff that he had been working for the Elevated Bailroad for about one year before Manhoff was killed; that the walk was used by all of the employes constantly, day and night; that he himself had been over the walk before that day, and knew its condition in the neighborhood of the crossover and semaphore; that there had been some places where the boards had been broken out; that a board was broken ont six or eight feet south of the target; that it was of triangular shape, about one foot and one-half long and six or seven inches wide. On cross-examination he testified that he was a brother of the administrator and a cousin of the deceased; that “it was a rotten old lot of boards running up there and full of holes. Some of them had holes. Most of them had holes. There were three or four holes between this cross-over and the semaphore. The biggest one was about a foot and a half long and six inches wide. This big hole was there in the first or second board from the west. The next biggest hole was around that place on the third or fourth board from the west. I could not tell exactly where the third hole was, but they were-along the four boards. Some of them were broken out, I could not tell exactly. I could not remember where the fourth hole was. I had noticed all these various holes, and these rotten boards before this happened. Noticed them all the time I had been there, and I continued to walk up there all the time. I was going there as a switchman and going to the office. When I reached these holes I would be careful not to fall in, and I looked out for these holes to see that I did not get hurt. The public did not go up that place. Manhoff was working as towerman that night.” He further testified that he had known the boards there were dangerous for more than a year; that Manhoff had worked there for about two years, and was obliged to cross over all those different holes and rotten planks; that a man could reach the towerhouse by going to Montrose boulevard and up a stairway, but it would take about five minutes—twice as long as to go by the incline. Witness was shown a photograph taken one or two days after the accident, and stated that it correctly showed the situation, excepting that it did not show the holes in the boards.
    Jake Friedman, a witness for the plaintiff, testified that he was at Manhoff’s house on Sheffield avenue about eight or half past eight; that a policeman came there and told him of the accident; that he got on a train and went to Wilson avenue, reaching there between half past eight and nine; that he went to the place of the accident and that Manhoff’s right leg was lying in the hole; that the hole was between the first and second boards; that his head was south on the track and his feet north; that witness recognized Manhoff, and with others tried to pick him up, and that thereupon he, the witness, fainted. On cross-examination he testified that when he fainted he was south of the target light and north of the cross-over; that he went there alone.
    On behalf of the defendant, William H. Shapaker testified that he was assistant claim agent for the Elevated Company on May 31, 1907; that he with Cagwin and Ast went to the place where the accident occurred between 8:30 and 8:35 in the evening. and made an examination of the place; that he prepared the photographs offered in evidence, one representing the scene looking north and the other representing the scene looking south; that he noticed that the corner was knocked off the east plank of the walk at the north end of the plank; and that it was in that condition on the evening of May 31st; that there were no other holes in the walk on the evening of May 31st nor the day following; that he saw Friedman, one of the witnesses for plaintiff, about ten o’clock; that Friedman was on the platform for a time, and came into the room known as the trainmen’s waiting room, and was in there with three ladies and one other man, and while there he fainted; that the body of Manhoff was not on the structure at that time; that it had been taken away an hour and a half or two hours before.
    Bruno B. Schrager testified that he was a civil engineer employed by the railroad. The witness identified a plat which he made, and stated that it correctly represented the structure with the ties and plank and third rail exactly at the time that he took the measurements, which was during the first half of June after the accident; that at that time there were three planks east of the place identified as the place of the accident, and one was broken off exactly as shown in the plat.
    Raymond S. Zeitler, a witness for defendant, stated on the morning of June 1,1907, about eleven o’clock he examined the incline and made a plat drawn to a scale, showing the blood spots as he found them; that he made an examination of the structure all around there and noted the corner off the end of the extreme east plank; that there were no' other holes on the walk at any place at that time; that that was the only plank that was broken; that there were no holes in the second plank and it was not broken.
    Walter Baynes, a police officer, testified for the defendant that he went to notify the wife of Manhoff, at about ten o’clock at night after the accident, and met two men, one of whom probably was Friedman.
    Jacob Pfeifer, a switchman for the defendant, testified that he learned of the accident at about 8:30 that night, hut did not go down to the place where it had occurred; that he had been working at the station about three weeks, and had been up and down the incline every night three or four times; that he did not notice any holes in the sidewalk with the exception of the corner broken off at the end of the east plank at the north end of the walk; and that it appeared to him like a sound walk.
    Frank Artman, a motorman, testified for the defendant that he had been working around Wilson avenue terminal for about five years before the time of the accident; that during the time he worked there the plank walk was laid down between the tracks on the incline; that he went over it probably once or twice a week; that he did not remember seeing any holes in the walk between the semaphore and the north end of the planks, with the exception of the corner that was broken off of the east hoard; that if seemed like a sound walk.

      Otto E. Cagwin, motorman and hostler for the appellant, testified that he had occupied his position from May 18, 1907; that on the night of May 31st he was working in the upper yard north of the shop; that his attention was called to the accident, and he was the first man to reach the decedent; that the next person was Ast and the next was Elston, the dispatcher; that Manhoff was lying right across the third rail that branches off. On being shown the photograph, witness testified that it represented exactly the position of the incline where he found Manhoff. “I saw him lying across the third rail, the trolley shoes follow to the cross-over, and then the rails are pointed; that allows the shoe to catch the rail going up the main line, it simply runs down to a point so the shoe will catch it, and that was stuck into the side of his body. The point was sticking into the right side of the body, his head to the east, his face down. His feet were west and down between the ties, between the running rail and the third rail, outside of the east running rail of the west track, and west of the third rail. There never was a night that I was in the yards there that I was not up and down those planks at least once. I had charge of the yards, and had been a switchman and motorman for about three years. With the exception of the corner of the east board, appearing in the photograph to be broken off, there was not any other hole from the beginning of this plank on this end here to the top of the hill. I never saw any other hole in any place in the walk. I walked up and down there constantly, and sometimes I run. The walk was in good condition.” Witness testified further that he and Ast lifted Manhoff out from between the ties and placed bim on a board; that he lay on the board until the police took him away not over twenty or twenty-five minutes afterwards; that he did not know Friedman, but he did not see any one faint at the place of the accident.
    H. O. Ast, night hostler for appellant, substantially corroborated Cagwin’s testimony about what was done with the body of the injured man, and that he saw Friedman on the incline, and that no one fainted on the incline any where near where the accident occurred. He testified: “There was not any hole in that plank that night. The hole where the north end of the east board was knocked off was the only hole north of the semaphore that night; that was the only plank that was broken. I had been up and down that incline before and had never noticed any other holes. It looked to me to be a pretty sound walk. I examined the cars that night. ’ ’
    Louis A. Elston, a witness for defendant, testified that he was the dispatcher; that he saw Friedman first between ten and eleven o’clock; that there were three ladies with him, one of whom was Mrs. Manhoff, the wife of the deceased; that Friedman and Nathan Kestin went across the street to the undertakers, and then returned to the waiting room. A few minutes after that Friedman fainted. When he fainted he was inside of the trainmen’s waiting room; that witness had been located at Wilson avenue about six months before the accident, and had been up the incline; that it was in a perfectly safe condition; that there was no hole at any place between the semaphore and the north end of the walk, except the little broken corner of the north board shown in the photograph; that there were no holes south of the semaphore.
    John H. Kahling, a platform man, states that he saw Friedman when he fainted; that he was in the trainmen’s room, and that it was between half past ten and eleven; that he had seen him before that time, about nine o’clock, on the platform when he walked up to the dispatcher’s office.
    The usual motions were made at the close of plaintiff’s case and again at the close of all the testimony, that the jury be instructed to find a verdict for the defendant, and exceptions were duly preserved to the rulings of the action of the court in overruling the motions. A verdict in favor of the plaintiff; was rendered and judgment entered thereon, after a motion for a new trial had been denied.
    Sheriff, Dent, Dobyns & Freeman, for appellant; Clarence A. Knight, of counsel.
    Francis X. Busch and Frank A. Rockhold, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

In the foregoing statement we have given, in much more than ordinary detail, the testimony relating to the accident in this case, because the case itself turns, in our judgment, entirely upon a question of fact.

Errors are alleged upon the rulings of the court in the admission of testimony, as well as in the giving of certain instructions and the refusing to give certain others. We think, however, that the only one that needs to he considered is the one as to the ruling of the court in refusing to grant a new trial. As there was no eye witness to the accident, the testimony was necessarily wholly of a circumstantial character.

The only allegation in the declaration as finally amended, as to the alleged negligence of the defendant, was that it allowed a certain portion of the plank in the walk that plaintiff’s intestate was required to use in the discharge of his duties to become and remain defective and broken, by reason of which the plaintiff’s intestate was caused to stumble, and he thereupon was run into by a train of motor cars and killed.

Two photographs were introduced in evidence which were taken a day or two after the accident, and both are shown by the testimony to portray correctly the situation. One as taken from the north and one from the south. They show that the end of one of the boards was broken, hut it was not claimed by plaintiff’s counsel that it was because of this broken plank that the accident occurred. The photographs do not show any other holes in the planking.

As set forth in the foregoing statement, witnesses were placed on the stand by the plaintiff, most of whom testified that they examined the walk from below, and that there were numerous holes, etc. Two of the plaintiff’s witnesses, namely Nathan Kestin and Jake Friedman, testified that they were on top of the structure. It is quite apparent that Friedman was not testifying to the truth. He was notified some time after the accident by a policeman, and could not have reached the station until after the body had been taken to the undertaker’s. We are informed in the reply brief for the appellant that the trial judge made this statement to the attorneys for the parties at the hearing of the case:

“I do not think that Friedman told the truth. The only question is a question of policy. I think he committed perjury. I do not think that he was mistaken, but that he lied. I will call it to the attention of the state’s attorney, and tell him what the facts are.”

After a full examination of the record, we agree with the trial judge in his emphatic characterization of Friedman’s testimony. He testified that he went to the place of the accident, and that Manhoff’s right leg was lying in the hole, his head south, etc. This is the only direct testimony tending to show the negligence charged in the declaration. The other witnesses for the plaintiff, excepting Nathan Kestin* saw the place only from below.

It will be noticed that Marcus Budan, a witness for the plaintiff testified that he saw the plank, which seemed to be rotten, and it was broken and drooping down; that this plank was about fifteen or eighteen feet north of the target light. Joseph Kestin places the hole which he saw at eight or ten feet north of the track; Dr. Budan at five or six feet north of the target light. Nathan Kestin’s testimony to the effect that there were several holes in the planking, and the planking itself had been in bad shape for more than a year, was contradicted by the testimony of several witnesses for the defendant, some of whom had had occasion to use the walk many times, as set forth in the foregoing statement, and was disproved by the photographs, which showed no holes.

In order that the plaintiff be allowed to recover it would be necessary to indulge in the conjectures that the intestate had reached the walk when struck by the train and was not on the ties, which he had to pass over before reaching the walk; that there was a hole in the walk; that one of his feet went into this hole; that he fell in consequence thereof and was then struck by the cars. There is no satisfactory evidence that there was such a hole, and on the other hand there is much testimony in the record as to the place where the intestate was found, the condition of his clothing and shoes, the blood stains upon the car which probably struck him, etc., indicating that the accident happened in some other very diff erent way.

Our conclusion is that the plaintiff did not prove by a preponderance of the evidence that the defendant was guilty of the negligence attributed to it in the declaration. Under the well known principle governing this action, as laid down by the Supreme Court, the trial court had no alternative but to submit the case to the jury because there was some evidence tending to support the contention of the plaintiff. This court, however, is not bound by the same rule. It is our duty, as we understand it, to end the litigation if, in our opinion, no judgment in favor of the plaintiff could, under the pleadings and evidence, properly be sustained. As that is our view of this case no good purpose would be subserved by remanding it to the Superior Court.

The judgment of the Superior Court will therefore be reversed, but the case will not be remanded to that court for further hearing.

Reversed with finding of fact.


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    Nellie Maginnis, Appellee, v. The Hartford Fire Insurance Company, Appellant.
    Gen. No. 15,440.
    1. Evidence—how proof of ownership may he made. It is not error to permit a witness to testify directly as to the ownership of personal property.
    2. Insurance—what purely matter of defense. Matter of discrepancy as to the title of the plaintiff is one of defense purely.
    3. Depositions—when objection to testimony comes too late. Objection to the testimony of a witness given by way of deposition because of a mistake in the dedimus in the spelling of the name of the witness, comes too late if first made at the trial.
    4. Appeals and errors—when references in brief improper. A brief should not refer to matters dehors the record.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed on remittitur.

    Opinion filed April 7, 1911.

      Remittitur filed April 13, 1911.
    Statement by tbe Court. The appellee, who was the plaintiff below, brought suit against the appellant on an oral agreement of insurance upon a stock of ice of which she claimed to be the owner and which was contained in a building owned by her near Burlington, Wisconsin.
    The declaration alleges the contract to have been made by plaintiff’s son, T. B. Maginnis, as agent, with Walter Schroeder, the duly authorized agent of the insurance company, on June-9, 1905, the amount of the insurance being placed at $2,500, at a premium of $75 for the period of one year, beginning on said June 9th; that on the following day after the making of the contract, the stock of ice, valued at $12,000, was totally destroyed by fire; that on the 14th day of June, 1905, the plaintiff offered the defendant a check for the amount .of the premium, which it refused to accept; that proofs of loss were made in apt time; that there was due the plaintiff the sum of $2,500, with interest thereon at 5% from October 2,1905.
    Defendant filed a plea of non-assumpsit and also a special plea, in which it was set forth that one of the conditions of the standard form of fire insurance policy of the State of Wisconsin was to the effect that unless otherwise provided by the agreement, the entire policy should he void if the interest of the insured should he other than that of unconditional and sole ownership. The plea further alleged that the plaintiff was not the owner of the ice, hut that it belonged to the Lincoln Ice Company, or that the Ice Company had some interest in the same and that therefore the policy or contract was void.
    Issue was joined on the plea of non-assumpsit, and replication filed to the special plea. There was a verdict for the plaintiff for the sum of $2,970.89 and judgment thereon.
    The errors complained of by appellant are that improper evidence was admitted and proper evidence refused ; that the court erred in refusing’ to direct a verdict for defendant at the close of the plaintiff’s evidence, and again at the close of all the evidence; that improper instructions were given by the court, and proper instructions refused; that the verdict and judgment are not supported by, but are contrary to, the evidence, and are excessive; that the court erred in overruling the defendant’s motion for a new trial, and its motion in arrest of judgment.
    Barger & Hicks, for appellant.
    John Maynard Harlan and Lewis W. McCandless, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

We consider the questions raised by the appellant in their order as nearly as possible.

Two of the witnesses for the plaintiff were allowed to answer, over the objection of the defendant, the question as to who owned the ice in the ice house described, both of them answering that it belonged to the plaintiff, their mother. Appellant argued that this answer involved a legal conclusion, and that therefore the question was improper. "We do not so regard it. Both of the witnesses were fully cross-examined, and we think that the plaintiff was entitled to make prima facie proof of her ownership in this way.

Testimony discloses the fact that, through her son, acting as agent, she had paid for harvesting the ice and that it was stored in a building belonging to her. It is true that the evidence also discloses that the ice not destroyed was apparently shipped by the Lincoln Ice Company to itself at Chicago, and that the capital stock of the Lincoln Ice Company was owned and controlled by the plaintiff. There is some question as to whether or not the railway company was authorized to use the name of the Lincoln Ice Company as consignor in the various papers connected with the shipment, but in any event we do not see how this proof tended to establish ownership in the Lincoln Ice Company at the time the insurance was effected and the loss occurred.

Attention is called by the appellant to the fact that the Wisconsin statute, which was offered in evidence and which establishes what is known as the Wisconsin standard policy, provides that such a policy be void if the interest of the insured should be other than that of unconditional and sole ownership, and claim is made that therefore the declaration in the case should have asserted that the interest of the plaintiff was that of unconditional and sole ownership. Under the rule laid down by the Supreme Court, this was a proper matter of defense. (Clay F. & M. Insurance Co. v. Wusterhausen et al., 75 Ill. 285; Knickerbocker Ins. Co. v. Tolman et al., 80 Ill. 106; Phenix Insurance Co. v. Caldwell, 187 Ill. 73.)

The appellant, as shown in the foregoing statement, put in issue this question by its plea. This was proper because it was not necessary that the appellee should make any allegations or proof on the subject. This clause of the statute, if it could be said to be incorporated into the policy, was solely for the benefit of the appellant, and it was incumbent upon it to interpose a breach of it as a matter of defense, if it desired to avail itself of such defense. Clay F. & M. Insurance Co. v. Wusterhausen et al., supra. We think, also, that the record shows that a preponderance of the evidence was with the appellee in this regard.

Nor do we think that the court erred in refusing to direct a verdict for the defendant at the close of the plaintiff’s evidence or at the close of all the evidence.

Three witnesses testified on behalf of the plaintiff, and one only on behalf of the defendant, on the proposition as to the making of the oral agreement, and we think that plaintiff established a contract by the testimony so offered in her behalf. Comment is made upon the fact that plaintiff herself was not a witness. We do not see how any inference unfavorable to her can be drawn from this fact. Her son was acting as her agent and made the contract. It is quite probable that she knew nothing about the matter, and it was not necessary that she should know, as her son had full authority to act for her and in her behalf.

Depositions of two witnesses, Warren and Roettinger, were taken at the instance of the appellant. Their testimony was read by the appellee, over the objection of the appellant. It tended to establish the fact that the ice was taxed as personal property for the year 1905.

We agree with the appellant that the testimony should not have been received merely because it was taken at the instance of the appellant, and probably was incompetent as tending to show ownership of the property in Mrs. Maginnis. However, in our opinion her title to the property is so conclusively established by other proof that we think the error, if it was such, was harmless.

Criticism is also made of the admission in evidence of the testimony of John T. Prash. His testimony was taken at the instance of the appellant on the dedimus in which the name “John T. Brash” appeared. The parties in taking the deposition seemed to have regarded the misspelling of the name as merely a clerical error, and no motion was made to withdraw or suppress the deposition on account of the mistake. We think the objection to it at the time of the trial came too late.

Complaint is made that T. B. Maginnis, son of the plaintiff, was allowed to testify as to a telephone conversation between them, while Maginnis was in Burlington and Schroeder in Milwaukee. Maginnis testified that he knew he was talking to Schroeder, and the conversation itself was unimportant, as it related merely to the fact that there had been a fire. If there was error in admitting this testimony, which we do not hold, it was, in our opinion, harmless.

Complaint is also made that the court erred in admitting in evidence, over the objection of the defendant, two checks which were sent to the defendant in payment of the premium. The checks were sent after the fire, and were refused by the appellant on the ground that no contract of insurance had been entered into, and not on the ground that they were not legal tender. We think that they were properly received in evidence as tending to show that the plaintiff had endeavored to carry out the contract on her part.

The court refused to admit the witness, T. B. Maginnis, at the instance of the appellant, to refresh his memory by referring to a book that was in court at the time of the trial, and to state therefrom how much had been paid by the appellee to the Lincoln Ice Company in the year 1905 and prior to June 10th or July 1st. We think no error was committed in this regard. It was not proper cross-examination. If important at all, it should have been brought out by the defendant as part of its defense. In any event, the proper foundation had not been laid for the introduction of what might appear on the book. (C. & A. R. R. Co. v. Adler, 56 Ill. 344.)

The court refused to admit in evidence a number of waybills issued by the railway company, showing shipments of ice from Burlington by the Lincoln Ice Company as consignor to itself as consignee in Chicago.

These waybills could not, in our judgment, in any way tend to establish that plaintiff was not the owner of the ice at the time of making of the contract and at the time of the fire, and we think that the court properly excluded them from the consideration of the jury.

The last objection to which we shall give attention is that the court erred in permitting the plaintiff to prove the rate of interest in Wisconsin, and instructed the jury to allow 6% on the claim from the time it was payable under the terms of the alleged contract.

It appears that the legal rate of interest in Wisconsin is 6%, and it is urged by the appellant that as the contract was made in Chicago, the Illinois statute should govern. The amount of the verdict, if interest is computed at 5% from the date when the loss became payable under the terms of the contract, is less than it should be, but no allowance is made to the defendant for the premium. No set-off was interposed by the defendant, and it is doubtful whether such allowance, under the circumstances, should be made. However, the appellee consents to the same, and computation shows that the verdict with this allowance should have been $2,836.25. We treat the offer as a remittitur by the plaintiff of $60.83.

The attorneys for the appellee in concluding their argument state:

“On substantially the same evidence in the case brought by the plaintiff against the Metropolitan Insurance Company on the oral contract of insurance made by the plaintiff with Schroeder as agent of the Metropolitan company at the same time the contract here involved was made, a different jury found the same verdict as was returned in the case at bar, and the Metropolitan company acquiesced in the verdict. This is significant on the question whether the verdict in the case at bar is against the evidence. ’ ’

After the briefs were filed we were informed by the attorneys for the appellee that the Metropolitan case was tried before the court, and not with a jury. We find in the record no proof as to the result of the suit against the Metropolitan company, and although some reference is made to it, such result would not have been competent if offered as evidence. The fact that a judgment was rendered for the plaintiff in that proceeding had no proper place in appellee’s brief, and reference to it was improper.

We find no error in the record, except as to the amount of the judgment, and the judgment will therefore be affirmed for the reduced amount as stated, appellant to pay costs in this court.

Judgment affirmed on written remittitur filed in this court within ten days. Otherwise reversed and remanded.

Affirmed on remittitur.


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    Anna Calder, Appellee, v. The Calder Packing Company et al., Appellants.
    Gen. No. 15,446.
    1. Corporation's—what not defense to action to enforce stock liability. “In an action by a creditor of a corporation against a stockholder to enforce his individual liability to creditors for an amount equal to his stock in the corporation the stockholder will not be allowed to set off against his liability an indebtedness of the corporation to him.”
    2. Corporations—when action lies to recover stock liability under section 25 of act. If a creditor has obtained a judgment against a corporation and has obtained a return of execution no property found he may maintain an action agaist a stockholder to collect his unpaid subscription without showing that the assets of the corporation defendant had been exhausted.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Hondee, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed April 7, 1911.
    Statement by the Court. On July 1, 1907, the appellee recovered a judgment against the Calder Packing Co., an Illinois corporation, one of the appellants, for $1,026.85. On August '20,1907, an execution was issued upon the judgment, and on August 29th the bailiff returned the writ “nulla bona.” The appellee then filed her bill against the Packing Company, Jacob Baur and others, seeking to hold the defendants other than the packing company on their subscriptions to the capital stock.
    Jacob Baur now prosecutes his appeal from the decree against him, as hereinafter set forth.
    The bill charged that the packing company was organized with a capital stock of $10,000, divided into 100 shares of $100 each; that the subscriptions to the stock were as follows: Ira Calder, 26 shares; Lewis Calder, 25 shares; John W. Hirst, 25 shares; Virginia Sharman, 14 shares; Jacob Baur, 10 shares.
    Baur does not deny having signed the subscription. It was admitted at the hearing that Baur gave checks, payable to Ira Calder and indorsed by him and deposited to the credit of the Calder Packing Company, as follows: January 28,1905, $1,000; October 24, 1905, $300; July 24,1906, $500; October 22,1906, $300. Notes were given for all of these amounts, but the only one that needs to be considered is the one made January 30, 1905, for $1,000. It is insisted by appellee that this check was made as a loan to the company, which was represented afterwards by the note for $1,000, above referred to. Baur, on the other hand, claims that the check for $1,000 was given in payment for his subscription to the capital stock of the company. It appears from the testimony of at least one of the witnesses that when loans were made to the company it was quite usual for the notes to hear a later date than that on which the loan was made. Mr. Baur’s testimony in regard to the note for $1,000 was that he did not remember exactly what Calder’s idea was in leaving the note with him; that the note was a sort of family affair; that he never expected to make any profit out of it at all; that he advanced the money to help the business along; that he gave Calder $1,000 for the stock, and the idea was that if the company made any money that money was to be paid to him before dividends were paid. He says, “It is possible that this note was given in the way of additional security for the $1,000 that I put up;” that he simply kept the note in his possession and did not regard it as of any value, because it was all a matter of experiment. He testified that the other amounts that he paid to the company were loans.
    The master found that John “W. Hirst, Virginia Sharman and Jacob Baur, having advanced or paid money to the packing company and having simultaneously received its notes for the exact amounts upon the same days that the said various sums were being advanced in consideration thereof, and which notes the said several subscribers still hold and claim unpaid and unsatisfied, that the said subscribers cannot now be considered in a court of equity as occupying the position of paid-up stockholders as against a bona fide judgment creditor.
    The decree substantially confirms the master’s re.port and finds that Jacob Baur was a subscriber to 10 shares of stock; that he made divers loans upon an agreement theretofore entered into by him and other of the defendants, to the packing company, and received promissory notes which were retained by him and not marked “cancelled” or “paid;” that there remains due and unpaid from the said Jacob Baur the said sum of $1,000 upon his subscription; that there is now dne to the complainant $1,105.30, the same being the amount of the judgment, interest and costs, and costs of suit; that all of the material allegations of the bill have been fully supported by the proof and the evidence submitted.
    The decree ordered that an execution issue against Ira Calder in the sum of $797.25 with interest, and against Jacob Baur in sum of $307.03 with interest, and that upon the inability of the sheriff to realize upon execution the said sums from Calder and Baur, respectively, in the proportion above set forth, that complainant have leave to obtain an execution against either Calder or Baur for the full amount of their liability for the unpaid balance of complainants’ claim.
    Benjamin T. Roodhouse, for Jacob Baur, appellant; Alfred W. Craven, of counsel.
    Stedman, Soelke & Shutan, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

The appellant, Jacob Baur, bases his right to a reversal of the decree upon the propositions that the appellee did not establish her right to pursue stockholders’ liability by showing exhausting of the corporate assets; that the answer under oath not having been waived, and the answer of the appellant being under oath, the decree should be reversed because the complainant did not overcome the answer by the testimony of two witnesses or the equivalent thereof; that the proof showed that the stock subscriptions have been discharged by payment; that as the notes of the company held by the appellant were not to be paid until all of the debts of the company had been paid, they were not enforceable against the company and could not diminish the assets of the company; that they did no more than constitute the appellant a preferred stockholder.

Appellant admits that when payments to the corpo* ration are made on account of bonds or notes given by tbe corporation and the stock given as a bonus, that the stock liability remains unpaid, but insists that where the money is paid to the corporation on account of stock subscriptions, and the agreement only touches the question of dividends after debts are paid, no stock liability remains; and cites Gillett v. Chicago Title & Trust Co., 230 Ill. 373.

Preferred stock cannot be made in any such way as this. In the Grillett case the question was whether the holders of bonds should participate with others as creditors of the corporation. No such question arises in the case now before us.

In our opinion, the only question in this case is whether the $1,000 check was given by Baur to the packing company as payment for his stock or as a loan. In Thebus v. Smiley, 110 Ill. 316, it was said:

“In an action by a creditor of a corporation against a stockholder to enforce his individual liability to creditors for an amount equal to his stock in the corporation, the stockholder will not be allowed to set-off against his liability an indebtedness of the corporation to him.”

Mr. Baur’s explanation of why the note was given to bim is not satisfactory. He regarded it, he says, as additional security for the $1,000. Inasmuch as he had subscribed for 10 shares of stock of the par value of $100 each, he was not entitled to any “additional security” from the corporation. On the theory that he now maintains the acceptance by him of the promissory note for $1,000 shows that he regarded the money that he paid to the corporation not as payment for his stock but as a loan represented by the note which was afterwards given him. \

The appellant insists that the record in this case does not show that the assets of the corporation have been exhausted, and therefore the appellee could not maintain her bill. We think that counsel for appellant misapprehends the situation. Section 25 of the Corporation Act, being Chapter 32, permits suit to be brought against stockholders for unpaid subscriptions if the corporation “or its authorized agent shall do or refrain from doing any act * * * or shall allow any execution or decree of any court of record, for payment of money after a demand made by the officer, to be returned ‘No property found’ ” etc.

In this case judgment was obtained in the Municipal Court, which is a court of record, and a return was made by the bailiff “No property found.” This entitled the complainant to begin her suit under section 25.

Complaint is made by the appellant that the' Municipal Court did not get jurisdiction. The master in chancery and the court both found against him on this proposition, and, we think, correctly.

The appellant has filed 19 assignments of error. We have considered all of them carefully with reference to the testimony in the case, the master’s report and the decree, and think none of them well-founded.

Judgment affirmed.


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    Daniel D. Healy, Receiver, Appellee, v. Defiance City Bank et al., On Appeal of Joseph Beifeld, Intervening Petitioner.
    Gen. No. 15,455.

      Receiverships—when claim sounding in tort rejected. There is no rule of law which permits one claiming a right of action for a tort against a corporation in the hands of a receiver to sue for and recover against the receivers, either at law or in equity, the damage so suffered by him.
    Appeal from the Superior Court of Cook county; the Hon. Farein Q. Bael, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 7, 1911.
    Felsenthal, Foreman & Beckwith, for appellant; Egbert Robertson, of counsel.

      Darrow, Masters & Wilson, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This court has this day filed an opinion in a case known as General Number 16,967 and entitled Daniel D. Healy, Receiver, etc., appellant, v. Defiance City Bank, a corporation, etc., et al., appellees, in which the main facts governing the present appeal are set out, and reference is made to that opinion for such facts. Post, p. 628.

The appellant, Joseph Beifeld, claims to have purchased two certificates, one for 35 shares and one for 18 shares, of the capital stock of the Bank of America, issued to J. V. Pierce.

Appellant presented a petition to the court, in which he averred that by reason of the fraudulent act of the Bank of America, through its officers, in issuing the certificates, he had a cause of action against the bank in tort, and that by reason thereof he had an equitable interest in the funds now in the hands of the receiver, to the extent of the damages which he was thus entitled to recover as against the said Bank of America, and he asked the court to decree that the Bank of America was indebted to him and that the receiver be directed to pay to him out of the funds in his hands belonging to the bank such amount so found to be due.

A demurrer ore terms was filed by the receiver and sustained by the court, who refused to grant appellant leave to file his said petition. From such finding of the court Beifield appeals.

We think that the decision of the learned chancellor in the Superior Court was correct. We know of no rule of law which permits one claiming a right of action for a tort against a corporation in the hands of a receiver, to sue for and recover against the receiver, either at law or in equity, the damages so suffered by him.

Decree affirmed.


text:
    Daniel D. Healy, Receiver, Appellee, v. Abner Smith et al., On Appeal of Wilton B. Martin, Defendant, Appellant.
    Gen. No. 15,934.
    This case is controlled by the decision in Healy y. Defiance City Bank, ante, p. 625, and Healy v. Defiance Bank, post, p. 628.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 7, 1911.
    Herbert A. Schryver, for appellant.
    Darrow, Masters & Wilson, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This court has this day filed an opinion in a case known as General Number 16,967 and entitled Daniel D. Healy, Receiver, etc., appellant, v. Defiance City Bank, a corporation, etc., et al., appellees, in which the main facts governing the present appeal are set out, and reference is made to that opinion for such facts. Post, p. 628.

The present appeal is by Wilton D. Martin, to whom a certificate for 50 shares of the capital stock of the bank was given on payment by him to Abner Smith of $10,000. ;

It is clear from the evidence that Martin purchased the stock from Smith, and that it was part of the stock which Smith had fraudulently caused to be issued in pursuance of the conspiracy referred to in the opinion last mentioned.

The court found that the defendant, Martin, in dealing with the said Smith, dealt with the said Smith personally, and that in said transaction the said Smith was not acting for the said Bank of America, but was acting for himself, and the relations between the said Smith and the defendant Martin under the said contract mentioned were personal between them, and that the defendant Martin cannot hold the Bank of America or the receiver, the complainant herein, responsible for the acts of the said Abner Smith with respect to selling the said Martin the stock in question, which was never paid for and which was void.

We agree with the learned chancellor, and the decree is therefore affirmed.

Decree affirmed.