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    Marguerite Carroll, Administratrix of the Estate of Gregory Carroll, Deceased, Appellee, v. August Krause, Appellant.
    Gen. No. 8,882.

      Heard in this court at the February term, 1935.
    Opinion filed May 1, 1935.
    Joseph F. Bartley and Harry C. Heyl, both of Peoria, for appellant.
    Joseph D. Ryan, of Chicago, Faulkner & Faulkner, of Joliet, and Walter W. Winget, of Peoria, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This is an action brought by appellee, as administratrix of the estate of Gregory Carroll, deceased, to recover damages for his alleged wrongful death. The declaration charged that on August 1, 1929', the deceased was riding as an invited guest in an automobile being driven in a northerly direction on State Highway No. 4 about a half a mile south of Joliet; that the defendant negligently and wrongfully permitted his truck to remain parked upon said highway in the nighttime without displaying a light at the rear and without taking any reasonable precautions to guard the place where it was parked or to notify the public of its presence, and that as a direct result of said negligence, plaintiff’s intestate sustained injuries from which he subsequently died. A plea of the general issue was filed, a trial had, resulting in a verdict in favor of the plaintiff for $10,000, upon which judg-. ment was rendered, and the record is brought to this court for review by appeal.

The evidence discloses that on the evening of July 31, 1929, appellant accompanied by Ralph Wehnes was driving his Reo two-ton truck, which was loaded with tomatoes and sweet corn destined for the Chicago market along Route No. 4. He had proceeded to within approximately a mile south of Joliet when the right rear tire on his truck blew out. There was a gap in the pavement extending several hundred feet and it was just about the time the truck left the concrete pavement and entered the macadam that he had his tire trouble. Appellant proceeded to stop his truck and when it came to a stop the right wheels thereof were near the edge of the macadam and the left wheels not far from the center thereof. The truck was jacked up and the tire and rim taken off and it was in that position when Gerald Staab, a brother-in-law of appellant, came along in another truck and a part of the load from appellant’s truck was transferred to the truck being driven by Staab. An unsuccessful effort was made to use a spare tire that Staab carried and thereafter appellant accompanied Staab in his truck, intending to stop at Joliet, buy a new tire and return. Wehnes was left with the truck and it was while appellant was gone that an Essex coach driven by Daniel Ferry and occupied by Gregory Carroll, the deceased, and John Sexton approached from the south and the Ferry car struck the left rear corner of appellant’s truck. As a result of this collision Carroll was thrown from the car and sustained injuries from which it is contended by appellee that he subsequently died.

It is insisted by appellant that reversible error was committed by the trial court in the admission of evidence. Ralph Wehnes, who accompanied appellant in the truck on the evening in question, was called to testify on behalf of appellant, and during his direct examination testified that a day or two before the accident he installed a new combination stop and tail light on the truck which he observed burning before and after the collision; that before their collision and while they were near Dwight, they had had tire trouble and used their spare tire. He told of their unsuccessful effort to use the spare tire on the truck of appellant’s brother-in-law and of appellant’s leaving for Joliet to buy a new tire. He further testified that before appellant left and they were working on the truck approximately 15 or 20 cars passed, two of which he observed passed abreast; that after appellant left, he, Wehnes, walked to the rear of the truck, smoked a cigarette, stood there a few minutes and then got into the cab on the left side of which was a rear-view mirror; that his attention was attracted to a car coming down the road making a lot of noise, and looking into the mirror he could see the car in which deceased was riding approaching from the rear. He observed it as it left the pavement and testified that it only had one headlight burning. Upon cross-examination, counsel for appellee sought to lay a foundation to impeach this witness by interrogating him concerning his testimony before the coroner at the inquest held over the body of appellee’s intestate. The witness stated he had testified at the inquest and counsel then inquired if he had read the testimony that he gave there and the witness answered in the negative. Counsel then asked him: “Isn’t it a fact that you never made any mention of the fact that there was but one light on this Essex coach in the testimony before the coroner?” The witness answered that he didn’t remember and stated that he didn’t recall whether the following question was asked by the coroner: “Were there any cars going by you, north, passing the same direction you were going while he was there with you?” And stated that he didn’t remember answering the question by stating: “I should judge half a dozen.” He further testified that he didn’t remember being asked by the coroner: “What did you do while Mr. Krause was up town?” or answering: “Stood at the back of the car for fifteen or twenty minutes and after that I went and sat in the cab. ’ ’ The record then discloses that counsel for appellee, addressing the witness, then stated: “This question asked you by the coroner: ‘Did you notice this car coming before the crash?’ Answer: ‘It seemed to make a good deal of noise, that was what attracted my attention and I looked back.’ Now were these questions asked and did you make these answers?” The witness answered: “I don’t remember.”

The record then discloses that counsel for appellee then asked the witness the following: “Question: ‘Where was the car with reference to the rear of your truck when you first saw it?’ Answer: ‘How far back you mean.’ Question: ‘Yes.’ Answer: ‘Two hundred feet.’ Question: ‘How fast.’ Answer: ‘Rather fast, high rate of speed I would judge.’ Question: ‘That because of the noise?’ Answer: ‘Yes.’ Question: ‘What occurred then.’ Answer: ‘Well, I saw the car and crashed the left rear corner of Mr. Krause’s truck: got the right corner and the other car, swung the car sideways and skidded twenty to thirty feet and went off sideways.’ Were these latter questions asked and these answers given by you?” The witness replied that he didn’t remember. Counsel for appellee then asked him: “When you read the transcript of the testimony taken at the coroner’s inquest, which counsel furnished you, you read all of your testimony, didn’t you?” And the witness answered in the affirmative. Counsel then asked him: “Now did you find one syllable in there about any nlention being made about there being but one light on the Essex coach?” Objections to all these questions were interposed and overruled. To this last question counsel for appellant again objected, stating that it was not proper cross-examination other than for impeachment purposes. To this statement, counsel for appellee replied: “That is just what this is.” The record then discloses the following: “'Mr. Heyl: Ton are not impeaching him with the record. Mr. Ryan: I am laying a beautiful foundation for it. Mr. Heyl: I object to counsel’s statement of his ability to lay a beautiful foundation for anything. The Court: Let’s go ahead. Mr. Ryan: Tour Honor, I have subpoenaed the original record from Joliet, and I thought counsel would concede, when they have a copy of what we all know is an original record, and that both sides have been using it here, that these questions and answers are the same as contained in the original record. They are not admitting that; they are not making that admission. Mr. Bartley: We object to that statement as improper and prejudicial. Mr. Ryan: I will call one of you to the stand and make you admit it. Mr. Bartley: We object to that statement as improper and prejudicial. The Court: Sustained. Mr. Ryan: All right. I would like to withdraw the witness for a minute and put Mr. Bartley on the stand. The Court: All right.”

In compliance with the request of counsel for appellee, Mr. Wehnes was thereupon, in the midst of his cross-examination, withdrawn from the stand and Mr. Bartley, one of the attorneys for appellant, was sworn and was examined by Mr. Ryan, the attorney for appellee, and the record discloses that in response to Mr. Ryan’s questions, Mr. Bartley testified that he was “one of the attorneys trying this case. I haven’t a copy of the coroner’s record. Mr. Heyl (Mr. Bartley’s associate) has something that purports to be a copy. I do ñot know that the copy I have purports to he a carbon copy. No one has testified to that under oath. I have never seen the original. I have never noticed the signature of the coroner on the copy I have.” The record then discloses that the following took place: 1 ‘ Mr. Byan: Will you look- at it. Mr. Heyl, will you let counsel look at it and see if it bears the coroner’s signature?” Thereupon Mr. Heyl handed a document to the witness. Mr. Heyl then stated: “If the court please, I want to object to this demonstration before the jury and insist — and object to any further continuation of it. This serves no purpose, it is wholly immaterial and there has never been any objection made so far as — except as to the proper foundation or the materiality of the evidence or the propriety, or the relevancy of the questions that have been asked these men. Mr. Byan: That is not the fact. Mr. Bartley made the point that I didn’t have the original here, and I stated that I have it outside the court room. Mr. Heyl: Then I insist it is prejudicial for counsel to call counsel representing the defendant to the stand when he has what he is attempting to prove by counsel on the outside of the court room. Mr. Byan: You made no objection to my calling him. Mr. Heyl: I am objecting now. Mr. Byan: Mr. Bartley isn’t objecting to answering the question. Mr. Heyl: I certainly have a right to object. Mr. Byan: I can’t put it in evidence until I reach my side again. Mr. Heyl: I understand you certainly haven’t any right to call a witness on our side of the case, have you? Mr. Byan (Q.): I will just ask Mr. Bartley if the copy he has in his possession does not bear the signature of the coroner? Mr. Heyl: I am objecting to that as not proper. Mr. Byan: Will you wait until I finish? Mr. Heyl: And improper and prejudicial before the jury. The Court: Finish the question, please. Mr. Byan (Q.): If that record that you hold in your hand, which has been given to you, bears the signature of the coroner, does it not? Mr. Heyl: I object to that as not proper at any ,stage of the proceeding and an improper demonstration before the jury and counsel knows that it is. The Court: Let me ask counsel something. What is the purpose of proving whether that is a copy? Mr. Ryan: I want to say that the reason that I am asking the question as to whether it is an identical duplicate copy of the coroner’s inquest, counsel has the same identical kind of a copy in his possession, not only signed by the coroner, but certified to under oath by the coroner’s stenographer. Mr. Heyl: I object to the statement of counsel as not proper. Mr. Ryan: I will prove it if you will keep still a minute. Mr. Heyl: I am not going to keep still unless the Court makes me keep still. Mr. Ryan: I didn’t mean it in that sense. Mr. Heyl: I insist it isn’t proper at this time; this is the defendant’s case, and if he has anything to offer, he should wait until he gets to the rebuttal. The Court: Objection sustained. Mr. Ryan (Q.): Do you object to answering, Mr. Bartley? A. I don’t object to answering any question at the proper time. Q. Are you objecting to my asking you if that bears the coroner’s signature? A. I don’t know the coroner’s signature. Mr. Heyl: I object to any further examination of this witness. Mr. Ryan (Q.): Does it purport— A. I don’t know what it purports. If it does, it will show for itself; you know that very well. Mr. Ryan: That is all. Mr. Heyl: Now, I object to any further horse play of this kind on the part of counsel. Mr. Ryan: Please take your seat. Mr. Ryan: I would like to have the witness instructed that he should not discuss any part of the case with counsel during the intermission. Mr. Heyl: I object to that statement. Mr. Ryan: I want to add to that, particularly when there is a rule entered excluding the witness. I am not saying that he is going to; I am simply asking that he be instructed not to. The Court: The witness will please refrain from discussing the case during the recess with anyone; do you understand that? The Witness: Yes.”

Subsequently Mr. Wehnes was recalled by counsel for appellee for further cross-examination and the record discloses that the following took place: “Mr. Wehnes, again calling your attention to your testimony at the Coroner’s inquest previously discussed, at the bottom of page 19, do you remember Attorney Faulkner asking this question relative to the speed of the Essex as it approached your truck — Mr. Wehnes, the first questions are just preliminary, but these questions are asked: ‘You tell the jury you can tell how fast the speed of this car was, approaching you?’ Answer: ‘No.’ Attorney Barr spoke up and said, ‘He said he could not.’ . . . Q. ‘Dr. Kingston: He said he could not.’ ‘Mr. Faulkner: He said going at a high rate of speed.’ Then did you speak up and say, ‘From the sound of the car.’ Then Attorney Faulkner: ‘No matter; in fact he has been driving long enough to know you can’t fix the rate of speed with the lights, don’t you?’ And did you answer, ‘Yes’? Mr. Heyl: I object to that as incompetent, improper and immaterial, not proper cross-examination, and not a proper subject to inquire for impeachment, and not a proper impeaching question, and immaterial, and for the further reason that there are several questions and answers embodied in the question and answer. Mr. Ryan: Your Honor please, the preliminary questions were read just to get the connection. This last question I have in mind and that I wish to call his attention to; reference was then made to the fact that he couldn’t tell the rate of speed that the car was coming on account of the lights— not light. I desire to ask if that question was not asked and if he said ‘Yes’ to it. Mr. Heyl: And the further objection that the statement of- counsel is not proper, and emphasizes some particular point, which is not proper under any circumstances, and not a proper cross-examination. The Court: He may answer the question. A. I don’t remember whether I did or not.”

In rebuttal counsel for appellee offered in evidence the entire inquest proceedings held by the coroner on the body of appellee’s intestate. This document consists of 33 pages and was identified by Willard Gf. Blood, who testified that he was deputy coroner of Will county, that he procured it from the coroner’s files and identified the signatures thereon as those of E. A. Kingston, the coroner, and Grace S. Thomas, the coroner’s stenographer. Over objection of counsel for appellant, counsel for appellee then read to the jury the following, viz.:

“State of Illinois, Will County, ss. Coroner’s Inquest
“Held at 617 Clinton Street in the Town of Joliet in the County of Will, and State of Illinois on Saturday, the 10th day of August in the year of our Lord, one thousand nine hundred and twenty-nine on the body of Gregory Carroll, deceased.
Present :
E. A. Kingston
Coroner.
A. B. Jones E. E. Pierce Ellis Schofield Al Man Nick Toth Miles Moriarty
Jury of Inquest
Attest:
A. B. Jones Foreman
“Be It Remembered, That at an inquisition made before the undersigned, E. A. Kingston, Coroner of said County, at Joliet, Illinois, in said County, on the 10th day of August A. D. 1929, upon the body of Gregory Carroll by a jury sworn according to law, to inquire how the said body came to its death, the witnesses then and there sworn, testified as follows, to-wit:
“Witnesses as hereinafter named being duly sworn, said: Fred Wehnes called as a witness in the above matter, being first duly sworn, was examined in chief by Dr. E. A. Kingston, Coroner of Will County, testified as follows:
“Q — Your name and residence? A — Ralph Wehnes, Mossville, Illinois.
‘ ‘ Q — And how close were you to the right hand side of the road, the east side of the road when your car came to a stop?
“A — Do you mean to the edge of the macadam? Q — Yes. A — A couple of feet.
“Q — When you looked out, you were riding on the right hand side?
“A — Yes.
“Q — Do you mean a couple of feet from the running board? A — The wheel was about two feet from the edge though.
“Q — Were there any cars going by you, north, passing the same direction you were going, while he was there with you? A — I judge a half a dozen.
“Q — What did you do while Mr. Kruger was up town?
“A — Stood at the back of the car for fifteen or twenty minutes and after that I went and sat in the cab.
“Q — Did you notice this car coming before the crash? A — I did.
“Q — What drew your attention to the car? A — It seemed to make a good deal of noise, that was what attracted my attention and I looked back.
“Q — Where was the car with reference to the rear of your truck when you first saw it? A — How far back you mean?
‘ ‘ Q — Y es ? A — Two hundred feet.
“Q — How fast?- A — Rather fast. High rate of speed I would judge.
“Q — That because of the noise? A — Tes.
“Q — What occurred then? A- — -Well I saw the car and crashed the left rear corner of Mr. Krause’s truck; got the right corner and the other car, swung the car sideways and skidded twenty to thirty feet and went off sideways.
“Q — Do you tell this Jury you can tell how fast the speed of this car was approaching you? A — No.
“Atty. Faulkner — -No matter, in fact he has been driving long enough to know you can’t fix the rate of speed with the lights don’t you? A — Yes.
“State of Illinois 1 County of Will $ SSl
“I hereby certify that the above and foregoing is a true and correct transcript of the testimony of several witnesses who were duly sworn and testified at an inquest on the body of Gregory Carroll held on the body of Gregory Carroll on the 10th day of August A. D. 1929; and is a true and correct statement of the testimony of each of the several witnesses who testified at said inquest.
August 10th, 1929. Grace S. Thomas.
“I, E. A. Kingston, Coroner of Will County, State of Illinois, do hereby certify that the foregoing is the testimony given before the jury in an inquest by me held on the body of Gregory Carroll in the town of Joliet, County of Will and State of Illinois. And the said testimony is the same as it was then and there by me reduced to writing, and has been subscribed by the witnesses giving’ the same, according to law.
“Given Under My Hand and seal at Joliet, this 10th day of August A. D. 1929.
E. A. Kingston (seal) Coroner of Said Will County.”

Section 18 of chapter 31, Cahill’s Illinois Kev. Statutes, 1933, ÍÍ19, provides that the coroner shall cause the testimony of each witness who may be sworn and examined at any inquest to be written out and signed by said witness, together with his occupation and place of residence, which testimony shall be filed by said coroner in his office and carefully preserved: provided, the coroner may cause the testimony of such witnesses to be taken in shorthand minutes and transcribed by a competent person, who shall certify that the transcript so taken and transcribed by him is a true and correct copy of the original minutes talien at said inquest and is a true and correct statement of the testimony of each of the several witnesses who have testified at such inquest, and provided further that whenever the testimony of the several witnesses at such inquest shall have been taken in shorthand minutes and transcribed as above provided' for, the several witnesses shall not be required to sign such transcript or other statement of his testimony.

The coroner’s certificate, which was read to the jury, recites that the testimony of the several witnesses was by him reduced to writing and subscribed by the witness giving the same. This was not true. The testimony of Wehnes was not signed by him nor was the testimony of any of the other witnesses who testified at the coroner’s inquest subscribed by such witness. The provisions of the statute are that when the testimony is taken in shorthand minutes and transcribed as provided therein, the several witnesses shall not be required to sign their name thereto. In order to obviate the necessity of having the witness subscribe his name thereto, the statute says that the testimony must be taken in shorthand minutes and transcribed by a competent person and that such competent person shall certify first that the transcript so taken and transcribed is a true and correct copy of the original minutes taken at the inquest and second that the transcript is a true and correct statement of the testimony of each of the several witnesses. The certificate of Grace S. Thomas is “that the above and foregoing” is a true and correct transcript of the testimony of several witnesses who testified at the inquest and is a true and correct statement of the testimony of each of such witnesses. She does not certify that the shorthand minutes were made by her or that she made the transcript thereof, or that the transcript is a true and correct copy of the original minutes. The evidence does disclose that Grace S. Thomas was the coroner’s stenographer, but she was not called as a witness and did not testify and there is no proof that she is a competent stenographer. From all that appears in the certificate, someone other than Grace S. Thomas might have taken the testimony of Wehnes at the coroner’s inquest and still another person might have transcribed such testimony. The certificate does not comply with the statutory provisions and reversible error was committed by the trial court in overruling appellant’s objections thereto and permitting the portions thereof heretofore set out to be read to the jury.

Counsel for appellee insist that the objections made by counsel for appellant were general objections only, and as the document was one required by law to be kept, it was therefore admissible in evidence as a public document for the purpose of impeaching Wehnes. The record discloses that counsel for appellant objected to practically every question asked in connection with counsel for appellee’s attempt to impeach Wehnes and when the document identified by the deputy coroner was offered in evidence, counsel for appellant specifically objected to its admission on the ground that the evidence of Wehnes as appeared therein did not purport to be signed by him and further that no proper foundation had been laid for the admission of the document offered. An examination of the exhibit discloses that the purported testimony of Weknes was not signed by him and an examination of the certificate of Grace S. Richmond discloses that the statutory provisions were not complied with. In Illinois Cent. R. Co. v. Wade, 206 Ill. 523, the court outlined the proper procedure to be followed where it is sought to impeach a witness and in its opinion said: “When it is desired to impeach a witness by proof of oral statements made by him out of court contradictory upon a material point of his testimony given from the witness stand, it is requisite that a foundation for the introduction of such oral statements be made by asking the witness if he did not, at a given time and place, in the presence of specified persons, make the supposed contradictory statements; but where the supposed contradictory statements were reduced to writing by the witness, or signed by him, a sufficient foundation for the introduction of the writing is laid by showing the paper to the witness, allowing him to inspect it and to read it if he desires, and proving by him, or others, that the signature thereto is his genuine signature.” In the instant case the document sought to be used by appellee to impeach Wehnes was neither signed by him nor were his supposed contradictory statements reduced to writing by him or preserved in the method provided by the statute, and therefore it was error for the court to admit it in evidence.

In Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, the court held that testimony taken before a coroner was competent for impeaching purposes and in its opinion the court said: “Their deposition before the coroner had been read to and signed by these witnesses, and on cross-examination their attention had been particularly directed thereto. This evidence was offered by way of impeachment and was entirely competent. The mode of examination seems to have conformed to the rule in reference to examinations in respect of written instruments.” It has always been the law in this State that evidence taken before a coroner is inadmissible as primary evidence and can only be used for impeachment purposes. In Pittsburgh, C. & St. L. Ry. Co. v. McGrath, 115 Ill. 172, it was so held, the court stating: “The provision of our statute simply is, ‘which testimony (before coroner) shall be filed with said coroner in his office and carefully preserved, ’ — there being no implication, as in the English statute, that the inquisition is for use in court.” It is therefore clear that the provisions of our statute for the manner of preserving such testimony are not designed for the purpose of subsequently using that testimony as primary evidence in court proceedings and the fact that the statute prescribes a method of preserving testimony and makes that document accessible to the public does not make it admissible without a compliance with established rules of procedure.

The record in the instant case discloses that Wehnes was appellant’s eyewitness to the collision. He had testified that the car in which appellee’s intestate was riding had a single headlight; that the tail light on defendant’s truck was a new one installed and tested by him a couple of days before the collision and that it was lighted before and after the collision; that appellant’s truck was parked on the highway as far to the east side thereof as the contour of the shoulder would permit; that before the collision and while the truck was standing on the highway about 20 vehicles passed the truck and on one occasion two cars passed abreast of the truck and even wdth it on the macadam portion of the highway. Appellee, in attempting to discredit Wehnes, read from what purported to be his testimony before the coroner’s jury, which tended to disclose that he there testified that there were two headlights on the car in which deceased was riding and that the truck was parked a couple of feet away from the east edge of the macadam portion of the highway and that half a dozen vehicles passed the truck while it was standing, instead of twenty. Furthermore, the court, in its instructions, advised the jury that one mode of impeaching a witness was by showing that he had made different and contradictory statements on a material point on former occasions and that if it appeared from the evidence in this case that any witness has been impeached in this manner, the jury had a right to take into consideration such impeachment in determining the value of the testimony of such witness or witnesses in connection with all the other facts and circumstances in evidence. The only witness to whom this instruction could apply was Wehnes. The court further gave to the jury an instruction to the effect that if they believed from the evidence that any witness had knowingly and wilfully sworn falsely to any matter material to the issues in the case, that then they were at liberty to disregard the entire testimony of such witness, except in so far as it had been corroborated. In view of the entire record in this case we are clearly of the opinion that the error of the trial court in admitting the proceedings had before the coroner was so prejudicial as to require a reversal of this judgment. Overtoom v. Chicago & E. I. R. Co., 181 Ill. 323.

Counsel for appellee cite the Overtoom case, supra, and insist that the court there held that the transcript of the testimony of a witness who testified before the coroner was the best evidence of what he testified to and that in the instant case he was following the procedure there approved. In the Overtoom case it was sought to prove the testimony of a witness who testified before the coroner by a stenographer who was called to testify from his notes taken at the coroner’s hearing. This was while the coroner’s act provided that the testimony of a witness at the inquest should be written out and signed by the witness and before the amendment which authorized the coroner to have the testimony taken by a stenographer and transcribed. The Supreme Court there held that the stenographer’s notes or the transcript from them were incompetent and in its opinion said: ‘ ‘ The testimony of Silverman (the party sought to be impeached) was taken by the coroner, and as the statute required it, we will presume it was written out and signed by the witness and filed and preserved in the office of the coroner. Had his deposition thus taken been produced and Silverman’s attention properly directed to it, it could have been used to contradict him. That deposition was the best evidence and the stenographer’s notes were not admissible.” What the court did in the Overtoom case was to indulge in the presumption, in the absence of any proof to the contrary, that the coroner did his statutory duty, and held that the signed statement of a witness was preferred to the notes of a stenographer.

In People v. Parker, 284 Ill. 272, the defendant sought to impeach a witness who had testified on behalf of the People by calling the stenographer who took the previous testimony of the witness before the coroner’s jury. It developed that the stenographer had not taken down the questions and answers verbatim nor written out the statements of the witness exactly as they were made; that sometimes the coroner would have a witness repeat a statement and at other times the coroner would sum up in his own language the substance of the testimony which he desired the stenographer to take down in shorthand, and as the stenographer was not prepared to swear whether the testimony she had taken down purporting to be that of the witness was in the witness’ own language or in the language of the coroner, it was held that the trial court properly refused to permit the stenographer to testify from her stenographic notes. It follows that in the instant case it was clearly error to permit the testimony of Wehnes to be read to the jury when the only authentication thereof was the defective certificate of Grace S. Richmond.

In Jones Commentaries on Evidence, vol. 5, par. 847, page 214 et seq., the author, after stating that witnesses may be impeached by producing their written statements, e. g., letters, affidavits, depositions, which are inconsistent with the testimony given at the trial and that by written statements is meant not only statements written by the witness, but such as may have been written by others and signed by him, then proceeds: “The difference in the mode of laying the foundation is that in case the statements are oral, the warning is given by asking the witness, in substance and effect, if he did not at a given time and place in the presence of or to a person or persons specified make the alleged contradictory statements. In case the statements are in writing and unsubscribed, the paper must be shown or read to the witness and marked for identification, and, if subscribed, the signature, and, in case he so demands, the papers must be shown him. The attention of a witness having been thus called to the contradictory statements, they may be proven and introduced in evidence in the regular course of the trial.” This is the procedure followed and approved in this State. Illinois Gent. R. Co. v. Wade, supra; Briggs v. People, 219 Ill. 330, where it was held that where a witness for the People had positively identified the accused as the party who had committed the crime for which he was being tried, that it was proper for the defendant to show that such witness, at the coroner’s inquest, made statements to the effect that he was not then positive of such identification and it was there further held that counsel was not restricted to the coroner’s records, for proof as to what was testified to by witnesses before the coroner.

It is further insisted that the court erred in admitting three photographs in evidence. The record discloses that James McKeon was called as a witness on behalf of appellee. He testified that on the morning of August 1, 1929, he was a deputy sheriff of Will county and received a call to go and did go to the place of the accident. He further testified that he was familiar with the highway there and thought he would recognize a photograph of it. Three photographs were thereupon marked for identification and McKeon testified that Exhibit one was Route 4-A facing north and that it showed the shoulder of the road and macadam at the place where the truck was standing; that Exhibit two was facing south and Exhibit three facing east. Counsel for appellee then asked him: “Now, do these three photographs correctly and accurately portray the physical conditions as they existed on the night of the accident?” Over counsel for appellant’s objection, the witness answered: “Tes,” and thereupon, although objected to, the three photographs were admitted in evidence. Two of the photographs show cars traveling or parked on the highway and all three show a brick, which appears from the photographs to be in approximately the center of the macadam portion of the highway. After the photographs were admitted in evidence, Perry, who was the driver of the car in which the deceased was riding, was called as a witness and testified that he was present the next day after the accident when the photographs were taken; that his employer and Mr. Sexton were also present and he was asked about where the truck stood and he thereupon placed a brick in the highway at the place where he thought the west wheels of the truck were standing the previous night, and that this is the brick which appears in the several photographs. In our opinion these photographs were inadmissible under the evidence found in this record at the time they were offered in evidence and appellant’s objections thereto should have been sustained. Burns v. Salyers, 270 Ill. App. 46, and cases there cited. Stewart v. St. Paul City R. Co., 78 Minn. 110; Nunnelley v. Muth, 195 Ky. 352.

It is further insisted by appellant that it was improper for counsel for appellee to suspend the cross-examination of Mr. Wehnes and call Mr. Bartley, counsel for appellant, to the witness stand. We have heretofore set forth at length just what the record discloses in this regard, and as the case must be submitted to another jury, a different procedure will likely be followed. And for the same reason we need not comment upon the effect which may have been produced upon the jury by what occurred during the cross-examination of the witness David W. Lucas. The record does disclose that Mr. Lucas had testified that several days after the accident he talked to someone about the case. Counsel for appellee then inquired: “You mean someone came to see you about it?” The witness answered in the affirmative and he was then asked: “Who was it?” and over the objection of counsel for appellant answered that it was an insurance man. Counsel again asked him: “Who came to see you?” and he replied he didn’t know his name. Counsel then asked: “Didn’t he give you his name?” and the witness replied that he may have given it, but he didn’t then recall it. As the case must be submitted to another jury, this error will not be likely to occur again.

For the errors in the reception of evidence, the judgment of the circuit court is reversed and the cause remanded for another trial.

Reversed a/nd remanded.


source: Caselaw Access Project

author: Mr. Justice Huffman

license: Public Domain

text:
    The Old Second National Bank of Aurora, Appellant, v. Ben T. Wright, Also Known as B. Wright, Appellee.
    Gen. No. 8,894.
    Heard in this court at the February term, 1935.
    Opinion filed May 1, 1935.

      Shearer, O’Malley & Sears, of Aurora, for appellant; Fred B. Shearer and Barnabas F. Sears, of counsel.
    Lord & Parker, of Aurora, for appellee; Maurice F. Lord and Gilbert L. Wood, of Aurora, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This cause grows out of the taking of judgment by confession by appellant against appellee upon three notes, in the circuit court of Kane county. The total amount of the judgments taken was the sum of $1,219.77. Upon motion of appellee, the judgments were opened up and appellee given leave to plead. The three cases were consolidated. Upon a trial of the cause by jury, the issues were found for the defendant below, appellee herein. Judgment was entered on the verdict. Appellant prosecutes this appeal from such judgment.

Prior to the month of July, 1930, a corporation was engaged as a dealer in Ford automobiles in the city of Aurora, which company bore the corporate name of the Cunningham Motor Company. This company had become financially involved. The president thereof was removed, the corporate name changed to the Thomas Motor Company, and Mr. C. C. Thomas placed in charge of the business. Prior thereto, a conference was had between appellant and appellee and arrangements were made whereby appellant was to furnish money to the Thomas Motor Company to buy new Ford cars in order to carry on its business. The arrangements reached were that appellee would sign a note individually, with the Thomas Motor Company, for the cost price of each new Ford motor car that appellant advanced the money to pay for. It appears that the bank in addition to taking notes of appellee and the motor company, as aforesaid, also took trust receipts and bills of sale. Appellee in referring to this plan states that the bank agreed to furnish money for the purchase of new cars and that they would be handled on the same basis as a finance company, being on what is generally known as a floor plan. Appellee conducted an agency for the retail of Ford automobiles in the city of Chicago. He agreed with appellant that he would take over such automobiles as the Thomas Motor Company was unable to sell and upon which appellant had advanced the purchase price pursuant to the agreement reached between them.

A short written agreement was entered into between appellant and appellee pursuant to their above conference, which appellee urges should be considered as a contemporaneous agreement, with each of the three notes involved herein. This agreement is in the words and figures as follows:

“This Agreement made and entered into this 18th day of July, A. D. 1930, by and between The Old Second National Bank of Aurora, Aurora, Illinois, party of the First Part and Ben T. Wright of Chicago, Illinois, Party of the Second Part, Witnesseth :
“Whereas said Party of the Second Part is financially interested in the Thomas Motor Company of Aurora, Illinois and whereas said Party of the Second Part and the Thomas Motor Company have requested the said Party of the First Part to advance certain moneys from time to time on Ford cars and whereas in order to carry out said plan it is agreed between the parties that the said Thomas Motor Company shall from time to time, as shipments of Ford cars were received, make a bill of sale to said Party of the First Part and execute a trust receipt for the same and the money advanced upon said cars shall at no time exceed thé actual cost of each car. The payment of the money for such cars shall be evidenced by a note executed by the Thomas Motor Company and Ben T. Wright.
“And in Consideration Thereof it is understood and agreed that if at any time the Thomas Motor Company is unable to sell and dispose of said cars and redeem them from the bill of sale executed, then and in that event the party of the second part agrees to take the said cars off of the hands of the party of the first part, and reimburse said Party of the First Part such sum or sums of money they have advanced.
‘ ‘ This is executed in consideration of the sum of one Dollar ($1.00), each to the other in hand paid.
“In Witness Whereof the parties have hereunto set their hands and seals the day and year first above written.
“(Signed) B. Wright (Signed) The Old Second National Bank of Aurora by
William George, Prest.”

Pursuant to the arrangements between appellant and appellee, appellant proceeded to advance money to pay for new Ford automobiles purchased and received by the Thomas Motor Company. This company became financially involved and on November 14, 1930, delivered to appellant storage tickets for 12 new Ford cars which it had stored in the Elks garage in the city of Aurora. Appellant at this time held appellee’s notes for 15 cars for which it had advanced the purchase money. Twelve of these notes were for the cars stored as aforesaid. Appellee paid to appellant the total amount due upon the 12 notes represented by the 12 stored cars. It developed that the Thomas Motor Company had sold the other three cars and had not accounted to appellant for the purchase price thereof, which appellant had advanced, and which was evideuced by the three notes now involved in this proceeding.

The Thomas Motor Company was adjudicated a bankrupt on December 8, 1930. Subsequently, appellant took judgment against appellee upon the three notes represented by the three Ford cars which were sold by the Thomas Motor Company and the proceeds thereof unaccounted for. Appellee filed the general issue and it was stipulated that any matter of defense might be set up thereunder, the same as if it had been specially pleaded. Appellee states that he relied upon three defenses, and urges the same upon this appeal. They are as follows:

“(1) The written contract did not state, expressly or impliedly, a liability upon appellee in the event present in this case, namely, in the event that Thomas Motor Company was able to sell and dispose of the cars, but unable to redeem them from the bill of sale; (2) Appellant at the time it demanded appellee to take the three cars in question off its hands did not in fact have the cars to be taken off its hands, and hence was not entitled to reimbursement under the contract; and (3) Appellee upon reimbursement was entitled to have the security made available to appellee, and if not available through appellant’s laches or negligence, then the loss entailed by such laches or negligence should fall on appellant.”

When there is a contemporaneous written contract affecting the terms of a note, it is to be construed together with the note in so far as each may be given effect, and there is no repugnancy between them. Any lawful condition annexed to a note by a collateral written agreement may be recognized and enforced as between the original parties.

From an examination of the evidence in this case including the above agreement between appellee and appellant, it is obvious that it was the desire of app ellee to borrow money on behalf of the Thomas Motor Company, upon his own financial responsibility. It is not in dispute that all parties knew the Cunningham Motor Company was financially involved and unable to longer secure new cars to sell. It appears that the corporate name of this company was changed to that of the Thomas Motor Company, Mr. Thomas placed in charge thereof, and that appellee made arrangements whereby the purchasing of new cars could be financed through appellant, in order that the business of the Thomas Motor Company might be carried on. The above instrument states that appellee was financially interested in the Thomas Motor Company. Prior to the date of this agreement and on May 31,1930, appellee addressed a letter to appellant in which he stated: “Enclosed you will find copy of letter written to Mr. Cunningham and also letter of authority given to Mr. Thomas, both of which are self-explanatory. ’ ’

It is apparent that the Thomas Motor Company had come to the end of its business existence on November 14, 1930, when it stored the 12 Ford cars in the Elks garage and delivered the receipt therefor to appellant. Only one question is involved in this proceeding and that is as between appellant and appellee, who must stand the loss for the three cars sold by the Thomas Motor Company. The three notes held by appellant therefor were direct obligations signed by appellee. The general rule in construing a contract of this nature is that it shall be proper to take into consideration the surrounding circumstances in order that the intent of the parties may be arrived at. The object of the construction is to ascertain the intention of the parties as manifested by the language of the contract. Appellant was not engaged in the automobile business, but in the business of loaning money. Appellee’s mission to the bank of appellant was for the express purpose of borrowing money. We are not inclined to the view that it was the intent of the parties, or the purpose of the agreement, to limit the liability of appellee upon his notes. Neither are we of the opinion from the wording of said contract, that such an interpretation or construction can be placed thereon. In order to give rise to such a construction, the terms of the agreement should plainly disclose that the contracting parties so intended to limit the liability of appellee, and definitely set out the manner in which his liability was to be limited. The notes in question were the ordinary form of judgment notes, and complete instruments within themselves. Any agreement between the parties limiting or fixing the liability of the appellee differently than expressed in the notes, must clearly appear.

Appellee urges that the appellant was guilty of such negligence and bad faith in not keeping itself advised as to the sale of Ford cars by the Thomas Motor Company, and in permitting it to sell and dispose of the three cars in question, without accounting for the proceeds thereof, as to constitute a legal defense in favor of appellee to the notes in question. Appellee claims that the loss of the security upon the three notes resulted from the negligence of appellant in permitting the motor company to sell the three cars without properly accounting therefor, and that appellee was thereby released from his obligation upon the notes because of such negligence of appellant. Appellee knew and understood at all times that it was not only the purpose and intent of the Thomas Motor Company to sell all of the cars which it received, but that this was the sole aim and purpose. The cars were purchased by the motor company for the express purpose of resale. Appellee understood this and he profited from the sale of such cars, as he was financially interested in the said motor company. There is nothing in the evidence tending to show that appellant had any knowledge or in'any way consented to the sale of these three cars by the Thomas Motor Company. We do not find that the evidence in this case establishes such negligent conduct on the part of appellant as claimed by appellee.

The notes in question were direct obligations of appellee. They were given for the purpose of evidencing money loaned by appellant at the instance of appellee and for which appellee executed his notes. We are not of the opinion that the agreement by its terms releases appellee from his liability upon the notes in question because of the wrongdoing of the Thomas Motor Company. Neither do we believe that it was the intent or purpose of the parties as evidenced by said agreement or by the facts and circumstances surrounding the execution thereof, that the appellee should be released and discharged from his liability upon his notes because of any wrongdoing of the Thomas Motor Company, upon whose behalf he was acting and in which company he was an interested party. We find nothing in the written agreement which we believe was intended to in any way limit the liability of appellee upon his notes.

The judgment of the circuit court of Kane county is reversed and this cause is remanded with directions that the judgments as heretofore entered by said court in the three cases consolidated, bearing general numbers 53,244, 53,245, and 53,246, shall stand in full force and effect as of the date of the original entry thereof, and that appellant shall have execution thereon.

Reversed and remanded with, directions.


author: Mr. Presiding Justice Fulton

text:
    F. L. Durbin, Plaintiff in Error, v. Vernon McCully and James Mohan, Defendants in Error.
    Gen. No. 8,812.
    Heard in this court at the October term, 1934.
    Opinion filed April 12, 1935.
    John Gr. Friedmeyer, of Springfield, for plaintiff in error.
    William L. Patton, of Springfield, for defendants in error.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This is a suit brought by plaintiff in error in the circuit court of Sangamon county to recover damages for alleged injuries to the wife of plaintiff in error sustained in an automobile accident.

Defendants in error owned and operated a garage in the Village of Chatham in Sangamon county, Illinois, and were possessed of a wrecking car used in towing automobiles to their garage for repairs. Lucille Durbin, wife of plaintiff in error, with certain other persons were traveling upon the highway when the automobile in which she was riding* became stalled a few miles from the Village of Chatham because the steering apparatus became broken and out of order. She called the garage at Chatham and defendants in error came out with their wrecker and agreed to tow the stalled automobile to their garage and make the necessary repairs. At the same time they agreed to convey Mrs. Durbin and her friends back to Chatham where they would be able to get transportation to Springfield. Defendants in error examined the stalled automobile and found that the steering* apparatus was out of order and what the trouble was with the motor, and then directed Mrs. Durbin and the other occupants to get into the stalled car and ride back to Chatham. They undertook by means of the tow chain to regulate the movements of the stranded automobile upon the highway to the garage.

The declaration charged that defendants in error were negligent in driving the wrecker at a dangerous rate of speed into a curve which caused the wrecked car to sway from side to side in the highway by means of the tow chain which was attached thereto. The chain caught in some of the spokes of the front wheels of the damaged automobile, causing the same to collide with a telephone pole near the highway and overturn and defendants in error continued to drag the overturned car for a distance of 50 feet or more before coming to a stop. Mrs. Durbin was seriously injured.

The suit of plaintiff in error is based upon such negligence of defendants in error causing injuries to his wife and because he became liable for doctor and hospital bills and for other kindred expenses growing out of the accident and injuries to his wife. Defendants in error filed a general demurrer to the original declaration which was sustained and leave granted to file an amended declaration. The declaration contained no express averment of due care on the part of Lucille Durbin. An amended declaration was filed, on April 11, A. D. 1933, consisting of one count which in its allegations of fact were substantially the same as the original count except that the amended declaration supplied the omission of the original by alleging “that the said Lucille Durbin, his wife, was then and there in the exercise of reasonable care for her safety, from the time she entered the same until the pleasure car, in which she was riding, was turned over and drug upon said highway by said wrecking automobile, driven by the defendants, as aforesaid.”

To this amended declaration the defendants in error filed a plea of the statute of limitations and plaintiff in error filed a demurrer to the plea. Later plaintiff in error withdrew his demurrer to the plea and took leave to reply and file additional counts. The replication was a simple denial that the cause of action set forth in the amended declaration did not accrue within two years. Three additional counts were filed. The first and second were substantially the same as the amended declaration filed April 11th, and each contained an allegation of due care on the part of Lucille Durbin. The third count charged wilfulness on the part of defendants in error and omitted the averment as to due care of Lucille Durbin.

On July 21, A. D. 1933, defendants in error filed a demurrer, both general and special, to the replication to the plea of the statute of limitations, alleging as ground of demurrer that the replication tenders an issue of law and not of fact. On the same day defendants in error filed their plea of the statute of limitations to the three additional counts. The court sustained the demurrer of defendants in error to the replication of plaintiff in error to the plea of statute of limitations and later plaintiff in error filed his demurrer to the last mentioned plea of the statute of limitations. The court overruled the demurrers to the pleas of the statute of limitations and thereupon plaintiff in error moved for leave to reply to the plea to which the defendants in error objected and the objection was sustained by the court, and the court thereupon rendered judgment in favor of the plea of the defendants in error in bar of the action and for costs. Thereupon formal judgment was entered and it is that judgment which is sought to be reversed by this writ of error.

In a declaration for a personal injury the allegation of due care on the part of the injured person is an essential allegation and a declaration which omits such allegation states no cause of action. Stephens v. Illinois Cent. R. Co., 256 Ill. App. 111; Wesley v. Allen, 235 Ill. App. 322. But the plaintiff in error contends that the original declaration in this case contains sufficient averments in regard to the conduct, both of the wife of plaintiff in error and the circumstances surrounding her, from which due care on her part could be reasonably inferred and is subject to amendment even after the period of limitations because it is only a defective statement of a good cause of action. We can find nothing in the declaration from which care on her part might be reasonably inferred and the allegation that she had knowledge that the automobile and its steering gear were out of control raises the question of whether or not she was negligent in riding in a disabled car being towed by a wrecking car.

“A declaration must allege all the circumstances necessary for the support of the action, and one which fails to allege a fact without the existence of which the plaintiff is not entitled to recover, does not state a cause of action.” Holden v. Schley, 271 Ill. App. 159. Other decisions supporting this same doctrine are Redmond v. Schilthelm, 273 Ill. App. 222; McGirr v. Pritchard, 258 Ill. App. 467.

In this case the amended declaration and the first and second additional counts were all filed after the two-year period of limitation had expired and the averment of due care, being for the first time included in the allegations of the declaration, a new cause of action was stated. The third additional count relied upon charges of wilful and wanton conduct on the part of defendants in error, thus stating a new and different cause of action. Therefore the plea of the statute of limitations to the amended declaration and a like plea to the first, second and third additional counts were good pleas. The action of the trial court in entering judgment upon such pleas was correct and the record disclosing no reversible error the judgment of the circuit court is hereby affirmed.

Affirmed.


text:
    Board of Trustees of Township 16, Range 14, in Douglas County, Appellant, v. Indemnity Insurance Company of North America and Albert S. Hawkins, Appellees.
    Gen. No. 8,870.
    Heard in this court at the October term, 1934.
    Opinion filed April 12, 1935.
    Dobbins & Dobbins, of Champaign, for appellant.
    Cotton & Nichols, of Tuscola, and C. H. Swick, of Urbana, for appellees.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This was an action of debt brought by the appellant against the appellees upon the bond of a school treasurer. The declaration filed on September 28, A. D. 1933, averred two breaches against appellee Albert S. Hawkins, a former school treasurer of Township 16, Eange 14 of Douglas county, and appellee Indemnity Insurance Co., of North America as surety on the bond of Hawkins. The declaration averred the election of Hawkins as treasurer, the giving and approval of his bond, his removal as treasurer by the board of trustees on June 19, A. D. 1933 and the appointment and qualification of his successor.

The first breach averred that on June 25, A. D. 1933, Hawkins failed and refused to turn over to his successor in office $5,000 of funds which had been placed in his hands and belonging to the schools of said district.

The second breach averred that on March 25, A. D. 1933, Hawkins loaned $5,000 of the township school funds to one Scott Burgett without said loan being secured by a real estate mortgage in manner and form as provided by law. It also averred the removal of Hawkins, the appointment and qualification of his successor, the demand for the said $5,000 and Hawkins’ failure to deliver the same.

The two appellees filed separate pleas which were identical in form. The first plea was that appellees did not owe the money, the second plea was non damnificatus, the third performance, the fourth denying the second breach, the fifth denying that demand had been made upon Hawkins, the sixth denying that a successor had been appointed, the seventh denying that Hawkins had any monies in his hands belonging to the trustees at the time of the commencement of this suit and the eighth averring that the Newman National Bank had been, designated as depository of school funds by the board of trustees, and that there was in said bank all of the funds belonging to said board of trustees.

An additional plea averred the designation of the same bank as depository along with the First State Bank of Newman and that there was a balance of $23,763.47 on deposit in the said Newman National Bank which constituted all of the funds belonging to the board of trustees; that the said bank was closed on March 6, A. D. 1933 by the proclamation of the president and is now closed and in receivership and that the appellee Hawkins is ready to tender and bring into court an assignment of that account and pay the same to the appellant. To the first seven pleas the appellant filed similiters. To the eighth plea the appellant filed a replication denying that all the funds of said school treasurer were in the said Newman National Bank at the time of the default of Hawkins. As to the additional plea appellant filed a replication denying that appellees had tendered the sum of $23,763.47 and averred that the appellant was willing and ready to accept such tender but denied that it was bound to accept any assignment of an account placed to Hawkins’ credit in the closed bank after the default of the treasurer and after suit was brought.

By agreement of parties a jury was waived and the cause tried before the court. After the testimony was concluded the court found the issues in favor of the appellees and against the appellant for costs of suit and judgment was entered upon such finding, from which judgment appellants have prosecuted this appeal.

The evidence disclosed that the appellee Hawkins had his office in the rear of the First National Bank of Newman. He had on deposit in this bank early in the year of 1933 the sum of $23,763.47. Hawkins also kept the books of supervisor J. M. Cooley who was treasurer of the road and bridge fund of the town of Newman. Cooley had loaned the sum of $5,000 from the road and bridge'fund to one Scott Burgett and because of that fact, when he prepared to make his report about the last of March, 1933, his account was short to that extent and Burgett could not repay the money. Cooley’s report was due to the board of town auditors about that time and it was necessary for him to have the same approved and published before the annual town meeting. He and Burgett went to Hawkins and arranged to borrow $5,000 from the school fund so that Cooley’s account would be straight. The school treasurer did not have to make a report until the first of the following July.

The bank had been closed by the order of the president on March 6, A. D. 1933. Hawkins had deposited the funds in the bank in the name of “A. S. Hawkins, Treas. 16-14.” Cooley’s account in the bank as supervisor was deposited as “J. M. Cooley, Treas. R. & B.”

In order to secure Hawkins, Cooley and Burgett gave him a note for the sum of $5,000 signed by them jointly and turned over two other notes as collateral security therefor. On the back of the note was indorsed, “It is understood that this note is the obligation of Scott Burgett and is to be paid by him.” Thereupon Hawkins gave to Cooley a check dated March 25, A. D. 1933, drawn on the Newman National Bank payable to “J. M. Cooley, Treas. R. & B. $5000.00” and signed “A. S. Hawkins, Treas. 16-14.” Cooley indorsed the check and placed the same in the bank for credit upon his account as treasurer of the road and bridge fund. Hawkins then prepared for Cooley his annual report to the board of town auditors and filed it with himself as town clerk, which office he also held. In order to have Cooley’s report disclose no shortage it was necessary that Cooley be credited with the $5,000 check given him by Hawkins. This check was treated by Hawkins as a transfer of $5,000 of bis funds in the bank to the Cooley account and accepted by the latter and acted upon by him in making up his supervisor’s report.

On March 27, A. D. 1933, two days after the check was given, a conservator was appointed for the Newman National Bank. The conservator took charge on March 28th, and finding the Hawkins check in the files, credited Cooley with the $5,000 and charged Hawkins’ passbook with that amount. Cooley’s passbook was presented to the town auditors and his report approved and published.

Along about the middle of June, the board of school trustees met in Hawkins’ office and the latter was asked about his account. He told the board that he was short and that he had loaned the $5,000 to Scott Burgett; that he had taken Burgett’s note for the said sum which was secured by two notes for $2,500 each. He told the board that he had given the $5,000 check to Burgett so that the latter could repay that amount for money he had borrowed from Cooley as supervisor so that Cooley could balance his account before making his annual report. He admitted that he did not have the right to make the loan and that he could not pay the same; that he was secured by a surety bond and would notify the company that his account was short. He was removed from office as school treasurer and E. O. Swickard was appointed as his successor. Swickard demanded the monies and accounts of the school treasurer and Hawkins turned over his passbook showing a balance which was about $5,000' short. Hawkins advised the new treasurer that he was unable to pay this amount and that they would have to look to his bondsmen for payment.

Two months after the suit was instituted, in September, a receiver was appointed for the bank. Thereafter the receiver without any notice to the school treasurer changed the accounts in the bank by charging the account of Cooley with $5,000 and crediting the account of “A. S. Hawkins, Treas. 16-14” with the same amount. No checks were drawn by anybody to make this change.

It is the contention of the appellant that the appellee Hawkins as treasurer made the loan to Burgett from his account in violation of law and for the purpose of aiding Cooley in squaring the supervisor account; that as town clerk and ex oficio member of the town auditors he knew of the circumstances whereby the supervisor account had been balanced, accepted and approved and that because of his knowledge of the entire transaction he was estopped to deny the validity of the transfer of the funds from his account as treasurer so that the loss could later be thrown upon the road and bridge fund.

The appellees assert that the check in question from Hawkins to Burgett was a complete nullity since it was given on a closed bank, which was never reopened, and that the conservator had no power or authority to cash the $5,000 check in question or to transfer the proceeds thereof from one account to another after the suspension of the bank and that the rights of the parties should be fixed as of the official date as of the closing of the bank on March 6,1933.

It is apparent from the undisputed testimony that Hawkins and Cooley manipulated the school funds so that the board of town auditors would approve the supervisor’s report showing a balanced account and get Cooley’s successor to accept an order on the bank for the funds. Aided by Burgett, they induced the conservator to transfer the $5,000 fund from the school treasurer to Cooley as treasurer of the road and bridge fund. Hawkins well knew at the time he made this arrangement and checked out the funds that he had no authority to loan the funds out of the district except as provided by law. Callaghan’s Rev. St. ch. 122, If 72. The making of the loan without sufficient security and in violation of law rendered the treasurer and his bondsmen liable. It is our judgment that Hawkins was in default; that his manipulations secured the approval of the supervisor’s annual report and that he is now barred from claiming that the conservator had no power to make the transfer of accounts made at his special instance and request. Neither do we feel that the action of the receiver acting under advice from the comptroller of currency could correct or change these accounts.

It is further. contended by the appellee that the action of the receiver in holding that the conservator had no right to charge the Hawkins check to his account as school treasurer and to credit the account of Cooley as treasurer of the road and bridge fund was proper and wholly justifiable and that such action replaced the bank deposits in the same condition that they were at the time the bank was closed on March 6, A. D. 1933 ; that thereby the tender of the assignment of the account gave to the appellants the same rights they would have had if the Hawkins check had never been given. It is a well established principle of law in the State of Illinois that a tender to be effective must be made in money at all times ready to be paid and kept in readiness for a creditor and when pleaded at law must be brought into court for the creditors. It is this way only that the debtor can escape the payment of interest and costs. Aulger v. Clay, 109 Ill. 487. It is therefore our judgment that the tender of an assignment of an account in the closed bank) which was certain to bring litigation and difficulties to the assignee instead of cash for the amount in controversy, was not a sufficient tender at law.

Because of the views herein expressed, we believe that the trial court erred in finding for the appellees and in not rendering judgment in favor of the appellant for the amount due from Hawkins as school treasurer in order to balance his account which was short the sum of $5,000 represented by the check dated March 25, 1933, and interest at five per cent from that date. The judgment of the circuit court of Douglas county is therefore reversed and the cause remanded.

jReversed and remctdtded.


text:
    The People of the State of Illinois, Plaintiff in Error, v. Hiram L. Williamson et al., Defendants in Error.
    Gen. No. 8,871.
    Heard in this court at the October term, 1934.
    Opinion filed April 12, 1935.
    Otto Keener, Attorney General, for plaintiff in error; J. J. Neiger, Assistant Attorney General, A. H. Greening, State’s Attorney, and T. W. Hoopes, Assistant State’s Attorney, of counsel.
    A. M. Fitzgerald and Brown, Hay & Stephens, all of Springfield, for defendants in error; Logan Hay, L. W. Ensel and Charles G. Briggle, Jr., all of Springfield, of counsel.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This writ of error is sued out and prosecuted by the People of the State of Illinois to review the judgment of the circuit court of Sangamon county in quashing an indictment returned by the grand jury of said county at the November term, 1933.

Under an amendment to section 17 of Division NTTT of the Criminal Code, Cahill’s St. ch; 38, IT 770, passed by the General Assembly and approved July 6, 1933, the prosecution of such writ of error is permitted from a judgment quashing an indictment. In part such amendment reads as follows: “The people may sue out writs of error to review any order or judgment quashing or setting aside an indictment or information.” The circuit court of Sangamon county held that the indictment in this case was barred by the statute of limitations. The indictment returned on December 29, 1933, consisted of four counts and charges a conspiracy to defraud the State of Illinois.

The first count charges that the defendants in error on, to wit: the 20th day of February, A. D. 1931, unlawfully, wilfully and knowingly, feloniously, fraudulently and deceitfully, did conspire, combine and confederate together and with each other and with divers other persons, whose names are to the said grand jurors unknown, for the purpose of committing an illegal act in connection with the duties performed, and to be thereafter performed by the said Hiram L. Williamson as superintendent of the Division of Printing, under the department of purchases and construction of the State of Illinois, and while the said Hiram L. Williamson was the duly appointed and acting superintendent of said Division of1 Printing; that is to say, for the purpose of wrongfully, wilfully and unlawfully diverting to and for the use benefit and advantage of the said Hiram L. Williamson a large amount of said printing, and the labor to be performed in connection therewith, which was then and there and thereafter under the jurisdiction, authority, control and power of the said Hiram L. Williamson as superintendent of the Division of Printing, and which lawfully could only be performed and furnished by persons, associations and corporations other than the said Hiram L. Williamson and which could not lawfully be performed and furnished by the said Hiram L. Williamson either directly or indirectly while he, the said Hiram L. Williamson, was superintendent of said Division of Printing of the State of Illinois, and thereby wrongfully, wilfully and unlawfully to divert and obtain from the State of Illinois for the use, benefit and advantage of the said Hiram L. Williamson a large amount of monies and funds belonging to the State of Illinois and thereby to cheat and defraud the said State of Illinois and taxpayers thereof out of large sums of money which would otherwise be used, and which lawfully could not be used, by the State for State purposes.

Thereupon the count alleges that the defendants, in order to accomplish the said conspiracy, committed the following overt acts:

1. On February 20, 1931, fraudulently caused to be issued by the said Hiram L. Williamson as superintendent of the Division of Printing, a voucher in the sum of $7,579.56 payable to Schnepp & Barnes, a corporation, for the alleged printing of 50,000 copies of a certain book known as the “Tourist Guide.”

2. That the defendants in error fraudulently caused a State warrant to be issued by the auditor of public accounts of the State of Illinois for said amount of $7,579.56 payable to the said Schnepp & Barnes for the printing of the said alleged copies of the ‘1 Tourist Guide. ’ ’

3. That the defendants in error caused the said State warrant for said sum of money to be paid to the said Schnepp & Barnes.

4. That the defendants in error on the 3rd day of August, 1931, fraudulently caused to be issued by the said Hiram L. Williamson as superintendent of said Division of Printing a voucher in the sum of $16,562.17 payable to Schnepp & Barnes, a corporation, for the alleged printing of 50,000 copies of a certain book known as the “Tourist Guide.”

5. That the defendants in error fraudulently caused a State warrant to be issued by the auditor of public accounts of the State of Illinois for said amount of $16,562.17 payable to the said Schnepp & Barnes for the alleged printing of the said copies of the “Tourist Guide. ’ ’

6. That the defendants in error fraudulently caused the said State warrant for the said sum of money to be paid to the said Schnepp & Barnes.

7. That the defendants in error on or about August 3, 1931, fraudulently caused to be issued by the said Hiram L. Williamson, as superintendent of the Division of Printing, a voucher in the sum of $10,112.18 payable to the Jefferson Printing & Stationery Co., a common law trust, composed of Andrew J. Barnes aforesaid and one Paul James (now deceased) for the alleged printing of 50,000 copies of a certain book known as the “Tourist Guide.”

8. That the defendants in error fraudulently caused a State warrant to be issued by the auditor of public accounts of the State of Illinois for said amount of $10,112.18 payable to the said Jefferson Printing & Stationery Co., for the printing of the said alleged copies of the “Tourist Guide.”

9. That the defendants in error fraudulently caused the State warrant for said sum of money to be paid to the said Jefferson Printing & Stationery Co.

10. That the said defendants in error immediately after the payment of the said State warrants to the said Sehnepp & Barnes and the said Jefferson Printing & Stationery Co. respectively, caused the said several amounts of money so paid by the State of Illinois by means of said State warrants to be paid and delivered to the said Hiram L. Williamson while he was the duly appointed and acting superintendent of said Division of Printing and thereby to be diverted from the monies and funds in the treasury of the State of Illinois for the use, benefit and advantage of the said Hiram L. Williamson.

11. That the defendants in error on or about the 4th day of April, 1932, and on divers other dates from April 4th, 1932, to and including February 1, 1933, fraudulently caused the last order for 50,000 copies of said “Tourist Guide” to be printed at the Hartman Printing Co., then and there owned by said Hiram L. Williamson.

12. That the defendants in error on April 4, 1932, and on divers other dates from April 4, 1932, to and including February 1, 1933, fraudulently caused the said 50,000 copies of said “Tourist Guide” to be delivered to the State of Illinois.

Said first count further charges that during all of the times aforesaid the defendants in error, and each of them, well knew that said Hiram L. Williamson as superintendent of said Division of Printing had no legal right or authority to cause the said “Tourist Guide” to be printed at the expense of the State or to have a personal or private interest in furnishing and printing said “Tourist Giude” at the expense of the State; that during all of the times aforesaid the defendants in error well knew that the purpose of printing said “Tourist Guide” at the expense of the State of Illinois was to obtain from the treasury of the State the said amount of monies aforesaid and to turn the same over to the said Hiram L. Williamson and thereby unlawfully enrich the said Hiram L. Williamson to the great injury of the State of Illinois and the taxpayers thereof; that the defendants in error pursuant to the said conspiracy falsely claimed that the said last mentioned “Tourist Guide” was printed by the said Jefferson Printing & Stationery Co., in accordance with a false and fraudulent order theretofore issued to them by the said Hiram L. Williamson for the printing of said 50,000 copies of said “Tourist Guide,” all in pursuance of said conspiracy and to accomplish the object thereof.

• The second count is substantially the same as the first count, with an additional overt act alleged therein charging that on or about December 3, 1931, the defendants in error unlawfully procured an alleged requisition purporting to be signed and issued by William J. Stratton, secretary of state, for the purpose of showing authority and approval for the printing and furnishing of 50,000 copies of “Tourist Guide” at the expense of the State of Illinois and that in pursuance of the conspiracy, the said requisition purports to be approved by the said Hiram L. Williamson, superintendent of said Division of Printing; and that at the time the defendants in error well knew that the said Schnepp & Barnes and the said Jefferson Printing & Stationery Co. had theretofore received payment by means of State warrants issued to them, and that the said several amounts had been immediately turned over to the said Hiram L. Williamson. ,

The third count is also in all respects the same as the first and second counts with additional overt acts alleged therein charging that on January 20, 1931, the defendants in error unlawfully procured to be made and issued by the said Hiram L. Williamson, as superintendent of the Division of Printing, a written order, directed to the Jefferson Printing & Stationery Co., purporting to give them authority to print 50,000 copies of “Tourist Guide” and purporting to require said printing company to use certain stock and material in the printing of said “Tourist Guide,” all of which was State stock and furnished by the said Hiram L. Williamson, superintendent of the said Division of Printing; also procuring a similar written order on February 3, 1931, addressed to Schnepp & Barnes, and procuring a certain other similar order on December 12, 1932, addressed to Schnepp & Barnes. The count further alleged knowledge on the part of the defendants in error that the said orders were not genuine or bona fide and that said orders were signed for the purpose of defrauding the State of Illinois.

The fourth count is identical with the first, second and third counts down to and including the allegations with reference to the written orders above set forth and also containing additional overt acts charging that the defendants in error on or about February 1, 1931, unlawfully and fraudulently caused and procured 50,000 copies of the said “Tourist Guide” to be printed and labor performed in the establishment of the Hartman Printing Company of which the said Hiram L. Williamson was the sole owner and proprietor; that on February 28, 1932, and during the year 1932, the same charge; and that on or about January 1, 1931, the defendants in error caused the type for the printing of 50,000 copies of the said “Tourist Guide” to be set up in the establishment of the Hartman Printing-Company owned by the said Hiram L. Williamson and then shipped to Schnepp & Barnes and used by them in printing the 50,000 copies of the said “Tourist Guide” pursuant to the said conspiracy.

While other grounds were urged by defendants in error in support of their motion to quash, the motion was sustained by the court on the grounds that the indictment shows on its face that the overt acts therein charged are barred by the statute of limitations. The indictment was returned on December 29, 1933, and the period of limitations in this case was 18 months. The statute of limitations for conspiracy runs from the date of the last act in furtherance of the object of the conspiracy. Therefore the bar of the statute would not apply if any overt acts are alleged to have been committed after July 30, 1932.

It is the contention of the plaintiff in error that each count of the indictment charges overt acts to have been committed after said date and that the action is not barred.

The overt acts charged in the indictment upon which plaintiff in error relies particularly as having been committed after July 30, 1932, are:

1. That between the 4th day of April, 1932, and the 1st day of February, 1932, the defendants in error caused the last order for 50,000 copies of said “Tourist Guide” to be printed at the Hartman Printing Company then and there owned by said Hiram L. Williamson.

2. That between the said dates the defendants in error are charged with having delivered the said 50,000 copies of the “Tourist Guide” to the State of Illinois.

3. That the defendants in error on the 12th day of December, 1932, fraudulently caused to be issued a certain order from Hiram L. Williamson as superintendent of the Division of Printing, authorizing Schnepp & Barnes to print 50,000 copies of “Tourist Guide. ’ ’

It is conceded that this indictment was brought under par. 117, ch. 38 of Cahill’s Revised Statutes which makes it a criminal offense to conspire to do either of two things:

1. To commit any offense against the State of Illinois.

2. To defraud the State of Illinois.

The controlling question in this case therefore is, Do the three above mentioned acts or any one of them constitute an act to effect the object of the conspiracy or in furtherance thereof within the meaning of section 117 above 1

Plaintiff in error urges that in carrying out the purpose and object of the conspiracy charge certain overt acts were committed by the defendants in error more than 18 months before the indictment was returned and certain other overt acts were committed.in furtherance of the conspiracy during the period of limitation — in other words, that the conspiracy in this case was a continuous one so that a prosecution for the crime charged was not barred until 18 months after the commission of the last overt act alleged.

Section 117 of the Illinois statute now under discussion is copied verbatim from a federal statute which has been in existence since 1879. U. S. Compiled Statutes 1901, page 376. Therefore, counsel for both parties have discussed in detail decisions arising under the federal statute.

In Illinois a criminal prosecution for conspiracy is not barred if the statutory period has not elapsed since the commission of the last overt act in furtherance of the conspiracy. People v. Drury, 335 Ill. 539; People v. Walsh, 322 Ill. 195. The same rule has been adopted by the federal courts. Brown v. Elliott, 225 U. S. 392; Miller v. United States, 277 Fed. 721.

But the defendants in error contend that neither the printing of the matter for the State of Illinois nor the delivery of such printed matter to the State nor the issuing of an order to a certain printer requiring him to print certain matter for the State can he said to be acts tending to defraud the State of Illinois. It is their theory that the act of defrauding was completed when the money of the State was paid out and that therefore inasmuch as the last money had been paid over more than 18 months before the indictment was brought, that the same was barred by the statute of limitations. In support of this contention defendants in error rely largely upon the authority of the following federal cases: Ex parte Black, 147 Fed. 832; De Luca v. United States, 299 Fed. 741; and Rose v. St. Clair, 28 F. (2d) 189.

An examination of these cases shows that the facts are quite similar in character to the ones alleged in the indictment in this case. ' In De Luca v. United States, 299 Fed. 741, the defendants in error were indicted for a conspiracy to defraud the United States by removing cases of opium from a bonded warehouse without payment of the duty thereon. The proof showed evidence of the sales of the opium after it had been in some way or other removed from the warehouse without the payment of the government charges. The court reversed a decision of the trial court finding the defendants in error guilty under this indictment on the ground that the overt acts alleged and proved were not “Acts done to effect the object of the conspiracy,” as required by the statutes. In passing upon this question the court said, “The overt act must be one which tends to further the conspiracy. If not it is not an overt act no matter what it may be called. It is the character of the act which is the determining factor and which clarifies it. It is not the name which it may be called.”

In Rose v. St. Clair, 28 F. (2d) 189, an affidavit for a search warrant alleged that the persons named therein conspired to commit the offense against the United States of transporting films of prize fights in interstate commerce for the purpose of exhibition and that to effect the! object of said conspiracy, advertised an exhibition of said prize fight films and exhibited them. The trial court held that these acts of advertising the exhibition of the films and the exhibition thereof did not constitute “Acts done to further the object of the conspiracy,” and that therefore the affidavit did not properly charge a crime. The court held that the object of the conspiracy had been fully and completely effected when the interstate transportation of the films had been completed and that the subsequent exhibition of the films, while it was an act done to effect the ultimate purpose of the conspirators, could not have been an act done to effect the object of the conspiracy.

We have examined with some care the large number of Illinois and federal cases cited in the brief of plaintiff in error but we do not find any of them to have actually held that the running of the statute of limitations was barred by an act which occurred after the object of the conspiracy had been accomplished. In the case of People v. Drury, 335 Ill. 539, our Supreme Court said: ‘ The conspiracy is complete when the unlawful combination or agreement is made, regardless of any subsequent interruption of the efforts to carry out the object of the conspiracy.”

It is the judgment of this court that the object of the conspiracy alleged in the indictment in this case was the obtaining of money from the State of Illinois. All monies were paid over to the defendants in error more than 18 months prior to the date when the indictment was returned and the object of the conspiracy fully accomplished; that the printing of certain matter, the delivery of same and obtaining a certain order from the superintendent of printing authorizing certain printing to be done for the State of Illinois, while they might be acts done to effect the ultimate purpose of the conspirators, were not.acts done to effect the object of the conspiracy and were not acts done to defraud the State of Illinois.

We, therefore, believe that the judgment of the court below in quashing the indictment and each count thereof is correct and that the same should be affirmed.

Affirmed.