author: Welch, J.

text:
    The City of Chicago et al. v. Dwight F. Cameron and Albert W. Cobb.
    BiU to 7zav~ Bonds Issued by a Corporation Dee lared Ultra Vires, and to Secure Release of Trust Deed-Want of Consideration-Equity Jurisdiction-Adequate Remedy at Law-Waiver of Objection-Parties-When Stockholder May Commence Action-Objection, How Raised-Former Ad~ judication-Res Ad~udicata--Service on Non-Resident Defendants.
    1. A bill in equity lies to procure the release of a trust deed where the matters rendering it void must be established by extrinsic evidence.
    2. Where a defendant in chancery has by answering submitted to the jurisdiction of the couit, it is too late to object that the complainant had an adequate remedy at 1aw~
    3. Wherever a cause of action exists primarily in behalf of the corporation against directors, officers and others, for wrongfully dealing with corporate property, or a wrongful exercise of corporate franchises, so that the remedy should regularly be obtained through a suit by and in the name of the corporation, and the corporation either actually or virtually refuses to institute or prosecute such suit, then, in order to prevent a failure of justice, an action may be brought and maintained by a stockholder or stockholders, either individually or suing on behalf of theinsolves and all others similarly situated, against the wrongdoing directors, officers and other persons.
    4. The fact that the complainant became a stockholder after the completion of the acts complained of, does not affect his right to commence the action which is maintained directly for the benefit of the corporation.
    ~. The question of the capacity of the complainant to maintain the action can not be raised after a hearing on the merits. It must be raised by demurrer or plea in the nature of a plea in abatement.
    6. To render a matter res ad~iudicatct there must be identity in the thing sued for, identity in the cause of action and identity of persons and of parties. A Question not raised by the pleadings in the former action, upon which no issue was tendered, in reference to which no evidence was adduced, and upon which the court did not pass, can not be considered res adjudicata.

    7. Upon a bill filed to have certain bonds issued by a corporation declared ultra vires and void, and to secure the release of a trust deed securing said bonds, it is held: That the decree for complainants is supported by the findings; that the present holders took them with knowledge of the facts constituting the fraud, want of consideration, and ultra vires; and that the defendants who appeared can not question the sufficiency of the service on non-resident holders of bonds who did not appear.
    [Opinion filed December 11, 1886.]
    In ebeob to the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    Statement by Welch, J. The La Salle and Chicago Railroad Company was organized under an act entitled “An Act to incorporate the La Salle and Chicago Railroad Company,” approved February 28,1867, for the construction of a railroad from La Salle to Chicago. In 1872 the name of the corporation was by a vote of its stockholders changed to the Chicago and Great Westera. Railroad Company. On the first of March, 1873, the directors of the company by resolution authorized the issue of bonds to the aggregate amount of $8,000,000, the same to be used or sold, and the proceeds thereof to aid in the construction and equipment of the railroad of said company upon the route selected and to be selected therefor, and within the limits prescribed by its charter. One thousand of these bonds, amounting to $1,000,000, were issued, dated March 1, 1873,. and secured by a deed of trust of the same date, conveying to the Farmers’ Loan and Trust Company, of Hew York, all the property and franchises of the company.
    Prior to this time a corporation, known as the Riverside Improvement Company, organized under an act approved March 11,1869, for the purpose of purchasing, improving and selling suburban property in the vicinity of Chicago, had become largely indebted for the purchase and improvement of certain lands at Riverside, in Cook County. Another corporation known as the Riverside Water and Gas Company, incorporated April 6, 1889, for the purpose of supplying gas and water to the town of Riverside, had also become largely indebted and embarrassed in its enterprises at that place.
    Emery P. Childs, who was the president of the Riverside Improvement Company, and one of the largest stockholders and vice-president and general manager of the Riverside Water and Gas Company and one of its heaviest stockholders, acquired the control of another corporation known as the Mercantile Warehouse and Loan-Company, and caused its name to be changed to the Chicago and Great Western Railroad Land Company. He then caused the Riverside Improvement Company and the Riverside Water and Gas Company to convey their property to the land company, subject to a large amount of mortgage and other indebtedness. Childs then became the president and general manager of the land company. He also owned a majority of the capital stock of the Chicago and Great Western Railroad Company, and was its president and manager. Instead of using the bonds of the railroad company for the purpose of constructing its road, as required by the resolution of the board of directors, Childs without authority used seven hundred and fifty of its bonds in payment and satisfaction of the debts of the improvement company, of the water and gas company and of the land company.' All of the persons receiving the bonds knowing that the only consideration therefor was the indebtedness of the three companies last named, and that the bonds were wholly void as against the railroad company. Childs also delivered two hundred and fifty of the bonds to Joshua C. Sanders and other persons without any consideration accruing to the railroad company, of which l *the parties receiving them had full knowledge. On the first day of March, 1873, the land company executed its deed of trust conveying certain lands in Riverside, Cook county, to John J. Jewett, as trustee, to secure the railroad bonds above described. Default having been made in the payment of interest on the bonds, suit was brought in the Circuit Court of Cook County in 1875, by F. W. Peck and others, holders of the bonds, for the foreclosure of the Jewett trust deed. A decree of foreclosure was rendered which was modified by the Supreme Court. See Peck v. Chicago and Great Western Bail road Land Company, 112 Ill. 408.
    On the 14th of October, 1884, complainants became subscribers to the capital stock of the railroad company with a view of obtaining further subscriptions and of constructing the road. Learning that the bonds and trust deed were still outstanding, and an apparent cloud upon the title of the railroad company, they applied to the Farmers’ Loan and Trust Company to release the deed of trust. The company declined to execute a release without an order of court declaring the bonds void, and directing it to release the trust deed. The raih;oad company, Childs being still its president, refused upon the application of complainants to institute the necessary proceedings to obtain such a decree. Complainants thereupon filed this bill, ¡November 27, 1884, in the Circuit Cohrt of La Salle County, against the holders of the bonds, including the plaintiffs in error, the Farmers’ Loan and Trust Company and the railroad company. The bill alleged the facts as stated supra, and prayed that the bonds be declared ultra vires and void, and that the Farmers’ Loan and Trust Company be required to execute a release of the trust deed. Plaintiffs in error answered the bill upon the merits, and neither they nor any of the defendants to the bill raised any question, either by demurrer, plea or otherwise as to the capacity in which complainants brought suit as stockholders in the corporation. Upon final hearing upon the pleadings and proofs, the court found the facts as above recited and granted the relief as prayed for in the bill of complainants, from which decree this writ of error is prosecuted.
    Hr. Geoe&e W. Smith, for plaintiffs in error.
    There was a sufficient consideration for the bonds. They were delivered in satisfaction of certain debts of other companies. The company was the judge as to whether or not this would operate for its benefit. Its answer shows that it expected to be benefited.
    The finding that the bonds were not used in the construction, equipmentor operation of the railroad, does not establish a want of consideration. P. & S. R. R. Co. v. Thomas, 103 Ill. 187.

      The Circuit Court of Cook County, in a cause to which the railroad company was a party, had determined the bonds to be valid and lawfully outstanding. This was sufficient to oust the jurisdiction. Wells on Jurisdiction, Secs. 156-159 ; Whitney v. Stevens, 97 Ill. 482 ; Mail v. Maxwell, 107 Ill. 554; C. & Gt. W. R. R. Co. v. Peck, 112 Ill. 408.
    As a decree against non-residents, brought in by publication, it was inoperative and therefore improper. Pennoyer v. Neff, 95 U. S. 714; St. Clair v. Cox, 106 U. S. 350; Pana v. Bowler, 107 U. S. 529.
    The bill did not allege a case of equitable cognizance. It was not, a bill to restrain the issue of bonds nor to compel officers or directors to reimburse the railroad company. It was not a bill in the interest of or by the corporation to compel the restoration of assets which had been sequestered or squandered.
    It was a bill directed against bondholders which the corporation did not approve, but to which it submitted. It sought to wrest from them their property. It was without precedent, and destitute of principle. Morawetz on Corporations, Sec. 383, et seq.; 3 Pomeroy Eq. Jur., Sec. 1088. et seq.; Gray v. Lewis, L. R. 8, Ch. App. 1035; Russell v. Wakefield, L. R. 20, Eq. 479 ; Hawes v. Oakland, 104 U. S. 450; Detroit v. Deane, 106 U. S. 537 ; Brown v. Boston Theatre, 104 Mass. 378.
    Defendants in error purchased stock eleven years after the bonds were issued. They desired to obtain further subscriptions. How much they paid, what amount of stock they held, what proportion it bore to the whole issued, they do not disclose.
    They did not apply to the directors to file a¡ bill, nor did they call a meeting of stockholders. If stockholders had met it is to be presumed that the defendants in error would have been out-voted and the bill would not have been authorized.
    Messrs. J. L. High, E E. Bull and D. S. Wegg, for defendants in error.
    Equity has jurisdiction at the suit of a single stockholder to prevent the misapplication of the funds or credit of a corporation by its officers or agents, and to afford relief if such, fraudulent misappropriation has already been consummated. 3 Pomeroy’s Equity, 10; Wood’s Railway Law, Sec. 63; Robinson v. Smith, 3 Paige, 222; Dodge v. Woolsey, 18 How. 241; Colman v. Eastern Counties R. Co., 10 Beav. 1; Salomons v. Laing, 12 Beav. 377; Hazard v. Durant, 11 R. I. 195; March v. Eastern R. R. Co., 40 N. H. 548; Bliss v. Anderson, 31 Ala. 613.
    Independent of the jurisdiction upon the ground above suggested for the prevention of a fraud upon the rights of stockholders, the court had jurisdiction to release the trust deed as a cloud upon the title of the railroad company. Revised Statutes, Chap. 22, Sec. 50.
    And the court having acquired jurisdiction for that purpose, it may properly retain jurisdiction, and afford complete relief between the parties, by decreeing the bonds to be void as against the railroad company, although such xlefense might have been interposed by the company in an action at law upon the bonds. Pool v. Docker, 92 Ill. 501.
    Even if a complete remedy could be had at law, the objection should have been taken in limine, and is waived by answering to the merits. Darby v. Dixon, 4 Ill. App. 187; Chicago Theological Seminary v. Gage, 103 Ill. 175; Whittington v. Ross, 8 Ill. App. 234.
    Defendants in error are not entitled to the presumption of bona fide ownership of the bonds by reason of their possession, since the court finds by the decree that the bonds were illegally and fraudulently delivered in the first instance, without consideration, and in payment of the indebtedness of other corporations. The decree also finds that the parties receiving the bonds, and the present holders, including plaintiffs in error, received them with full knowledge of these facts; and in the absence of any proof that plaintiffs in error paid value for their bonds, no presumption can be indulged in their behalf, the court having expressly found that they received their bonds with full notice of their illegality and want of consideration. Smith v. Sac County, 11 Wall. 139, and authorities cited.

      The case of Peck v. The Chicago and Great Western Railroad Land Company, 112 Ill. 408, is not res judicata upon the issues presented in this action. To entitle a former judgment to he pleaded as res judicata in bar of a subsequent action there must be an absolute identity of the subject-matter, of the parties, of the cause of action and of the purpose or object sought. The subject-matter of the prior action was the indebtedness of the improvement company, the water and gas company and the land company; the cause of action was the deed of trust executed by the land company to Jewett; the purport or object of the action was the enforcement of that deed of trust by a decree of foreclosure. Neither the subject-matter, the cause of action, nor the purpose sought in that litigation were identical with the subject-matter, the cause of action or the purpose sought in the case at bar. Freeman on Judgments, Sec. 252; Bigelow on Estoppel, 22 ; Aspden v. Nixon, 4 How. 467; Miller v. McManis, 57 Ill. 126; Hanna v. Reed, 102 Ill. 596 ; Packet Co. v. Sickles, 24 How. 333; Packet Co. v. Sickles, 5 Wall. 580; Cleaton v. Chambliss, 6 Rand. 86.
    The right of action of a stockholder to obtain relief against a fraudulent misappropriation by the officer of the corporation of its funds or securities, is not affected by. the fact that he purchased his stock after the commission of the fraud which he seeks to redress. Young v. Drake, 8 Hun, 61; Ramsey v. Erie R. R. Co., 8 Ab. Pr. N. S. 174; S. C. Sub. Nom. Ramsey v. Gould, 57 Barb. 398.
    Plaintiffs in .error can not be heard to complain as to the effect of the decree upon non-resident bondholders served by publication. Having answered upon the merits they can only be heard as to such errors as are personal to themselves. Welch v. Post, 99 Ill. 471; Town of Virden v. Needles, 98 Ill. 366 ; Henrickson v. Van Winkle, 21 Ill. 274; Horner v. Zimmerman, 45 Ill. 14; Short v. Raub, 81 Ill. 509.
   Welch, J.

The first question presented for our consideration by the assignment of errors is, that The court erred in not finding that there was an adequate remedy at law, and in not dismissing the bill for want of jurisdiction.”

The instruments sought to he canceled and released by the-' bill in this case were regular upon their face, and their invalidity depended solely upon extrinsic evidence. In such a case, as said by McAllister, J., in Field v. Herrick, 5 Ill. App. 54, " Although the question whether equity would take jurisdiction to decree the delivering up of written instruments void •upon their face was at one time involved in considerable doubt, yet so far as an investigation has extended, none of the courts that doubted or denied it in the case just stated, ever expressed any doubt of it in a case where the ground upon which it was based was required to be established by extrinsic evidence.” In such a case, as we understand the decisions, it has been universally conceded. Peirsoll v. Elliott, 6 Pet. 98; Hamilton v. Cummings, 1 Johns. Ch. 517. In the last case Chancellor Kent says: “I am inclined to think that the weight of authority and the reason of the thing are equally in favor of the jurisdiction of the court whether the instrument is or is not void at law, or whether it be void for matters appearing on its face, or from proof taken in the cause that these assumed distinctions are not well founded.” Even conceding that there was an adequate remedy at law, the objection comes too late. This court by Pillsbury, P. J., in Ill. App. 187, Darby v. Dixon, said: “ It is insisted that the plaintiff in error had an adequate remedy at law and he can not therefore maintain this bill. * *• * If defendant in error desires to rely upon this point he should have abided by his demurrer to the bill and not answered over to the merits.” In Stout et al. v. Cook, 41 Ill. 447, it is said that “ If a defendant in chancery answers and submits to the jurisdiction of the court it is too late for him to object that the complainant had an adequate remedy at law.” So in Magee v. Magee, 51 Ill. 503, the court say : “ The objection should have been interposed before the answer was filed and comes too late on error, although the remedy may have been complete at law.” Chicago Theological Seminary v. Gage, 103 Ill. 175, announces the same rule.

The plaintiffs in error filed their answer in this case and submitted their cause upon its merits. It is now too late for them to object that the defendant in error had an adequate remedy at law.

It is also insisted by counsel for plaintiffs in error that if any party could have maintained a bill of this nature it was the corporation. No other could be complainant. In support of this view we are referred to Morawetz on Private Corporations, Sec. 383: “It is a general rule founded on convenience that in case a trustee represents numerous beneficiaries, no portion of these beneficiaries can apply .to a court.of equity for the protection of the trust until the trustee has refused or neglected to take the necessary steps to protect it on their behalf. This rule applies with much force to the trust between a corporation and its stockholders.” It may therefore be stated as a rule, “ that the redress for an injury to a corporation should be obtained by the corporation itself through its regularly appointed agents, and it is only when the corporation is disabled from proceeding on its own behalf by reason of the misconduct or failure of its agents, that the stockholders may themselves proceed in chancery for the protection of their equitable rights.” Sec. 384: “A court of equity can not interfere with the management of a corporation unless it be alleged and proven that no agent of the corporation having the requisite authority is willing and able to act on its own behalf. * * * And even where the directors or ordinary managing officers of a corporation are at fault it does not necessarily follow that the corporation is disabled from procuring justice for itself. For the majority of stockholders in corporate meetings have supreme authority under the charter to manage the corporate affairs, and whenever it is possible to obtain justice to the corporation by calling a stockholders’ meeting and removing the offending officers and selecting new ones, this remedy must be pursued.” Sec. 385 : “ If the governing agents of a corporation are able to act on its own behalf, a stockholder can not obtain relief in equity until he has shown that they are unwilling to act. * * * Hence it is ordinarily necessary before a court of equity can interfere with the management of a corporation at the suit of a stockholder to show that the directors or managing officers having control of the corporation have refused to act on its behalf.” Sec. 386 : “ But a demand upon the proper agents of a corporation and their refusal to act are material only because they show that the corporation itself is unable to protect the rights of his members, for a corporation has no means of acting except by its agents. * * * Thus if the agents of a corporation in whom the authority to direct its legislation is vested are themselves guilty of a wrong against the corporation, a court of equity will interfere at the suit of a stockholder to protect his interest in the corporation without requiring him first to request the guilty agents to proceed in the name of the corporation against themselves.”

The bill in this case alleges that “ the Farmers’ Loan and Trust Company, though often requested so to do, refused to satisfy or release said trust deed without an order of court first had and obtained, declaring said bonds to be ultra vires and void, and directing and requiring it, as trustee, to release the same. That the said railroad company has been, through its president, Emery C. Childs, requested to file a bill to obtain such an order but wholly neglects and refuses so to do.” The answer of the railroad company admits this allegation and the decree finds that the Farmers’ Loan and Trust Company had refused, on request, to release said deed of trust without an order of court first had, declaring said bonds to be ultra vires and void, requiring the trustee to release the same, and that the railroad company, through Childs, its president, had been requested to file a bill to obtain such order but had wholly neglected and refused so to do. This we hold would authorize this suit under the authorities in Morawetz on Private Corporations, supra. We have also been referred to the case of Hawes v. Oakland, 104 U. S. 450, in which the court say: “ Since the decision of this court in Dodge v. Woolsey, 18 How. 331, the principles of which have received more than once the approval of this court,, the frequency with which the most ordinary and usual chancery remedies are sought in the Federal courts by a single stockholder of a corporation, who possesses the requisite citizenship, in cases where the corporation whose rights are to be enforced can not sue in this court, seems to justify the consideration of the grounds upon which that case was decided and of the just limitation of the exercise of this principle.” * * *

“The principle involved in the case of Dodge v. Woolsev, permits the stockholder in one of these corporations to step in between that corporation and the party with whom it has been dealing, and institute and control a suit in which the rights involved are those of the corporation, and the controversy one really between that corporation, and the other party, each being entirely capable of asserting its own rights.”

That principle was not changed or modified by the opinion in Hawes v. Oakland, supra. In the case of Dodge v. Woolsey, 18 How. 331, the court say: “It is now no longer doubted either in England or the United States, that courts of equity in both have a jurisdiction over corporations at the instance of one or more of their members, to apply preventive remedies, by injunction to restrain those who administer them from committing acts which would amount to a violation of their charters, or to prevent any misapplication of their capitals or profits, which result in lessening the dividends of the stockholders or the value of their shares, as either may be protected by the franchises of a corporation if the acts intended to be done create what is in the law denominated a breach of trust, and the jurisdiction extends to inquire into and to enjoin, as the case may require that to be done, any proceeding by individuals in whatever .character they may profess to act, if the subject of complaint is the immediate violation of a corporate franchise", or the denial of a right growing out of it for which there is not an adequate remedy at law.”

Pomeroy, in his Equity Jurisprudence, Vol. 3, page 13, says of the opinion in Hawes v. Oakland : “ It is not claimed, however, that these specific and extraordinary allegations are demanded by the general course of English and American decisions. They are intended to guard the Federal jurisdiction from encroachment, and are prescribed by a rule of the United States Supreme Court (rule 94) for the purpose of preventing collusive attempts to bring causes within that jurisdiction.”

“Rule 94: Every bill brought'by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a stockholder at the time of the transaction of which he complains, or that his share has devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders,-and the cause of his failure to obtain such action.”

The reason given by the Supreme Court of the United States for the rule adopted by it in Hawes v. Oakland, supra, is wholly inapplicable in this court. The rule announced in Pomeroy’s Equity JurisjDrudence, Vol. 3, page 10, we regard as the sound rule.

“ Wherever a cause of action exists primarily in behalf of the corporation against directors, officers and others, for wrongfully dealing with corporate property, or a wrongful exercise of corporate franchises, so that the remedy should regularly be obtained through a suit by and in the name of the corporation, and the corporation either actually or virtually refuses to institute or prosecute such suit, then, in order to prevent a failure of justice, an action may be brought and maintained by a stockholder or stockholders, either individually or suing on behalf of themselves and all others similarly situated, against the wrong-doing directors, officers and other persons; but it is absolutely indispensable that the corporation itself should be joined as a party, usually as a co-defendant.”

The rule here stated is in harmony with the rule in Morawetz on Private Corporations, supra, and Dodge v. Woolsey, supra.

In Coleman v. Eastern Counties R. Co., 10 Beavan, 1, it was said: “Ample powers are given for the purpose of main-taming and constructing the railway, and for doing all those things required for its proper use when made ; hut I apprehend that it has nowhere been stated that the railway company, as such, has power to enter into all sorts of other transactions. Indeed, it has been very properly admitted that railway companies have no right to enter into new lines of business not pointed out by their charters; but it has been contended that they have a right to pledge, without limit, the funds of the company for the encouragement of other transactions, however various and extensive, provided the object of that liability is to increase the traffic upon the railway, and thereby to increase the profits of the shareholders. There is, however, no authority for anything of that kind. * * * Do the powers to construct, maintain and regulate the traffic, and to do all that is necessary for the purpose of carrying on and working the railway, imply that the directors are to be at liberty to pledge the funds of the company for a completely different transaction, in the hope that it may turn out a profitable one, and by being itself profitable, add to the profits of the railway company? Certainly there is nothing in the powers given by this Act of Parliament which can authorize that. It has been argued that I must either allow that to be done, or that I must hold that nothing can be done that is at all out of the express words of the Act of Parliament. Now I shall remain of opinion until it has been decided otherwise, by higher authority, that this is not within the powers given by the Act of Parliament; and when another and a different case is brought before the court it will be judged of by the circumstances which attend it. And I must say that in my opinion to pledge the funds of this company for the purpose of supporting another company engaged in a hazardous speculation, is a thing which, according to the terms of this Act of Parliament, they have not a right to do!”

The only difference between that case and the one at bar lies in the fact that in that case the relief sought was to prevent the fraudulent pledging of the assets, while in the case at bar the credits and securities had actually been delivered to the creditors of the other corporations with the full knowledge of this want of consideration accruing to the railroad company. In the view we take of this case, in the light of the foregoing authorities, a bill in the nature of this bill can be maintained by a stockholder.

It is also insisted by counsel for plaintiffs in error, that the defendants in error having become stockholders after the fraudulent misappropriation of the bonds of the railroad company had occurred, had no right to bring this suit. We do not consider the objection well taken. The rule on this subject is clearly stated in Vol. 3, Pomeroy’s Equity, page 10, as follows: “ The stockholder does not bring such suit because his rights have been directly violated, or because the cause of action is his, or because he is entitled to the relief sought; he is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually or as the representative of the class, may commence the suit and may prosecute it to judgment; but in every other respect the action is the ordinary one brought by a corporation. It is maintained directly for the benefit of the corporation, and the final relief when obtained belongs to the corporation and not to the stockholder plaintiff.”

The same rule is announced in Ramsey v. Gould, 57 Barb. 398, where the court says: It is argued by the defendants’ counsel also that this suit is brought in bad faith. That inasmuch as the plaintiff made himself the holder of stock and bonds of this company for the very purpose of complaining that his rights as such were invaded, and with full knowledge that the principal acts of which he complained had been done when he made the purchase, he is to be regarded rather as a mover and promoter of strife than as a hona fide suitor, and that he does not come into court with clean hands, as a familiar rule of equity requires, and should therefore be dismissed. I do not see that an equity rule has any application here, that has reference to the relief of the parties in respect to the money in controversy. If there is any abuse of that relief by the plaintiff he does not come with clean hands to enforce the advantage thus obtained. Here the complainant has no inequitable advantage which he is seeking to enforce against the defendants. His buying the stock and bonds was not wrong done them, with whatever intent it was done. The relative rights of the parties are the same as if the suit were brought by the plaintiff’s vendor. The intent with which he purchased does not ch mge the effect of those rights, or raise any equity respecting them in favor of defendants. In regard to that his hands were clean, and the rule requires no more. His bringing the suit after having become invested with the bonds and stocks, as he did, is not bad faith, such as the courts will relieve against.”

Even if the defendants in error, as stockholders, had not the legal capacity to sue, the rule is that the personal disability to sue, if apparent upon the face of the bill, must be raised by demurrer, and if it does not appear on the face of the bill, advantage must be taken of it by a plea in the nature of a plea in abatement. Mitford’s Equity Pleadings, Tyler’s Edition, 245 and 318; Story’s Equity Pleadings, 88, 493, 494; 1 Daniell’s Chancery Practice, 52, 57, 84.

There was in this case no demurrer or plea. Answer to the merits was filed. The question of the capacity to sue can not be raised after a hearing on the merits or error.

It is also insisted by counsel for plaintiffs in error, that the validity of the bonds authorized to issue and the regularity of their issue was res adjudicata. The case of the Chicago and Great Western Railroad Land Company v. Peck, 112 Ill. 408, is referred to as sustaining this position. That was a bill filed to foreclose the Jewett trust deed. The bill averred that the bonds were valid as against the land company and sought the foreclosure of the trust deed upon the lands of that company. Ho issue of any kind was raised by the pleadings or otherwise, as to the validity of the bonds against the railroad company. A question which was not raised by the pleadings, upon which no issue was tendered, in reference to which no evidence was adduced, and upon which the court did not, by its decree, pass, is not one which, under any of the authorities, can be considered res adjudicata. The subject-matter and cause of action involved in the case at har was in no way involved, considered or adjudicated upon in the case in 112 Ill. supra. To make a matter res adjudicata there must he a concurrence of the following conditions: Identity in the thing sued for, identity in the cause of action, and identity of persons and of parties. Bouxder’s Law Dict. 467.

As stated by Freeman in his work on Judgments:

1st. Identity of subject-matter. 2d. Identity of cause of action. 3d. Identity of purpose or object.

“When the former adjudication is relied on as an answer or bar to the whole cause of action, or when it is claimed to be an answer to all the questions involved in the subsequent action, then it must appear that the cause of action and thing sought to be recovered are the same in both suits.” Hanna et al. v. Read et al., 102 Ill. 596. There is no identity between the case in 112 Ill., supra, and this, as to the subject-matter, cause of action, or relief sought.

The rule announced in Whitney v. Stevens, 97 Ill. 482, and in Mail v. Maxwell, 107 Ill. 554, does not conflict with the rule announced, supra.

It is also insisted that there was no want of consideration shown. That it did not appear that the holders of the bonds were not bona fide holders for value. The decree finds that the bonds were ultra vvres and void, and without consideration to the railroad company, and that all the parties to whom such bonds were originally issued were cognizant of all the facts constituting fraud and lack of consideration; that the bonds wer& ultra vires in being delivered for uses antagonistic to the. purposes for which they were voted by the directors of the company and for which the corporation was by its charter authorized to use them. It also finds that the present holders of the bonds took them and now hold them with full knowledge of all the facts constituting fraud, want of consideration and ultra vires.

Hnder such circumstances how the claim can be made by the plaintiffs in error that no want of consideration for the bonds or that they were not bona fide holders for value was shown, we are not able to perceive. The finding was clear and conclusive on this subject.

It is also insisted that non-resident owners of the bonds are not bound by this decree. Plaintiffs in error can not avail themselves of this objection. They appeared and answered, and are bound by the finding of the court against them. If the others were not served it is for them to complain. Henrickson v. Van Winkle, 21 Ill. 274. “ The error would be per-

sonal to them, with which the plaintiffs in error have nothing to do.” Horner v. Zimmerman, 45 Ill. 14-20.

As to whether this decree is operative on the non residents or the bonds owned by them are within the jurisdiction of this court, is not now before us, and we do not feel called upon to decide it.

It is also insisted that the decree was against the law and the evidence. The evidence is not otherwise preserved than in the findings in the decree, which findings we hold fully support the decree.

After a careful consideration of this case, we are of the opinion that there is no error of which the plaintiff in error can complain.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The Security Live Stock Insurance Association v. A. D. Briggs.

      Insurance on Stock — Arbitration—Aivard by Majority — Action on— Agency — Evidence.
    In an action on an award arising upon a policy of insurance on stock, it is held: That the evidence sustains the agent’s authority to bind the company by arbitration; that the calling of a fifth arbitrator, where the others could not agree, amounts to a consent to an award by a majority; and that certain evidence as to the age and value of the mare insured was properly excluded.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.

      Statement by Welch, J. This was a suit brought by appellee against the appellant before a Justice of the Peace in which the appellee recovered a judgment and the appellant appealed to thq Circuit Court. On the trial in the Circuit Court appellee recovered a judgment from which the appeal to this court is taken. Appellee held a policy of insurance issued by the appellant ■to him insuring certain of his stock. Among the stock thus insured was a mare which had died. Appellee presented his claim against the appellant for the value of the mare. Thomas Junk was the agent of the appellant io whom the appellee made application for insurance. Junk forwarded to the appellant the application and the policy of insurance was issued. After the loss appellee presented to the appellant his claim for the value of the mare that had died. Appellant wrote to Junk that he was willing to leave the settlement of the claim to fair-minded men who should decide the question as to loss. An agreement was entered into by appellee and Junk, as the agent of the appellant, as follows:
    “ We, the undersigned live Stock Insurance Company, of Bloomington, Illinois, and A. D. Briggs, of Henderson, Illinois, hereby mutually agree to submit all our matters in difference touching the loss of a mare insured in said" Live Stock Insurance Company, by said Briggs, to the award and determination, of Thomas Hunter, D. P. Riley, D. B. Jackson and James Yard for them to hear and determine the same, and make their award in writing upon their determination, which shall be binding upon the respective parties hereto.
    Witness our hands, this 3rd day of October, 1885.
    A. D. Bbiggs, (Seal.)
    Thos. Junk, (Seal.)
    Agent for Company.”
    Two of the arbitrators named in the agreement were selected by Junk and two by appellee. The four not being able to agree, a fifth arbitrator was called by the consent of Junk and appellee, four of whom rendered the following award:
    “We, the undersigned, arbitrators selected by the Bloomington Live Stock Insurance Company, on the one part, and A. D. Briggs on the other, met on October 3,1885, for the purpose of arbitrating the difference between the parties in relation to the loss of a mare insured with said company, and have determined said mare to be worth ninety dollars, and award the same to A. D. Briggs.
    (Signed) Thos. Hunter,
    W. 0. Koonse,
    Jas. E. Yard,
    D. P. Kiley,
    Arbitrators.”
    Jackson, one of the arbitrators, refused to sign the award; Junk forwarded to the appellant the award. About two weeks after the arbitration, appellee asked Junk if he had heard from the appellant since he had sent it the result of the arbitration. Appellee said if it did not pay he would sue. Junk then wrote to appellant asking it what it was going to do. It answered it would pay him §2-3, or stand a suit.
    Messrs. Williams, Lawrence & Bancroft, for appellant.
    Mr. Forest F. Cook, for appellee.
   Welch, J.

In the view we take of this case, there are just two questions involved: Did Junk have authority to bind the appellant by arbitration, and was the award as signed binding on the appellant ?

First. Had Junk the authority to bind the appellant by arbitration ? He was its agent to take applications for insurance. They had written to him in regard to the settlement of this loss, and wrote to him, it was willing to leave it to fair-minded men,” and made no suggestion so far as appears as to who the arbitrators should he or how they should be selected otherwise than as stated. The implication would be that Junk, their agent in that locality, with whom they were corresponding, would make the selection, and no restrictions were placed on him. The award was forwarded to the appellant and it never denied the authority of Junk to submit. Two weeks afterward it was written to again, and then offered to pay $23, but even then did not repudiate the authority its agent had assumed. The letter of instructions to the agent, Junk, as to the claim of appellee, is in its hands or in the hands of its agent, and it does not produce the letter or account for it and does not deny the authority was given. We hold that there was sufficient evidence of authority to Junk to bind the appellant by arbitration, and that there was no error in admitting in evidence the agreement to submit to arbitration.

Second. Was the award as signed binding on the appellant ? It is insisted by counsel for appellant that in order to render the award valid and binding it must be signed by all the arbitrators, and in support of this position we are referred to Morse on Arbitration, 162: “ Unless the statute provide to the contrary, the rule is general and imperative that all the arbitrators must unite in the award in order to render it valid.” We find that the same author on the same page uses this language: “ Or unless a contrary intention of the parties can be clearly and unmistakably gathered from the submission and the attendant facts.” The same author says: “The authorization of a majority to make a valid decision need not always be made in distinct terms. If it can be clearly gathered from a necessary implication it may suffice.” If, as we have held, Junk had full authority to submit the question to arbitration, then he had authority to agree that an additional arbitrator should be chosen, and that the award of a number ■less than the whole should be taken. The evidence shows that the four could not agree. An award signed by less than four named in the written submission would not be binding. The evidence further shows that when it was found that the four selected could not agree, the parties agreed to let Koonse, a fifth man, serve on the arbitration. The intention of the parties is perfectly apparent, in calling in a fifth arbitrator ; it was that an award rendered by the majority should be valid. They already knew that the four called could not agree and that no valid award could be made by them without the concurrence of all. The calling in of the fifth arbitrator was to obviate the difficulty so that a valid award could be made by the majority of the arbitrators. The conduct of the parties is clearly within the rule stated by Morse, supra. It was also shown by the evidence that Junk consented to an award by a majority. We hold as to the second point that the award was binding on appellant.

In the view we have taken of this case, there was no error in excluding the evidence offered by appellant. The claim of appellee being founded as we hold on an award, the evidence sought to be introduced was pertinent to no issue on that question. The facts having been found by the jury against appellant, we concur in that finding.

Findmg no error, judgment affirmed.


author: Lacey, J.

text:
    City of Galesburg v. John R. Benedict.

      Municipal Corporafions — Defective Sidewalk — Action for Damages for Personal Injuries — Demand—Evidence—Instructions—Comparative Negligence — Exhaustive Review of Authorities — Practice.
    1. In an action against a municipal corporation to recover damages for personal injuries caused by a defective sidewalk, it is held: That the evidence sustains the verdict of the plaintiff; that the court properly refused to appoint a commission of physicians, when the case was on trial, to visit and examine the plaintiff at his residence; and that there was no serious error in the admission of certain statements made by the plaintiff to his physician, or in granting and refusing instructions.
    2. In an action of trespass to recover unliquidated damages it is not a valid objection that the claim was not presented for payment before the commencement of the suit.
    3. Upon an exhaustive review of the authorities this court holds that, in actions for damages for personal injuries, it is discretionary with the trial court whether to give or to refuse an instruction on the question of comparative negligence.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Col. fc of Knox County; the Hon.John J. Glenn, Judge, presiding.

      Statement by Lacey, J. This was a suit in trespass commenced by appellee December 31, 1885, in the Circuit Court, alleging that on the 2d day of July, 1885, the appellant had control of a public sidewalk on the east side of West Street, and wrongfully suffered the same to become dangerous, and that the appellee while using due care, tripped on a loose board, fell and became greatly injured and damaged in consequence in the sum of $5,000. There was the plea of the general issue filed on trial by the court and jury, February 12, 1886, the jury finding verdict for the appellee in the sum of $1,250, on which verdict the court rendered judgment from which the appellant takes this appeal.
    Mr. Fletcher Carney, for appellant.
    The plaintiff passed over the walk where the injury occurred six times each day. If he had notice of its bad condition and walked over it in the night, as he would over a good walk, ho could not recover. <•
    If the walk was not in a condition so that he, in the use of reasonable care, should be chargeable with notice, then it could not be said that the city was chargeable with notice. If it was in condition to charge the city with constructive notice, then certainly lie, passing over it six times a day, would be chargeable with constructive notice; yes, more; with actual notice. It is nonsense to say, under such evidence, that the city was guilty of »a want of reasonable care, and at the same time plaintiff was not guilty of some negligence.
    From the evidence in this case there can be no question that if defendant was guilty of.negligence in allowing the walk to remain out of repair, then, plaintiff passing over the walk six times a day, must be guilty of negligence also. It was for the jury to determine, under proper instructions as to the law, whether that of the city, if any, was gross as compared with that of plaintiff. C. & A. R. R. Co. v. Bonifield, 104 Ill. 223.
    If a plaintiff is entitled to have a jury instructed that, even if he is guilty of slight negligence, he can recover if defendant is guilty of gross negligence compared with that of plaintiff, then the defendant is equally entitled to have the jury instructed that if plaintiff is guilty of even slight negligence he can not recover unless the defendant is guilty of gross negligence as compared with his.
    In this case the jury were enlirely uninstructed as to the rule of comparative negligence; and, uninstructed, what would be more natural for a jury than to apply the general rule as to other matters in civil cases, i. e., that of preponderance. Then a mere preponderance of negligence on the part of the city, appearing from the evidence, would cause them to find for plaintiff. “Where both parties have been guilty of negligence, this court has never held that the mere preponderance against defendant will render him liable.” C. & N. W. R’y Co. v. Dimick, 96 Ill. 42.

    Messrs. McKenzie & Calkins, for appellee.
   Lacey, J.

The appellant objects to the verdict because it was contrary to the weight of the evidence and that the court erred in not appointing proper and competent physicians on its motion,to visit the appellee at his residence,four blocks away from the court house, where the trial was progressing, to examine him, and after a proper examination by such physicians, to testify in the case. It is further objected that the court allowed Dr. Cooper to testify as to what appellee had told him, as follows: “ Mr. Benedict stated that he had fallen down and injured his shoulder and head ‘again;’ by and by these to some extent subsided, but he still complained of those pains.” It is also insisted by appellant that the appellee’s first and third instructions and appellant’s ninth refused instruction, as given, were error, and also that the court particularly erred in refusing to give appellant’s offered eighth instruction on the question of comparative negligence.

As this point is particularly insisted on, we will copy it in full; it is: “ That if the jury believed from the evidence that the plaintiff, at the time he received his injury, was guilty of even slight negligence contributing to the injury, then he can not recover in this suit unless the evidence shows the city to have been guilty of gross negligence as compared with his contributing to the injury; un'ess the evidence so shows, you will find a verdict for the defendant.”

The above are the only objections urged by the appellant’s counsel for reversal.

As to the points made that the evidence fails to sustain the verdict, we must say that we have carefully examined the record and the points as to the condition of the sidewalk at and for some time prior to the injury, and appellee’s care to prevent accident, also as to appellee’s injuries, and we are satisfied that the evidence fully sustained the verdict. The walk on which the injury occurred for some weeks, and probably much longer, was in a general dilapidated condition, the boards loose and gone and stringers rotten, and the time was sufficient, so that the city must be held to have had notice. The evidence as to the injuries was sufficient to sustain the verdict on that point.

We do not think the court erred in refusing to appoint a commission of physicians to examine appellee. There was nothing in the evidence or the circumstances that justified it, and there was no affidavit showing that appellee had been feigning an injury he had not received; besides, the motion was made while the case was on trial and appellee had produced all his evidence. Even if such action on the part of the court was proper at any time, we think under the circumstances it was not required at the time when the motion was made.

The ninth instruction of appellant, to the effect that if appellee had not presented his c’.aim to the city treasurer for payment he can not recover, was properly refused. This was a suit to recover unliquidated damages in an action of trespass and need not be presented, prior to suit, or even démand made.

Upon examination of appellee’s first instruction we find it in the proper form, not obnoxious to the criticism made on it by counsel for appellants.

We see no serious error in the admission of the evidence objected to. What appellee said in regard to how he felt was probably not proper; but no injury could result from that, as the manner of the fall was dearly proven by other evidence. The rest of it was a mere expression of his sensations of pain and was proper original evidence and of a class always admissible.

We find no fault with the third of appellee’s given instructions, or second, as it is marked in the abstract. Although the first part of it starts out with the statement that it was the duty of appellant to keep the sidewalk reasonably safe, secure etc., instead of, it was its duty to use reasonable care, etc.3 while it was not strictly accurate as stated, we think, taking it with what follows, it could not mislead in this particular; for it will be observed such was its duty if appellant had notice of the defects; and the last part of the instruction provides that if it had notice its duty was to repair it, which sufficiently explained the meaning of the instruction. We can not see that any fact was assumed as proven by the instruction.

We come now to consider the refusal to give the eighth instruction. Great confusion has existed in this State upon the subject of the Jaw of negligence as applied in suits to recover damages for injuries received on account of the negligence of the defendants. Under the law there are duties and obligations resting upon each party as regards care and diligence before a recovery can be had on one side or prevented on the other. It is very important that the law should be clearly understood so that it may be easily and uniformly administered in the courts, delay prevented and certainty established.

Lawyers and judges throughout the States have differed widely, and the perplexing questions can scarcely be said to be yet fully settled, though much more clearly so than heretofore, and we anticipate that substantial agreement and clear understanding of the governing rules will be soon attained. The differences have grown out of the fact that the early judges of the Supreme Court attempted to lay down two distinct rules of the law of negligence, neither of which was at first very clearly defined. The profession was not fully able to understand them, and especially with reference to their relation to each other, and a question has arisen whether the early judges fairly understood them themselves, in all their bearing, as they kept changing, defining and re-defining them to meet new questions as they arose. An examination of the various early opinions of the court on the subject will clearly reveal what is here meant. The judges were able men, and the questions new and not easily understood; and probably no ;judge could have succeeded better. Ho confusion could have arisen if only one rule of negligence had been adopted to govern the rights of those receiving the injuries, as well as those who caused them. In most States of the Union and in the United States Court, but one uniform rulegoverns. Steamboat Hew World et al. v. King, 16 Howard, 469. The two rules adopted might, or might not, be in conflict with each other, depending upon the interpretation piit upon them. Unless this could have been clearly understood originally, and the boundary lines of each clearly marked, inevitable confusion must follow, as, in fact, it did. It will be oúr pains to show how thege rules affect each other at present, as interpreted by the later in connection with the earlier decisions'. It may be proper to state, that the two rules may be looked on as one general rule with an exception, as has been held by at least one of the judges, the late Judge Dickey, in Stratton v. The Cen. C. H. R. W. Co., 95 Ill. 25. We prefer, however, to state it as two rules, as it is doubtful whether it is an exception or two distinct rules. We can examine the question better by regarding the rules apart.

The rules referred to are as follows:

Fvrst. An injured party, as ah absolute legal right without invoking the aid of any other rule of law, is entitled to recover damages from any person causing injury whereby damage results to his person or property, provided he legally establishes the following facts: 1. That at the time of receiving such injury he was in the exercise of ordinary care. 2. That the party causing the injury was not at the time of the injury in the exercise of ordinary care. 3. That such injury was the result of the latter’s negligence. 4. If such injured party was at the time exercising any degree of care, less than ordinary care, or was grossly negligent, which is the same in law, he is absolutely barred from recovering, -unless the party inflicting the injury does so wrongfully, or his negligence is so outrageous as to amount to willfulness.

Second, In the above case tin injured party may recover if he was only slightly negligent, and the injuring party was grossly negligent, and such negligence has the relation of slight and gross in comparison with each other

The above last mentioned rule originated with Júdge Breese in the case of G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478. Judge Breese says in reference to the doctrine, after referring to some cases which he says are leading cases in England and in the States of the Union, and says: “Although the cases do not distinctly avow this doctrine in terms, there is a vein of it very perceptible running through very many of them, as, where there are faults on both sides, the plaintiff shall recover, his fault being to be measured by defendant’s negligence, the plaintiff n: ed not be wholly without fault, etc.” This, then, was the origin of the doctrine of comparative negligence and was not based on express authority, but on a vein.”

The same doctrine was announced in numerous other cases, and among them the C. & A. R. R. Co. v. Gretzner, 46 Ill. 75, by Judge Breese, in which it was held, after citing other cases in support, that the doctrine was established. In C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325, the doctrine was re-asserted by Breese. And finally in the case of T. W. & W. R’y Co. v. McGinnis, 71 Ill. 346, Judge Walker passed on the question again. He says: “ The settled rule of law in this court on the question of negligence, is that, though a plaintiff may be guilty of negligence which may haw contributed to the injury, he may still recover if his negligence is slight, and that of the defendant gross, as compared with that of plaintiff. The rule is no doubt a modification of the language of the earlier decisions of this court, although not a materia modification of the common law principle. Where courts state the rule differently, they hold that where the negligence of the plaintiff is slight and that of the defendant gross, the plaintiff’s negligence did not contribute materially to the injury.” Those are Judge Walker’s statements, but it may be remarked in this connection, that in some States it is held that if the negligence of plaintiff contributes to the injury in any degree, he can not recover, and this rule was no doubt adapted in such cases of gross negligence on the part of the defendant in order to obviate hardship by not charging up such negligence to the public. In our State, the plaintiff is only bound to use ordinary care, and may be guilty, without damage to himself, of any negligence consistent with such requirements.

But one thing remarkable about this doctrine of comparative negligence is, that in none of the opinions, so far as we have been able to discover, was any question ever directly raised that required the court to compare the doctrine of comparative negligence and ascertain how it could exist or what possible use it had, when compared and regulated by the first rule which we have above set forth, until the case of Stratton v. Cent. City Horse R’y Co., 95 Ill. 25, arose. In that case the question came up before the court on the appellee’s eleventh instruction, which was that “ it was an essential element to the right of action that the appellant showed that he was in the exercise of ordinary care.” The argument against that instruction was formulated in this wise: The instruction “is also a violation of the rule of comparative negligence.” “Appellant might recover, though he failed in some respects to exercise ordinary care, if his neglect in doing so, when com pared with appellee’s negligence, bore the relation of slight to gross.” This argument was supported by the citation of twenty-one Illinois Supreme Court cases, all passing in one way and another on the subject of comparative negligence, commencing with the Jacobs case and ending with R. R. I. & S L. R. R. v. Delaney, 82 Ill. 198. The last case quoted did not raise the question of the meaning of the term “ slight negligence,” as used in the rule. In the Stratton case, supra, the court, speaking through Judge Dickey, undertook to explain what it meant and how it could be construed with reference to the rule of ordinary care. The court says: “Tosay? then, that every failure to attain the standard of ordinary care is gross negligence, is palpably an error.”

The court then held that the eleventh instruction, which told the jury “ that where the plaintiff is injured from want of ordinary care no action will lie unless defendant wilfully inflicted the injury,” was erroneous. The substance of the opinion was that the slight negligence spoken of in the rule of comparative negligence, was that degree less than ordinary care and not amounting to gross negligence.

The question again came up before the Supreme Court in the case of C. B. & Q. R. R. Co. v. Johnson, adm’r, 103 Ill. 512, where this part of an instruction came up for a decision as to its correctness: “ But if the jury believe from the evidence that Johnson did not exercise ordinary care, yet that Johnson’s negligence was slight and that the negligence of the defendant was gross in comparison with each other, then the plaintiff must recover.” The opinion in that case was written by Justice Seholfield, who emphatically decided that the doctrine of the instruction was not the rule of law. Instead of adopting the meaning of slight negligence as held by Judge Dickey, that it was a slight falling off from the exercise of ordinary care, the court, in the Johnson case, held that the meaning of the term “ slight negligence,” as used in the connection with comparative negligence, must be understood to be the same as common law writers define it to be; that is? slight negligence is the want of great diligence, or only less diligence than that of very careful men. In connection with this definition, the definition of the only two other degreet recognized by law is given, to wit: want of ordinary care, a little more negligent than men ordinarily are, and the converse, ordinary negligence is — want of ordinary diligence. Gross negligence is the want of slight care — failing in the lowest decree of prudence. In the same case it is held that these are the only decrees of negligence known to the law.

With this definition of the term slight negligence as used in the instruction in question accepted, it follows as a lógica’ consequence that the instruction was vicious as it was impossible for the plaintiff not to-be in want of ordinary care and at the same time to be only slightly negligent. But on the contrary, according to the definition in the Stratton case, given at the same term, the instruction would have been proper, for in that case slight negligence would have rested somewhere be. tween ordinary negligence only, and gross negligence; the plaintiff would have been slightly less careful than ordinary men under the circumstances would be, and would have been excusable on account of the gross negligence of the defendant in comparison. The one definition may be compared with the want of ordinary care, being slightly less than that, while the other is an independent definition of slight negligence, and one guilty of it only is clearly not in wcmt of ordinary care at all. He has exercised greater diligence than necessary to be in the exercise of ordinary care, and is on the opposite side of the line slightly less negligent than is required to still be ordinarily careful. The occasion is present to choose one or the other of these definitions of the term “ slightly negligent,” either slightly more negligent than is consistent with ordinary care or slightly .less negligent than may exist when there is ordinary care. In order to avoid misunderstanding and disputes over conclusions it is only requisite that the middle term in the syllogism should be employed uniformly in the same sense so far as the existing question is concerned. Sometimes strange things may be proven when a middle term is employed in a double sense. For instance, we may prove that feathers are opposed to darkness, thus:

“ Light is opposed to darkness. Feathers are light. Therefore feathers are opposed to darkness.”

It may be difficult to tell what the early judges meant by the term “slightly negligent,” and they may have been inattentive themselves of the precise meaning — at least it has been a great puzzle to the profession. It may be thought, and not without a strong showing of reason, that the court at an early day intended to establish a rule that would aid an injured party to recover, in case he had not come quite up to the standard of ordinary care, but nearly so, where he could prove the other party was grossly negligent in comparison to his slight failure. And it may also be thought that when the court decided, as it has frequently done in the earliest cases, that, unless a party is in the exercise of ordinary care he can not recover, it referred to the general rule with this exception understood. In that view of the law the whole system would be consistent, and the rule would be of practical value.

According to the rule established in the Johnson case, and later affirmed in C. I. & S. Co. v. Martin, 115 Ill. 358, the principle of comparative negligence is completely stripped of all vitality.

There are no circumstances in which the rule of comparative negligence can be of any practical utility to the plaintiff, and it can not be invoked by the defendant at all. In the case of C., I. & S. Co. v. Martin, 115 Ill. 358, above cited, the same point was decided against the defendant that is raised here by the refused instruction complained of by appellant. That is, if the plaintiff is in the use of ordinary care and the defendant not in the use of ordinary care, and injury happens in consequence, that the plaintiff can recover without proof that defendant’s negligence was gross in comparison to the plaintiff’s negligence, which was slight, even if plaintiff was guilty of slight negligence. This opinion is based on the definition of the term “ slightly negligent,” given in the Johnson case.

The defendant can get no advantage from it, and it remains to be seen under what circumstances the plaintiff can do so.

The plaintiff is hound to show ordinary care; he can not escape that. The last case cited fully establishes that point as well as does the Johnson case, supra. He is compelled to prove that the defendant was not in the exercise of ordinary care. This entitles him to recover if the injury was caused by such negligence of the defendant. How, admitting that plaintiff while in such exercise of ordinary care was slightly negligent, which he may be under the rule in the Johnson case, siopra, what benefit would this comparative negligence doctrine be to' him, he having a complete right to recover without'?

Why should he desire to prove in excuse of his slight negligence that the defendant was grossly negligent in comparision, especially as the defendant can not take any advantage of the fact that he does not prove it ? He may go ahead and prove it. It would not be stating an untruth in an instruction to tell the jury solemnly he could recover in such case, if he showed the defendant’s negligence was gross and his slight He could recover, but he could recover without such proof— proof only of the defendant’s want of ordinary care — in case damages resulted therefrom. We think, that the Supreme Court recognizes the uselessness of such an instruction, as it says in the C. I. & S. Co. v. Martin, supra, “ such an instruction might, without impropriety, have been given — it was not indispensable.”

However the law may have heen heretofore, it would seem that it would not be error to refuse such instruction. It is a discretionary matter with the court to give or refuse an instruction on the doctrine of comparative negligence.

The judgment is therefore affirmed.

Judgment affirmed.


text:
    Orient Insurance Company, of Hartford, Albert M. Weaver.

      Fire Insurance — Action on Policy — Fraud—Preponderance of Evidence, Sufficient to Establish — Instructions—Practice.
    1. In civil actions a preponderance of the evidence is all that is required to establish fraud.
    2. In an action on a policy of fire insurance, it is held: That the evidence strongly tends to establish fraud; that the instructions were too favorable to the plaintiff; that the court should have passed upon the question whether certain interrogatories were proper; and that certain statements made to the jury by plaintiff’s counsel were improper.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Peoria County; the - Hon. John J. Glenn, Judge, presiding.'

      Statement by Lacey, J. This was a suit on an insurance policy issued by appellant to appellee on a stock of merchandise consisting principally of furniture, and such other articles as are usually kept for sale in furniture stocks, all contained in a brick building occupied for store, and known as 217 South Adams St., Peoria, Illinois, in the sum of one thousand dollars —$15,000 concurring insurance permitted.
    The building and all the furniture was destroyed by fire about 2 o’clock, a. m., of January 31, 1884. The policy was dated September 15, 1883, and was for one year. The policy had in it the usual clauses of insurance policies, and the defendant pleaded the general issue and two special pleas, the' 9th and 10th.
    9th. Appellee made verbal false statements as to the value of the goods, representing them 'to be worth $16,000, when they were only worth $6,000. That when examined under oath touching the said loss he falsely misrepresented the amount of goods destroyed, their location and the cause and origin of the fire. That in said sworn statements he represented himself as the owner of the goods destroyed, when, in fact, he was not, nor never had been, the sole unconditional owner of the same. In the proofs of loss he misrepresented their value, the ownership, the cause and origin of the fire; also that he used all reasonable efforts to protect them from loss and damage, when, in fact, he made no effort in that direction whatever. That said false statements were made with fraudulent intent.
    10th. Plea of fraud in procuring the policy.
    6th. Plea that in making application for increase to induce the issuing of the policy falsely represented that the property was appellee’s and appellant relied thereon, etc.
    7th. That the property was destroyed through the connivance and procurement of appellee for the purpose of defrauding appellant.
    8th. About same as the 6th plea.
    Trial, verdict and judgment in favor of appellee for $1,092.56.

      Messrs. D. J. Schuyleb and Stevens, Lee & Hoeton, for appellant.
    The jury may not wilfully and capriciously disregard the evidence of the unimpeached witnesses of the adverse party, and in cases where this is done, the judgment should be reversed; and this is so where there is a conflict of evidence, necessarily involving the question of a preponderance of the evidence. Robertson v. Dodge, 28 Ill. 161; Carney v. Tulley, 74 Ill. 375; St. Paul F. & M. Ins. Co. v. Johnson, 77 Ill. 598; C. B. & Q. R. R. Co. v. Stumps, 69 Ill. 409; R. R. I. & S. L. R. R. Co. v. Coultas, 67 Ill. 398.
    The preponderance of the evidence must control, and all that is required is that the minds of the jury must be convinced, not that they must be “fully satisfied,” or “ convinced beyond a reasonable -doubt.” Bryant v. Simonean, 51 Ill. 324; Bullock v. Narrott, 49 Ill. 62; Boies v. Henney 32 Ill. 130.
    The instructions directed the attention of the jury to specific and particular facts in the case, which, in itself, in a closely contested case, is fatally erroneous. Hatch v. Marsh, 71 Ill. 370 ; Homes v. Hale, 71 Ill. 552; Hewett v. Johnson, 72 Ill. 513; Frame v. Badger, 79 Ill. 441; Evans v. George, 80 Ill. 51; American Ins. Co. v. Crawford, 89 Ill. 62.
    The language used was equivalent to telling the jury that they must be convinced beyond a reasonable doubt, and that they must be so convinced before they could find for the defendant on .this issue. It was tantamount to a direction to find for the plaintiff.
    Messrs. Cbatty Bbos. and Fullee & Gallup, for appellee.
    It requires evidence to overcome the presumptions in favor of honesty. And the more dishonest or criminal the intent, the stronger the presumptions are against it, and the more evidence is required to prove it. Hence, we find the courts of last resort of this State, in some instances, saying that in civil cases a slight inclination upon the one side is sufficient for a decision; in others that the proof must establish a fact beyond a reasonable doubt. Thus a bare preponderance is sometimes sufficient. Am. C. Ins. Co. v. Rothschild, 82 Ill. 166.

      In others a clear preponderance is not required. Crabtree v. Reed, 50 Ill. 206.
    In others a clear preponderance is necessary. Yoakum v. Yoakum, 77 Ill. 85; Fleischman v. Moore, 79 Ill. 539.
    While in others the proof must estab'ish an allegation beyond a reasonable doubt. Harbinson v. Shook, 41 Ill. 141, 147.
    A party plaintiff or defendant is entitled to those presumptions wherever they arise ; entitled to instructions to the jury so declaring.
    When the defendant laid the crimes of arson, conspiracy and fraudulent conveyances at the door of the plaintiff, he was entitled to an instruction that before the jury should consider them established the proof should be so clear and convincing as to fully satisfy their minds beyond a reasonable doubt.
    “ Something more than suspicions are required to prove an allegation of fraud. The evidence must be clear and cogent, and must leave the mind well satisfied that the allegation is true.” Shinn v. Shinn, 91 Ill. 477, 486.
   Lacey, J.

There was evidence in this case tending strongly to show that the appellee was the mere nominal owner of the goods, when in fact the real owner was one Aaron Bamberger, his brother-in-law, who came from Chicago to Peoria in July, 1881, having first shipped the goods to appellee in May previous, and assumed the almost entire control and management of the store then being carried on in appellee’s name, and continued in the store, managing and controlling it, till the goods were destroyed by fire; that when Bamberger commenced to ship these goods to Peoria he was in failing circumstances.

The evidence also tends strongly to show that Bamberger was the person who set fire to the store that consumed the goods. Some of the circumstances going to show such fact were those testified to by night policeman Jacob Lanman, who swore to seeing Bamberger coming from the stairs leading from the street to the second story of the building where these goods were stored, except what were in the first story of the building, at about 1:45 o’clock a. m. on January 31, 1884. That in the third story was stored a large quantity of oils, varnish and other inflammable materials. That the policeman passed on to the station and that in about fifteen minutes, or about 2:05 a. m., the fire alarm was turned on. That the flames had made such headway that the fire could not be extinguished by the fire department when the engine arrived at the store.

The attempted proof of alibi showed that Bamberger was out that night playing cards with friends at Standard Hall till about 1:30 a. m., when he left and no one saw him afterward till the policeman at the building, except C. M. Saltzenstien, who left him just before the fire at Gabb’s residence on Sanford street, some five and a half blocks from the fire. Some other evidence was given, in connection with all the circumstances, tending to show as we think, fairly, that appellee had no real interest in the goods and was allowing Bamberger to control them as he pleased.

Under this state of the evidence, the court gave for the appellee and against the objection of the appellant the 8th and 9th instructions for appellee. The 8th instruction is as follows:

“Ton are further instructed by the court as a matter of law, that fraud when alleged must be clearly proved. It should never be assumed upon mere suspicion, nor should juries find verdicts assuming that fraud exists on mere suspicion of fact. From the very nature of fraud it can rarely be proven, and parties on whom it devolves to establish fraud must do so, usually, by circumstantial evidence. Tet when circumstantial evidence is relied upon to establish feuch fraud, the circumstances when combined together, must be so clear and convincing as to fully satisfy the minds of the jury of the fraudulent intent and the fraudulent purpose of the acts charged.”

The 9th instruction, after calling the attention of the jury to the issues of fraud and conspiracy as charged in the pleas, ends as follows: And while the law is, that such facts may be shown by facts and circumstantial evidence, yet all the facts and circumstances when combined together, must be so clear and convincing as to fully satisfy your mind of the truth of such fraudulent acts, or agreements, connivances and conspiracy, before you are authorized to find that they are established by the evidence in the case.”

Thus the instructions virtually told the jury that the appellant must establish its case beyond a reasonable doubt. This is not the law in this State. A preponderance of the evidence is all that is required in civil actions except in cases where a penalty is sought to be recovered and then a clear preponderance is required. In some special .cases in equity where real estate is involved, clear evidence must be produced, and that seems to be the nature of cases cited by appellee’s counsel. Yoakum v. Yoakum, 77 Ill. 85; Fleischmann v. Moore, 79 Ill. 539, and Shinn v. Shinn, 91 Ill. 486, and there may be other exceptions. Fraud may be proved like any other fact. A preponderance of the evidence is sufficient. Carter v. Gannels, 67 Ill. 270; Reed v. Morton, 48 Ill. 323; Bryant v. Simonean, 51 Ill. 326, and cases cited; Graves v. Colwell, 90 Ill. 612. In the following authorities the question was fully considered and it was'fully decided that a preponderance of the evidence in cases where fraud is in issue is only required. Bullard v. Creditors, 56 Cal. 600; Bump on Frauds, 2d Ed. 484, quoted in the above case; Blaeser v. The Milwaukee & M. M. Ins. Co., 37 Wis. 31; Kane v. H. I. Co., 39 N. J. L. 697; Roberge v. Burnham. 124 Mass. 277.

In the above California case, quoting from Bump on Frauds, it is said: “ Issues of fact in civil cases are determined by a preponderance of the testimony, and the rule applies as well where fraud is imputed as any other. If the evidence produces a rational belief it can not be discarded, though some doubt remains. If the evidence is of sufficient force to produce a preponderance of assent in favor of fraud, it is sufficient.” * * * “It is the rule in all civil cases that fraud may be established by a preponderance of the evidence.”

In the Massachusetts case above cited, it was held that “in a civil case for selling liquor to a minor, it only requires the proof to be made by a preponderance.”

In the case of Blaeser v. M. & M. M. Ins. Co., 37 Wis. 31, in a case similar to this, where the defense on an insurance policy was being made, and the charge was that the fire by which the insured property was destroyed originated through the wilful procurement of the plaintiff, it was held, “ that the case might be established by a preponderance of the evidence.” It was said by the court in that case that “ a few authorities hold that the rule applicable in criminal cases are the same in civil cases where a crime is imputed, but the reason and weight of authority is the other way.”

In Kane v. H. I. Co., 39 N. J. L. 697, the question and discussion was the same as in the last case cited above, and the court says: “ The contrary rule, where it prevails, is evoked in libel and slander where justification implies crime, but these are exceptions.”

This was once the rule in this State where justification in libel and slander was pleaded, but the Legislature disapproving of it, abolished it by enactment.

We think it is well established that the rule announced in the instructions was not the law, and that the court erred in giving them. Besides, the court in the 8th instruction told the jury, that “by the very nature of fraud it could rarely be proven * * * and that it must usually be done by circumstantial evidence.” This was calculated to seriously discount appellant’s efforts to establish it, and besides, was not correct, as fraud is frequently established.

The 12th instruction should have been as broad as the conditions in the policy, and the jury should not have been required to pass on the question whether or not the interrogatories propounded to appellee were “impertinent, immaterial or unauthorized.” That was a question of law the court should, have passed upon and not the jury. The jury might pass on the appellee’s motives, but not whether the question tended to throw light on the points in the policy on which appellant had a right under the policy to interrogate the appellee.

We have examined the statements made by appellee’s counsel to the jury complained of, and find that to some extent they were statements of supposed facts outside the evidence, and also had a tendency to unjustly prejudice the jury, and to this extent the court should have suppressed them. Whether this error alone would be sufficient cause for reversal we express no opinion.

For the above errors the judgment is reversed and cause remanded.

Judgment reversed and cause remanded.

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