text:
    Edward H. Turner et al. v. Lucius B. Mantonya.

      Landlord and Tenant — Cancellation and ¡Surrender of Lease — Question for Jury — Destruction of Premises by Fire.

    In an action by a tenant to recover rent from sub-tenants, it is held : That the question whether there was an agreement for the cancellation and surrender of the lease was a question for the jury, and that there was no such destruction of the rooms leased by defendants as would operate to determine the lease, even if their destruction would have that effect.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tdthill, Judge, presiding.
    Messrs. McClellan & Cummins, for appellants.
    The destruction of the premises by fire terminates the relation of landlord and tenant, for the reason that there is then nothing left upon which the demise can operate, and no rent for the premises demised can be recovered subsequent to their destruction. Taylor’s Landlord and Tenant, 520; Wood’s Landlord and Tenant, 603; Harrington v. Watson, 3 Pac. Rep. 173.
    Ho further elaboration of this point is needed than a reference to the case last cited. The reasoning and the facts exactly fit the case at bar; the logic of the decision is irresistible, and the position it asserts impregnable. The decision is based on both principle and precedent, and rests for its authority on the following cases: McMillan v. Solomon, 42 Ala. 356; Austin v. Field, 7 Abb. Pr. (N. S.) 34; Graves v. Berdan, 26 N. Y. 498; Kerr v. Merchants Exchange, 3 Edw. Ch. 316; Winton v. Cornish, 5 Ohio, 477; Womack v. McQuarry, 28 Ind. 103; Stockwell v. Hunter, 11 Metc. 448; Ainsworth v. Ritt, 38 Cal. 89; Shawmut Nat. Bank v. Boston, 118 Mass. 128; Whitaker v. Hawley, 25 Kan. 674.

      Messrs. Case, Nolae & Hogae, for appellee.
   Moran, J.

This appeal is from a judgment for $179.89, rendered against appellants and in favor of appellee, for a balance of rent under a lease. Appellee leased premises from Farwell & Company, and sublet a part thereof to appellants.

Appellee’s lease contained a stipulation authorizing him to terminate said lease upon the premises becoming damaged by tire so as to be unlit for occupancy, but there was no such provision in appellants’ lease. The term of appellants’ lease would end December 31, 1885, and of appellee’s lease from the Farwells on January 1, 1889,

A fire occurred on November 5, 1885, which, appellee claimed, rendered the premises unfit for occupancy, and he •gave Farwells a notice to terminate the lease, and had some negotiations with appellants looking to their vacation of the part occupied by them, so that appellee could surrender the entire premises. The Farwells denied that the premises were so injured as to authorize a termination of the lease under the said fire clause, and a compromise was finally agreed upon by which, in consideration of the payment of a certain sum by appellee, the Farwells accepted a surrender of his lease.

Two contentions are urged by appellants to reverse the judgment appealed from. One is that they agreed with appellee upon a cancellation and surrender of their lease, and paid all rent due, and made an actual surrender on November 6, 1885, and hence they could not be held for rent subsequently accruing. On this contention there was an issue of fact, and we are satisfied, after a careful examination of the instructions, that such issue was submitted to the jury under a correct statement of the law by the court. As the verdict on this issue is clearly sustained by the evidence, it is conclusive against appellants’ contention on this hearing.

The second position of appellants is that there was such a destruction of-the premises by the fire of November 5th, as operated in law to determine the lease. The evidence as set out in appellants’ abstract shows that the rooms leased by appellants were rendered untenantable by the fire. There is no description of the condition of the rooms or the extent .of destruction, and no proof that the building and rooms could not be readily repaired and rendered tenantable.

It appears from the testimony of Fanvell, who was called by the defendant, that the store was drenched with water, but that the walls were perfect. Where there is no stipulation in the lease relieving the tenant from the payment of rent in case of the destruction of the building by fire, he will be held for the rent during the entire term of the lease. Such is the general rule.

But counsel contend that there is a distinction applicable to leases of rooms or parts of a building. Assuming, but not deciding, that the distinction counsel contends for exists, the case he cites supports a rule which, as stated by the Supreme Court of this State, “requires that the part of the building or the rooms of the apartments demised shall be destroyed, and this must mean not merely damaged or injured, but annihilated] for if they remain in but a damaged condition the tenant may still occupy them, repair the damage done and restore them to their former condition if he will.” Smith et al. v. McLean, 123 Ill. 210.

It is very clear that no such destruction of the building or of the rooms leased by appellants is shown, by the evidence, as justifies the application in this case of the doctrine which counsel contends for. Smith v. McLean, 22 Ill. App. 451; Shawmut National Bank v. City of Boston, 118 Mass. 125.

We find no error in the record and the judgment of the Circuit Court must therefore be affirmed.

Judgment affii’med.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James T. Hair Company v. Willis C. Thorne.

      Parties — Action "by Attorney to Recover Fees — Pa¡ tnership.

      In an action to recover fees for legal services, this court affirms Ihe judgment for the plaintiff, although it appears that he had a partner when the services in question were rendered, there being nothing to show that the latter was to share in the compensation for s.uch services.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Biohard W. Clifford, Judge, presiding.
    Messrs. C. C. Linthicuh and Frank J. Smith & IIelmer, for appellant.
    Mr. W. E. Thorne, for appellee.
   Per Curiam.

This was a suit by appellee against appellant, to recover the value of legal services rendered to the appellant. Judgment was given for appellee, from which this appeal is taken. It appeared on the trial from the evidence of W. J. Ennison, that when the services were rendered, he ivas in partnership with Thorne in the law business.

The point is made that Ennison should have been a co-plaintiff. The contract for the services was made between appellant and appellee only, and the latter alone performed the entire services outside of the State of Illinois, both appellant and appellee having their places of business in Chicago. The evidence does not show what were the terms of the partnership nor where the law business of the firm was conducted. There is nothing in the record inconsistent with the hypothesis that Thorne alone was to receive the compensation for such services as those involved in this case, and we are the more inclined to that presumption, because this point is now made by appellant for the first time.

The record does not present a case for reversal on the ground that the verdict is contrary to the evidence.

Judgment affirmed.


author: Gary, J.

text:
    George W. Cooper v. Wesley Johnson.

      Neto Trial — Newly Discovered Evidence — Conflict of Evidence — Question for Jury — Excessive Verdict — R.-mifctitur in this Court — Costs—Bankruptcy — New Promise.

    1. Newly discovered evidence which is merely cumulative is not sufficient as a ground for a new trial.
    2. Where the evidence is conflicting, the verdict of the jury is conclusive.
    3. Where the verdict includes excessive interest, this court may permit the appellee to remit the excess to prevent a reversal. In such a case the appellant will recover costs in this court.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Horn. Kirk Hawes, Judge, presiding.
    Mr. F. S. Baird, for appellant.
    Mr. Hugh L. Burnham, for appellee.
   Gary, J.

The appellant, in 1876, assigned to the appellee a judgment of a justice of the peace, from which an appeal was then pending in the Superior Court, agreeing to prosecute it, and “in case of failure to recover and collect the sum of one hundred and thirty-five dollars,” to pay to appellee fifty dollars in cash and ninety in merchandise within ninety days after final judgment. In 1880 appellant was discharged in bankruptcy.

The contest whether a new promise to pay was made by appellant, was settled by the jury in favor of appellee upon conflicting evidence. Their verdict under such circumstances is final. The affidavits on the part of appellant as to newly discovered evidence, related to conversations between the parties, of a character, so far as they are similar to those to which appellee testified on the trial, merely cumulative to his testimony, and not at all conclusive, even if the appellant could he held to be diligent in discovering, after the trial, that a person several times present in the office of appellant when conversations occurred between the parties, was so present Crozier v. Cooper, 14 Ill. 139; Martin v. Ehrenfels, 24 Ill. 187.

The court instructed the jury in effect that if the plaintiff recovered he was entitled to interest from March 3, 1879, to the time of trial, and appellant excepted. The ninety dollars payable in merchandise are not within the statute as to interest. “ Moneys due on instruments of writing,” are the words of the statute so far as applicable to this case.

As the verdict includes thirty-four dollars and thirteen cents interest on the ninety dollars, it is to that extent excessive; which, being one of the reasons for which a new trial was asked, and the refusal of a new trial being now assigned for error, the judgment must be reversed, unless the appellee will remit the excess. If he does that, the judgment for $165.87 will be affirmed. If not it will be reversed, and the cause remanded. In either event the appellant is to recover his costs in this court.


text:
    W. C. Goudy v. The City of Lake View.

      Practice — Delay in Filing Briefs — Affirmance—Motion to Set Order Aside.

    Upon the failure of appellant to file his briefs within the time required by the rule of this court, the motion to strike such briefs from the files and affirm the judgment should be made, if practicable, before the case is reached for argument.
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. A. W. Green, for appellant.
    Mr. H. II. Anderson, for appellee.
   Per Curiam.

Briefs for appellant were filed in this case on October 6, 18S8, after they were due, according to the terms of the rule of court. On October 10th the case was reached for argument in its regular order on call of the calendar, and on that day (no oral argument being made and no briefs filed by appellee) a motion was made by appellee to strike appellant’s brief from the files for non-compliance with the rule, and to affirm the judgment, which motion was sustained by order heretofore entered. A motion being now made to set aside that order, we have re-examined the question and find that, according to the former" practice of the court, a motion to strike appellant’s briefs from the files should he made before the case is reached for argument, if they were filed a sufficient time before then to permit the motion tó be made. What correction may be necessary to prevent abuses that may arise out of the practice may be matters for future consideration. The former order is set aside and appellee will have fifteen days in which to file briefs.


author: Garnett, P. J.

text:
    George M. Fadner v. Alva C. Filer.

      Embezzlement — Arrest—Tres2)ass—Malicious Prosecution — Evidence— Advice of Counsel — Instructions—Conflict of Evidence — Excessive Damages-^-Practice — Plea of Justification.

    1. Where a person arrested for embezzlement is discharged because of a compromise, and not because of his innocence, there is no foundation for an ac ion for malicious prosecution.
    2. In action of trespass on the case for causing the arrest of the plaintiff for embezzlement, the complaint having been made by the defendant upon his personal knowledge, it seems to be doubtful whether evidence that he had information that the plaintiff had been charged with an arrest for larceny, embezzlement or forgery is admissible. It seems that such evidence, if admitted, should have reference to matters of recent date, and that it should have been relied upon.

      3. Whether the advice oE counsel is a complete defense in an action for malicious prosee ;tion is a question for the. jury.
    4. It is improper to instruct the jury that actual guilt and probable cause must concur to constitute a defense in an action for malicious prosecution.
    5. This court will not interfere with the finding of the jury on a point as to which the evidence was conflicting and no instructions were asked.
    6. The action of the court in overruling a motion made by the defendant during the trial, for leave to file a plea of justification, must be presumed correct, no plea having been prepared or presented, and there being nothing in the record to show why the motion was overruled.
    7. In the case presented, it is held: That the verdict for $8,000 was extravagant and unwarranted, and that it should be set aside, although there was a remittitur of $2,000 by the plaintiff.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the lion. Elliott Anthony, Judge, presiding.
    This was an action by appellee against appellant for false imprisonment and malicious prosecution. The first count of the declaration charges that on January 10, 1886, the defendant assaulted the plaintiff, seized him, and with violence dragged him about, struck him, and having a revolver, threatened to shoot him if he attempted to leave a certain building, and compelled him to remain there twenty hours; and that on January 11, 1886, defendant assaulted plaintiff, struck him, and forced him to go from said house to a justice court, and then imprisoned plaintiff for twenty-four days. The second count charges an assault and imprisonment for twenty-five days. The third count alleges that defendant falsely, maliciously and without reasonable or probable cause, charged plaintiff with having committed the offense of embezzlement, and on such charge caused him to be arrested and imprisoned for twenty-four days, when plaintiff was discharged, fully acquitted of said charge. The plea was the general issue. On the trial it appeared that on January 10,1886, and before then, plaintiff was in the employ of defendant as collector. On Sunday, January 10th, Filer went to Fadner’s place of business, and was then requested by Fadner to account for and pay over his collections. Filer said the money was in bank, and he would bring it around the next day. Fadner said he must pay or leave some security. He declined to give security', and Fadner, in the presence of one Myers, locked the door to prevent Filer from leaving. There was evidence tending to show that a number of persons called at the room at different times that night; that, after Myers left, Fadner displayed a revolver and said he would make it hot for Filer if he crossed a certain line, and that he knocked Filer down about 11 o’clock in the evening. During the night, as Filer testifies, he tried several times to get out but was prevented by Fadner. The next morning, on advice of his attorney, Fadner swore out a warrant and procured the arrest of Filer, charging him with embezzlement. He was released on bail the same day, and on February 5,1886, as shown by the transcript from the justice’s docket, he was discharged “upon all the evidence introduced.”
    There was a verdict for $8,000 for the plaintiff. Motion for a new trial by defendant. Plaintiff remits $2000 from verdict. Motion for new trial overruled and judgment for $3,000, from which defendant appeals.
    Messrs. John Lyle King and Egbert Hervey, for appellant.
    Mr. Justus Chancellor, for appellee.
   Garnett, P. J.

1. Appellant insists that the plaintiff was discharged by the justice because he paid to appellant, by way of compromise, the amount of money for the embezzlement of which he was arrested, and not because he was found to be innocent. If a person arrested is discharged by means of a compromise and not because of his innocence, there is no foundation for a suit for malicious prosecution. Emery v. Ginman, 24 Ill. App. 65.

In this case the transcript of the proceedings before the justice setting forth a_ discharge on all the evidence introduced, was offered in evidence by the appellee, and oral evidence was given on behalf of appellant tending to prove that the payment by Filer of the demand of Fadner was the moving cause of the discharge. Ho instructions having been askeJ on this point, the most favorable view for appellant that can be adopted is, that there being conflicting evidence as to the cause of the discharge, and the jury having settled the disputed fact in favor of appellee, this court, adhering to well settled rules, must refuse to interfere with that finding.

2. Appellant alleges as error that the court overruled his motion, made during the course of the trial, for leave to file a plea of justification of the imprisonment. Ho plea was prepared or presented to the court. Had one been presented the court would have committed no error in refusing to allow it to be filed, if it was not a good plea in substance. Hor is there anything in the record to show what appellant proposed to plead. If leave had been given to file such a plea, the plaintiff had the right to know what its allegations were, and until he was informed he could not be compelled to proceed with the trial. The record does not show why the motion was overruled, but we are bound, under the circumstances, to presume the ruling correct.

3. Whether the advice of counsel was a complete defense on the count for malicious prosecution, was a question for the jury, and was fairly submitted by the instruction on that feature of the case,

4. On the trial, defendant, while on the witness stand, was asked by the counsel what information, if any, he had at and prior to the time of the arrest, as to plaintiff’s having been theretofore charged with and arrested for the crime of larceny, embezzlement or forgery. Objection to the question by plaintiff’s counsel was sustained, and the defendant excepted. Had the question contained a reference to a recent date as the time of the previous charge and arrest, and if the question had been followed by an offer, on the part of defendant’s counsel, to prove by the witness that the plaintiff had been, at a previous and reasonably recent date, charged with embezzlement and arrested therefor, and that the defendant had been informed thereof before the arrest complained of by some person whose statement he had reason to believe, and did believe, we are not prepared to say the evidence should have been rejected. Eminent authority maintains the admissibility of such evidence. Barron v. Mason, 31 Vt. 189.

What constitutes probable cause, as stated in Harpham v. Whitney, 77 Ill. 32, Bradner v. Faulkner, 93 N. Y. 515, Falvey v. Faxon, 143 Mass., and Bacon v. Towne, 4 Cush. 217, seems to support the doctrine of Barron v. Mason. If this is the true rule, however, it may be doubtful whether evidence of that character is proper in a case where the defendant made the complaint on his personal knowledge of the facts, and not on information and belief. Skidmore v. Bricker, 77 Ill. 164.

Since this question is not necessarily presented in this record and has not been argued by appellee’s counsel, we do not wish to be considered as having committed the court to the final adoption of the doctrine of the Barron case.

5. The court committed serious errors in the additions made to the third and fourth instructions requested by defendant, and in the alteration of the fifth. By the additions made to the third and fourth the jury were informed, in substance, that actual guilt and probable cause must concur to constitute a defense to the count for malicious prosecution.

The fifth instruction, as requested by defendant, was to the effect that if the jury found the defendant had probable cause for instituting the criminal proceedings, the verdict should be for the defendant on the count for malicious prosecution. The court changed the word should into may, so that the sum of these instructions was that if the jury found the plaintiff was actually guilty of the offense charged, and the defendant had probable cause for believing him guilty, the verdict on the third count must be for the defendant; but if they only found that defendant had probable cause to believe him guilty, it was discretionary with the jury whether the verdict on that count should be for the defendant or the plaintiff. In this there was manifest error, the universal rule being that probable cause alone is a complete defense to an action for malicious prosecution.

The third instruction given for the appellee is open to the same criticism, referring, as it did, to plaintiff’s guilt of “the crime charged in the declaration.” We are not inclined to hold that, in itself, is an error of such serious character as to require a reversal, but think it might be changed with advantage.

The damages awarded by the jury in this case appear to be extravagant and unwarranted by the facts in the record, and though we feel hesitation in interfering with a verdict on a question which is peculiarly witliiu the province of the jury, an element seems to have entered into this finding which can not meet judicial sanction, and with the facts in this case only to rely on, it is our opinion that the remittitur did not remove the vice.

The imprisonment only continued a few hours, and the blow which Filer swears was struck (though Fadner denies it) could not have been serious, as there is no proof that it left a bruise or scratch on the person of appellee, and there is no evidence of any injury arising therefrom. For the errors indicated, the judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.


text:
    John Alling et al. v. William T. Wenzell et al.

      Corporations — Personal Liability of Stockholders — All Subscriptions on Same Basis — Contract with Directors — Claims—Evidence—Costs—Solicitors' Fees — Form of Order of Decree.
    1. All subscriptions to the capital stock of a corporation are presumably upon the same basis, all shares being entitled to the same benefits, and subject to the same burdens.
    2. Upon a bill to charge the defendants on account of their individual liability as stockholders in a corporation, it is held: That the acceptance by the corporation of property of imaginary value, in full payment for one-third of the capital stock, does not enable the holders to throw the entire burden of the debts of the company upon subsequent subscribers who had no notice of the transaction: that a contract for such acceptance made by the directors with two of the four directors, when only four were present, is invalid; that it is no ground of objection that some claims were without affidavit, that they were justly clue, if such claims were sufficiently proved by other evidence; that the book entitled “ Claim Ledger,” so far as made up in the course of business, is evidence of the indebtedness shown by it; that the belief of a witness is not evidence; that the fund obtained from the stockholders is not chargeable with the fees of complainants’ solicitors; and that the order or decree should require the defendants to pay to the receiver the amounts for which they have been found to be liable.
    3. The amounts for which the individual stockholders are liable, constitutes a fund from which the expenses of-getting it into the hands of the receiver, as well as the claims of the creditors, are to be paid. Such expenses do not include the fees of the complainants’ solicitors.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Hutchinson & Luff, for appellants.
    Mr. Walter M. Howland, for appellfees.
   Gary, J.

This was a bill filed in the Superior Court by the appellees, on behalf of themselves and other creditors of the Papillon Manufacturing Company, against the appellants and others, as stockholders of that company, to enforce their individual liabilities for the debts of the company under Sec. 25 of the Act of 1872, concerning corporations. The capital, §600,000, was divided into 6,000 shares of $100 each.

At the organization of the company, 2,000 shares, one-third of the whole, were ordered to-be given to Clark andLotz, the former president and the latter secretary of the company, for the material which they had on hand for conducting the same business (preparation of medicines) for which the company was organized.

The intrinsic value of that property was not very great. Its value to the company might be great, if the business proved successful. One of the appellants, Belding, was an original subscriber to the stock, and one of the first directors) but is not shown to have attended any meeting either of directors or stockholders, and no actual notice of the manner of paying for this stock issued to Clark and Lotz, is shown to have come to any of the appellants, before they respectively became stockholders, or even before the company became insolvent. Then a bill was filed by appellants Ailing, Hibbard and Shepherd, with Dunham and Clark, who are not appellants, all stockholders, to wind up the company, and in that bill this matter was stated. That bill was dismissed and no further notice of it is necessary.

The decree from which the appeal is taken, treats those 2,000 shares as paid up stock, not liable to contribute to the payment of the liabilities of the company. The effect is, to increase the burden upon the other stockholders, if the other 4,000 shares were outstanding, 50 per cent.; but as, in fact, the whole 4,000 shares were not all outstanding, the burden is increased still more. Thus the important question in the case is whether that transaction is validas against creditors of the company, and other stockholders pro rata individually liable to creditors.

Upon the authority ,of Melvin v. Lamar Ins. Co., 80 Ill. 446, without any analysis of the multitude of eases cited by the parties here, that question must be answered in the negative. The bill in that case was filed by stockholders of the insurance company to compel Cushman and Hardin to assume and discharge the obligations of stockholders in the company. They resisted. They had taken from the company certificates for 5,500 shares in the company and had advanced to the company $110,000 in money and'securities to enable the company to comply with the demand of the State auditors.

It was agreed between the company and Cushman and Hardin that the company should, if Cushman and Hardin required it, take back the stock and return to them what they had given for it. This had been done, and Cushman and Hardin insisted that the transaction was, in fact, a loan by them to the company, with the stock as security, and not a purchase of ■ the stock, and the Supreme Court (p. 454) agreed with them that the real transaction between the parties as intended by themselves, was a loan.

A few extracts from their opinion are so applicable to this case, that no shorter statement of the reason for holding the stock held by Clark and Lotz to stand on the same footing as other stock, could be made.

“ Certificates of stock were issued to them in the usual form, and it so appeared upon the books of the company. * * * Thereafterward, subscriptions to the stock'of the company were made to a large amount. The persons thus subscribing had no reason to suspect that the stock taken by Cushman & Hardin stood upon any different footing from that which they received. * * * All subscriptions are presumably upon the same basis, and all shares entitled to the same benefits, and subject to the same burdens. In the subscription of each person every other subscriber basa direct interest * "x" * Such a private arrangement with an individual subscriber, although it miy not be intended, is, in law, a fraud upon the other subscribers; and such agreement will be disregarded? and the party held to all the responsibilities of a bonafide subscriber.” The records of that company had been destroyed by fire, and there was conflicting evidence whether the contract was spread upon them or not. “Bat assuming that .it was, it would he most unreasonable to bold that the subscribers to the stock of this • insurance company, scattered abroad as they were, should be held to be bound by any presumed notice of what was being done by the directors of the company, in the city of Chicago, in matters affecting their interests as such stockholders.” “It is supposed by counsel for defendants in error, that it was necessary that the complainants in the court below should have made proof that they were influenced, in subscribing for the stock of this corporation, by this pretended subscription of Cushman and Hardin, and it is said that they have failed in doing so. We see no distinct proof of this. But it must be supposed that they and other subscribers were thus influenced by the amount of the subscriptions which had been made to the stock of the company ; a part thereof' was this large amount taken by Cushman and Hardin.” The phrase, “ scattered abroad as they were ” in the foregoing extract, does not express a condition upon which was based the unreasonableness of charging subsequent subscribers with notice, by the records of the company, of the arrangement between the insurance company and Cushman and Hardin, for in Stanhope’s case, cited as authority for the proposition, no such element existed. 1 Law Rep. Ch. App. (1865-6) 161.

Ho comment is necessary to show that in this case an acceptance of property of imaginary value, as full payment for one-third of the stock, does not relieve the holders of it from the obligation to bear with the other, but subsequent subscribers, who had no notice of the transaction, the burden of the debts of the company. Whether stock is taken upon an agreement that it may be returned, and the consideration paid back, or property at fictitious and imaginary values taken as payment therefor, can make no difference to a subsequent subscriber, who has a right ■ to assume that the assets of the corporation available to meet its obligations have been, or will be, as much increased by each share issued to other holders, an by one to himself.

To what extent the views of the Supreme Court in the Lamar Insurance Company case, when followed in this, will affect Hourse, Hoit and Zuber, has not been argued on this appeal, and is left undecided.

There is another reason why Clark and Lotz can not be treated as holders of full paid shares. Clark had just been elected president and Lotz secretary and treasurer of the company. They were original subscribers for, and acted as representatives of, more than two-thirds of the capital of the company and their subscriptions then stood for 2,191§ shares each. The board of directors consisted of five persons, of whom they were two, and only four were present. Their votes, or the vote of one of them, was necessary to make a majority. They had no authority to bind the company to any contract made with themselves personally. The cases to this effect are too numerous to cite; a multitude of them are collected in Hote 1 to See. 517, Horawetz on Corp., 2d Ed.

Their action attempting to charge the company with the receipt of what they gave for the 2,000 shares, as full payment, is not binding upon the company or other stockholders, though in stating the account they are entitled to credit for the value of the property received by the company.

There are some minor questions which will not be discussed in detail. Some claims are objected to because they were not accompanied by an affidavit that they were justly due. This is nota reason for rejecting the claims if they are sufficiently proved by evidence. The object of the affidavit is to prevent the presentation of fictitious claims, and is required by mere usage in the course of business, and not by any rule established by law in chancery proceedings, though it is in administration of estates of deceased persons. Secs. 60 and 64, Chap. 3, E. S. 1872. Still, no claim which is objected to can be allowed without an affidavit, unless supported by such evidence as would entitle the party to recover upon it in, an ordinary action. 1 Barb. Chy. Pr. 521-2; 2 Dan. Chy. Pr. 1209.

The book entitled “Claim Ledger,” Exhibit C, so far as it was made up in the course of business, while the company was carrying on a regular course of business, is evidence of whatever indebtedness of the company is shown by it. Dows v. Naper, 91 Ill. 44.

Entries made after the company stopped business, whether under the direction or by an employe of the receiver, or by any other person, are not evidence of such indebtedness; But if such entries in that book were made from other books or papers of the company which had been made in the ordinary course of business of the company, those other books or papers may, probably, be competent evidence. The necessity which sometimes arises in jury trials, of using schedules for summarizing voluminous accounts already in evidence, could hardly occur before a master. See B. & W. R. R. v. Dana, 1 Gray, 83.

As to Zuber’s testimony, his belief is not evidence; only such knowledge as he had upon the subject is admissible.

The individual liability of stockholders is a fund from which the creditors are to be paid. The necessary expenses of getting this fund into the hands of a receiver are properly added to the debts to be paid, as they are a charge upon the fund, so that the creditors may be paid in full. But the expense to the complainants of presenting their case to the court, or of the several creditors of proving their claims before the master, are not, except so far as such expense is taxable as costs under the statute, a charge upon the fund, and therefore should not be included. So, while compensation to the master for his services, as well as to the receiver for his, are properly included, there should be allowed to the receiver for his expenses for solicitor’s services, only what is a fair compensation for such service as aided the receiver in getting the fund together, ascertaining who were to contribute to it, and the respective amounts of the contributions. It would seem that this labor would be substantially performed, first, by the complainants bringing the stockholders into court as defendants, and establishing the fact that they were stockholders, and of how many shares, and what amount was unpaid thereon, either by their answers or by evidence; and, second, by calculations made by the master, after all the proof of debts was in. Or, in many instances, the master might make the inquiry as to how many shares, and how much unpaid thereon, the several stockholders were liable for. But under color of expenses of the receiver, the complainants and creditors at large are not entitled to the services of a solicitor gratis.

The proper order or decree, after the amount for which a stockholder is liable is ascertained, is that he pay it to the receiver. For non-compliance with such order or decree, the ancient remedy was attachment of the person. 2 Dan. Chy. 1046. But this remedy is not admissible here. Goodwillie v. Millimann, 56 Ill. 523. Under See. 47 of the Chancery Act an executii n issues, and it is not irregular that such execution should recite the decree and command the sheriff to collect and pay to the receiver the money found by the decree to be payable by the stockholders to the receiver.

The.decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

.Reversed <md rema/tided.


text:
    North Chicago City Railway Company v. John Gastka.

      Personal Injuries — -Street Cars — Newsboy—Trespass—-Negligence of Conductor — -Actionfor Damages — Instructions—Permanent Injury — Probable Damages — Preponderance of Evidence — Reference to Declaration.

    1. Although the conductor of a street car has implied authority to keep trespassers off the car under his control, he is bound to have due regard for life and limb. His employer will be held to a strict accountability for any reckless or wanton abuse of his authority.
    2. In an action to recover damages for a personal injury, it is proper to instruct the jury that, in estimating the plaintiff’s damages, they may take into consideration the permanent character of the injury, although there is no averment of permanent injury contained in the declaration. Nor can the defendant object that such an instruction leaves the .jury to find damages for the probable effect of the injury.
    3. In the case presented, an instruction touching the preponderance of x the evidence and credibility of witnesses, is approved by this court.
    4. It is proper in an instruction to refer the jury to the declaration for a statement of facts necessary to charge the defendant with liability.
    5. On a motion for a new trial based on the absence of witnesses who had been subpoenaed, the failure of the party caking them to show whether such witnes-es absented themselves by his consent, is sufficient ground for refusing a new trial.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Appellee brought an action on the case against appellant, in the court below, to recover for a personal injury sustained by him by being run over by a street car owned by appellant, and operated by it on North Clark street, in the city of Chicago. The declaration as amended contained three counts. The first count alleged that on the 18th day of August, 1885, appellee was riding on a street car of appellant drawn by horses, which were under the care of servants of appellant, who were driving the same along a certain street car track owned by appellant; and while appellee, with all due care, was lawfully riding on such car, appellant, by one of its servants, violently, negligently and wilfully laid hands upon appellee, and negligently and wilfully, with great force and violence, threw him from said car and under the feet of horses then drawing another car of appellant in an opposite direction; and the last named car and horses ran over the body of appellee, and he was thereby greatly bruised, hurt and wounded, and was obliged to, and did, spend five hundred dollars in endeavoring to be cured, and by means of the premises appellee became sick, lame and disordered, and so remained, hitherto; during all which time appellee was prevented from transacting his business, and was deprived of divers gains and profits which lie otherwise would have made.
    The second count differs from the first one in no material respect, except that it alleges that the servants of appellant violently, negligently and unlawfully, pushed, jostled, cast and threw appellee, and then and there caused to be pushed, jostled, cast and thrown, with great force and violence, appellee, off the car upon which he was riding, under the feet of the horses drawing a car in the opposite direction, etc.
    The third count differs from the second only in respect that it avers that for a long time previous to the injury in question, newsboys w'ere accustomed to go upon the cars of appellant to sell newspapers to passengers thereon, with the knowledge, consent and approbation and without the objection of appellant, and appellee as such newsboy, on the day mentioned, boarded the car of appellant for the purpose of selling newspapers to passengers who had taken passage upon it; and while appellee was lawfully upon such car and in the exercise of due care, appellant, through its servants, without notice to appellee and without warning to him to get off the car, violently, negligently and unlawfully cast and threw him to the ground with great force and violence, and that another car of defendant, drawn by its horses moving in an opposite direction, then and there ran over his body and legs, and by reason thereof divers of his bones were broken, and his legs were crushed, contused, mangled, lacerated and broken, and he became and was sick, sore, lame and disordered, and so remained from thence hitherto, etc.
    The case was tried below with a jury, iii December, 1887, and the jury found a verdict for appellee, assessing his damages at $3,000.
    The lower court overruled the motion of appellant for a new trial, and rendered judgment on the verdict, and this appeal is from that judgment.
    Messrs. Münroe & Geer and W. 0. Goody, for appellant.
    Even if a servant is engaged in the performance of his duty to his master, yet, if he, personally and wholly for a purpose of his own, does an act not connected with the business of such master, and not intended by him to further the objects of such employment, the master is nut liable for an injury thereby occasioned. Cooley on Torts, page 535; Johnson v. Barber, 5 Gilm. 425; Tuller v. Voght, 13 Ill. 277; Oxford v. Peter, 28 Ill. 434; Wharton on Neg., Sec. 168.
    “A railroad company is not liable for assaults committed by its servants on a person who is not in any sense a passenger, although it is otherwise as to passengers.” Wharton on Neg., Sec. 168; Porter v. R. R., 41 Iowa, 358.
    “Where a servant,” says Lord Kenyon, “ quits sight of the object for which he is employed, and, without having in view his master’s orders, pursues that which his own malice suggests, his master will not be liable for such acts.” McManus v. Crickett, 1 East, 106; Wright v. Wilcox, 19 Wend. 343.
    “If the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending to execute it,- does an injury to another, not within the scope of •his employment, the master is not liable.” Howe v. Newmarch, 12 Allen, 49.
    If the servant, even while engaged in the service of the master, do a wrongful act not within the scope of his employment, from motives of malice or wantonness, the master will not be liable, for it would be an abandonment of the business of the employment. Johnson v. Barber, 5 Gilm. 425.

      li At the common law, the master is not liable for the wilful trespasses of the servant which are not committed in furtherance of the business of the master. Tuller v. Voght, 13 Ill. 278.
    It has been held by courts of the highest respectability that the wilful and malicious throwing of a passenger from the car by the conductor of a street car, is not an act done in execution of the duty of a conductor to his employer, and that the street car company is not liable therefor. Isaacs v. Third Ave. R. Co., 47 N. Y. 122; Passenger R. Co. v. Donahue, 70 Penn. St. 119; McKeon v. Citizens R. Co., 42 Mo. 79.
    “ A newsboy selling newspapers on the street, and accustomed to board street cars, with the acquiescence of the servants of the company, for the purpose of supplying the passengers with papers, is not a passenger, and the company is not charged with the duty of looking after his safety, or of seeing that he does not run into danger, or of stopping tiie speed of the car for him to leave, whether requested to do so or not.” Thompson on Car. of Pass., p. 46; Fleming v. Brooklyn R. Co., 1 Abb. N. C. 433; Blackmore v. Toronto Street R. Co., 38 U. C. Q. B. 172.
    The first instruction attempts to give to the jury the elements that enter into the determination of the question of the preponderance of evidence. It should, therefore, give all of the elements entering into the question, and, if it does not. it is erroneous. Whitaker v. Parker, 42 Iowa, 588; Bierbach v. Goodyear Rubber Co., 54 Wis. 213; City of Greenville v. Henry, 78 Ill. 151.
    That the instruction omits to mention several important elements involved in the proper decision of the matter is apparent. It makes no mention of the interest, or the intelligence of the witnesses, the reasonableness or unreasonableness, probability or improbability of their statements, or the consistency or inconsistency of their testimony. It is confined wholly to the two elements of the appearance of the witnesses, and their opportunity of knowing the facts.
    It is the established rule in this State, that, in a case wdiere the evidence is conflicting, unless every instruction given to the jury on behalf of the plaintiff, if he be successful below, stated the law with accuracy, and was free from all error calculated to mislead the jury, the judgment will be reversed. Instructions should be correct in themselves, without reference to others. C. & A. R. R. Co. v. Murray, 62 Ill. 326; Volk v. Roche, 70 Ill. 297; Cushman v. Cogswell, 86 Ill. 62; T. W. & W. R. Co. v. Grable, 88 Ill. 441; Am. Ins. Co. v Crawford, 89 Ill. 62; Wabash Ry. Co. v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475; Stratton v. C. C. Horse R. Co., 95 Ill. 25; Swan v. People, 98 Ill. 610.
    “ The non-attendance of a material witness, or the absence of a material piece of testimony, contrary to reasonable expectation and satisfactorily accounted for, will induce the court to set aside the verdict and grant a new trial,” 1 Gra. & Wat. New Trials, 209; Cotton v. The State, 4 Tex. 264; 3 Wait’s Prac. 402; Oakley v. Sears, 7 Rob. 111.
    Messrs. John Gibbons and Feank H. Goin, for appellee.
   Garnett, P. J.

The court below gave.to the jury the following instruction for the plaintiff, viz.:

4. “ If, under the evidence and instructions of the court, the jury find the defendant guilty, as charged in the plaintiff’s declaration, then, in estimating the plaintiff’s damages, it will be proper for the jury to consider the effect of the injury in future upon the plaintiff, the use of his leg and his ability to attend to his affairs generally in pursuing any ordinary trade or calling, if the evidence shows that these will be affected in the future, and also the bodily pain and suffering he sustained, and all damages, present and future, which from the evidence appear to be the necessary and direct result of the injury complained of.”

Appellant presents two objections to this charge:

(1) That there is no averment in the declaration of permanent injury to appellee, or that he was thereby incapacitated from doing anything in the future that he would have been able to do had the injury not been inflicted.

(2) That the instruction leaves the jury to find damages for the probable effect of the injury, in the future, upon the plaintiff.

A complete answer to the first point is found in City of Chicago v. Sheehan, 113 Ill. 658, where the same supposed defect in the declaration was pointed out. The court held, however, that the absence of an averment of permanent injury was immaterial; that it was enough that the declaration showed the injury received, without describing it in all its seriousness.

As to the second objection, whatever criticism of the instruction might have been accepted as well founded before the decision in C., B. & Q. R. R. v. Warner, 108 Ill. 538, we must now regard it as having no force. The injury of which Warner complained there, was the crushing of his arm, and the instruction now under consideration is a copy of the one approved by the court in that case, substituting only the word a arm ” for the word “ leg.”

Another instruction given for appellee, was:

“ The plaintiff holds the affirmative of the issue, or, what is called the burden of proof rests upon him, the defendant having denied the charges alleged against it in the declaration. The plaintiff must satisfy you by what is called a preponderance of the proof, that the wrong complained of was committed by the servant of the defendant, ■ in manner and form as charged in the declaration. By a preponderance of proof, the court does not mean the largest number of witnesses on a given point; four or five witnesses may testify to a fact, and a single witness may testify to the contrary, but under such circumstances and in such manner and with such an air and appearance of truth and candor as to make it the more satisfactory or convincing to you that the one witness, with the opportunity of knowing the facts testified to, has told the truth of the matter. When you are thus satisfied that the truth lies with a single witness or any other number, you are justified in returning a verdict in accordance therewith. This is what is meant by a preponderance of proof. It is that character or measure of evidence which carries conviction to your minds.”

Appellant’s counsel insist that this was an effort to inform the jury of the various elements necessary to be considered by them in determining the credibility of the witnesses, and the consequent preponderance of the evidence. There is no such attempt at enumeration to be found in the instruction. In effect, the jury are hereby directed to consider all the circumstances under which the several witnesses testified, for the purpose of arriving at a correct conclusion as to their credibility. The appellant, if not satisfied with the general statement of the law, should have asked an instruction designating more specifically the -points which should he treated as the basis of the finding in this respect. A similar instruction, in substance, was approved in Johnson v. Whidden, 32 Me. 230.

Exception is also taken to the clause in the instruction which charges that “the plaintiff must satisfy you by what is called a preponderance of the proof that the wrong complained of was committed by the servant of the defendant, m manner and form as charged, in the declaration.” The declaration contains a full statement of the facts necessary to charge the appellant with liability, and no error is committed in thus referring the jury to that source for information. O. & M. Ry. Co. v. Porter, 92 Ill. 438; Ladd v. Pigott, 114 Ill. 654.

The case presented by either count of the declaration is not based merely upon negligence, but upon great force and violence, in the first and second counts, and in the third upon great force and violence without any warning to appellee. Beferring to either count for the facts necessary to a recovery, the jury could not, as contended for appellant, have found appellant guilty, if its only fault had been the slightest degree of negligjnce. The instruction was as favorable to appellant as the law requires. The conductor of a street car, having implied authority to keep trespassers off the car under his control (Thompson on Carriers of Passengers, 369), still must h-ave a due regard for life and limb, and should be held to a strict accountability for any reckless or wanton abuse of his authority. Bailway Accident Law (Patterson), Sec. 198; Pierce on Bail roads, 330.

At the conclusion of the evidence of appellant, but before it rested its defense, the attorney for appellant informed the court, that appellant had subpoenaed Bohn and Burda as witnesses in the cause; that they had been present in the court house during the trial on the day before, and on the then pres-sent day of the trial; that, because of the order of the court excluding the witnesses from the court room, during the trial, Bohn and Burda had not been in the court room, but had kept outside of it, and in the room of the court house assigned to the witnesses in said cause while waiting to testify, and when they were wanted for examination, they could not be found; and appellant moved the court to give it time to produce such absent witnesses; but the court, after waiting for that purpose for not over fifteen minutes, the witness not appealing, refused to wait longer, and recpiired the appellant to at once proceed with the trial, which was done, without the evidence of such witnesses.

On the motion for a new trial affidavits were read in evidence showing the facts above stated, and the materiality of the evidence which Bohn and Burda would have given, if time had been allowed to secure their attendance. Without passing on any other question presented by this point in the motion for a new trial, we must rest contented with the observation that none of the affidavits state whether or not the witnesses absented themselves by consent of appellant, and the failure to make that fact appear was good ground for disregarding the point.

Inspection of the evidence fails to convince us that the jury was influenced by passion or prejudice in arriving at their verdict, or that the finding is manifestly against the weight of the evidence. The judgment is affirmed.

Judgment affirmed.

Gaby, J., took no part in the decision of this case.


text:
    City of Chicago v. Patrick Farrell.

      Municipal Corporations — Personal Injury — Defective Sidewalh — Constructive Notice — Instructions.
    In an action against a municipal corporation to recover damages for per- ' sonal injuries, alleged to have been caused by negligence in failing to have a guard or rail on a sidewalk adjoining a bridge, this court affirms the judgment for plaintiff, it being admitted that the evidence tended to show constructive notice, and the instructions asked by the defendant and refused by the court having failed to present a sound hypothesis upon which to base a verdict for the defendant.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. .Clarence A. Knight and John W. Green, for appellant.
    Messrs. William Hoynes and John Gibbons, for appellee.
   Per Curiam.

This suit was brought by appellee against appellant, to recover damages for personal injuries caused by the neglect of appellant in failing to have a guard or rail placed on a sidewalk on Archer avenue adjoining a bridge over Ogden slip, in said city. By reason of the absence of such guard at the time of the injury, appellant fell from the sidewalk in such a way that his leg was caught in some timbers and broken; the result being that it was found necessary to amputate the limb.

On a trial before the court below and a jury, a verdict was found for appellee, motion for new trial by appellant was overruled, exception taken by appellant, and judgment on the verdict, from which this appeal was prayed and allowed.

There ivas a conflict of evidence as to the length of time the guard had been missing from the sidewalk at the time of appellant’s fall, but counsel for appellant admits that, upon the whole record, there was evidence tending to show, it was down for a time sufficient to have given the city constructive notice thereof. This disposes of the question of fact in the case.

The instructions requested for the city and refused by the court, each failed to present to the jury a sound hypothesis upon which a verdict for the defendant could rest. There was no error in the refusal of such instructions, and the judgment will have to be affirmed.

Judgment affirmed.

Gary, J., took no part in the decision of this case.


author: Garrett, P. J.

text:
    Clark T. Northrop et al. v. The First National Bank of Chicago.

      Warehouse Receipts — Quasi Negotiable Character of — Secret Lien-Transfer without Notice — Replevin—Other Securities.

    1. Warehouse receipts issued by others than those designated by the statute as public warehousemen, have a quasi negotiable character.
    2. The assignee of such a receipt-without notice is not bound by a verbal arrangement between the parties, touching a claim of the party holding the property.
    3. In an action of replevin by the assignee of such receipt, the fact that the plaintiff holds other securities can not be urged in defense.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    In the latter part of 1885 or the early part of 1886, appellants, dealers in hides, tallow, etc., at 131 and 133 East Kinzie Street, Chicago, sold to James Smibert 227 hides and received from him payment therefor. The purchaser not wishing to remove the hides at that time, it was arranged that they should remain at appellants’ above named place of business a few days. Sometime after that Smiberfc wanted to buy some tallow of appellants on credit, which they at first declined to sell except for cash, Smibert then said to them that those hides were in their cellar and they (appellants) were safe enough. Thereupon they sold and delivered the tallow to him on credit, and have never been paid the price thereof. Afterward, and on January 21, 1888, appellants issued and delivered to Smibert a warehouse receipt as follows:
    “ Chicago, January 21st, 1886.
    “JReceived in stores Nos. 131-133 East Kinzie street, for account of James Smibert, the following merchandise: 227, No. 1 green salted steer hides, subject to storage of 2 cents per hide per month; deliverable only on surrender of this receipt.
    “ C. T. Northrop & Co.”

      \

    That receipt was indorsed and pledged in January or February, 1886, by Smiberfc to appellee, for an actual loan of money then made by it to him, amounting to about $1,700, which has not been paid.
    The note given by Smibert for that loan was subsequently renewed, and other loans were made to him by the bank, making his aggregate indebtedness to the bank on June 18,1886, and at the time this suit was brought, about $11,000, for all of which he agreed the hides should be held as security. The bank had no notice of the verbal arrangement between Smibert and appellants until July 30, 1886. On July 17 and 30, 1886, appellants made other advances to Smibert, for which he agreed with them that they might hold the hides as security. - The loans by the bank remaining unpaid, its attorney demanded the goods of, and tendered the storage to, the appellants; the tender was refused and appellants declined to deliver the goods. Thereupon appellee brought this action of replevin for the hides and the same were delivered to it by the sheriff. The jury found property in the bank. Motion for a new trial by defendants overruled and exception. Jndgment on verdict. Defendants appeal.
    Messrs. Bckke & IIollett, for appellants.
    Mr. Orville Beckham, for appellee.
   Garrett, P. J.

The quasi negotiable character of ware-

house receipts was judicially recognized long before the act of the legislature of this State for the regulation of public warehouses was passed. Prior to that time the principle applied by the courts was, that the delivery of warehouse receipts is a symbolic delivery of the property itself, and that it has the same effect as the delivery of the property and can have no greater, and that a transfer of the warehouse receipt, by the person in possession of it, gives no higher title than would the transfer of the property by the same person. Burton v. Curyea, 40 Ill. 320. And in the notes to Lickbarrow v. Mason, Smith’s Leading Cases, Vol. 1, Part 2d (7 Am. Ed.), 1197, it is-said thatCl the exigencies of trade have called a class of instruments into being, which are, substantially, acknowledgments by public or private agents, that they have received merchandise, and from whom or on whose account, and usage has made the possession of such documents eqnivalent to the possession of the property itself; and to this class helong warehouse receipts.” There are numerous authorities bearing more or less directly upon the question presented here and among them the following: Broadwell v. Howard, 77 Ill. 305; Western Union R. R. Co. v. Wagner et al., 65 Ill. 197; Chicago Dock Co. et al. v. Foster et al., 48 Ill. 507; Canadian Bank v. McCrea, 106 Ill. 281; Mida v. Geissman, 17 Ill. App. 207; Sargent v. Central Warehouse Co., 15 Ill. App. 553; Spangler v. Butterfield, 6 Col. 356; Durr et al. v. Hervey, 44 Ark. 301; Fourth Nat’l Bank v. St. Louis Cotton Com. Co. et al., 11 Mo. App. 333 ; State v. Bryant, 63 Md. 66; Hale et al. v. Mil. Dock Co., 29 Wis. 482; Griswold v. Haven, 25 N. Y. 595 ; Second Nat’l Bank v. Walbridge et al., 19 Ohio St. 419; Gill & Co. v. Frank, 12 Oregon, 507 ; Soloman v. Buslmell,

11 Oregon, 277; Benjamin on Sales (2 Am. Ed.), Sections 815-823; 2 Daniel on Neg. Inst. § 1713; .Planter’s Rice Mill Co., v. Merch.Nat’l Bank of Savannah, 3 S. E. Rep. 327.

Conceding this array of authority “ speaks a various language ” on the question under discussion, as well as on other kindred and closely allied questions, we think the current of opinion in this country supports the doctrine of the note to Smith’s Leading Cases, quoted above. That such is the rule adopted in this State, and that warehouse receipts issued by private agents or by warehousemen, other than those described as public warehousemen, are placed on the same footing as bills of lading, in respect to their quasi negotiable character, we have no reason to doubt. If that be true, the case of Western Union B. B. Co. v. Wagner et ah, supra, must be held to control the case at bar. In that case the vendor of the goods delivered them to the railroad company and authorized the railway agent to issue a bill of lading to the vendee, with the verbal agreement between vendor, vendee and the railway agent that the property should not, in fact, be shipped, until the residue of the purchase money should be paid. The bill of lading was issued and placed in possession of the vendor, and he then handed it to the purchaser, one Hewitt, who, without notice of said verbal agreement, advanced to the vendee the value of the property on the pledge of the receipt. The court held that the document might be regarded either as a bill of lading or a warehouse receipt, but that in either case, the vendee was placed in possession of the property, so far as third persons knowing nothing of the verbal arrangement might become interested; that such verbal arrangement" was not of the slightest avail against Hewitt.

The position of appellants here is not more favorable than that of the vendor in the Wagner case. The receipt to Smibert was issued after the first advance made to him by appel. lants. They might have provided in the receipt for their own protection, had they so desired, and unless they intended to waive the benefit of the lion for advances which Smibert had consented to, it was culpable negligence on their part to issue a receipt which is commonly regarded as representative of the property, without any mention therein of any claim except for storage.

Appellee held other securities which appellant insists should have been exhausted before it is allowed to resort to the property covered by the warehouse receipt. That suggestion may possibly be listened to in a court of equity, but in this suit at law it is of no force.

There was no error in the instruction given for the plaintiff.

The judgment is affirmed.

Judgment affirmed.


author: Moran, J..

text:
    Philip Kolb and Adam Kolb v. Albert Klages and Louis Klages.

      Dogs — Injuries Inflicted by — Action for Damages — Evidence—Instructions — Remittitur.
    1. In an action to recover damages for injuries alleged to have been inflicted by a vicious dog, it is not necessary to a recovery to show that the defendant knew that the dog had bitten some other person. It is sufficient to show that he had knowledge that it had shown a disposition to bite or attack others.
    2. In the case presented it is held: That evidence tending to show what made the dog savage, though improperly admitted, could not have injured the defendant; that there is no error in the instructions, nor in requiring a remittitur.

    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Elbridge Hanecy, for appellant.
    Messrs. Cameron & Hughes, for appellees.
   Moran, J..

This action was brought to recover for injuries alleged to have been inflicted on appellee, a minor, by a vicious dog kept by appellants. .

Another action was brought by Louis Klages, the father of appellee, to recover for the care, nursing and expenses for medical attendance made necessary for him to expend in curing his said son of the injuries received from said vicious dog. Both cases were, by agreement of the parties, submitted to the same jury, with the instructions that a verdict should be rendered in each case, which was done, the verdict in favor of appellee being for $800, and that in favor of Louis Klages for $100. Judgment was entered by the court on the verdict in favor of appellee, but a remittitur of $25 from the verdict c f $100 was required to be entered, and on that being done, judgment was also entered on that verdict as so reduced.

Appellants have brought both the cases to this court, and they have been submitted and considered together as they involve the same questions.

Appellants insist that it was not proved that they knew the dog was vicious; that it is not shown that he bit any other person. It is not absolutely necessary to a recovery that the evidence shall show that the owner of the dog knew that the dog actually had bitten some other person, in order to make him liable. It is sufficient if the evidence shows that the keeper knew the dog had shown a disposition to bite or attack others. Evidence was before the jury which warranted the inference by them that the dog was of a savage and ferocious disposition, and the appellants knew that fact. Flangsburg v. Basin, 3 Ill. App. 531; McCaskill v. Elliott, 5 Strobhart, 196.

Counsel for appellants contends that errors were made by the court in admitting and rejecting evidence. We have examined the record with reference to such alleged error, and we are of opinion that there is no material error shown. One of the objections is that the court allowed it to be shown that the dog was kept tied in the barn close to a pile of raw hides, and that a witness was allowed to state as his opinion that such proximity to the hides would have a tendency to make the dog savage.

It is not material what it was that tended to make the dog savage, and therefore the opinion should not have been admitted; but as there was evidence of the actions of the dog evincing his disposition, which was proper, material and sufficient, we can not treat the improper admission of the said opinion as reversible error.

General complaint is made by appellants of the instructions given for the plaintiff, but counsel has not specified in the brief the points in which said instructions are erroneous, and the refusal and modifications of defendants’ instructions by the court is treated by the counsel in his brief in the same manner. We have carefully examined the action of the court with reference to instructions, and we have found no error in that respect.

It is well settled practice in this State to enter judgment in cases sounding in damages, after requiring the plaintiff to remit from the verdict rendered by the jury, and while such remittitur will not always be regarded by the reviewing court as removing all vice from the verdict, yet" it will, as a rule, sanctify it. Thomas v. Fisher, 71 Ill. 576; McCausland v. Wonderly, 56 Ill. 410.

Ho error by the trial court has been made to appear on this appeal, and the judgment must therefore be affirmed in both cases.

Judgment affirmed.


author: Gaby, J.

text:
    Harvey S. Hayden et al. v. A. J. Hoxie et al.

      Sales — Action for Alleged Balance — Evidence—Use of Memoranda to Refresh Recollection of Witness — Conditions—Instructions.
    1. A writing made, to preserve the memory of a fact, in the presence of the witness who then knew and verified its accuracy, may be used to refresh the recollection of such witness if he can not, without it, testify as to such facts.
    2. Unless the necessity for the use of such memoranda is made to appear by the testimony of the witness himself, it is not error to refuse to admit them.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, J udge, presiding.
    Hr. Allan C. Stoey, for appellant.
    Hessrs. Fbank J. Smith & Helmeb, for appellees.
   Gaby, J.

This was an action for the balance claimed to be due for lumber sold by appellees to appellants, and which they had received and disposed of. The sale was in Wisconsin, at $10 per thousand feet, on the cars. There was no explicit agreement between appellants’ agent and one of the apjiellees, between whom the bargain was made, as to inspection before loading, but there was conversation which implied that the appellees would have it properly done, and only ship such as would pass as “ common or better,” and yet the agent of the appellants testifies, “ I did not intend to take his (mean, ing one of the appellees) inspection; I did not calculate to.” This intention was not disclosed at the time of the bargain.

There is no question in the case as to the quantity, only as to the quality, of the lumber shipped, and if there were, the record does not sustain the statement in the abstract and the complaint in appellants’ brief, that one of the appellees, in testifying to the quantity, read from a copy of a statement rendered to the appellants when one of the appellants was on the stand. The abstract prepared by appellants shows the matter of which they most complain, thus:

“Am in hard wood lumber business, and have been so engaged for about four years; have inspected and understand inspecting same. During winter of 1885-6 we received four - cars of lumber from Hoxie & Hellor. There were three grades of it — firsts and seconds, or first and second class, ‘common,’ and ‘ mill culls.’
“ Q. Have you any memorandum, or are you able to say how much there was of each quality? A. I have, in the memorandum, not as firsts and seconds as distinguished from common, but firsts and seconds, and common, as lumber was bought.
“ Objected to by plaintiffs’ attorney.
“ The Court : Without the witness made the memorandum himself at the time, he can not use it. (Exception by defendants.)
“About half of it was ¡ common and better,’ and the balance ‘ culls ’ and ‘ mill culls.’
“ Q. Have you any memorandum made at the time which will show accurately the amount of each ? A. Our records taken at the time show.
“ Q. Were they made in the usual course of business ? A. Yes, sir.
“Plaintiffs’ object to the memorandum being used. Objection sustained and exception by defendants.
“ Q. As you inspected it, what was done by way of keeping a memorandum? A. A record was entered in our books, and the cull and mill cull was piled separately, and kept separately by itself.
“ Q. Who kept the record ? A. It was kept by our bookkeeper.
“ Q. How did he keep his record? Who called it off?
“ The Court : There is no use in following that up, because without the party made a memorandum he can not testify any further about that.
“ Mr. Story : Suppose one handles the lumber and decides what there is, and directs another man to put it down.
‘ The Court. Your record would not go in evidence then. Without he made a memorandum of it at the time you can not even use it.
“Exception by defendants.
“ Q. Did you see one made at the time and as the lumber was inspected ? A. . I did.
“ Q. Did you direct it, and do you know whether it is accurate or not?
“A. I know it was accurate, and I gave instructions to that effect.
“Q. So yon verified it as the inspection proceeded ?
“A. Yes, sir.
“ Q. Have you the original memorandum here that was ■ made? A. Yes, sir.
“The Goubt: "Without he made it himself, there is no use taking up any time with it.
“ Exception by defendants.
“ Q. I hand you some papers and ask you if you can identify from those the memorandum you have referred to. A. There are four of them here, embracing the record of the stock as we unloaded it from the four cars. They are such as I identified and approved at the time they were made.
“Q. What do you say as to their being correct at that time- ,
“A. They are correct; and I so verified them at that time. I identify them now as the ones then made.
“ Q. I ask the witness to refresh his memory from them-
“Objected to by plaintiffs. Objection sustained, and exception by defendants.
“ Q. Examine the papers which you have just identified and referred to, and state, if you can, after such examination, exactly what the amount was of each quality of lumber you saw inspected from those four cars.
“ Objected to by plaintiffs. Objection sustained, and exception by defendants.
“ Show memoranda, marked 1, 2, 3 and 4, offered in evidence by defendant, and excluded by the court. Exception by the defendants. Said memoranda show the quantity and quality ■ of said lumber as per inspection by Harden Bros,
i “The value of mill culls in Chicago would be nothing; of •culls about nine dollars at that time.
“Fully one-half of the four cars of lumber, other than the ‘common and better/ was either mill cull or cull, about the same quantity of each.”

The law is that a writing is admissible in evidence in all cases where it was made by the witness at the time of the fact, for the purpose of preserving the memory of it, if, at the time of testifying, lie can recollect nothing further than that he had accurately reduced the whole transaction to writing. ¡Note 1 to Sec. 137, 1 Greenl. Ev. This is a rule of common sense and it can make no difference in principle, whether the witness made the writing himself, or was present at the .making of it, and then knew and verified its accuracy. Flynn v. Gardner, 3 Ill. App. 253.

But it is a part of the rule that the witness can not, without the writing, tell the matter to be proved by the writing; and in practice the same result is often attained by “refreshing the memory ” and permitting the witness to read, without putting in evidence, what he once knew and wrote or verified as true, and if then he remembers the facts, he is permitted to testify to what he had forgotten. Case last cited. But until it is shown by the witness’ own testimony that his memory needs the aid of memoranda to refresh it, there can be no recourse to them. Young v. Catlett, 6 Duer, 137; Sanders v. Hutchinson, 26 Ill. App. 633.

The necessity of some mode of proving details of arbitrary and isolated facts, which no memory can carry, and which no association of ideas can recall, is the foundation of the rule, and until the necessity appears, the rule does not apply. It is true, it may be implied from the testimony of the witness— “about half of it was common or better, and the balance culls and mill culls; fully onc-lialf of the four cars of lumber, other than the common or better, was either mill cull or cull, about the same quantity of each” — -that he did not recollect with exactness the respective quantities, but he nowhere says that he did not, nor was he asked whether he did or not. If the court had admitted the memoranda in evidence, it could hardly have been said to be error, but it was not error to refuse to admit them, so long as the necessity was not made expressly to appear. And the appellant' lost nothing by not being permitted to put them in. The appellees put in the appellants’ statement as to the first three car loads, and if the jury (as they did) paid no attention to them, how were the appellants injured by the exclusion of the fourth ? Luke 16, 31.

The instructions fairly put to the jury the question for them to decide.

They were told, in effect, that if the lumber was of the quality agreed upon, the appellants must pay for it; if not, they should, as to the portion inferior, pay only what it was worth, less their expenses upon it.

There is no error and the judgment is affirmed.

Judgment affirmed.


author: Moran, J.

text:
    The American Exchange National Bank of Chicago v. Chicago National Bank.

      Banks — Action on Checks — Revieiv of Evidence — Presentation for Payment — Stoppage of Payment.

    1. In an action on a check drawn on the defendant bank in favor of a third party and by him deposited in the plaintiff bank in the usual course of business, after the defendant had refused to certify it, upon a review of the evidence, it is held: That the defendant was in funds with which to pay the check when it was presented; and that certain drafts and a letter of credit were then treated by the defendant as being to the credit of the drawer.
    2. It seems that the presentation of the check to the defendant’s cashier before the opening of the bank and his statement that payment had been stopped and that it would not be paid if tendered for payment, rendered further presentation unnecessary, the rights of the parties being fixed by the condition of the drawer’s account at that time.
    [Opinion filed December 18, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Swift & Campbell, for appellant.
    There were not sufficient funds to the credit of the drawer of this check to pay it when presented for payment. In this State a check is such an assignment as enables the drawee to maintain suit in his own name against the bank on which the check is drawn, if sufficient funds are at the credit of the drawer when the check is presented for payment. Munn v. Burch, 25 Ill. 35; Bank of America v. Indiana Banking Co., 114 Ill. 483. The delivery of a check by the drawer to the drawee fixes the rights of the latter against the former, but as against the bank on which the check is drawn, presentation for payment is necessary to fix the rights of the drawee. Shaffner v. Edgerton, 13 Ill. App. 137; Fourth National Bank v. City National Bank, 68 Ill. 398. This presentation for payment must be made in banking hours. Bickford v. First National Bank, 42 Ill. 244. The check in suit was not presented for payment at the interview which took place between Mr. Blount, the messenger of appellee, and the cashier and assistant cashier of appellant, before ten o’clock upon the morning of June 15th. As to the request for certification, if any such request was made by Mr. Blount, it is unnecessary to say that the American Exchange Bank was under no obligation to certify. The holder of a check has no right to demand from the bank anything except payment. Certification is a mere matter of accommodation, and it is entirely at the option of the bank to certify or not. Daniel on Negotiable Inst., Sec. 1601. The fact that appellant stamped the check “ payment stopped ” does not prevent its availing itself of the defense of want of funds.
    “The rule is well settled that unless the representation of the party to be estopped has also been really acted upon, the other party acting differently, that is to say, from the way he would otherwise have acted, no estoppel arises.” Bigelow on Estoppel, p. 549; Hefner v. Vandolah, 57 Ill. 520; Ball v. Hooten, 85 Ill. 159.
    “It is also well established that in order to the estoppel there must have been knowledge, actual or constructive, by the party making the representation, that the other party intended at the time to act upon it.” Bigelow on Estoppel) p. 529; Andrews v. Lyons, 11 Allen, 349.
    The onus is upon appellee to.show it has been injured or prejudiced because appellant assigned as a reason for non-payment that payment had been stopped, instead of assigning as a reason that there were no funds, or (as it had a right to do) failing or refusing to assign any reason whatever. Althorp v. Beckwith, 14 Ill. App. 628.
    The giving of a wrong or even a false reason- for an act, does not prevent the party from afterward availing himself of the true reason. Lynch v. Stone, 4 Den. 356; Smith v. Douglass, 4 Daly, 191.
    “Mere acquiescence or waiver without consideration is not binding if a change of purpose will not affect the rights of others.” Bigelow on Estoppel, p. 568; Ripley v. Ætna Insurance Company, 30 N. Y. 136, 164.
    The bank was certifying checks of Kershaw & Co. when this check was presented under a special agreement which provided that this particular check should not be paid. Rot only was the bank, therefore, at liberty to refuse payment of this check, but it was its duty to refuse. First National Bank v. Pettit, 41 Ill. 492.
    The drawer of the check had a right to stop payment as against the drawee, and appellee stands in no better position. This check was given upon June 13th to correct an error in a previous check. It does not appear that it was presented at all until the afternoon of June 14th, when it was presented for certification, and not for payment. Meanwhile the drawee had failed, owing the drawer $100,000, so that the drawee could not have maintained any action against the drawer for this $10,000. Appellee took the check with notice that the American Exchange had refused to certify it, and appellee has never placed it to the credit of the drawee, and has never paid any consideration for it.
    Messrs. Tatham & Webster- and Millard & Smith, for appellee.
    The rule in this State, established by a long line of decisions, is that when a depositor draws his check on his banker, such check operates to transfer the sum therein named to the payee? provided the depositor has on deposit a sufficient sum to pay the check at the time it is presented for payment. Munn v. Burch, 25 Ill. 21; Marine Bank of Chicago v. Ogden, 29 Ill. 248; Brown v. Leckie, 43 Ill. 497; Bickford v. First National Bank of Chicago, 42 Ill. 238; Union Nat. Bank v. Oceana County Bank, 80 Ill. 212; National Bank of America v. Indiana Banking Co., 114 Ill. 483; Merchants. Nat. Bank v. Ritzinger, 20 Ill. App. 27.
    It is not claimed that any other check or demand existed against the balance of §11,401.17 which was in the bank at the close of business on the 14th, and the mere retenti of the Eggleston check by appellant did not constitute an acceptance on its part. Overman v. Hoboken City Bank, 2 Vroom, 563.
    Appellant claims that the two one hundred thousand dollar drafts and the letter of advice have never been paid and therefore appellant could not be held liable for refusing to pay a check drawn against a deposit, if it subsequently turned out that the paper deposited was not good. We understand the law to be, that when the depositor has made, in good faith, a deposit of the bills of another bank supposed at the time by both parties to be solvent but which in fact was not, and the amount so deposited was in the ordinary course passed to the credit of the depositor as so much money, so many dollars, the bank receiving such deposits has been held to pay the amount to the depositor in good money, although it may be shown, as a fact, that the bills have never been paid; and this rule is said to extend to a bank which undertakes to make collection for its customer and pass the amount to the credit of the customer.
    When the bank receiving specific funds or moneys appropriates such funds to its own use, and gives credit in the ordinary form to the depositor, there is no bailment of the specific funds or moneys received, and a simple indebtedness accrues. Morse on Banks and Banking, 43; Oddie v. Nat. Bank of New York, 45 N. Y. 735; Marine Bank of Chicago v. Birney, 28 Ill. 90; Marine Bank of Chicago v. Chandler, 27 Ill. 525; Marine Bank of Chicago v. Rushmore, 28 Ill. 463; Marine Bank of Chicago v. Ogden, 29 Ill. 248; Chicago Marine and Fire Ins. Co. v. Carpenter, 28 Ill. 360.
    The drawer has no control over the fund after he delivers the check, and an assignment carries with it the legal title to the amount of money therein named to each successive holder, and the drawer can not stop payment. Union Nat. Bank v. Oceana Bank, 80 Ill. 213.
    When the payee of the check in snit presented it to the appedant for certification on the 14th of June, it was notice to appellant that the fund had been assigned, and the bank was in duty bound to retain the funds to meet it, if that amount was in the bank unincumbered at the time of the presentation.
    The courts of this State hold that the drawing of a check by a depositor on his banker, operates as both a legal and an equitable assignment of the fund so drawn, if the amount is in the bank to the credit of the drawer. Munn v. Burch, 25 Ill. 35; Sheffner v. Edgerton, 13 Ill. App. 132.
    The legal effect of a legal or an equitable assignment is well known. The doctrine is well settled that courts of law will recognize and protect the rights of the assignee of a chose in action, whether the assignment be good at law or in equity only. Morris v. Cheney, 51 Ill. 452.
    The law as laid down in England and followed by nearly all the States in this country and, as we think, in Illinois, is, that in order to protect his title against the debtor it is indispensable that the assignee should give notice of the assignment to the debtor or holder of the fund, for otherwise a priority may be obtained by a subsequent assignee or the debt may be discharged by a payment to a subsequent assignee before such notice. Story's Eq. Jur., Secs. 1046, 1047; Foster v. Black stone, 1 M. & Keen, 297; Meux v. Bell, 1 Hare Ch. R. 73; Bispham’s Eq. 168; Adams’ Eq. 145; Pomeroy’s Eq. Jur., Vol. 2, Secs. 688-696; Barrow v. Porter, 44 Vt. 587; Muir v. Schenck, 3 Hill, 228; Morris v. Cheney, 51 Ill. 451; Moore v. Gromlat. 3 Ill. App. 442.
    Such notice operates as a constructive transfer of possession, and creates a trust in favor of the assignee and a lien thereon. Adams’ Eq. Jur., p. 161; Pomeroy’s Eq. Jur., Vol. 2, Sec. 688; Wade on Law of Notices, Secs. 435, 436; Loomis v. Loomis, 26 Vt. 203; Cladfetter v. H. Cox, 1 Sneed, 330; McWilliams v. Webb, 32 Iowa, 578; Murdock v. Finney, 21 Mo. 138: Woodbridge v. Perkins, 3 Day, 364; Bank of Commerce’s Appeal, 73 Tenn. 60; Muir v. Schenck, 3 Hill, 229.
   Moran, J.

On the 13th day of June, 1887, C. J. Kershaw

& Co. drew their check on the American Exchange National Bank of Chicago, appellant, for $10,000, payable to the order of M. Bosenfeld & Co., and on the same day delivered a cheek to the payee. On the 14th of June, M. Bosenfeld & Co. presented the check to the appellant at its bank for certification, and afterward, on the same day, deposited the check Avith appellee. Appellant refused to certify the check Avhen it was so presented. The check Avas received by appellee in the usual course of business on the 14th, and on the morning of the 15th of June, the appellee presented the check to the cashier and assistant cashier of appellant before the opening of the bank on that day, and explained to it why the check had been given. Immediately upon the opening of the bank at ten o’clock, the appellee, through its messenger, Fred M. Blount, presented the check to appellant and demanded payment of the same. The appellant took the check Avhen payment Avas demanded and endorsed upon it the Avords, “American Exchange National Bank, Chicago, returned account payment stopped,” and returned it to the messenger refusing to pay the same. The check Avas never paid. On the 14th day of June, the day the check was first presented to the appellant for certification, the books of appellant showed a credit to the account of O. J. Kershaw & Oo. of funds .on hand in the amount of $11,401.17. This balance was on the hooks of the appellant on the 14th at the time the check was first presented, and was continued on the books until the bank opened on the morning of the 15th. This balance was there when the messenger talked Avith the cashier and the assistant cashier before the opening of the bank on the 15th. The appellant at the time of the intervieAv betAveen the messenger and the cashier on the morning of the 15th, stated that payment of the check Avas stopped, and that was the only reason given why the bank would not pay it.

The appellant received its instructions to stop payment of the $10,000 check from C. J. Kershaw & Co., on the evening of the 14th of June, and claims that it was notified to the same effect on the morning of the 15th. Both notices were subsequent to the presentation of the check in suit for certification and its transfer to appellee. At the time of the interview with the cashiers of appellant on the morning of the 15tli of June, and also at the time of the presentation of the $10,000 check for payment at the opening of the hank, appellant held in its possession for the account of C. J. Kershaw & Co., two drafts, each for the sum of $100,000, one payable to the order of C. J. Kershaw & Co., the other to the order of appellant; also a letter of advice which appellant had received to.the effect that Messrs. Wilshire, Eckart & Co., of Cincinnati, had deposited $200,000 to the credit of appellant for the use of C. J. Kershaw & Co., from which appellant deducted $800 for exchange, leaving a total credit to C. J. Kershaw & Co. of $399,200, which would make, if credited on the books, together with the $11,401.17 carried over from the 14th, a total credit to C. J. Kershaw & Co., of $410,601.17, on the morning of the 15 th.

Appellant did not enter the credit of the two drafts and letters of advice on the books, immediately on receiving the same, but the drafts afid letters were about 12:30 or one o’clock p. ii., upon the loth, placed to the credit of C. J. Kershaw & Co., on the books of appellant.

On the 13th day of June, C. J. Kershaw &Oo. issued their check to D. Eggleston & Son for $256,878.18, which check was deposited by D. Eggleston & Son with appellant on the same day. Eggleston & Son and C. J. Kershaw ’& Co. both kept their accounts with appellant. Appellant did not charge the check to C. J. Kershaw & Co.’s account at any time until after the opening of the bank for business on the morning of the 15tli. They, however, gave credit to D. Eggleston & Son for the amount of the check on the 13th, the day of its deposit, but on the morning of the 14th, after an interview with D. Eggleston & Son, appellant reversed the credit to Eggleston & Son, and charged back to them the amount of the check credited the day before.

During the whole of the 14th, the day the check in suit was presented to appellant for certification, and at the time it was assigned and delivered to appellee, C. J. Kershaw & Co. had upward of §11,411.17 of funds in the hands of appellant, the last named sum being the amount on hand at the close of business on the 14th.

On the morning of the 15th after the two §100,000 drafts and letter of advice had been received, the appellant, for the first time, charged up to C. J. Kershaw & Co., the Eggleston & Son check of §256,878.18.

Some checks of C. J. Kershaw <& Co. were certified on the morning of the 15th before the cheek in suit was presented for payment, but it is net shown by the evidence what was the amount or number of such checks. A list of the Kershaw checks in the order in which they were certified by appellant that day was presented by the paying teller and is in evidence and there is some proof tending to show that appellee’s agent, stood sixth or seventh in the line in front of the paying teller’s window in the morning, and from this it is argued that at least the first six checks shown on the paying teller’s list were certified before the one in suit was presented, and that, therefore, when it was presented, Kershaw & Co. were not in funds, even if the two §100,000 drafts and the letters of credit he counted as to tlieir credit on the morning of the 15th. The difficulty with this argument is that it assumes that all the persons who stood ahead of appellee’s agent in the line, presented and obtained the certificate of Kershaw checks.

There is no evidence in the record to justify such assumption. Though appellee’s agent stood sixth in line, there is nothing to show that he did not present the second or third Kershaw check that was presented to the cashier that morning. Assuming that the two drafts and the letter of credit were to the credit of Kershaw & Co., on the morning of the 15th, appellant has failed to prove that there was not funds sufficient to pay appellee’s check at the time it was presented and payment demanded.

But appellant contends that the two drafts and the letter of credit was not to the credit of Kershaw & Co. till after twelve o’clock on the 15th, and therefore there were no funds to pay this check when it was presented.

It is true that it appears that the drafts and letter of credit were not entered on the books to the credit of Kershaw & Co. till after noon, but it appears to us to be fairly established by the evidence, that as between appellant and Kershaw, these drafts and the letter of credit were treated as being to Kershaw & Co.’s credit' from 10 o’clock in the morning. We can explain appellant’s conduct, in charging the Eggleston check and continuing to certify Kershaw & Co.’s checks during the forenoon of the 15th, on no other theory.

There appears to us, also, to be strong reason for holding that the presentation of the check in suit to appellant’s cashier before the opening of the bank, and his statement to appellee’s agent that the payment of the check had been stopped, and that it would not be paid if tendered for payment, rendered any. further presentation of the check unnecessary, and that the rights of the parties would be determined by the condition of Kershaw & Co.’s account at that time, as wo have seen there was then to the credit of said account, on the books of the bank, sufficient funds to pay the check. We do not deem it necessary to elaborate this question. If the latter position is not legally tenable, we are satisfied that the judgment, is sustained on the ground that when the check was presented to the teller for payment there was then funds to the credit of the drawers sufficient for the payment of said checks.

The judgment of the Superior Court will be affirmed.

Judgment affirmed.

Gaby, J., took no part in deciding this case.