text:
    Hattie Schlauder, Appellee, v. Chicago & Southern Traction Company, Appellant.
    Gen. No. 5430.
    1. Negligence—what does not affect actionable character of. The fact that a railroad company may have been guilty of negligence which contributed to the injury complained of does not excuse a traction company from liability for its negligence likewise contributing to such injury.
    2. Negligence—when traction company guilty of. It is negligence for the servants of a traction company to go upon railroad tracks at a time when they know a passenger train is due with a car the propelling appliances of which are known to them to be out of order, and if the car remained stationary upon the track for some time before being struck it was likewise negligence for such servants not to warn the passengers to leave the same.
    3. Variance—when objection for, comes too late. An objection for variance not made in the trial court where an amendment might be made cannot afterwards be successfully interposed.
    4. Evidence—as to what opinion of physician competent. A physician who has attended an injured person from the time of the accident to the trial and who has testified to the injury suffered, may properly be permitted to give his opinion as to the permanency of such injuries.
    5. Instructions—when reference to declaration not erroneous. It is not error to refer to the declaration in an instruction notwithstanding there is no evidence to support some one or more of the counts thereof.
    6. Instructions—when refusal of correct will not reverse. The refusal of an abstract proposition of law although correct in form will not reverse.
    7. Verdicts—when not excessive. Held, in an action on the case for personal injuries that a verdict for $6,000 is not excessive where there was evidence tending to show injury to the thigh, abdomen, and womb, with resulting hemorrhages and morbidity, and where the evidence tended to show in addition to pain and suffering that a permanent injury had been inflicted.
    8. New trial—when newly discovered evidence not ground for. Newly discovered evidence which merely goes to the amount of the damages does not require the awarding of a new trial.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Lowes & Richards, for appellant; Frederick D. Jordan, of counsel.
    J. L. O’Donnell, T. F. Donovan and J. A. Bray, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant, the Chicago & Southern Traction Company, operates an interurban electric railway from 79th street, Chicago, to and beyond the village of Peotone, in Will county. Appellee, Mrs. Hattie Schlauder, was a passenger for hire going south on one of appellant’s cars in the afternoon of August 30, 1909, from 79th street to Peotone, where she lived. Appellant’s tracks crossed the line of the Grand Trunk Railroad something over a mile south of Blue Island, in Cook county. The car in which appellee was riding became stalled when upon the tracks of the Grand Trunk, and was struck by an east bound passenger train. Appellee was injured and brought this suit to recover damages therefor, and had a verdict and a judgment for $6,000 from which the company appeals.

Witnesses differed as to the length of time the car stood upon these tracks before it was struck. One witness seemed to say that at the time the interurban car stopped a passenger train of the Grand Trunk road, east bound, was then in sight, running rapidly and coming around a curve six or eight car lengths away or 700 or 800 feet away, while most witnesses testified that the car stood there from two or three to five minutes before it was struck by the train. No warning to passengers to leave the car was given until the train was near at hand. The engine struck the front end of the car, threw it off the tracks and swung it around upon the west bound track of the Grand Trunk. The pilot of the engine was torn off and the steam cocks on that side, hut the engine was brought to a stop at a distance from the car variously estimated at from fourteen to fifty feet. According to the great preponderance of the evidence, the seats in the ladies ’ compartment of the interurban car were all or nearly all occupied, and there were about thirty passengers therein, and, upon an alarm being given, they rushed toward the rear and when the car was struck they all went down, as one witness said, “like a mess of nine pins, all in a heap, ’ ’ although two witnesses for appellant testified that before the car was struck, every passenger had left it. Appellant contends (1) that it was not negligent; (2) that there is a variance between the proofs and the declaration as to the precise manner in which the appellee was hurt, and also that there was no “collision,” as charged in. the declaration, because the electric car was not in motion; (3) that the court erred in overruling an objection to a question to Dr. Banks; (4) that the court erred in giving certain instructions for appellee and (5) in refusing one instruction requested by appellant; (6) that the verdict is excessive; and (7) that a new trial should have been granted because of newly discovered evidence.

Appellant contends that it is a commercial railway (Bradley Mfg. Co. v. Chicago & Southern Traction Co., 229 Ill. 170) and therefore the Grand Trunk Railway was bound to stop its train 800 feet from this crossing and was negligent in not doing so, and that appellant’s servants in charge of the interurban car had a right to assume that said passenger train would be stopped before reaching the crossing, and therefore appellant’s servants were not negligent in their management of the car or in failing to notify the passengers to leave the car. If appellant was negligent, it is no defense to it that the Grand Trunk Railway Company was also negligent, and that the negligence of the latter contributed to the injury. Tebow v. Wiggins Ferry Co., 241 Ill. 582; C. & E. I. R. R. Co. v. Mochell, 193 Ill. 208, and cases there cited. Appellant argnes the case here upon the assumption that the evidence is uncontradicted that before its servants in charge of the interurban car reached the Grand Trunk crossing, they stopped the car and the conductor went ahead and ascertained that the railway tracks were clear, and then gave the signal, and the motorman then started the car and went on. There is. testimony to that effect, but the preponderance of the evidence is that the car was not stopped at all and that the conductor did not go ahead upon the tracks, but that the car ran immediately upon the tracks and the trolly there became detached. There seems to be testimony that the passenger train was then only six or eight car lengths away coming around a curve. If so, then appellant’s servants were negligent in not stopping and ascertaining that the tracks were clear, under its own theory of the law. There was evidence tending to show that the apparatus by which the electricity was conveyed from the wire to the mechanical appliances whereby the car was moved, was out of order and had been so out of order when the car passed under the Eock Island Eailroad viaduct in Blue Island, a mile or more away, and that the appliances acted there the same as they did when the car was upon this crossing, and that this was observed by the passengers and must have been known to the servants in charge of the car. There was proof that this passenger train and the interurban car running south at that place and time of the day were each due at this crossing at about the same time. If the jury believed this testimony, it would be warranted in finding appellant’s servants guilty of negligence in going upon the Grand Trunk tracks when a passenger train was due, with a car the propelling appliances of which were known to them to be out of order. If the car was upon the crossing for from three to five minutes the jury might well find appellant’s servants guilty of negligence in not warning tlie passengers to leave the car. There are other respects in which the jury might find from the evidence that appellant’s servants were negligent. The verdict is that they were negligent. The proof would not warrant us in disturbing that conclusion.

The declaration consisted of one original count and four additional counts. The first count charged that appellee was thrown with violence from said car outside and into a certain vestibule in said car. The first additional count charged that she was thrown with violence upon and against the door, entrance and vestibule of the car in which she was riding. The second additional count charged that she was thrown with violence from said car into the vestibule of said car. The third additional count charged that she was thrown with violence from and out of said car into a certain vestibule of said car, and the fourth additional count charged that she was thrown with violence against the end seats and doors of said car. It is argued that there is a variance between these allegations and the proof. No witness knew exactly what happened to appellee. When the alarm was given to get out of the car there was a rush of passengers for the rear door. Appellee testified that she thought she was still inside the car door when the train struck the car. Her husband found her shortly thereafter in the vestibule underneath five other women, unconscious and with her head and shoulders jammed down into a corner of the vestibule. We are of opinion that this evidence was not variant from the declaration; and also that as no objection to the proof was made on the ground of variance at the trial, when the declaration could have been amended, such objection could not after-wards be successfully interposed. Reavely v. Harris, 239 Ill. 526; Parmelee Co. v. Wheelock, 224 Ill. 194; City of Chicago v. Bork, 227 Ill. 60. Each count of the declaration charged a collision between the railroad train and the interurban car, and it is contended that there cannot be a collision between two bodies if one of them is stationary. We think this point farfetchedj and it was not raised during the trial. Moreover, the original count charged that appellant negligently permitted its car to stand on the railroad track and not only to come into collision, but also to come in contact, with the railroad train. The third additional count charged that the internrban car not only came into collision with, but also was struck by, the locomotive and came into contact with the passenger train. The fourth additional count also charged that the interurban car was struck by the passenger train as well as that it came into collision therewith. The fireman testified that there was a collision between his engine and the electric car. The judgment should not be reversed because of any variance pointed out by appellant.

Dr. Banks was the physician who attended appellee from the time of her injury to the time of the trial, and after he had testified at length to the character of her injuries, and that, in the absence of certain other conditions which he testified did not exist, the injuries from which appellee suffered were in his opinion due to traumatism, or some force or blow, he was asked by appellee’s counsel “Have you an opinion whether or not Mrs. Schlauder is or is not permanently injured as a result of that accident?” He answered that he had, and was then asked what that opinion was, and answered, “I think she is permanently injured.” It is argued that the court erred in overruling objections to these questions. We think they were competent, under the principles laid down in Fuhry v. Chicago City Ry. Co., 239 Ill. 548; People v. Hagenow, 236 Ill. 514; Chicago Union Traction Co. v. Roberts, 229 Ill. 481; and City of Chicago v. Didier, 227 Ill. 571. In the Roberts case supra, it was held competent to ask a physician whether in his opinion a condition testified to was permanent. To the same effect is Hirsch v. Chicago Consolidated Traction Co., 146 Ill. App. 501. The law allows a recovery for the permanency of injuries, and that must usually be a matter of opinion only, and when it is a medical question experts are permitted to give such opinion.

The second, third and fourth instructions, given at the request of appellee, submitted to the jury the question whether plaintiff had proven the allegations in one or more counts of the declaration by a preponderance of the evidence. It is contended that thére was no proof to support the charges of negligence contained in the second and third additional counts, and that therefore it was error to give these instructions, under North Chicago St. Ry. Co. v. Polkey, 203 Ill. 225. Without extending this opinion by a detailed statement of the charges contained in the several counts of the declaration, we are of opinion that there is evidence tending to support each count of the declaration. The second additional count is framed upon Chicago City Ry. Co. v. Jennings, 157 Ill. 274, which case has often since been approved. The third additional count is supported by the testimony of the passenger who saw the Grand Trunk train approaching as the interurban car went upon the railroad tracks. The reference to the declaration in these instructions, regardless of whether there was any evidence fairly tending to support these two counts, is supported by H. S. Brewing Co. v. Stoltenberg, 211 Ill. 531; Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; C. & J. El. Ry. Co. v. Patton, 219 Ill. 214; North Chicago St. Ry. Co. v. Aufmann, 221 Ill. 614; Kirk & Co. v. Jajko, 224 Ill. 338; Chicago City Ry. Co. v. Foster, 226 Ill. 288; and by a large number of earlier cases cited in those opinions. In Chicago City By. Co. v. Foster, supra, it was expressly held that such instructions were proper, even if there was no evidence tending to support some of the counts, and the Polkey case, supra, was there distinguished.

It is argued that the court erred in refusing the following instruction, requested by appellant:

“The court instructs the jury as a matter of law that as to the rights of trains at or approaching a crossing, that the train, be it passenger or freight, which first reaches it, makes the required stop within the required distance of the crossing, and from such stop gets first in motion, has the right to the crossing.”

This was but an abstract proposition of law and it was therefore not error to refuse it. It was substantially embodied in the 18th instruction given at appellant’s request, and the court could not be required to duplicate the proposition. It was calculated to mislead the jury into believing that if the Grand Trunk Railroad Company was negligent, then appellant was excused, even if it also was negligent and the negligence of both contributed to the injury. It was not error to refuse the instruction.

It is contended that the verdict is excessive. Appellee received some blow upon the right thigh, and it became badly swollen and discolored and sore and painful and so remained for a number of weeks. Appellant contends that that was the only result of this accident to appellee. She was attended continuously from the day of the accident to the day of the trial by Dr. Banks, a physician and surgeon of eighteen years ’ experience. He began his treatment the morning after the accident. Besides the bruise upon the thigh, he found great soreness over the lower part of the abdomen. He knew that there was great soreness there, not only by what she said, but also from the way in which she flinched at his examination. After she reached home on the night of the accident, a hemorrhage set in from the vagina or the womb, and she testified that her period of menstruation had been passed about a week. This hemorrhage continued for about ten days. When Dr. Banks was able to make a vaginal examination he found a great deal of swelling, tenderness and inflammation of the uterus and other female organs; that there was suppression of urine, constipation and stomach trouble. She became depressed, morbid, melancholy and hysterical. These conditions continued till the time of the trial. She had spells when she would have a sense of suffocation, a choking sensation, when she suffered for want of breath and could not bear the pressure of her clothing and had to be fanned. She had palpitation of the heart very frequently. Her pulse would run high, and there would be rigidity in her muscles. The tenderness in the pelvic regions and in the female organs and over the ovaries and the swollen condition of the uterus continued till the time of the trial. She suffered from a loss of memory, from morbidness, brooding, worrying and fear that some calamity would happen. When talking she would lose the thread of the subject. The proof shows that her symptoms are indicative of incipient insanity. Another physician and surgeon of twenty-eight years’ experience examined her two days before she testified. He found inflammation of the female organs, and said that that condition could be produced by trauma or violence. He found patches on the thigh and legs where sensation was lost or greatly impaired, and declared that she could not deceive him in that respect. He found over-sensitiveness in her breast. He found that the surface over the spine for the whole length of it was extremely sensitive, and gave it as his opinion (without any objection being interposed,) that she was permanently injured about the pelvic region. He testified that she had enlargement and inflammation of the uterus, and inflammation of the ovaries and Fallopian tubes, and that, if those conditions had been caused by disease, there would have been other conditions which were absent in her case; and that the conditions which he found could have been caused by violence. Appellee was thirty-seven years of age when she testified,' and was the mother of two children, the younger of whom was thirteen years old and the older seventeen. The testimony of herself and her husband shows that before marriage she had obtained a musical education, and after her marriage had taught music to a considerable extent, and had also done considerable special needle work, and had been able to earn thereby a considerable sum each year, besides doing her ordinary household work without the aid of a servant, having as her family, her husband, two children and a brother; that because of this injury she had been. unable since then to give lessons in music, to perform needle work, or to discharge many of her household duties. At the time of the trial she was still feeble, had little appetite, suffered pain, had nervous spells, insomnia, melancholia and hysteria; and her condition is likely to be permanent. She is still under the care of a physician. She was in good health when this accident occurred. Appellant called medical experts who testified that it was impossible that such injuries as she received in this car could have produced the disorders to the female organs which her attending physician testified that he found. The extent of her injuries, and what would be a fair compensation therefor, were questions for the jury under the evidence. The jurors and the trial judge saw appellee upon the witness stand and could determine far better than we what her real physical condition was at the time of the trial. We do not consider that the proof authorizes us to disturb a verdict which has the approval of the trial judge.

Appellant contends that a new trial should have been granted because of the newly discovered evidence set forth in the affidavit of Dr. Cox, filed therewith. Appellee and her husband had testified that she had never had any serious illness or disorder since her marriage, •except an occasional cold and the usual incidents of childbirth. The affidavit of Dr. Cox, now of Chicago, shows that he practiced medicine in Peotone from 1903 to 1909 and that from February 8, 1904, to June 28, 1904, he treated appellee for head aches, pain in the back, constipation, marked nervousness, dizziness, leucorrhoea, dysmenorrhoea, and for a retroverted and prolapsed uterus, freely movable; and that he furnished her medicine on November 13, 1904. It will be assumed that upon the motion for a new trial appellant sufficiently showed that it exercised reasonable diligence and failed to find this proof before the trial. Appellant contends that a new trial should be awarded in order that it may produce this witness. To entitle a party to a new trial because of newly discovered evidence it must be material to the issues and controlling and practically conclusive. Plumb v. Campbell, 139 Ill. 101; Conlan v. Mead, 172 Ill. 13; Springer v. Schultz, 205 Ill. 144. It is not sufficient that it tends to impeach a witness. C. & E. I. R. R. Co. v. Stewart, 203 Ill. 223. It is not sufficient that it tends to mitigate the damages (Schlencker v. Risley, 3 Scam. 483; Chicago City Ry. Co. v. Bohnow, 108 Ill. App. 346), unless, indeed, it is practically conclusive that merely nominal or slight damages should have been recovered, instead of the heavy damages awarded. The testimony of Dr. Cox would have no tendency to show that appellee was not entitled to recover. It would only relate to the measure of damages. As Dr. Cox ceased to treat appellee on June 28, 1904, and remained practicing in Peotone till 1909, and as his affidavit does not state that these disorders still existed when he ceased treating her, the presumption must be that appellee recovered under his treatment. This evidence tends to show that appellee and her husband were not correct in testifying that she had always been in good health since her marriage, but it is entirely consistent with this affidavit, and a reasonable presumption from it, that she fully and entirely recovered from these ailments in 1904, and had been in sound health for five years when this accident occurred. If this affidavit by Dr. Cox is strictly true, then it may well be that appellee would more easily have a recurrence of those disorders, upon being subjected to such injuries as she received in this railroad wreck, but that would have no tendency to diminish the damages which a jury should award her. People in delicate health are just as much entitled to protection when traveling as passengers as are those of robust constitution, and, if injured by the negligence of a common carrier, they are entitled to recover compensation for all the sufferings inflicted upon them thereby, although those sufferings may be greater than if np to that time they had always been in sound health. So far as we can see, the evidence of Dr. Cox at another trial would have no tendency to diminish the damages which plaintiff would be entitled to recover, though it might explain how it came that she suffered so greatly from the injuries received in this wreck, and might remove the theories of appellant’s expert physicians that it was impossible that her female organism should have been so affected by the injuries which she received. Certainly the newly discovered evidence contained nothing conclusive or controlling upon any issue in this case. We conclude that the court did not err in overruling the motion for a new trial on the ground of newly discovered evidence.

The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Anna Louise Garrett, Appellee, v. Robert Lee Garrett, Appellant.
    Gen. No. 5434.

      Divorce—when denied to both husband and wife. The divorce law is for the relief of an oppressed party and the courts will not interfere in quarrels where both parties are guilty of reciprocal excesses and outrages; where each party has given a cause for divorce of the same statutory character neither can complain of the other.
    Divorce. Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed March 16, 1911.
    Church & Church, for appellant.
    W. J. Graham and George W. Werts, Jr., for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Anna Louise Garrett, the appellee, filed a bill for divorce against her husband, Robert Lee Garrett (called generally Jeff. Garrett), in the Circuit Court of Mercer county. She alleged therein that she was an actual resident of Mercer county, and that she had conducted herself as a chaste and dutiful wife, but that her husband had been guilty of extreme and repeated cruelty to her, particularly on certain dates named, and that for more than two years prior thereto he had been guilty of habitual drunkenness; and she gave a statement of his property, and asked for a divorce, for the custody of their child, and for alimony. Appellant answered, denying that his wife was a resident of Mercer county; denying the charges of extreme and repeated cruelty, and of habitual drunkenness; denying that he had the amount of property alleged; and charging that his wife had been guilty of extreme and repeated cruelty towards him, particularly on certain dates named; and also that she had been guilty of habitual drunkenness for more than two years prior to the filing of the bill. The cause was submitted to a jury on the issues whether the husband had been guilty of habitual drunkenness and extreme and repeated cruelty, as alleged in the bill, and whether the wife had been guilty of habitual drunkenness and extreme and repeated cruelty, as alleged in the answer, and whether she was a resident of Mercer county when she filed the bill. A verdict was returned finding all three issues in favor of the wife. A motion for a new trial was denied, and there was a decree granting her a divorce and the custody of the child and alimony and solicitor’s fees. The husband prosecutes this appeal.

Appellant owned a farm in Mercer county, and he and his wife lived thereon. She went to Texas on a visit to her parents after he had rented the farm for one year from the following March. Afterwards he secured a lease for a single room in a house in the village of Alexis, a mile and a half from his farm. Alexis is on the county line between Mercer and Warren counties, and this room was in Warren county. Appellee returned from Texas, and she and her husband and child boarded with the tenant on the farm for a short time, and they then went to this room in Alexis and lived there ten days. Appellant removed some of his household goods to that room, but he also retained part of his household goods and part of his farming implements on the farm, and had the privilege from the tenant of keeping them there. The proof shows that he stated that he intended to keep his residence in the country and to vote 'there, because the taxes were lower there than in Alexis, and because he probably would return to the farm at the end of the rental year. At the end of ten days the wife and child went to Aledo, the county seat of Mercer county, and she there consulted a solicitor and filed this bill. Service was had upon appellant in Mercer county. We are of opinion that the residence of appellant, and therefore of appellee, was still in Mercer county, and that the bill was properly filed there. We pass no opinion upon the question whether this could properly be submitted to the jury.

It will be assumed for the purpose of this opinion that the proof warranted the jury in finding that appellant had been guilty of extreme and repeated cruelty towards appellee, and that his use of intoxicating liquors during the two years preceding the filing of the bill was sufficient to justify the jury in finding that he had been guilty of habitual drunkenness for the space of two years, within the meaning of the statute in relation to divorce. We therefore need not detail the evidence of his misconduct. But the proof also showed that appellee had been guilty of extreme and repeated cruelty towards her husband. On one occasion when they were riding in a double seated carriage, with two friends, a husband and his wife, appellee became enraged at her husband and struck him in the mouth with her fist, so that his mouth bled, and then caught up a full bottle of beer and, according to the evidence of three witnesses, said to him, “You get in here, you son of a bitch, and behave yourself, or I will brain you,” or words similar to those, or, according to her own version, “You dirty white livered cur, if you touch me I will lay you out like a dog.” At another time, in their own home, she took a shovel about two feet long and hit him across the face and across the corner of one eye so severely that his eye was closed the next morning, and the whole side of his face and head was bruised, and his face remained swollen for about three weeks. She admits this blow with a shovel, and that it left an ugly deep mark, but she says that she did not intend to strike him in the face, but he threw up his hand and diverted the blow. At another time they had a quarrel at home, in which she had possession of a loaded revolver, and, according to his evidence, threatened to kill him, and he had possession of an unloaded shot gun. She claims he was threatening her. He took the revolver away from her, but as he immediately unloaded it, the reasonable probabilities are that he was only disarming her to prevent her carrying out her threat of killing him; There is evidence of numerous other occasions when she struck him in the face with her fist and when she slapped him and threatened him. Some of these she denies, but the most serious events she admits, and the main difference between them is as to which one began or was responsible for the continuing of the quarrel which resulted in these cruelties by appellee towards her husband. She seems to have been ready to aggravate her husband. When he came home one day he met her and a hired man coming out of the barn. He asked what she had been doing. She told him it was “none of his damned business,” or none of his business, and when he persisted in his inquiry she said they had been up in the hay mow. Afterwards appellant was satisfied that their errand was entirely innocent, but when she was angry she was willing to help make him think evil of her. She accuses him of using profane language in the presence of their child, but the proof is that they were each guilty of that offense. So, too, appellee has been in the habit of using beer and whiskey for years. She claims she began to use beer while nursing a child, but the proof shows she continued it and whiskey long after, and the clear preponderance of the evidence is that for several years she has frequently been tipsy, or has drank so much that it made her dizzy and she had to lie down, or was in such a condition that witnesses pronounced her intoxicated. She denies or mitigates most of these charges, but the preponderance of the evidence is against her, and according to it appellant and appellee have drunk beer and intoxicating liquor together frequently ever since their marriage and many times during the last two years before this bill was filed. According to the preponderance of the evidence, it was frequently she who ashed to have beer and liquor obtained and brought into the house. If this evidence against her stood alone on a bill filed by her husband, it would justify a divorce in his favor on account of her extreme and repeated cruelty and perhaps also on the charge of habitual drunkenness. We do not deem it proper to compare the enormity of the several offenses, and to determine whether the husband has been more cruel to his wife than she to him, or whether the husband has been intoxicated oftener than she, and if we find that the excesses of the husband have been greater than those of the wife, then decide her entitled to a divorce. The rule laid down in Duberstein v. Duberstein, 171 Ill. 133, must control in this case. It is there held that the law is for the relief of an oppressed party and that the courts will not interfere in quarrels where both parties are guilty of reciprocal excesses and outrages. Divorce is a remedy provided for an innocent party, and where each party has given a cause for divorce of the same statutory character neither can complain of the other. We feel bound to say here, as the court said there, that the parties are in pari delicto, and therefore must be left to themselves.

There is much discussion by counsel as to the justice or injustice of the allowance for alimony and solicitor’s fees, in view of the embarrassed financial condition of appellant, and of his extreme ill health and inability to support himself. But as the allowances made must necessarily fall with the reversal of this decree we deem it unnecessary to discuss the evidence upon those subjects.

The decree is therefore reversed.

Reversed.


text:
    Robert C. Benson, Appellee, v. John Looney, Appellant.
    Gen. No. 5437.
    1. Pleading—when error to enter order sustaining demurrer. It is error to enter an order sustaining a demurrer where there is no demurrer on file. If an objection raised by demurrer has been cured by amendment the demurrer does not stand as to the remainder of the objections made by it; the action in amending is a confession of the demurrer.
    2. Pleading—when plea of set-off sufficient. A plea of set-off is sufficient which is in substance that the plaintiff before and at the time of the commencement of the suit was and still is indebted to the defendant in a sum named for work, services and advice done and bestowed by the defendant for the plaintiff at his request and that such sum exceeded the sum due to the plaintiff by reason of the supposed promises in the declaration mentioned.
    Assumpsit. Appeal from the County Court of Rock Island county; the Hon. Robebt W. Olmstead, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    John Looney, appellant, per se.

    Philip H. Wells, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

In this action of assumpsit, brought by Benson against Looney, defendant filed the general issue and a plea of set-off verified. Plaintiff filed a special demurrer to the pleas on the ground that they were not signed nor entitled of any term. Defendant obtained leave to amend by inserting the term and signing them, and the record recites that he did so amend on the day when leave was given. Some days thereafter the court sustained a demurrer to the plea of set-off, and defendant elected to. stand by his plea. There was a trial and a verdict and a judgment for plaintiff, from which defendant appeals, and he assigns for error the action of the court in sustaining the demurrer to the plea of set-off.

The obtaining of leave to amend was a confession of the demurrer. The record is certified to be complete, and it contains no demurrer to the plea as amended nor any motion nor order that the previous demurrer stand to the plea as amended. It was error to enter the order sustaining the demurrer when there was no demurrer. Counsel seem to suppose that after the amendment was made, that part of the demurrer which said that the plea was not sufficient in law still remained in the case, and we will therefore consider the plea of set-off on its merits. The substance of the plea is that plaintiff, before and at the time of the commencement of the suit, was and still is indebted to defendant in the sum of $100 for work, services and advice, done and bestowed by defendant for plaintiff at his request; that this exceeded the sum due to plaintiff by reason of the supposed promises in the declaration mentioned; and the plea offered to set-off the same against plaintiff’s damages, and it concluded in proper form. It is said that this plea is insufficient under De Forrest v. Oder, 42 Ill. 500. The plea of set-off there adjudged insufficient was fatally defective in failing to allege that the sum claimed was still due to the defendant. It also sought to set-off unliquidated damages arising out of a breach of contract not connected with the contract sued on. What is there said in regard to unliquidated damages does not apply here. The other suggestions there made concerning the generality of the plea do not seem to have been followed in later cases. It is said that there is no allegation here of any fact which would make plaintiff indebted to defendant for advice. It seems that defendant is a lawyer, but the plea did not so aver. It is unnecessary to decide that question, as the plea averred that plaintiff was indebted to defendant for work and services done and bestowed by defendant for plaintiff at his request, and this is a sufficient allegation. It is argued that the plea is defective in that it does not aver a promise by plaintiff to pay defendant, as would be required in a count in indebitatus assumpsit in a declaration. This plea is in accord with the precedents in Chitty and other writers. See 3 Chitty’s Pl. 931, 933, and Puterbaugh’s Common Law Pl. 8th Ed. 201. The court therefore erred in sustaining the demurrer to the plea of set-off, and as the suit was begun on October 31, 1906, and the demands offered to be set-off must have been due before the suit was begun (Ellis v. Cothran, 117 Ill. 458), it may be that defendant would now be barred from bringing an original suit in the matter of said set-off. We therefore conclude that this •error must reverse the judgment.

The judgment is therefore reversed and the cause remanded.

Reversed am,d remanded.


text:
    DeForrest Seacord, Appellee, v. Fred Seacord, Appellant.
    Gen. No. 5435.
    1. Contracts—when evidence does not tend to vary. If the ownership of stock is transferred pursuant to a written instrument, evidence which establishes that a larger consideration was to he paid therefor than that recited and that such larger consideration was not paid as promised, is not incompetent as tending to vary a written instrument.
    2. Interest—how computation to he made hy court. It is in harmony with the spirit of the statute on interest that the court compute interest from the date where the master rested his computation.
    Bill for accounting. Appeal from the Circuit Court of Knox county; the Hon. R. J. Grier, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 16, 1911.
    Hardy, Welsh & Hardy, for appellant.

      J. D. Welsh, Alva Greek and F. F. Cooke, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

For many years the Galesburg Electric Motor and Power Company operated street car lines in Gales-burg. Its capital stock actually issued consisted of 2100 shares, of the par value of $100 each, so that the ownership of 1051 shares would give control of the corporation. Wilkins Seacord was an owner of capital stock therein, and was at one time president of the company. On July 9, 1894, Wilkins gave to his son Fred Seacord 150 shares of said capital stock and to his son DeForrest Seacord 150 shares. The latter is usually called Judd Seacord in this record. The gift to DeForrest Seacord was evidenced by 15 certificates of 10 shares each, which Wilkins Seacord caused to he issued to him on that day in place of certificates running to himself which he that day surrendered. On July 13,1894, DeForrest Seacord borrowed $3,250 from the Farmer’s National Bank of Knoxville and gave his note therefor, payable on demand with interest at six per cent and he deposited with said hank said 15 certificates of 10 shares each of said capital stock as collateral security for said note. In March, 1899, Wilkins Seacord desired to use said certificates of capital stock as security for a larger loan which he was making. By agreement between Wilkins and his son DeForrest, Wilkins paid said note on March 4, 1899, and at or about that date took possession of said shares of stock, and caused them to be placed in his own name. During the time covered by the more important of the transactions involved in this suit, the officers of the company were Fred Seacord, president, Robert Chappell, vice president, Loren Stevens, secretary and treasurer, and DeForrest Seacord, superintendent. On August 23, 1899, Robert G. Chappell, Fred Seacord, Parley M. Johnson and Wilkins Sea-cord entered into a pooling agreement under which each of said four parties assigned to John C. Vivion, trustee, 280 shares of said capital stock, being 1120 shares in all and being a clear majority of the capital stock actually issued. The trustee was authorized to vote all such shares at all elections and to collect and distribute the dividends; and the owners agreed not to withdraw or transfer their stock without the written consent of all parties to the agreement. Wilkins Seacord died July 3, 1900. Prior to his death certain events hereinafter discussed occurred, as a culmination of which, in his bedroom in his home, the following paper was executed by DeForrest Seacord and delivered there to Fred Seacord.

“Galesburg, III. May 26, 1900.
In consideration of the sum of Six Thousand Dollars to me in hand paid by Fred Seacord, the receipt whereof is hereby acknowledged, I hereby sell, assign and transfer to said Fred Seacord, all my claim, right, title and interest in and to One Hundred and Fifty (150) shares of the Capital stock of the Galesburg Electric Motor &' Power Company, formerly standing in my name on the books of said company.
(Signed) D. F. Seacord.
Witness:
Fanny M. Seacord.”

The $6,000 named in said document was embodied in a note for that sum of that date, executed by Fred Seacord payable to the order of DeForrest Seacord and payable July 1, 1900, which was then delivered to DeForrest Seacord and was paid on September 29, 1900. Thereafter a fifty per cent bond dividend was declared by the company and issued to the stockholders, and the bonds were sold at par, and still later a dividend of five per cent was declared and paid; and afterwards, on April 7, 1903, Fred Seacord, who had obtained control of the stock included in the pooling agreement and other stock, sold 1235 shares thereof to W. B. McKinley of Champaign, for the purposes of what is known as the McKinley Syndicate, and received a large snm of money therefor. DeForrest Seacord claimed that before he would sign the paper above set out, dated May 26, 1900, and as one of the considerations which induced him to sign it, Fred Sea-cord agreed to pay him all that he received upon said 150 shares of stock above said sum of $6,000. Fred Seacord denied that there was any such agreement. It seems that an action at law between DeForrest Sea-cord and Fred Seacord was tried in the Circuit Court of Knox county in 1906 which concerned said controversy. The abstract before us does not show what became of that suit. On May 24,1907, DeForrest Sea-cord filed a bill against Fred Seacord for an accounting of the proceeds and avails of said 150 shares of capital stock formerly owned by DeForrest Seacord and assigned to Fred Seacord by the written instrument above set out. Fred Seacord filed an answer, denying seriatim nearly every allegation in the bill except that Wilkins Seacord was his father and DeForrest Seacord his brother. On November 25, 1908, DeForrest Seacord filed an amended bill for an accounting, and on December 3, 1908, Fred Seacord refiled his answer thereto. Thereafter three issues of fact were made up and submitted to a jury, the third of which was whether there was such an agreement by Fred Seacord to pay to DeForrest Seacord all that he received on said stock over and above the amount originally paid. There was a trial before a jury in 1909 and a verdict in favor of complainant on each issue. Thereafter Fred Seacord moved to set aside the verdict and to dismiss the bill, and afterwards moved for leave to introduce further evidence. Thereupon the court referred the cause to a special master in chancery to take additional evidence on behalf of each party. The special master took and reported additional evidence. Thereafter the court denied the motion to set aside the verdict and dismiss the bill, and again referred the cause to said special master with directions to state an account between the parties and to report the account and the testimony, and in such accounting to charge Fred Seacord with what he realized from said capital stock purchased from DeForrest Seacord, and to credit Fred Seacord with whatever he paid Wilkins Seacord on said stock, with interest, and with the $6,000 paid DeForrest Seacord, and that Fred Seacord be charged with interest on the balance, if any, due from him from the time he received the money he should have paid over to DeForrest Seacord. The special master made a report and stated the account favorably to DeForrest Seacord. Each party filed objections to various parts of the account, which the master overruled and which were renewed as exceptions before the Circuit Court. The court sustained some exceptions and overruled others and restated the account accordingly, and on June 17, 1910, entered a decree in favor of DeForrest Seacord against Fred Seacord on said accounting for $12,049.17, with interest thereon at five per cent per annum from February 15, 1910, the date to which the master computed the interest. This is an appeal by Fred Seacord from that decree.

Appellant contends that no proof can be heard to show that the agreement of May 26, 1900, was in any wise different from that set forth in the writing of that date executed by appellee; that if oral evidence could be heard to prove a different contract, the evidence in this record is not sufficiently clear and convincing to justify any decree against appellant; and that if appellant is subject to account for what he received upon said capital stock described in said writing, the account has been incorrectly stated against him, and that the net result should have been very much less. Appellant argues with much ingenuity that the evidence introduced by appellee, if admitted and believed, would establish an entirely different contract from that embodied in the writing, and would make Mm a trustee only of said stock, and that therefore this extraneous evidence is not receivable. We conclude that the effect of said evidence is only to show that appellant agreed to pay a larger consideration than that stated in the writing. By that writing the stock was absolutely transferred from appellee to appellant beyond recall. It is evident that those acting under the pooling agreement desired control of a majority of the stock not only to keep control of the corporation and of its officers, but also in the expectation and hope that they would be able to sell the entire property at a profit. The only force of the evidence offered by appellee is to show that appellant not only agreed to pay appellee $6,000 or forty per cent of the par value of the stock, but also represented to appellee, who was unwilling to sell, that he did not wish this stock for the purpose of making any profit upon it, but only to aid Mm in retaining control of the corporation, and that he would also pay to appellee all that he might receive or make upon said shares of stock over and above said sum of $6,000. The recital in an instrument of the consideration therefor is prima facie only, and is not conclusive, and it can be explained, varied and contradicted by parol proof, unless the effect of such proof would be to defeat the grant, transfer or contract, made by such instrument, and thus make the instrument void. TMs principle has been recognized, discussed and applied in many cases in tMs state, in some of which the reasoning is very pertinent here. Kinzie v. Penrose, 2 Scam. 516; Sidders v. Riley, 22 Ill. 110; Kimball v. Walker, 30 Ill. 482; Ill. Cent. Ins. Co. v. Wolf, 37 Ill. 355; Elder v. Hood, 38 Ill. 533; O’Brien v. Palmer, 49 Ill. 72; Jones v. Buffum, 50 Ill. 277; Booth v. Hynes, 54 Ill. 363; Primm v. Legg, 67 Ill. 500; Huebsch v. Scheel, 81 Ill. 281; Morris v. Tillson, 81 Ill. 607; Drury v. Holden, 121 Ill. 130; Howell v. Moores, 127 Ill. 67; Union Mutual Life Ins. Co. v. Kirchoff 133 Ill. 368; Worrell v. Forsyth, 141 Ill. 22; Koch v. Roth, 150 Ill. 212; Sterricker v. McBride, 157 Ill. 70; Lloyd v. Sandusky, 203 Ill. 621; Brosseau v. Lowy, 209 Ill. 405; Merriman v. Schmitt, 211 Ill. 263; Gage v. Cameron, 212 Ill. 146; Stannard v. A. E. & C. Ry. Co., 220 Ill. 469; Redmond v. Cass, 226 Ill. 120; Poe v. Ulrey, 233 Ill. 56; Spence v. Central Accident Ins. Co., 236 Ill. 444; Russell v. Robbins, 247 Ill. 510. We are of opinion that it was competent to show that the actual consideration agreed to be paid by appellant to appellee was greater than that expressed in the writing; and that if that fact is established appellant, the purchaser of the shares of stock, may be required in equity to pay the larger consideration.

Appellee testified that shortly before the day when the written agreement above set out was given there was a meeting in the directors’ room of the First National Bank at which his father was present and his brother and himself and Loren Stevens and Fletcher Carney, who was his father’s attorney. Appellee testified that his brother, the appellant, notified him that his father was going to dispose of some of his personal property and wanted him to come there; that at that meeting appellee was handed a package of papers with a rubber around it, as his part of the division his father was then making of his personal property; that appellee did not open the package until he reached home, when he found that the principal thing in it was the note for $3,250 of date July 13, 1894, which his father had taken up for him at the Knoxville Bank, as already stated. He also found that his certificates of shares of stock in the company were not in the package. He met appellant that afternoon and asked appellant where his stock was, and was told by his brother that he had never had any stock. The evidence indicates that appellee understood that each son was to receive about $4,000 worth of property in that division that day, and, if that was 'Wilkins Seacord’s intention, it was not carried out by giving appellee that cancelled note and retaining his stock, which was worth ranch more than the note. If the father retained the stock, which had been collateral to the note, then appellee had not only paid the note in fnll bnt his father owed him a considerable snm in addition. Appellee became nneasy and felt that he was being overreached in some way. He went to Carney early the next morning. According to the evidence of Mrs. Fanny M. Seacord, wife of Wilkins Seacord and stepmother of appellant and appellee, appellant in some way learned of appellee’s dissatisfaction and came to see his father about noon of that day, which was May 26, 1900, and had a private interview with him, and then told Mrs. Seacord that there were some business matters of the street car company going on, and to go to his father, which she did. Wilkins Seacord then told her to get Carney and Loren Stevens and bring them to the house after dinner. Appellee’s wife was at the house and talked with Wilkins Seacord and then went for her husband. Appellant and appellee and Stevens and Carney and Mrs. Wilkins Seacord met in the afternoon with Wilkins Seacord in the bedroom of the latter. Appellee testified that his father was in a very feeble condition; that appellant then told appellee that he wanted to buy his 150 shares of stock, and that their father was desirous that appellant should use it; that appellee said he did not wish to sell it, and that his father had told him to keep it and not to sell it; that appellant asked him what he would take for it and what it was worth, and that he declined to sell; that Stevens then left and said he would have nothing more to do with it as there was going to be trouble; that he left with Stevens and went out doors and went to the steps of his own house, but his brother called him back and he went back, and that appellant then told him that he did not want to make anything ont of him, but that he just wanted to control that stock, and that it would bring more if he could control it than appellee could get out of it, and that their father wanted appellant to have it; that after much discussion appellant said that if appellee would assign the stock to him then at forty cents, he would give appellee all he got out of it, as he did not want to make anything out of him, but only to control the stock, and appellee thereupon agreed to assign it upon those conditions; that Carney then told him to sign a paper which had been previously prepared, and he did so without reading it, and that he did not know whether Carney did or did not read it in his presence. Appellant then asked appellee if he would take appellant’s note for the $6,000 and appellee agreed to do so. Appellee testified. that he met his brother again the next morning in front of the First National Bank; that his brother then told him that he did not want to make anything out of appellee, and that he would do as he had agreed, and would pay appellee all that he got out of the stock; that along in August he again met his brother.on Monmouth boulevard, where appellee was finishing up an extension of a street car fine, and that appellant, in the presence of Andrew Erickson, told appellee that he would do as he agreed and would pay appellee dollar for. dollar for what he got out of the stock; that he had several other similar conversations thereafter with appellant, in one of which reference was made to a suit which their step-mother had brought or was about to bring, concerning the estate, and appellant told appellee to keep his fingers out of it and appellant would take care of appellee and do as he had agreed; that in the spring of 1903, after the sale to the McKinley Syndicate, appellee went to see appellant at the Brown farm, which appellant had just bought, and appellee asked appellant for money. Appellant replied that he had put $19,000 into that farm and he could not pay appellee then; that the McKinley people still owed him $12,500 and as soon as he got that he would pay appellee. Appellee testified that on another occasion he went to appellant for money and met him in the directors’ room of the First National Bank, and that appellant told him that he did not have the ready money; that he did not know whether he would ever pay appellee directly, hut that he would see that his family got the benefit of it. Mrs. Fannie M. Seacord, the widow of Wilkins Seacord, testified to the meeting on May 26, 1900, in her husband’s bedroom in the presence of her husband, appellant, appellee, Stevens and Carney; that in the conversation which followed appellant wanted appellee to assign some street car stock to him for forty cents, and told appellee that when he disposed of the stock he would give appellee all he got for it over forty cents; that appellee said he did not want to dispose of it; that appellant said that the reason why he wanted the stock was that he wanted control of it temporarily and he did not wish to make anything out of it. Andrew Erickson testified that on the occasion of the interview between appellant and appellee on Monmouth boulevard appellant told appellee “When I sell the road I will pay you dollar for dollar.” Loren Stevens testified that the reason why he was called to attend the meeting in the home of Wilkins Seacord on May 26, 1900, was because Wilkins Seacord was very old and feeble, and all his heirs had asked Stevens to act as administrator of the estate when Wilkins Seacord died, and it was desired that he be present and be familiar with the transactions of that day; that there were 150 shares of stock in controversy; that appellant said he wanted it as he desired to control a majority of the stock, and he proposed to buy it of appellee and have appellee transfer the stock to him, and asked that the father name the consideration for the transfer, and that whatever sum the father fixed would be acceptable to appellant; that appellee appeared to be unwilling to transfer the stock and to be dissatisfied with the price named; that when the witness saw there was likely to be a disagreement in the management of the estate he told those present that he wonld not serve as administrator and he then left. Robert G-. Chappell testified that he had been a stockholder and a director in the company from its organization till 1903, and at one time had been president; that appellant at various times told him that he was desirous of securing control of the stock which appellee had, as he was afraid that appellee wonld sell or dispose of it; that after the death of Wilkins Seacord he had a conversation with appellant abont appellee’s matters, in which appellant told Mm that whatever he got out of this stock he expected to put in such shape that appellee’s family would receive the benefit of it. Several witnesses testified that at the time of this transaction this stock was worth one hundred cents on the dollar, which would be $15,000. One witness wavered between seventy-five cents and one hundred cents. No other witness placed the value lower than one hundred cents on the dollar at that time.

Appellant testified in his own behalf that he bought these 150 shares of stock, which appellee had formerly owned, from his father and paid for it by his note, and put it up with his father as collateral for that note, and put in evidence what he testified was his father’s receipt for said stock as collateral for said note. Appellant testified that he was not present at the meeting in the First National Bank on the afternoon before May 26, 1900, nor at any meeting when a bundle of papers or a note was delivered to appellee; that he was not present at his father’s house on May 26, 1900, before the afternoon meeting in his father’s bedroom; that at the afternoon meeting there Ms father said he had been dividing up some of his personal property and that appellee "was complaining and thought he should have been allowed more because the street car stock he had sold his father had increased in value and he should have received more out of it when he sold it; that their father asked appellant if he would feel like allowing appellee any more on it; that appellant replied that he wonld be satisfied with whatever his father might say that he should do, and that their father, after a long study, asked appellant if he would pay appellee $6,000 more and appellant replied that anything his father said would be satisfactory to him; that Stevens left after that, and appellee argued with them a while and went away and came back, and Carney then wrote out the paper above set out and appellee signed it and agreed to take appellant’s note for $6,000 and Carney drew the note and appellant signed it. Appellant testified that the paper was read over to appellee just before he signed it, and that appellee took it and looked it over closely. Appellant denied that he notified appellee to come to the bank the day before, denied the conversation testified to by appellee as having occurred in the afternoon after the meeting in the bank, denied the conversation on Monmouth boulevard, and denied each of the other conversations to which appellee testified. Appellant testified that he bought this stock from his father in good faith and paid him for it; that at the meeting on May 26, 1900, appellee was not claiming that he owned this stock, but claimed that he was not getting enough out of his father’s personal property; that appellee was not making any claim to any stock, but wanted an amount of money. Carney testified that he was present in the directors’ room of the bank when Wilkins Seacord divided up various notes and accounts between appellant and appellee; that the next morning appellee came to his house and claimed that he was not getting enough in ■ the division; that his father had included a note that had been paid; that he had turned back this stock to his father, and thereby had really paid the note, and therefore he thought he ought to have something additional beyond the $4,000; that he was present at the home of Wilkins Seacord in the afternoon of May 26, 1900, with Wilkins Seacord and wife, Stevens, appellant and appellee; that "Wilkins Seaeord said that appellee was dissatisfied with the amount he had given him and claimed he should have more, and that he had got the parties there so that matters could be fixed so that there would be no question or trouble about it after his death; and most of the talking was done by appellee and his father; that appellee claimed that he did not get enough to make him even with what his father had done for appellant; that this stock which his father had disposed of to appellant had increased in value and thereby appellant was getting more than the $4,000 given appellee in notes and obligations that his father held against him or had paid to him; that his father ought to give him more money and he wanted some of the street car stock; that Wilkins Seaeord replied that he had disposed of that to appellant; that appellant said if there was any arrangement that his father wanted to change it would be satisfactory to him; that Wilkins Seaeord had his pencil and some papers and figured for a long time; that Stevens and appellee each left; that appellee came back and then Wilkins Seaeord asked if it would be satisfactory to both if appellant were to pay appellee $6,000 as an additional sum to satisfy appellee for any claim he had on account of street car stock he had turned back to his father and his father had disposed of to appellant; that they both acceded to that; that the witness then drew up the paper at the request of Wilkins Sea-cord and read it to all of them and had it signed by appellee; that appellant asked appellee if he would take his note for a short time, and appellee agreed, and the witness drew the note, and appellant signed it and delivered it to appellee. Carney testified that there was no statement made there by any of the parties that appellee was to have forty cents on the dollar for the street car stock and afterwards receive any sum in addition thereto when the stock should be disposed of, and that there was no talk of any additional payment. It will be seen therefore that the case for the appellee rests upon the testimony of appellee, Mrs. Fanny M. Seacord, Andrew Erickson, and Robert G. Chappell, and the case for appellant upon the testimony of himself and Fletcher Carney; and that the testimony of Loren Stevens, who left the room before any agreement was reached, supports appellee on some points and appellant on others.

The testimony of appellant is much impaired by the necessity he found of retracting a considerable portion of his most important evidence. Appellant testified that he purchased from his father on January 28, 1899, the 150 shares of stock here in question, which appellee had formerly owned, and paid for it by a note to Wilkins Seacord which he then offered in evidence, and which was a note for $3,180, dated January 28, 1899, payable on demand to the order of Wilkins Sea-cord, with interest at six per cent, signed by appellant; that on that day at the First National Bank of Gales-burg his father delivered to him the certificates for these 150 shares of stock; that appellee’s name was then on the face of the stock and appellee’s name was written on the back; that he then surrendered these certificates on that day and had certificate 215 issued to himself for said 150 shares, and delivered that certificate to his father as collateral to that note for $3,180 and took from his father a receipt for said certificate 215 representing the 150 shares of stock in which appellee’s name had appeared; and he offered said receipt in evidence, and it was a receipt by Wilkins Sea-cord dated January 28, 1899, acknowledging the receipt from appellant of certificate 215 for 150 shares of stock of this company to be held as collateral to a note of that date for $3,180. This testimony was given by appellant at the trial of the issues by the jury, and it was as positive as any testimony that he gave at any time, and seemed to be thoroughly fortified by documents. At the time of that trial the books of the company had been removed from Galesburg by the McKinley Syndicate and conld not then be found. Upon the first reference to the master the stock book of the company was obtained, and it then turned out that this testimony by appellant was entirely incorrect in every particular, so far as pertains to the stock at issue in this case. In fact, on January 28, 1899, appellee’s stock was on deposit in the Farmer’s National Bank at Knoxville as collateral to appellee’s note for $3,250 to that bank. The 150 shares of stock which appellant owned and surrendered and caused to be put into certificate 215 was not bought by bim from his father at all, but was bought from Parley M. Johnson, Robert GK Chappell and Albert Johnson for the sum of $3,000 and said stock was not, bought on January 28, 1899, but on January 24, 1898, and the note which he gave his father on January 28,1899, for $3,180 was not given for the purchase money of stock which had ever been owned by appellee. The fact was that on January 24, 1898, appellant borrowed $3,000 from his father with which he paid Parley M. Johnson et al., for the stock he then purchased. At the end of the year when the note for $3,000 was due from appellant to his father, he then gave his father a new note dated January 28, 1899, for the principal and interest of that debt in the sum of $3,180 and then delivered to his father as collateral said certificate 215 for 150 shares which had been issued to appellant on January 24, 1898, upon the surrender of the certificates which he purchased from Johnson et al. When this stock book appeared in evidence appellant again took the stand and admitted the entire incorrectness of all his former testimony on this subject. Appellant was also otherwise contradicted. While he testified at the trial before this jury that he saw all these certificates of stock which appellee had formerly owned and saw that they were each made out to appellee on their face and bore appellee’s signature on the back, it was proven by the official stenographer that at the trial of the law case above referred to in 1906, appellant testified that when he bought appellee’s stock from his father appellant did not have the certificates of stock in his hands and they were not turned over to him, and all that he had by which to know that the stock which he bought of his father was the stock which appellee had actually owned was his father’s word, and that he was not sure that it was appellee’s stock. It also appeared that on the trial of that law case, he testified that the conversation at his father’s home on May 26, 1900, was concerning the sale by appellee to appellant of appellee’s stock at forty cents on the dollar and that appellee finally accepted forty cents on the dollar. It is obvious that the faith of the jury and the master and the chancellor in the recollection of appellant of conversations and transactions occurring ten and more years before he testified must have been much impaired by these mistakes made by appellant. The testimony of Carney fully supports appellant’s claim that he did not make the verbal agreement here relied upon by appellee, but it is to be remembered that this was a matter of no personal importance to Carney, that such conversations about his clients’ business affairs were probably a matter of daily occurrence in his practice, that he testified nearly ten years after the conversation in question and that his memory would be refreshed by the paper which he then prepared and he might easily fail to remember a conversation not included in that paper and might readily reason that if there had been such a conversation he would have included it in the paper. Not only are there four witnesses for appellee and but two for appellant, of whom one is appellant, who is badly hampered by his own mistakes upon the witness stand, but there are two other facts not contradicted. One is that this stock was worth $15,000 when appellant paid appellee $6,000 for it. It is clear from all the testimony that Wilkins Seacord was anxious to have appellant control this stock. This may have been because he knew of the importance of the majority of the stock being held under the pooling agreement, so that they could sell the property in bulk for a good price, or it may have been because he was afraid that appellee would sell it to the owners of the minority stock. It is clear from all the evidence that appellee was very unwilling to sell, and that he refused to do so and left the house and then came back again. It is unreasonable to believe that he would have sold $15,000 worth of stock for his brother’s note for $6,000. If, however, he was assured, as he claims, that the stock would be worth more in his brother’s hands than it would in his, and that he should be paid all that the stock brought above $6,000 then his act in selling that stock as he did is much more reasonable. Another important and almost controlling consideration is this: Chappell is a business man, had been director of the company from its organization to its sale to McKinley, had been president of the company, and had known appellant and appellee since they were boys. Appellant does not deny Chappell’s testimony that appellant told him that he wanted to secure control of appellee’s stock for fear that appellee would sell it, and that after the' death of Wilkins Seacord, appellant told him in a conversation about appellee’s affairs that whatever he, appellant, got out of this stock he expected to put it in such shape that appellee’s family would receive the benefit of it. If appellant bought this stock of his father in good faith at any time, and paid his father in full thereafter, and afterwards paid his brother $6,000 more to satisfy his brother that he was getting a fair share of his father’s estate, and if the brothers felt hostile to each other in regard to this business, as all the proof showed that they did, it is very improbable that appellant would afterwards plan to give to his brother’s family all the profit on this stock. If, however, he had promised his brother to give him this profit, he might very readily feel at liberty to put that profit in such a shape that it would he available to his brother’s family. The chancellor saw the witnesses at the trial of the issues by the jury and heard their testimony, and can better judge where the truth lay than we can.

There is some confusion as to when Wilkins Sea-cord became possessed of appellee’s 150 shares of stock. As already stated, it was on deposit with appellee’s note at the Farmer’s National Bank at Knoxville. That note was paid on March 4, 1899. At some prior date Wilkins Seacord applied to appellee to loan him this stock that he might use it as collateral for a loan of $22,000 which he wished to secure for appellant in Chicago, and appellee consented to so loan his stock. But he did not know what use his father made of the stock, nor whether he used it to borrow money in Chicago or not. The stock book of the company shows that on February 15, 1899, said shares were surrendered to the company and in lieu thereof certificate 222 for 150 shares was issued to Wilkins Seacord. Whether the Knoxville bank permitted the original fifteen certificates to be taken to Galesburg, where the stock book was kept, and there to be changed into one certificate for 150 shares to be issued to Wilkins Sea-cord and returned to it, or whether the stock book was taken to Knoxville and the change in the form of the certificates made there, the record does not disclose; and objections were sustained to questions which might have revealed the fact. Appellee testified that his father got the stock when he paid appellee’s note at the Knoxville bank, but that was only a surmise on his part as he was not there and never saw his certificates after he had delivered them to the Knoxville bank when the loan was made. An officer of the Knoxville bank testified that the stock remained in his bank after appellee’s note was paid, so that it may be that Wilkins Seacord secured at the Knoxville bank the loan for which he wished to use appellee’s stock. In any event, the pooling agreement of August 23, 1899, was made after Wilkins Seacord had put into his own name the certificates for appellee’s stock. It is evident that appellee’s 150 shares were a part of the stock which Wilkins Seacord at that time put into the pooling agreement, for Wilkins Seacord transferred this 150 shares of stock in certificate 222 to appellant on May-9, 1900, and on May 7, 1900, the members of the pooling agreement entered into a supplemental contract permitting Wilkins Seacord to transfer his stock to Fred Seacord. It is clear that appellee did not consent that his stock be put into the pool, and did not know that that had been done. It is obvious that appellant feared that appellee would compel the re-delivery of his stock to him. If that had been done it would have reduced the shares in the pool to 970 or 81 shares less than a majority. The chancellor might reasonably infer from all this proof that when appellant learned that appellee was inquiring after his stock on May 25 and 26, 1900, and appeared to feel that he had been overreached, appellant was much disturbed for fear that the pool would be deprived of its hold upon the corporation. If he had a private interview with his father about noon on May 26, 1900, as his step-mother testified, it is reasonable to believe that the matter there discussed was the danger that appellee would be able to take his stock out of the pool; and that some arrangement was then made between his father and appellant as to how far they would go to get appellee to sell his stock; and that appellant’s willingness at the meeting that afternoon to pay whatever price his father might fix was because he had a previous understanding with his father on that subject. The control of the street car company had been valuable to the Seacord family. Wilkins Seacord had been president, appellant was now president, appellee had long been superintendent, and it is evident that both appellant and Wilkins Seacord were anxious to have this control continued and thereby be in a position to make an advantageous sale of the whole property. The evidence justifies the conclusion that appellant was much more thrifty and a better financier than appellee. It also shows that appellee could have sold his stock to some of the minority stockholders. All this leads to the reasonable conclusion that if appellee would not accept $6,000 for the absolute transfer of his stock, appellant would not be unwilling to give him all the profit that might afterwards be derived therefrom. We are of opinion that the court properly required appellant to account to appellee for the profit on this stock.

The court directed that in the accounting appellant be allowed for the amount he paid his father for this stock. No cross errors are assigned, and that ruling is unquestioned. Appellant contends that he paid his father $3,382.35 for this stock, and that the court erred in crediting him with only $1,812 therefor. Appellant finally testified he bought this stock on May 9, 1900, from his father. On May 10, 1900, his father surrendered certificate 222 containing appellee’s- 150 shares, and appellant took out certificate 218 for 280 shares, registered as transferred to appellant by Wilkins Seacord, and which included this 150 shares of which appellee was the real owner. The stock book stub to certificates 228 issued to appellant May 10, 1900, shows that this stock was all transferred to appellant by Wilkins Seacord from 14 certificates, the separate numbers of which were not given on the stub. An examination however of the proof as to the contents of the stubs in the stock books shows what the number of the certificates were. One was certificate No. 222 for the 150 shares owned by appellee. The other certificates were Nos. 58, 59, 60, 61, 62, 63, 65, 67, 68, 69,.70, 71 and 72, being 13 certificates for 10 shares each, or 130 in all, each of which was assigned by Wilkins Seacord to appellant on May 9, 1900, and cancelled on May 10, 1900. On June 2, 1900, appellant •paid his father $3,382.35 by check which he testified was for tMs stock. Sometimes he testified he paid that for the stock which had been appellee’s, and Ms testimony is in some places apparently that he paid that check for the 280 shares. He was pressed to state what he paid for the other 130 shares, and did not remember and could not state. He was urged to examine his books and papers and to return to the stand and show what, if anything, he paid for the 280 shares other than this check for $3,382.35. He failed to furnish any such information. This appears more fully in the record than in the abstract. He testified that Ms father did not give him any of these 280 shares. Appellee put in evidence the bank accounts of both appellant and his father from May 1,1900, to the death of Wilkins Seacord, and they did not show any large check from appellant to his father other than that for $3,382.35. We are of opinion that the court did not err in concluding that he paid that check for the 280 shares which would be $1,812 for the 150 shares owned by appellee.

The contract by wMch appellant sold to McKinley first provided that appellant agreed to sell a certain property known as HigMand Park, and the personal property connected therewith, and a certain lease from the O. B. & Q. Ey. Co. of certain lake privileges, for $15,000; then that he agreed to sell McKinley 1235 shares of this street railway stock for $50 per share, and that McKinley should issue to appellant 500 full paid shares of the par value of $100 each of the capital stock of a new company which McKinley was to organize “to take over this and perhaps other property,” and that McKinley would pay appellant $12,500 in cash for said stock if appellant tendered the same to McKinley during April, 1904. The contract then provided that $10,000 should be paid to appellant at once and $66,750 about April 15, 1903, and that appellant should then deliver to McKinley a warranty deed for Highland Park, an assignment of the C. B & Q. lease, and said 1235 shares of stock. McKinley did not pay said $12,500 and appellant sued him therefor and had judgment for that amount with interest and collected the same. The court, in this case, decreed to appellee, as a part of the purchase price of the street railway stock his pro rata share of the sum appellant so recovered from McKinley. Appellant testified that these 500 shares of stock in a new company, or $12,500 in money, was not any part of the purchase price of this street railway stock, hut that it was for the Galesburg & Monmouth Bapid Transit Company, which had a franchise for an interurban road, and which he also sold to McKinley, and in which the street railway company had no interest. Chappell was interested in the street railway company stock sold by appellant to McKinley, and also in the interurban road, but in different proportions. There was in evidence a statement rendered hy appellant to Chappell in wMch he treated this $12,500 and interest as a part of the avails of the sale of the street railway stock, and accounted to Chappell in the proportion which Chappell’s street railway stock bore to all the street railway stock which appellant sold McKinley. Chappell gave testimony supporting appellee’s claim that tMs was a part of the purchase price paid hy McKinley for the street railway stock. There was proof of testimony given hy appellant at the trial of the law case tending to the same conclusion. When appellant’s testimony, the McKinley contract, the statement to Chappell, and the testimony of Chappell, are all considered, we hold the court was warranted in concluding that this was a part of the consideration for the street railway stock.

The master computed interest to February 15, 1910. After various objections thereto had been considered and overruled, the master filed Ms report in court March 18, 1910. The final decree was entered June 17, 1910, and while the court sustained exceptions to the report and modified it, it still carried the computation of interest only to February 15, 1910. It awarded $12,049.17 as due appellee on February 15, 1910, and ordered execution for $12,049.17 with interest thereon at five per cent per annum from February 15, 1910. Appellant argues that is compelling- him to pay usury. Section 3 of the statute relating to interest would have authorized the court to compute interest at five per cent per annum from the date of making the report to the time of entering the decree, and this would have been interest upon the interest items in the report. The court pursued a course more favorable to appellant. It found the amount due on the date to which the master computed the interest and did not add interest on interest to the date of the decree in June. The report was not actually dated or filed on February 15, and it is obvious that in stating a complicated account, some time must be allowed the master after he has computed the interest in which to draw his report, and to counsel some time in which to prepare and submit objections, and some time to the master to consider and decide such objections. We think it in harmony with the spirit of the statute that the court compute interest from the date where the master rest'ed his computations.

We have considered the other objections to the accounting and think them not well founded. A careful consideration of the record convinces us that substantial justice has been done between appellant and appellee.

The decree is therefore affirmed.

Affirmed.

Thompson, J., took no part.