text:
    The People of the State of Illinois ex rel. F. W. Matthiessen et al., Appellants, v. C. B. Lihme, Appellee.
    Gen. No. 6,064.
    1. Quo warranto, § 31

      —when state’s attorney party to. The state’s attorney held a party to petition for leave to file an information in the nature of quo warranto to inquire into the right of a person to hold the office of director of a corporation.
    2. Estoppel, § 51*—when stockholder estopped from questioning election of director. Officers and stockholders of a corporation held not estopped, by acquiescing for several years in the election of a person as a director, from questioning his right to hold the office because he was not a stockholder, where they did not know of his disqualification until shortly before beginning a quo warranto proceeding to determine his right to hold such office.
    3. Corporations, § 250*—when trustee may transfer stock to qualify person as director. A testamentary trustee may transfer a share of stock to a third person in order to qualify him as a director, where the former was empowered by will to do so, although' done under an agreement that the latter should have no beneficial interest in the stock, and after it was recorded in his name on the books of the company he indorsed it in blank and returned it to the trustee.
    4. Corporations, § 426*—when contract to employ as director is valid. A contract between a trustee who represented one-half of the stock of a corporation with a person to whom he transferred one share of stock in order to qualify him as a director, that he should hold the office for a term of years at an agreed compensation, held not against public policy, where all of the stock was controlled by two families.
    5. Corporations, § 250*—when person holding only legal title to stock may he director. A person to whom a share of stock is transferred solely to qualify him for the office, and who has no beneficial interest in the stock, may be elected a director of a corporation under a statute merely providing that stockholders may be directors.
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 15, 1915.

      George Wiley and M. F. Gallagher, for appellants.
    Montgomery, Hart, Smith & Steere, for appellee; Charles S. Cutting, N. H. Pritchard and J. D. Dickerson, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and. Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

The appeal is from a judgment for the respondent on a trial by the court without a jury on an information in the nature/ of a quo warranto calling upon C. B. Lihme, the appellee, to show his qualification to serve as a director of the Matthiessen & Hegeler Zinc Company. The Illinois Statute of 1857, under which the corporation was organized, provides in section 4 that the affairs of the company shall be managed by a board of not less than three nor more than seven directors, to be elected annually by the stockholders, who shall be stockholders therein. The charter of the corporation provides for four directors, and the bylaws fix December 18th as the date of the annual election. The qualification of appellee is attacked on the ground that he was not at the time of his election, December 18, 1912, a stockholder of the corporation. It is the same corporation and many facts are involved that were under consideration in our opinion filed herewith in People ex rel. Carus v. Matthiessen, Gen. No. 6061, ante, p. 328.

The petition for leave to file the information was filed December 17,1913, by F. W. Matthiessen, George P. Blow and F. W. Matthiessen, Jr., stockholders of the corporation, by their attorney, M. F. Gallagher; but leave was obtained on the motion of the State’s Attorney, George S. Wiley, and the information filed by him. Appellee pleaded that he was a stockholder of the corporation, elected to the office by the unanimous vote of the stockholders, with other appropriate averments, as his warrant to hold the office. The parties stipulated that either party might introduce on the trial such evidence as might he introduced on the merits of the case, if both parties had well pleaded the conditions as they understood them, without reference to any technical questions of pleading.

There was a stipulation of facts reciting: That the corporation was organized in 1871 under the Illinois Act of 1857, with capital stock of $426,000 divided into 426 shares, charter fifty years; that the stock has at all times been equally divided between E. C. Hegeler and members of his family on the one part, and F. W. Matthiessen and members of his family on the other part; that on December 17, 1913, the date the information was filed, the company’s books showed the following stockholders: Mary Hegeler Carus, daughter of E. C. Hegeler, 1 share; Mary Hegeler Carus, trustee, 211 shares; C. B. Lihme, son-in-law of E. C. Hegeler, 1 share; F. W. Matthiessen, 178 shares; George P. Blow, son-in-law of F. W. Matthiessen, 3 shares; Eda Matthiessen, daughter of F. W. Matthiessen, 10 shares; Dr. Philip S. Chancellor, son-in-law of F. W. Matthiessen, 2 shares; Adele M. Blow, daughter of F. W. Matthiessen, 10 shares; F. W. Matthiessen, Jr., son of F. W. Matthiessen, 10 shares; that E. C. Hegeler died June, 1910, and by will left all his stock in the company, consisting of 211 shares, to Mary Hegeler Carus, his daughter, as trustee for Ms seven children (naming them); that under the will said capital stock of the testator was given to his daughter, Mary Hegeler Carus, as trustee, and to her successors in trust, with provisions that she should cause said shares to be transferred to her and stand in-her name as trustee upon the books of the company, and should have the power and authority “to transfer one or two shares, as may be necessary, to herself, as an individual, or to one or two other persons to enable such other person or persons to act as directors or director in said company;’’"that said trustee should hold and control said shares until the expiration of the charter, and then convert them into cash and distribute it in equal parts among said children; that she should collect all dividends and pay herself as compensation ten per cent, of the amount of such dividends, such additional sums as she may find necessary to some suitable person selected by her to act as a director, and such additional sum as she may find necessary to pay for leg’al advice, and the remainder of such dividends to be distributed among said children; and the declaration: 1 ‘That my intention and aim in placing all of said shares of stock in the hands of a trustee as above, is that all of said shares shall be voted and controlled as a unit for the protection of the interest in said company represented by said shares.” The stipulation further recites-: That the share now held by Mrs. Cams individually was transferred by her from the 212 shares given to her in trust; the share in Mr. Lihme’s name was transferred to him by Mary Hegeler Cams on December 17, 1910, and was a share which she individually held during the lifetime of her father, and at the time of his death; that Mrs. Cams was paid for this share as follows: There was some controversy as to the terms of the Hegeler will, and Mrs. Cams, the executrix, relinquished to the other children certain rights given to her by the will, and it was agreed on October 12, 1910, that she should transfer to herself, as trustee, the one share of stock standing in her name individually. Instead of transferring this share to herself, as trustee, she assigned it to O. B. Lihme, to whom a new certificate was issued December 17, 1910. It further appears, that four days thereafter, Lihme signed an instrument reciting that the share of stock was transferred to him for the purpose of qualifying him as director of the company, and is not held by him under any claim of ownership and is not to be construed as any part of his private estate, but that he holds the same merely for the purpose of qualifying him as a director in the company, and that said share of stock is a part of and belongs to the 213 shares of stock held in trust under the agreement dated October 12, 1910. It is further stipulated that the stock certificate wás issued to Lihme and by him indorsed in blank, and deposited by Mrs. Carus in a safety deposit box rented by all of the heirs of E. C. Hegeler and standing in the joint name of Mary Hegeler Carus and Julius W. Hegeler. Access could be had to this box only by the joint action of Mrs. Carus and Julius W. Hegeler. In this box were kept the stock certificates covering the stock held by Mrs. Carus as trustee, the instrument signed by Lihme, and other documents belonging to all of the heirs of E. C. Hegeler.

It is further recited that E. C. Hegeler was president of the company from its organization until December, 1903. Mary Hegeler Carus has been president since December, 1903, to December 18, 1913. A member of the Matthiessen family has been secretary since the corporation’s organization. Since December 18, 1903, until December 18, 1913, George P. Blow has been secretary. The board of directors during the entire life of the corporation until December 18, 1913, has been elected equally from the two interests. The stipulation sets out the three sections of the by-laws quoted in People ex rel. Carus v. Matthiessen, Gen, No. 6061, ante, p. 328. There was a by-law under which the management of the affairs of the company is vested in the president and secretary, and the stipulation further shows that at the December meeting of the stockholders in 1910, C. B. Lihme was elected as director, and again at the annual meeting of 1911, and again at the meeting of 1912, each time by the unanimous vote of all the stockholders of the corporation, with no objection made to the qualification of Lihme as a stockholder or his right to serve as a director.

The stipulation covers the facts most material to the consideration of the question here presented. There was some evidence introduced in which it appeared, in addition to the stipulated facts that Mary Hegeler Carus as' trustee had contracted in writing with appellee for his services as director of the corporation for the term of seven years beginning December 18, 1912, and that he should have as compensation therefor fifteen per cent, of the net profit accruing to the Hegeler stock, that he had received dividends and sent them to Herman Hegeler, who was acting as treasurer of the seven Hegeler children; that appellee had been in the Zinc business for nineteen years, 'and for fifteen years had resigned and constructed furnaces for handling zinc ore; that he was a practical zinc man, a chemist, and not an office man.

The question is whether appellee under those facts is a stockholder in the company. He was not at the time in question the beneficial owner of the one share of stock that stood in his name. Whether he was a trustee and as such trustee a stockholder within the meaning of the statute must be determined from the provisions of the will of Edward C. Hegeler, above recited, and the subsequent transactions intended to constitute him a stockholder and qualify him to hold the office of director. The testator provided that all his stock in the company should be kept together and voted as a unit and the proceeds distributed by his trustee at the expiration of the charter of the company in 1921, fifty years from its date. The testator owned half the stock of the company except one share owned by Mrs. Carus. His interest should be represented by two directors in the company. After his death, his daughter Mrs. Carus would be the only person, outside of the Matthiessen family, eligible as a stockholder to the office of director. The testator attempted by Ms will to provide some way for the qualification of another person to act as director representing his interest, and Mrs. Carus, his trustee, attempted to carry out that provision by transferring her one share of stock to Mr. Lihme and permitting him to hold the legal title to it with the privileges of a stockholder to vote the stock and hold office in the corporation and the liabilities that attach to that position, and she sought to stimulate him to that effort which a personal interest engenders by making the amount of his compensatiQn dependent upon the success of the business.

Appellee contends that the trial court should have dismissed the case because neither the State’s Attorney nor the Attorney General was a party to the petition for leave to file the information. The record shows, as before noted, that the petition was filed by the relators, but that leave to file the information was obtained on the motion of the State’s Attorney. 'This seems a sufficient answer to the contention that he was not a party to that part of the proceeding in which.leave to file the information was obtained.

Appellee urges that the relators are estopped to question his right to the office because they acquiesced in his election, and suggests that he was elected director in 1910, and reelected in 1911 and 1912, by the unanimous vote of the stockholders, and that the relators in this proceeding were present at the meeting of 1912, and voted their shares of stock in favor of his election, and that'from the date of his election until the filing of the information herein, his standing as director had not been questioned and no one objected to his qualification. Appellants answer that it does not appear that the relators knew before they filed the petition the facts as to appellee’s ownership of the share of stock that stood in his name, and even had they known the facts, no defense can be founded on estoppel, because appellee must justify, if at all, by showing a good title, and an equitable title is not sufficient, and call our attention to the language of the court in People v. Crowley, 250 Ill. 282 (a case relied on by appellee), where the court says on page 288, “that each case must be largely decided on its own special and particular facts,” and argues that the facts of this case forbid the application of the doctrine of estoppel. The court also said on the same page:

■ “While the public authorities will not be barred either by laches or the acquiescence of individuals, * * * still this court has frequently held that unreasonable delay or acquiescence on the part of the persons complaining, * * * will justify the refusal of the court to proceed to judgment, although no statute of limitations has intervened. (People v. Lease, 248 Ill. 187; People v. Schnepp, 179 id. 305; People v. Hanker, 197 id. 409; People v. Anderson, 239 id. 266; People v. Hepler, 240 id. 196.) The rule in quo warranto proceedings is the same as it is in certiorari. The remedy in either case is not a matter of absolute right.”

The case was before the Supreme Court again and reported in 260 111. 341. The court said on page 342:

“It is manifest that the interest of the public in this proceeding is only theoretical and that the substantial interest is entirely the private interest of the'relators. * * * The remedy by an information in the nature of a quo warranto is not a matter of absolute right but is a subject for the exercise of sound judicial discretion. The court should take into consideration all the circumstances of the case, and if the proceeding is in the private interest of the relators, only, an unreasonable delay or acquiescence on their part, as well as considerations of public interest and convenience and the consequences of a judgment of ouster, will justify a refusal to proceed to judgment. People v. Schnepp, 179 Ill. 305; People v. Drainage District, 193 id. 428; People v. Anderson, 239 id. 266; People v. Lease, 248 id. 187.”

A consideration of all the circumstances of this case furnishes many reasons in support of appellee’s claim of estoppel. There are equitable reasons, as between the real parties to this suit, why appellee should be permitted to hold the office. The corporation was a family affair, practically a partnership between E. C. Hegeler and the relator, F. W. Matthiessen, until the death of Mr. Hegeler, and was intended by them to so continue between their families, with an exactly equal power of the part of each family to direct and control its affairs. There is no substantial difference, so far as the interest of the corporation is concerned, and the interest of the two families in its assets and profits, whether the son-in-law of either party acting as director owns a share of stock or not. His interest in the business comes from his relation to the family for which he is acting and of which he is a part, and not, in the case of such small holdings of stock as were permitted in the families of the two partners, from motives of personal pecuniary gain from dividends on that stock; and another circumstance of this case is that under appellee’s contract he was given a greater personal interest in the earnings of the corporation than that of a small stockholder. And there was a delay in filing the information until the last day of appellee’s term of office, making it obvious that the purpose of the attack was not to oust him from the office to which he was elected during the term for which he was elected. We doubt, however, the power of a court to carry equitable principles in cases of this kind to the extent required to estop the relators from questioning the title of appellee to the office, especially in view of the fact that it does not appear that they had knowledge before they filed the petition that he was not the beneficial owner of the stock; and we think the case must be decided on the question principally argued by counsel, whether under the will of E. C. Hegeler and the transactions subsequent thereto, appellee was a stockholder within the meaning of the statute requiring that qualification of a director.

It is argued by appellant that by the very terms of the will of E. C. Hegeler there could be but one stockholder representing his holdings in the company, and therefore lint one person qualified to serve as director representing his interest. We do not so construe the will. We are of the opinion that Mrs. Carus as trustee had power to transfer a share of stock to another person to enable him to act as director, and to make such a transfer as would effectuate the purpose, notwithstanding the expressed intention of the testator that all his shares should be voted and controlled as a unit and converted into cash and distributed on the expiration of the charter of the company. It can hardly be doubted that the testator might by his will have created two separate trusts, each of a part of his stock in the company, and that each trustee would have been a stockholder and eligible to the office of director. If the testator in creating such trusts had stated that his only purpose was to enable two persons to act as directors in this corporation, thereby maintaining the equal balance of the two families on the board of directors, we do not see that that expressed intention would have defeated his purpose. Neither do we see that • an expressed intention of the testator that his stock should be voted as a unit during the life of the corporation and then the property that it represented be distributed among his children should in any way hinder the execution of his design to secure a representation of his interest in the corporation equal to that of the Matthiessen interest. Whether his trustees would have been bound to join in voting the stock or it would have been the duty of each to exercise his own judgment, if it differed from that of the other trustee, is not the question; the testator might hope they would act in harmony and express the wish that they would do so, whether they were legally bound to so act or not. We see no reason why he might not have provided that at the termination of the trust one trustee should convey to the other for the purpose of distribution, or that either trustee ceasing to be a director should convey the legal title to stock held by. him to another person for the purpose of qualifying that other person to act in that capacity.

It is well settled that a trustee holding stock is eligible to act as director under statutes requiring a director to be a stockholder. Thompson on Corporations, sec. 919; 10 Cyc. 737; Cook on Corporations, sec. 623; 26 Am. & Eng. Encyc. of Law, 894. Our Corporation Act, sec. 24 (J. & A. ¶ 2441), provides that a trustee “shall represent the stock in his hands at all meetings of any stock corporation, and may vote accordingly as a stockholder. Mrs. Cams as trustee had power to appoint another trustee. That power may be conferred on trustees to appoint another trustee is settled law in this State. Tates v. Yates, 255 111. 66, and cases there cited. Nor is it any objection that a stockholder became such, acquired his stock, for the sole and only purpose of qualifying him as a director in the corporation. Thompson on Corporations, sec. 919; 21 Am. & Eng. Encyc. of Law, 837; Cook on Corporations, sec. 623; Richards v. Merrimack & C. R. R. Co., 44 N. H. 127; In re Leslie, 58 N. J. L. 609; In re Argus Printing Co., 1 N. D. 434; Schmidt v. Mitchell, 101 Ky. 570; State v. Leete, 16 Nev. 245.

But appellants say even if Mrs. Cams as trustee had the power to convey stock to appellee for the purpose of qualifying him to act as director, still she did not do so; that the transaction simply amounted to getting appellee’s name on the books of the company as a stockholder, without his holding any title, legal or equitable, to the share of stock in question. This is not the correct view of the situation.' The share of stock belonging to Mrs. Cams individually, to which she held the legal title and of which she was the beneficial owner, was in the family settlement agreed to become a part of the trust stock in her hands. She transferred the legal title to appellee, and the transfer was made on the books of the company and he stood as a stockholder, without" notice of record of his representative character, thus assuming to those dealing with the corporation the liability of a stockholder. Sherwood v. Illinois Trust & Savings Bank, 195 Ill. 112. True, the beneficial ownership of this share of stock was in the seven children of the testator. Mrs. Carus had no beneficial interest, as we are using the term, in the stock held by her, except as one of the seven children. It was natural that the trust papers should be kept together, especially as it was a family matter, and not unnatural that this share of stock should be so indorsed that it could be readily handled as a part of the large body of shares belonging to the seven children. We do not see much significance, under the circumstances, in the fact that it was indorsed in blank by appellee and handed by him to Mrs. Carus and placed in the vault with the other shares and papers belonging to the family. In case of a transfer of stock from a father to his son or daughter, if the transfer was properly made and the certificate delivered, it would not be unnatural and would not invalidate the transaction if the donee indorsed the stock in blank and handed it back to the donor for safe-keeping. The possession of the paper might be important if there was doubt about the delivery to the donee or about the fact of ownership; but if the facts as to delivery and ownership clearly appear, as they do in this case, and the only question is one of law arising from those facts, the mere possession of the papers is of little consequence. The case stands as though the testator had provided in his will that appellee should hold the legal title to one share of stock, and Mrs. Carus the legal title to the remaining shares, and each should receive as compensation for duties performed arising from such ownership a percentage of the net earnings of the corporation, and that the certificate should be kept in a safety deposit box used as a receptacle for the papers concerning the trust property. If the testator had so provided, it would seem clear that appellee would have been a trustee as well as Mrs. Carus, and it would not have mattered if he had provided that a part or all. of the certificates should be indorsed in blank and it had been done accordingly.

It is objected that the contract made by appellee and Mrs. Carus in relation to his serving as director is void and against public policy. Theoretically, neither she nor he could know that he would be re-elected seven successive times, but practically they knew he could be, and Mrs. Carus representing the Hegeler interest and knowing the value of his services to the corporation was guilty of no moral wrong in contemplating a seven-years’ term of service and agreeing on the compensation therefor, and we know of no legal wrong perpetrated by that contract that has any influence on the question whether appellee was a stockholder.

The statute simply requires that a director shall be a stock holder. Other statutes in other states in providing for the stock qualification of a director,—some of them require him to be a bona fide stockholder, others a stockholder in his own right. The statute here in question does not require a director to be a stock owner. The Supreme Court of California, In Smith v. San Francisco & N. P. Ry. Co., 115 Cal. 584, recognized the difference in these terms and said a person might be a bona fide stockholder without being the owner of the stock. The Supreme Court of North Dakota, in the "case of In re Argus Printing Co., supra, said:

“The directors of the corporation are generally required to be shareholders by express provisions of the company’s charter or articles of association. A person is a shareholder, within the meaning of a provision of this description, if he holds shares on the books of the company, but not if he is merely the holder of a certificate. It has been held that the transferee on the books is eligible, although he is not the real owner of the shares, and the transfer was executed for the sole purpose of making him a director.”

It is said in Cook on Corporations (6th Ed.), vol. 2, sec. 623:

“If the charter or statutes require a director to be a stockholder, one who holds stock transferred to him in trust for the express purpose of qualifying him for the position, may serve. And where a person has the right to vote on stock as a stockholder, he is eligible to any corporate office to which any stockholder is eligible, and accordingly may be elected a director.”

The question has been lately reviewed by the Supreme Court of Wisconsin, in the case of Casper v. Kalt-Zimmers Mfg. Co., decided in December, 1914, and reported in 159 Wis. 517. The court said on page 528:

“It is settled by the great weight of authority in this country and in England that one who holds the mere legal title to stock is qualified to act as an officer of the corporation, though there is a charter provision or statute requiring officers to be stockholders. 3 Clark & Marsh. Priv. Corp., 2031, 2032 and cases cited; 2 Cook, Corp. (6th ed.) § 623 and cases cited; In re St. Lawrence St. Co., 44 N. J. Law, 529; State ex rel. Rankin v. Leete, 16 Nev. 242; In re Argus P. Co., 1 N. Dak. 434; 48 N. W. 347 [12 L. R. A. 781n, 26 Am. St. Rep. 639]; Pulbrook v. Richmond C. M. Co., L. R. A: 9 Ch. Div. 610 One who holds stock in trust for the express purpose of qualifying him as an officer is eligible. Cook, Corp. (6th ed.), § 623; In re Leslie, 58 N. J. Law, 609, 33 Atl. 954.
“A rule requiring that the equitable or beneficial interest in the stock should be in a person in order to render him eligible as an officer would exclude all trustees from acting as corporate officers and in a large measure debar them from investing trust funds in corporate enterprises because they could not adequately protect such funds by participating in the active management of the business. The reason given for a contrary view is that officers of a corporation should be personally interested in its welfare, and that can be the case only when the legal and beneficial interest unite in the same person. We do not so consider it. Trust duties are some of the most sacred duties there are, and the confidence reposed through them is seldom abused. Even where stock is transferred for the express purpose of qualifying one to hold a corporate office, the person so transferring it is personally interested in the sound management of the corporation and would be unlikely to jeopardize his interest by placing the stock in incompetent hands. The rule that merely a legal title qualifies is more in consonance with present business requirements and is fraught with no undue hazard'to stockholders.”

The Supreme Court of New Jersey said in the St. Lawrence Steamboat case, above cited, which was an action to set aside the election of a director who at the time of his election stood as a stockholder by holding a certificate made out in his name that belonged to his wife, and it was charged that he was not a bona fide holder of stock as required by the statute:

“Independent of the statute, a person might be a director of a corporation without being a stockholder. The statute is guardedly expressed. It prescribes as the qualification of a director, that he shall be a bona fide holder of stock. A stockholder may have purchased stock with the view of becoming a director, or have obtained it by gift, or he may hold it upon a trust, and be qualified to be a director. If the stock was legally issued, and is not the property of the corporation, and the legal title is in him, he is prima facie, capable of being a director, and his right to be a director, in virtue of his legal title to such stock, can be impeached only by showing that title was put in him colorably, with a view to qualifying him to be a director for some dishonest purpose, in furtherance of some fraudulent scheme touching the organization or control of the company, or to carry into effect some fraudulent arrangement with the company.”

The same court in the later case of In re Leslie, above cited, used substantially the same language referring to and reaffirming what was said in the St. Lawrence Steamboat case, supra.

No controlling decision of the courts of this State is cited, and we know of none. In Durkee v. People, 155 Ill. 354, the court, in deciding that the control of a corporation cannot by contract be vested in bondholders instead of stockholders, suggested that bondholders have not the same personal interest in the success of the corporation and keeping up the property by careful management as stockholders have, and that a contract taking the management of a corporation away from its stockholders is against the statute and against public policy and void. That case in no way involves the question whether a trustee holding stock is qualified to act as director, and we do not think any expression found in the opinion should be held to indicate a contrary view to that expressed in the authorities above cited.

We are of the opinion that appellee was a stockholder within the meaning of the statute in question, and that the court did not err in rendering judgment in his favor.

Judgment affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    The People of the State of Illinois ex rel. F. W. Matthiessen et al., Appellees, v. C. B. Lihme, Appellant.
    Gen. No. 6,062.
    Railroads, § 39

      —who may he director. Under the Railroad Act of 1872 (J. & A., If 8742), providing that the directors of a railroad company shall be stockholders, a person may be elected a director although his stock was transferred him for the express purpose of qualifying him for the office. (People ex rel. Matthiessen v. Lihme, ante, p. 341 followed.)
    Appeal from the Circuit Court of La Salle county; the Hon. Jos A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed with finding of facts.
    Opinion filed April 15, 1915.
    Montgomery, Hart, Smith & Steere, for appellant; Charles S. Cutting, N. H. Pritchard and J. D. Dickerson, of counsel.
    George Wiley and M. F. Gallagher, for appellees.

      Sec Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This case is between the same parties, was begun the same day, presents the same questions, and is represented by the same attorneys as Gen. No. 6,064 ante, p. 341, in which our opinion is filed herewith. The Hegeler and Matthiessen families own the stock in the La Salle & Bureau County Railroad Company,- substantially as they do the stock in the Matthiessen & Hegeler Zinc Company. The appellant, C. B. Lihme, held a share of stock in the railroad company and stood on the books as a stockholder under practically the same conditions as he held his share in the zinc company, and was a director in the railroad company. This suit was begun by petition for leave to file an information filed by the relators, and leave obtained and petition filed by the State’s Attorney as in the other case. There is the same stipulation dispensing with written pleading's. It was tried by the court without a jury and resulted in a finding of guilty and a judgment of ouster, from which judgment this appeal is prosecuted.

There was a stipulation of facts read in evidence reciting* that the company is an Illinois corporation organized August 30, 1890, under the Eailroad Act of 1872 (J. & A. ¶ 8742), for the period of fifty years for the purpose of operating a railroad, with the principal office at La Salle, Illinois, capital stock $50,000; that the stock has been ever since the organization of the company, equally divided between E. C. Hegeler and members of his family on the one part, and F. W. Matthiessen and the members of his family on the other part, except some four shares issued to other parties by agreement of Hegeler and Matthiessen. The by-laws provide for five directors divided into two classes, term of office of members of the first class expiring Dec. 18th of even numbered years, and of the second class Dec. 18th of odd numbered years. That E. O. Hegeler died in June, 1910, and by his will left all his stock in the company, consisting of 248 shares, to Mary Hegeler Carus, his daughter, as trustee, for the benefit of his children (naming them), upon the same trusts as the capital stock of the Matthiessen & Hegeler Zinc Company. That the stock certificate was issued to Lihme and by him indorsed in blank and deposited in the safety deposit box (the same as the share of stock in the other case); that appellant was elected director at an adjourned annual meeting on January 12, 1912, by the unanimous vote of all stockholders present, including the relators, and no objection made to his qualification as a stockholder or his right to act as a director; that he was theretofore.elected as a director in March, 1911, and at all times since that date, until December 18, 1913, he has continued to serve as a director of the corporation. There was some oral testimony introduced from which it appeared that Paul Carus owned a share of stock in the company prior to March 21, 1911, and apparently under some family settlement it was agreed,that it should become a part of the shares left in trust to his wife, Mary Hegeler Carus, and he transferred that share to ap-' pellant with substantially the same understanding and agreement that was expressed in writing in the case of the transfer of the one share of stock by Mrs. Carus to appellant in the other case. It was transferred to appellant for the purpose of qualifying him to act as director in the company. He had and claimed the same interest in it that he had in the share of zinc stock transferred to him by Mrs. Carus and practically no other or different interest, although on December 10, 1913, before this suit was begun, anticipating some question in the matter, he drew a check for $100 in payment of his share of stock in favor of Paul Carus, who was absent from the country at that time, and gave it to Mrs. Carus, who was acting as the agent of her husband, which check was afterwards paid; and" on the same day he executed an option contract in which he agreed to sell to Mrs. C'arus, trustee, or to her successor in trust, said one share of stock within three years from date of the agreement, upon demand and payment of the sum of $100 being the par value of the stock, he received $10 in payment for this option privilege.

We are of the opinion that these two features of this transaction, the delivery of the check and the option contract, are of no significance on the question whether appellant was at the time of his election a stockholder, and that the fact that there is no written agreement as to the terms and conditions under which he held the stock does not distinguish the case from the Zinc Company case, supra. They were operating under the same clause of the will of E. C. Hegeler, and attempting in the same way to qualify appellant as a stockholder, and for 'the reasons stated in the Zinc Company case we are of the opinion that he was, within the meaning of our railroad act requiring a director to be a stockholder, eligible to the office of director at the time of his election, and therefore that the court erred in rendering judgment against Mm.

The judgment is therefore reversed.

Reversed with finding of facts.

Finding of Facts. We find that the respondent, C. B. Lihme, held the office of director under a valid election of the stockholders of the company, and that he was a stockholder in the company and qualified to hold the office at the time of his election and at the time of the beginning of this suit in the court below.


text:
    The People of the State of Illinois ex rel. F. W. Matthiessen et al., Appellees, v. C. Diesterweg, Appellant.
    Gen. No. 6,063.
    Railroads, § 39

      —who may he director. Under the Railroad Act of 1872 (J. & A. If 8742), providing that the directors of a railroad company shall he stockholders, and a hy-law requiring directors to he elected by and from the stockholders, a person may be elected to that office notwithstanding that his stock was transferred him for the express purpose of qualifying him for a director. ■
    Appeal from the Circuit Court of La Salle county; the Hon. Jon A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed with finding of facts.
    Opinion filed April 15, 1915.
    Montgomery, Hart, Smith & Steere, for appellant; Charles S. Cutting, N. H. Pritchard and J. D. Dickerson, of counsel.

      George Wiley and M. F. Gallagher, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section* number.

   Mr. Presiding Justice Carnes

delivered the opinion

of the court.

This is a proceeding on an information in the nature of a quo warranto to test the right of C. Diesterweg, the appellant, to hold the office of director in the La Salle & Bureau County Railroad Company. He was elected to the office January 12, 1912, at the same adjourned stockholders’ meeting at which C. B. Lihme was elected, and with the exception of the facts concerning his acquiring and holding of stock, the case is practically the same as that of People ex rel. Matthiessen v. Lihme, Gen. No. 6,062, ante, p. 357, in which our opinion is filed herewith. On a trial by the court without a jury, judgment of ouster was entered, from which this appeal is prosecuted.

Prior to appellant’s election, Mary Hegeler Cams as trustee transferred to him one share of stock, but with no agreement oral or written of trust in favor of the Hegeler children, and F. W. Matthiessen, the principal stockholder of the Matthiessen interest, transferred to him another share of the stock. The stock was so transferred for the purpose of making him eligible to the office of director in the company. These two shares of stock were issued to him and he stood on the books of the company as a stockholder and was elected director by the unanimous vote of all the stockholders present, including the relators. He paid nothing for either of these shares of stock, but took the certificates and kept them in his possession until October 25, 1913, when on request of Mr. Matthiessen he returned to him the certificate that had been issued on the transfer made by Matthiessen. There was a suggestion by Matthiessen that appellant was not a bona fide stockholder and was not eligible to the office of director. Mrs. Cams in anticipation of the annual meeting of December 18,1913, and with a view to removing any question of appellant’s eligibility, transferred to him a share of stock that belonged to her personally and he paid her therefor $100. She then took from him an option contract, similar to the one she took from Lihme, in which he agreed to sell her as trustee on demand, at any time within three years, this share of stock for $100, for which option she paid him $10. Appellant was in the employ of Mrs. Caras as her secretary, and these two shares of stock indorsed in blank were kept in an envelope marked “Property of C. Diesterweg,” which was put by him in a safe belonging to Mrs. Carus in her home, to which safe he had access and in which he kept private papers of his own.

The question of estoppel arises more strongly here than in the Zinc Company case (People ex rel. Matthiessen v. Lihme, Gen. No. 6062), ante, p. 357. We are inclined to the opinion that the relator, F. W. Matthiessen, should not be permitted to transfer stock to the appellant for the purpose of qualifying him to act as a director, and then by his vote aid in electing him to that office, and afterwards say that he was not a stockholder and not eligible; but as the record does not show that the two other relators, at the time they voted for appellant, knew under what conditions he held his stock, we will not decide the question of estoppel, but will let the decision of the case rest on the question whether appellant was at the time of his election a stockholder within the meaning of the statute, requiring that qualification and a by-law of the company providing that the' directors 11 shall be elected by and from the stockholders.”

The case differed from the two Lihme cases Nos. 6,062 and 6,064, ante, pages 341, 357, in the following respects: There is, we think, no question in this case but the certificates of stock were in the possession of appellant before and at the time of his election and ever since, until the beginning of this suit. As we have before said, there is no declaration of trust in this case. And in this case appellant collected, retained and used, as his own property, the dividends on the shares of stock while they were in his possession.

On the authority of the cases cited, quoted from and discussed in the two Lihme cases above referred to, we are of the opinion that appellant was a stockholder at the time of his election and so remained up to and at the time this suit was brought. The case of In re Ringler & Co., 204 N. Y. 30, is much relied on by appellee, and there are expressions by the court in that case supporting his contention. The court there held that it was not sufficient that the name appears on the books of the company as that of a stockholder, that the question is whether one was a stockholder in fact. In that case stock had been transferred for the purpose of qualifying parties as directors and retransferred with the intention of parting with all title thereto. The court said that it was taken “with no thought of holding it even until they were elected; for they at once retransferred the stock to the owner.” But it was there said that the transfer of stock “for the express and avowed purpose of qualifying the transferee for election to the office of director” was permissible, and if the transfer was made in good faith, and the transferee actually held the stock during his incumbency of office, such a transferee is a stockholder within the purview of the law, that it is sufficient if he actually takes and holds the stock during his term of office.

There are expressions in that case and some other cases that indicate that a beneficial interest in stock is regarded necessary under similar statutes and bylaws; but there is no great conflict of authority when the cases are read, remembering the question before the court when the opinion was written, and in our opinion the law is correctly stated in the authorities quoted by us in the two Lihme cases, supra. It follows that in our opinion the court erred in entering judgment against the appellant. Judgment reversed.

Reversed with finding of facts.

Finding of Facts. We find that the respondent, C. Diesterweg held the office of director under a valid election of the stockholders of the company, and that he was a stockholder in the company and qualified to hold the office at the time of his election and at the time of the beginning of this suit in the court below.


author: Mr. Justice Dibell

text:
    Pierce Trust & Savings Bank, Appellant, v. W. F. Sell, Appellee.
    Gen. No. 5,993.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Be Kalb county; the Hon. C. F. Iewiit, Judge," presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 15, 1915.
    Statement of the Case.
    Action by the Pierce Trust & Savings Bank against W. F. Sell, on a promissory note given by him to the Jobbers Manufacturing Company, a corporation, in payment for shares of its stock purchased by him, which note was purchased by the bank from the payee prior to maturity: The defense to the note was want of consideration in that the jobbers company was insolvent at the date of its execution, knowledge on the part of the bank of that fact at the time it acquired the note, and a conspiracy between the officers of the bank and those of the jobbers company to defraud the defendant. The plaintiff denied the charge of conspiracy, and alleged that it obtained the note in good faith for a valuable consideration in the usual course of business. Judgment was rendered for the defendant and the plaintiff appeals.

      Abstract of the Decision.
    1. Bills and notes, § 432

      —when financial transactions of transferrer may not he shown in action hy transferee. In an action against the maker of a note hy one who acquired it in good faith before maturity from a corporation to whom the instrument was given in payment for its stock, its financial transactions both before and after its reorganization cannot be shown, where its insolvency is set up in defense to the action, unless it appears that the transferee had knowledge thereof.
    2. Bills and notes, § 248*—what not sufficient to charge transferee with knowledge of transferrer's insolvency. The fact that one who acquires in good faith before maturity a note given a corporation in payment for its stock had knowledge of its change from a foreign to a domestic corporation, does not charge him with knowledge that it was financially embarrassed, and that therefore the note was given for valueless stock.

      When the note became due the defendant informed ’ie plaintiff that he would pay it within a short time, .. it ¡i out claiming that he had any defense to the instrument.
    The evidence failed to show that the Jobbers Manufacturing Company was insolvent at the time the note was executed, or that the bank purchased the instrument with knowledge that it was given in payment for stock, or that there was a conspiracy between the officers of the bank and those of the jobbers company to defraud the defendant.
    At the trial the defendant was permitted to show the financial transactions of the Jobbers Manufacturing Company previous and subsequent to its reorganization as such, without it appearing that such facts were known hy any officers of the plaintiff bank.
    Faissler, Fulton & Roberts, for appellant.
    A. G. Kennedy, for appellee; Cliffe & Cliffe, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

3. Bills and notes, § 255*—when holder may recover on note for stock of insolvent corporation. The holder of a note acquired in good faith before maturity from a corporation may recover thereon against the maker, notwithstanding that the holder hafi knowl-' edge that the instrument was given the corporation in payment for its stock, where he was not aware at the time the note was given, as well as when he acquired it, that the stock was valueless because of the insolvency of the company. ’

4. Bills and notes, § 412*—who has burden of shoioing that one is not good faith holder. The burden of showing that a person is not an innocent holder of a note rests on the maker.

5. Bills and notes, § 462*—instruction as to recovery by holder of note given without consideration. An instruction in an action on a note by a subsequent holder, that he could not recover if the instrument was given without consideration, held not to correctly state the law.

Carnes, P. J., took no part in this decision.


text:
    William Hermann, Appellee, v. Court of Honor, Appellant.
    Gen. No. 6,001.
    1. Insurance, § 233

      —when representations as to health constitute warranty. The denial by a woman in an application for life insurance of previous illnesses or surgical operations, held warranties which avoided a policy, where prior thereto she had had pneumonia as well as a serious disorder of the ovaries and fallopian tubes, which necessitated a serious major surgical operation for their removal.
    2. Insurance, § 363*—-when retention of premiums does not estop insurer from asserting avoidance of policy. The failure of an insurance company to return, tender or to pay into court premiums paid by an insured during her lifetime until nine months after a denial of liability on a policy, because of her fraudulent misrepresentations in her application as to her condition of health, held not to estop the insurer from asserting the avoidance of the policy, where it did not learn of such misrepresentations until after the death of the insured, when it immediately denied liability on that ground.
    3. Insurance, § 363

      —when retention of premiums does not estop insurer from asserting avoidance of policy. An insurance company does not by retaining after the death of an insured person, premiums paid by her in her lifetime, waive the right to assert in an action by the beneficiary, the avoidance of a policy of insurance for the fraudulent representations made by the insured in her application as to her condition of health, where the insurer did not learn thereof until after her death, and no administrator was thereafter appointed to whom the premiums could have been returned.
    Niehaus, J., took no part in this decision.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the April term, 1915. Rehearing denied June 11, 1915.
    Reversed with finding of facts.
    Opinion filed April 15, 1915.
    Page, Hunter, Page & Dallwig and William B. Risse, for appellant.
    J. B. Wolfenbarger and D. J. Cowan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, anil Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

On April 7, 1911, Court of Honor, a beneficiary society, issued its certificate to Lucille Hermann, providing for the payment of $1,000 to her husband, William Hermann, upon satisfactory proofs of her death. She died on May 10,1912. Proofs of death were furnished and under date of June 20, 1912, the society refused to pay the claim upon this certificate on account of misrepresentations in the application. On August 9, 1912, the husband brought this suit to recover the amount of such certificate. There was a declaration and many pleas, replications, rejoinders and sur-rejoinders. The praecipe filed by appellant for this record did not include all the pleadings and apparently they are not all in the record before us. Issue was joined on a rejoinder to “the additional replications of the plaintiff filed herein on the 14th day of March, 1913,” but we do not find in this record any replication filed on that date. We assume that that date is a clerical error or that the record contains all the pleadings which the parties consider material. There was a jury trial and a verdict for plaintiff for the face of the policy and interest, and a judgment thereon, and this is an appeal from said judgment.

The defense was that certain statements in the application were warranties and were untrue. The proofs showed without dispute that Mrs. Hermann had pneumonia, and that thereafter in 1908, she had a serious disorder of the ovaries and fallopian tubes, and finally it became necessary to take her to a hospital and to remove said organs by a major surgical operation. The application upon which this certificate was based did not reveal the existence of any of these' disorders, but denied them. These statements were made warranties by the language of the application, but even if they had been representations only, they were material to the risk and their untruth made the certificate void from the first.

The sole reply to' this is that Mrs. Hermann, during her lifetime, paid to the society $18.35 in dues and assessments, and that the society must have known of the falsity of said application by June 20, 1912, and did not tender said dues and assessments and the costs of court up to the time of tender until March 15, 1913, on which, date it did tender and pay into court the full amount of said dues and the costs to that date, and thé same has ever since remained in court for acceptance. Appellee contends that he who seeks to rescind, a contract for fraud in its inception must return all that he has received thereon within a reasonable time after he discovers the fraud or he becomes bound by the contract, notwithstanding the fraud, and that the period of time from June 20, 1912, to March 15, 1913, was not a reasonable time within which to make said tender, and that therefore appellee is entitled to recover the full amount of this policy, nothwithstanding the fraud. The court so modified instructions asked by defendant as to make its liability depend upon whether it made this tender within a reasonable timé after learning of the falsity of the application.

Appellant is not a plaintiff seeking to rescind a contract. It is a defendant relying for its defense on the very terms of the contract sued on, which relieved it of all liability if material false statements were made in the application.

On October 12, 1912, it filed pleas by which it set up the falsity of various statements in the application as a complete defense. Appellee did not reply to the failure to return the premiums until September 10, 1913. The tender was made nearly six months before that replication was filed, namely, on March 15, 1913, and it has been kept good. We are of opinion that the principle relied upon by appellee does not apply where, as here, the untruth of the application was not ascertained until after the death of the person whose life was assured. The mere retention of the dues and assessments, after the death had occurred, where the liability is promptly denied, cannot constitute a waiver or an estoppel, unless the other party has thereby been put in a position, because of such delay, by which it will be injured. In Goorberg v. Western Assurance Co., 150 Cal. 510, the court said:

“It maybe conceded that if, by reason of a breach of warranty as to title, no risk ever attached, the insured was entitled to a return of his premium. * * * But the insurer’s delay in offering to repay it (assuming the delay to have been unreasonable), did not forfeit the right to defend for such breach. The cases cited to the proposition that a party cannot rescind a contract without restoring what he has received under it are not in point. The defendant is not in this action seeking to rescind the contract sued upon; it is standing upon the contract, and insisting that under its terms there is no liability. Nor can the mere retention of the premium, after the loss had occurred, and where the liability is steadfastly denied, constitute either a waiver of the defense or an estoppel. To constitute such waiver or estoppel by the action or non-action of the insurer after the loss, it is essential ‘that one party should have relied upon the conduct of the other, and been induced by it to put himself in such a position that he would be injured if the other should be allowed to repudiate his action.’ * * * Here nothing was done which could have led the insured to believe that the defendant would not take advantage of the breach of warranty. On the contrary, it persistently asserted its reliance upon such breach.”

A similar question was very fully discussed and many cases cited by the Supreme Court of Minnesota, in the case entitled In re Millers’ & Manufacturers’ Ins. Co., 97 Minn. 98, 4 L. R. A. (N. S.) 231. The following headnote states the conclusion of the court on this subject as follows:

“When.a policy oí insurance never attaches, and no risk is assumed, the insured may recover' back the premiums, unless he has been guilty of fraud, or the contract is illegal and he is in pari delicto. But the insurer is not obliged to return,- or offer to return, the premiums which have been paid voluntarily before notice of the fact that the policy is not in force, as a condition precedent to availing itself of its defense to an action on the policy.”

Nothing was done here to lead the insured to believe that the society would not take advantage of the falsity of the application, but, on the contrary, it has always since June 20, .1912, denied its liability on that ground. Appellee did' not accept the tender, and it is clear he would not have done so if the tender had been made on June 20, 1912.

But further, to whom was this society under legal

duty to return this money when it discovered the falsity of those statements in the application after Mrs. Hermann died? The proof is that Mrs. Hermann paid all the dues and assessments herself. Appellee assumes that said payments should have been returned to appellee. On the contrary, as the contract was void in its very inception, because of said fraud, the money she paid belonged to Mrs. Hermann, and, when the fraud was discovered after her death, the return of the dues and assessments could only lawfully be made to the administrator or executor of her estate. It was proved that up to the time of the trial there had been no such administration. Suppose some creditor of Mrs. Hermann should now take out administration for the benefit of creditors. The society would be bound to return said dues and assessments to such administrator. The proof showed that she left no will and no descendants. Appellee therefore was the sole heir at law of her personal estate. But there was no proof that Mrs. Hermann owed no debts, and without such proof the heir at law could not be entitled to her personal estate without administration. Leamon v. McCubbin, 82 111. 263; People for use of McKee v. Abbott, 105 111. 588; Cotterell v. Coen, 246 111. 410. Even if the heir at law may lawfully receive this money, after this lapse of time, on some presumption that Mrs. Hermann left no debts, certainly appellant had a right to wait to see whether she did leave debts requiring administration and whether letters of administration would he taken out. As the proofs now stand, if appellant had made no tender it would be a sufficient reply to the alleged estoppel, that no administrator had been appointed to whom appellant could safely pay the money. Let us test this in another way. Suppose that there were an administrator, and that the society had filed a bill of interpleader stating the issue of thé certificate and payment by Mrs. Hermann of a certain sum as dues and assessments thereon, and her death, and that the society then learned that hecanse of material false representations in her application the policy was. void ab initio and that the company desired to return said dues and assessments hut that they were claimed both by the administrator and by the beneficiary, and the court should direct the fund to be paid into court, and that the administrator and the beneficiary should inter-plead, and they should each plead claiming the fund. Upon proof that the deceased paid all the dues and assessments, must not the court award the fund to the administrator? We are unable to see how any other conclusion can be reached. Not only was what was said on this subject in Dickerson v. Northwestern Mut. Life Ins. Co., 200 Ill. 270, unnecessary to the decision of the case, for there the contract of insurance was not void ab initio, but had always been in force until deceased violated it by committing suicide, but also the beneficiary there had paid all the premiums, and if they were required to be refunded to any one, it must be to the plaintiff there, who had herself paid them. The question to whom return should be made is not discussed in McCurrey v. Metropolitan Life Ins. Co., 168 Ill. App. 625, and we regard it as not really decided in Central Acc. Ins. Co. v. Spence, 126 Ill. App. 32. A question similar to that which we are now considering was presented in Thompson v. Travelers’ Ins. Co., 11 N. D. 274. The court there said: “There is another reason in this case why the company has waived no right by retaining the premium. The deceased paid the premium. It was his money. If the company was bound to 'return this premium, it could not have been returned to the insured. There is no evidence that any administrator or executor was appointed for his estate. To whom could the company safely return the money? The record does not show that it could have been returned to any one without» incurring the risk of having to pay it again to the legal representative of the deceased when appointed. * * * We decline to go to the extent of holding that premiums received in ignorance of violations of policy stipulations and without knowledge thereof, until after the death of the person paying them, constitute a waiver of defenses in an action on the policy, when such premiums could not have been returned to any one lawfully entitled to receive them.”

In the case at bar we are unable to hold that because this society did not immediately return to the husband $18.35 and costs, which.it did, however, tender to him some fourteen months before the trial, and kept said tender good, and he refused to receive it, he thereby became entitled to recover over $1,000 upon a fraudulent claim.

As the only question argued here is whether the failure to make said tender more promptly permits a recovery upon this contract, which was otherwise void ab initio for fraud, and as we determine that question against appellee, we see no reason for remanding the cause. The judgment is therefore reversed.

Reversed with finding of facts.

Mr. Justice Niehaus took no part in this decision.

Finding of facts to be incorporated in the judgment. We find that the benefit certificate here sued upon was void in its inception because of material false representations and breaches of warranty by Lucille Hermann, the party whose life was insured, and that the society did not learn of that fraud until after her death, and that there was no such delay by the society in tendering back the dues and assessments she paid and costs of court as to prevent the society from availing of that defense.


text:
    Wasson Coal Company, Appellee, v. American Refractories Company, Appellant.
    Glen. No. 6,043.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 15, 1915.
    Statement of the Case.
    Action by the Wasson Coal Company against the American Refractories Company for a balance due for coal delivered the latter under a contract to supply it all the coal of a certain size which it required for use in its factories for a designated term. The defendant claimed a set-off for damages caused by the plaintiff’s failure to deliver 1,807 tons of coal which the defendant ordered and required, and which it was compelled to obtain elsewhere at an increase over the contract price. At the trial a judgment was rendered for the plaintiff for the full amount of its claim, and the defendant appeals.
    The evidence showed that during the period covered by the contract the plaintiff produced more than enough coal to supply the defendant’s needs, and that it had no excuse for not doing so, and that the defendant used diligence in obtaining the necessary coal elsewhere. There was no evidence to show that the defendant ordered coal in excess of its daily needs in order to store it for use after the expiration, of the contract; although it appeared that on the plaintiff’s failure to supply coal that the defendant took a sufficient quantity to answer its immediate need from a supply which it had obtained elsewhere and had in storage.
    O’Donnell, Donovan & Bray and Knapp & Campbell, for appellant; John E. Cochran and Harry I. Allen, of counsel.
    Abstract of the Decision.
    1. Sales, § 130a

      —what constitutes breach of contract to supply coal. In an action to recover for coal of a certain size delivered the defendant under a contract to supply the daily needs of a factory for a designated term, in which he claimed damages for the plaintiff’s failure to supply all the coal needed and ordered, the evidence held to show that the plaintiff’s failure was not due to a shortage of coal.
    2. Sales, § 130a*—when purchaser may talce shortage in coal contracted for from coal obtained elsewhere. Where the plaintiff contracted to supply the defendant with all of the coal of a certain size his daily needs required for a designated term, and on the failure of the plaintiff to deliver coal ordered the defendant took coal for his immediate need from a supply on hand which he had obtained elsewhere, held that he could replace it with coal subsequently furnished by the plaintiff, and that in so doing he did not order coal in excess of his daily needs.
    3. Sales, § 140*—diligence of buyer. in purchasing elsewhere on failure of seller to deliver. On the failure of a seller to supply all of the coal a vendee required for the daily use of his factory, as the former had contracted to do, held that the latter used diligence in purchasing coal elsewhere, although at an advance in price.
    4. Sales, § 402*—when instruction as to measure of damages for failure to deliver improper. An instruction in an action in which the defendant claimed damages for the failure of the plaintiff to supply coal as he had contracted to do, which compelled the former to use coal obtained elsewhere and stored for future use, 'that the measure of damages was the difference between the contract price and the fair market value of the stored coal at the time it was used, held erroneous, where the evidence did not show the day the coal was used.
    5. Instructions, § 119*—when instruction containing correct statement of law properly refused. A requested instruction containing a correct statement oí the law is properly refused when there is no evidence on which it may be based.

      Garnsey, Wood & Lennon and W. C. Kane, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. ,

   Mr. Justice Dibell

delivered the opinion of the court.

"6. Evidence, § 160 —when statement of claim of damages admissible. In an action for coal furnished the defendant in which he claimed damages for á shortage, a written statement of his claim submitted to the plaintiff may be considered by the jury when not made as an offer of compromise, where the amount therein claimed was less than that demanded at the trial.


author: Mr. Justice Niehaus

text:
    Roscoe Durflinger, Appellee, v. J. K. Fisher, Appellant.
    Gen. No. 6,005.
    (Not to be reported in full.)
    Appeal from the County Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 15, 1915.
    Statement of the Case.
    Action for forcible detainer brought by Boscoe Durflinger against J. K. Fisher to recover possession of farm lands held by the latter. The trial resulted in a judgment for the plaintiff and the defendant appeals.
    The evidence showed that the defendant went into possession under a written lease which expired March 1, 1913, and that it was extended by written indorsement until March 1, 1914. The defendant claimed that during the latter part of the year 1913 there was a verbal agreement between him and his lessor that his term should be extended for another year from and after the expiration of his written lease on March 1, 1914. Before the expiration of the defendant’s term under the written lease his lessor sold and conveyed the premises to George Dainty and Edward Pearson, and thereafter the former made and executed a written lease of the farm on behalf of himself and his cotenant to the plaintiff for the term of one year from and after March 1, 1914. On the refusal of the defendant to surrender possession on that date, the plaintiff brings this action.
    Abstract of the Decision.
    1. Tenancy in common, § 23

      —when lease executed by one tenant admissible in evidence. A lease signed by one tenant in common for himself and his cotenant is admissible in evidence without preliminary proof of his authority, since, in the absence of evidence to the contrary, its execution will be presumed to have been authorized.
    2. Tenancy in common, § 23*—when lease by one tenant is valid. A lease executed by one tenant in common in behalf of himself and his cotenant entitles the lessee to the possession of the demised premises.
    3. Evidence, § 309*—when preliminary proof sufficient to admit record of deed. The preliminary proof necessary for the introduction in evidence of the record of a 'deed,' held sufficient under section 35 of the Conveyance Act (J. & A. If 2267).
    4. Frauds, Statute of, § 41*—when verbal lease for year invalid. A verbal agreement made during the life of a written lease, to extend the term for one year from the expiration of such lease, is within the Statute of Frauds.
    Robillard & Robillard, for appellant.
    W. G. Brooks, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    The Ravinia Company, Appellee, v. Jean M. Strobel, Appellant.
    Gen. No. 6,011.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 478

      —when notice sufficient to terminate tenancy from year to year. A notice given September 20, 1913, of the termination of a tenancy from year to year on December 15, 1913, is sufficient under sections 5 and 7 of the Landlord and Tenant Act (J. & A. ¶¶ 7043, 7045) to terminate a tenancy although the term began December 16, 1912.
    Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 15, 1915.
    Rehearing denied June 11, 1915.
    Statement of the Case.
    Action for forcible detainer brought by The Ravinia Company against Jean M. Strobel to recover possession of demised premises. The jury were peremptorily instructed to find for the defendant, and from a judgment entered on the verdict, the defendant appeals:
    The defendant went into possession under a written lease for a term of one year beginning December 16, 1908, and on the expiration thereof she became a tenant from year to year. September 20, 1913, the defendant was served with notice of the termination of her tenancy on December 15, 1913.
    Cooke, Pope & Pope, for appellant.
    West & Eckhart, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic ' and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

■ 2. Landlord and tenant, § 33 —when description of demised premises in lease sufficient. The description in a lease of the demised premises is sufficient where it can be readily identified and located.

3. Forcible entry and detainer, § 81*—when notice to quit admissible in evidence. A notice to terminate a tenancy under a corporation, held admissible under the pleadings in an action for forcible detainer without preliminary proof that it was signed by the president of the corporation.

4. Forcible entry and detainer, § 79*—when lease and assignment admissible in evidence. A lease and an assignment thereof held properly admitted in evidence in an 'action for forcible detainer.

5. Forcible entry . and detainer, § 91*—when peremptory instruction for plaintiff proper. A peremptory instruction for the plaintiff was properly given in an action for forcible entry and detainer, where there was no evidence tending to show that the defendant was entitled to possession of the premises in question.


text:
    The Palmer National Bank, Appellant, v. J. V. Lewis, Appellee.
    Gen. No. 6,019.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 15, 1915.
    Statement of the Case.
    Action brought by The Palmer National Bank against J. V. Lewis on a promissory note which the plaintiff claimed to have acquired before maturity by assignment from the Wendle Remedy Company. The defendant pleaded want and failure of consideration and denied that the plaintiff obtained the note before maturity. From a judgment in favor of defendant, plaintiff appeals.

      The defendant made a motion for a new trial which the record did not show was passed upon by the court; neither did the record contain any assignment of errors as required by Rule 12. z
    The evidence tended to show that the note was given by the defendant to the Wendle Remedy Company in consideration of the right to the sole use of a remedy in Kankakee; and for fifty shares of the stock of the company to be issued to the plaintiff. A receipt given the defendant for the note showed that in the event that the stock was not issued to him that the consideration for the note would be refunded. The stock was never issued to the defendant although he made a demand for it; and thereafter the Wendle Remedy Company allowed its incorporation to lapse, and legally went out of existence. The preponderance of the evidence tended to show that the plaintiff did not acquire the note until after maturity.
    There was evidence tending to show that after maturity the note was seen unindorsed in the possession of the bank of Momence for collection. The plaintiff showed that the note was indorsed when it was delivered to it some time before maturity. The court refused to permit the plaintiff to show by a bank examiner that on two occasions between March 5th and December 2, 1910, he found the note in the files of The Palmer National Bank; but the plaintiff did not offer to prove that the occasions referred to were the same times when the defendant showed that the note was in the possession of the Bank of Momence.
    Gower, Cooper, Hobbie & Parish and Ralph B. Holmes, for appellant.
    E. P. Harney and T. W. Shields, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and erroe, § 1035 —necessity for assignment of error. There is nothing open to review where the record on appeal does not contain any assignment of errors as required by Rule 12.

2. Appeal and error, § 601*—when weight of evidence open to review. Whether the weight of evidence sustains a verdict can be considered on appeal only when the question is raised by a motion for a new trial and overruled by the trial court.

3. Appeal and error, § 601*—when weight of evidence open to review. Whether a verdict is against the weight of the evidence cannot be considered on appeal, where the record fails to show that the trial court ruled on a motion for a new trial on such ground.

4. Bills and notes, § 423*—what admissible to show acquisition of note before maturity. In an action by a bank as a subsequent holder of a note by assignment, where the defense is that it was acquired after maturity, as well as a failure of consideration, the refusal to permit the plaintiff to show by a bank examiner that on two occasions he saw the note after maturity in the files of the plaintiff bank, is not erroneous, where it did not appear that such occasions were the same as the defendant’s witnesses testified, that they saw the note unindorsed after maturity in the possession of another bank for collection.

5. Bills and notes, § 443*—when failure of consideration shown. That the consideration for a note had failed, held shown by evidence that it was given in consideration for the exclusive right to use a remedy in a certain town, and also for shares of stock of a corporation to be subsequently issued to the maker or the consideration for the note returned, where the stock was not issued him on demand, and the corporation subsequently allowed its incorporation to lapse.

6. Bills and notes, § 56*—when failure of consideration defense to note in hands of transferee after maturity. The refusal of a corporation, which thereafter allowed its incorporation to lapse, to issue shares of its stock to the maker of a note which was given in consideration thereof, renders the note unenforceable by one who acquired it after maturity.


text:
    In the Matter of the Petition of Isaac M. Warner and Ella V. Warner to adopt Loraine R. E. Short and Rhea Pauline Short. On Appeal of Charles W. Short.
    Gen. No. 6,024.
    Appeal and error, § 43*—when appeal lies in adoption proceedings. An appeal does not lie from an order of a County Court in a proceeding for the adoption of a child, under chapter 4 of the Revised Statutes (J. & A. If If 193-200).
    Appeal from the County Court of McHenry county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the April term, 1915.
    Appeal dismissed.
    Opinion filed April 15, 1915.
    V. S. Lumley, for appellant.
    Hendricks & Marshall, for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is a proceeding instituted under chapter 4 of the Revised Statutes (J. & A. fifí 193-200), relating to the adoption of children. A petition was filed in the County Court of McHenry county, by Isaac M. Warner and Ella Y. Warner, praying for the adoption of two children, namely, Loraine R. E. Short and Rhea Pauline Short, under the provisions of the act referred to. A decree was entered by the County Court granting the prayer of the petition and sanctioning the adoption of the two children. The father of the two children adopted thereupon prayed an appeal to this court, which appeal was allowed. Appellees made a motion in this court to dismiss the appeal, which was taken under advisement, to be considered and determined in the decision,of the case.

“The adoption of children is unknown to the common law. The principle of adoption is taken from the Boman law, and is solely, the creation of statutory enactment. The proceeding does not belong to the general jurisdiction of County Courts, nor is it in accordance with the usual form of common law or chancery proceedings; but it is under" the special statute and to be exercised in a special and summary manner.” Foley v. Foley, 61 Ill. App. 580.

The question of the right of appeal, in proceedings of this character, was passed upon in the case of Meyers v. Meyers, 32 Ill. App. 189. It was there also held that this proceeding is purely statutory, and of a summary character, like the proceedings for the commitment of insane persons and for the appointment of guardians. The right of appeal is not given and the right of an appeal is incompatible with the nature and the purposes of statutory proceedings of a summary character. People v. Gilbert, 115 Ill. 59. In purely statutory actions the right of appeal does not lie, unless expressly provided for in the statute. Cramer v. Forbis, 31 Ill. App. 259; Lewis’ Appeal (Pa.) 10 Atl. 126.

It is therefore clear that there is no right of appeal in this case, and the appeal should be dismissed.

Dismissed.


text:
    Sarah Lounsberry, Appellant, v. George Boger, Executor, Appellee.
    Gen. No. 6,028.
    1. Gifts, § 7

      —when delivery necessary. In ordep to make a gift, either inter vivos or causa mortis, legally effective, ‘there must be a delivery of the property donated during the lifetime of. the donor.
    2. Gifts, § 13*—when indorsement effectual as to delivery of note retained by payee until death. An indorsement by the payee on the back of a note, that if not paid him during his lifetime it shall be paid to a designated indorsee, does not vest the latter with the title to the instrument where it was retained by the payee without delivery until his death to the former.
    Appeal from the Circuit Court of Du Page county; the Hon. C. F. Iewin, Judge, presiding.
    Heard in this court at the April term, 1915. Rehearing denied June 11, 1915.
    Affirmed.
    Opinion filed April 15, 1915.
    Bunge & Harbour, for appellant.
    T. H. Slusser and S. L. Rathje, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

This is a replevin suit which was commenced by Sarah Lounsberry, appellant, in the Circuit Court of Du Page county against appellee, George Boger, as executor of the estate of Albert Smart, deceased, to obtain possession of five promissory notes, amounting in the aggregate to the sum of $4,550. The declaration in replevin contains also a count in' trover. The pleas which appellee filed in defense of the suit were non cepit and non detinet, not guilty and property in the defendant and not in the plaintiff.

There was a trial by jury, and at the conclusion of all the evidence, on motion of appellee, the court directod the jury to find the appellee not guilty. The jury returned a verdict in accordance with the peremptory instruction. Appellant made a motion for a new trial, which was overruled and a new trial denied. The court rendered judgment on the verdict. Appellant thereupon prayed an appeal and brought the case to this court for review.

The matters assigned for error can all be disposed of in the determination of the question, whether or not the court properly directed the jury to find the defendant not guilty. It appears from the evidence that the deceased was a bachelor, who, at the time of his death, and for a number of years prior thereto, had lived in a house located on a farm which he owned. The appellant was his cousin, and kept house for him. The deceased left surviving him, as next of kin, two brothers and several children of a deceased brother or sister. At the time of his death, the notes in question in this case were locked in a tin box, with other valuable papers, including his will. This tin box was kept in a secretary, which he had in his bedroom and which he also kept locked. The keys for the lock on the secretary and on the tin box were on a ring, which the deceased was in the habit of carrying in his trousers pocket, and at the time of his death these keys were in the pocket of his trousers and the trousers were hanging in the bedroom, where he died, Two, days after the death of the deceased, his two brothers and two other men came to the house of the deceased to take charge of his effects. They inquired about the key to the secretary and were told by the appellant that the keys were in a pocket of the trousers of the deceased in the bedroom and the keys were found there and handed to appellant. She opened the secretary and took out the tin box and unlocked it. In the tin box were found the five notes in question, other valuable papers and the will of the deceased also some money in a pocketbook. The brothers, or one of them, took possession of the contents of the box, and. subsequently turned same over to appellee, as .executor of the estate.

Appellant claimed the notes in question to be her property, and at the time in question, when the brothers were about to leave the house, she wanted one of the brothers, Henry Smart, to tell her what he was going to do about her notes and he replied that everything would have to be taken to Wheaton and adjusted there to which appellant made no objection.

Bach of the notes in question was indorsed as follows: “If this note is not paid until my death, pay to the order of Sarah Lounsberry’’; the indorsement being signed by the ■ deceased. It also appeared in evidence that the deceased, had told the makers of the notes, after his death to be sure and look for an indorsement on the back of the notes and to pay the notes to the party mentioned in the indorsement.

It is manifest from the evidence, that it was the wish of the deceased that the notes in question should become the property of the appellant, after his death; and that he did not deliver them to her in his lifetime. It is necessary, in order to make a gift, either inter vivos or causa mortis, legally effective, that there should be a delivery of the property donated in the lifetime of the deceased. Telford v. Patton, 144 Ill. 611. A transfer of the ownership of property, to take effect at the death of the donor, is, in effect, a testamentary disposition of such property, and to make such disposition valid, the statutory requirements concerning the execution of wills must be observed and carried out. Inasmuch as there was no delivery of the notes in question to the appellant, in the lifetime of the deceased, the ownership of the notes remained in the deceased, and was in the deceased, at the time of his death. The title to the notes; at the death of the deceased, passed to the appellee, as executor of his estate. And at the time of the commence-meat of this suit, the appellee, as executor, held the legal title to, and the right to the possession of, the notes in question.

■ The court therefore properly instructed the jury to find the defendant not guilty and the judgment on the verdict should be affirmed.

Affirmed.


text:
    Wilfred A. Johnson, Appellee, v. Galesburg & Kewanee Electric Railway Company, Appellant.
    Gen. No. 6,036.
    (Not to be reported in full.)
    Appeal from the City Court of Kewanee; the Hon. H. Steeling Pomeroy, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 15, 1915.
    Statement of the Case.
    Appeal by the defendant, the Galesburg & Kewanee Electric Bailway Company, from á judgment in favor of the plaintiff, Wilfred A. Johnson, for injuries sustained by him when a carriage in which he was riding was struck by a 'street car.
    The declaration alleged that one of the electric cars of the defendant ran into and struck the carriage in which the plaintiff was riding with great force and violence, thereby throwing him from the carriage onto the ground to the injury of.his person. The alleged negligence of the defendant was running the car at a high rate of speed without a sufficient headlight, and in not ringing a bell or sounding a gong or giving any. other warning of the approach of the car.
    The evidence showed that the plaintiff and another man had driven to Kewanee in the latter’s rig, and that during the afternoon and evening they visited a number of saloons where they drank beer and purchased a bottle of whisky; that about half past ten at night they started home, the plaintiff’s companion driving, and that when he drove across the defendant’s track the carriage was struck and the horse ran away, and as the vehicle struck a nearby telegraph pole, the plaintiff was thrown out and injured. The evidence was conflicting as to the rate of speed of the car; whether the gong was sounded or any other signal given; also whether the driver of the vehicle was intoxicated; and whether or not on that account, he did or did not exercise ordinary care in the management of his horse and vehicle.
    Abstract of the Decision.
    1. Street railroads, § 133

      —when negligence in operating car question for fury. Whether the gong of a street car was sounded or other warning given of its approach in the nighttime, as well as whether its speed was excessive, are when resting on conflicting testimony, questions for the jury, in an action for a collision between a car and a carriage.
    The court instructed the jury, at the request of the plaintiff, to the effect that if the jury found that he was in the exercise of ordinary care and was in the buggy as the invited guest of the driver, and that the latter had the sole charge thereof, that the former could recover, notwithstanding that the driver was guilty of a want of ordinary care which contributed to the accident, and that such want of care should not be imputed to the plaintiff.
    Robert C. Morse and Sturtz & Ewan, for appellant.
    Albert E. Bergland and Andrews & Espey, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section nupibcr.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

2. Stbeet bailboads, § 110 —when variance between pleading and proof as to cause of injury. ' There is a fatal variance between the allegations of a declaration that the plaintiff was injured by reason of a carriage in which he was riding being struck by a street car, so as to cause him to be thrown to the ground, and evidence that the collision caused a horse to run away into a nearby telegraph pole and to thereby throw the plaintiff to the ground.

3. Appeal and ebbob, § 521*—when question of variance open to review. The question of variance between pleading and proof may be reviewed on appeal, when called to the attention of the trial court by a motion to strike out the evidence at the close of the plaintiff’s case, and afterwards included in a motion for a new trial although without being specifically pointed out.

4. Witnesses, § 283*—when witness may be cross-examined as to statement of plaintiff discrediting merits of case. The credibility of a witness for the plaintiff may be impeached by cross-examining him from a paper as to answers made to an attorney for the defendant oh another occasion, concerning statement made to the witness by the plaintiff with reference to the merits of his case.

5. Negligence, § 112*—when negligence of intoxicated driver imputable to occupant of vehicle. A person who places himself in the care of a driver whom, he knows to be intoxicated is chargeable with the latter’s want of ordinary care which results in an injury to the former.

6. Stbeet bailboads, § 140*—instruction as to imputing negligence of driver to passenger. An instruction in an action for injuries sustained by a passenger in a carriage through a collision with a street car, that he could recover from the railroad company if, at the time of the accident, he was in 'the exercise of ordinary care and that he would not be chargeable with the negligence of the driver of the vehicle which contributed to his injury, held erroneous, where the evidence was conflicting as to whether the plaintiff voluntarily placed himself in the care of a driver whom he knew to be intoxicated.

7. Stbeet bailboads, § 140*—instruction as to exercise of care by person injured. An instruction in an action for injuries sustained by the occupant of a vehicle in a collision with a street car, which limited the exercise of care by him “to the time of the injury complained of,” held sufficient. '


text:
    Utica Hydraulic Cement Company, Appellee, v. The Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 6,047.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 15, 1915.
    Statement of the Case.
    Action on the case brought by the Utica Hydraulic Cement Company against the Chicago, Bock Island and Pacific Bailway Company for the alleged destruction of a barn by fire near the defendant’s right of way, caused by sparks from a passing locomotive. Prom a judgment in the plaintiff’s favor, the defendant appeals.
    The evidence showed that just previous to the fire, a locomotive belonging to the defendant passed, and in its operation threw out large quantities of cinders; that the wind was blowing from the track towards the bam; and that shortly after the passing of the engine fire was noticed in the portion nearest the track, near an opening in the barn.
    At the request of the plaintiff, the court instructed the jury that “proof of the destruction of property by fire escaping from a locomotive raises a prima facie case of negligence, which the defendant must rebut by showing the absence of negligence by a preponderance of the evidence, or that plaintiff’s own fault or negligence contributed -to the injury.”
    The errors relied on by the appellant were a denial of a motion to exclude the plaintiff’s evidence, to direct a verdict for the defendant, and in giving such instruction.

      Abstract of the Decision.
    1. Railroads, § 932

      —when evidence warrants inference that fire was caused by locomotive. An inference that a fire which destroyed a barn near a railway track was caused by sparks escaping from a locomotive, may be drawn from evidence that just previous to the fire, when the wind was blowing from the track towards the harn, that an engine passed throwing out a large quantity of cinders, and that soon thereafter fire was discovered in the barn near an opening in the side nearest the track.
    2. Railroads, § 945*—directing verdict for defendant in action for fire caused by locomotive. A motion to strike out the plaintiff’s evidence and to direct a verdict for the defendant was properly denied in an action for the destruction of a barn by fire caused by a locomotive, where the testimony showed that the fire was discovered in the barn, near an opening facing the track, shortly after the passing of a locomotive which emitted a large quantity of cinders, and that the wind was blowing from the track towards the barn.
    3. Railroads, § 932*—when cause of fire by sparks from locomotive inferred. Whether a fire which- caused the destruction of a building near a railway track was started by sparks from a locomotive is usually a matter of inference from the circumstances proven.
    4. Railroads, § 941*—instruction as to .burden of showing fire not due to sparks from locomotive. An instruction in an action for the destruction of a building by fire caused by a passing locomotive, that proof of the destruction of the property by fire from such a cause raised a prima facie case of negligence which the defendant must rebut by a preponderance of the evidence, showing the absence of negligence, or that the fire was due to the fault of the plaintiff, held not erroneous where the defendant did not offer any evidence.
    William D. Fullerton and A. B. Enoch, for appellant.
    McDougall & Chapman and Howard H. Bayne, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Niehaus

delivered the opinion of the court.

5. Railroads, § 919 —when defendant has burden of showing fire not caused by sparks from locomotive. Evidence of circumstances justifying an inference that a fire which consumed a building was caused by burning cinders or sparks emitted from the defendant’s passing locomotive, establishes a prima facie case which, under the statute, casts on the defendant the burden of proving such facts as would excuse it.

6. Instructions, § 151*—when not error to refuse instruction. There is no error in refusing requested instructions which are covered by other instructions actually given.