text:
    Henry Sibenaller and Josephine Sibenaller, Appellees, v. L. H. Smock, Appellant.
    Gen. No. 38,518.
    Opinion filed February 3, 1936.
    DeWitt B. Bayer, of Chicago, for appellant.
    A. J. Deutschman, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal defendant, L. H. Smock, seeks to reverse a judgment entered by confession on a lease and an order of court overruling defendant’s motion to open up the judgment, and for leave to defend on the merits.

The record discloses that plaintiffs, as landlords, ■entered into a written lease with defendant, as tenant, the premises involved being an apartment in a building in Chicago, covering a period from October 1, 1933, to September 30,1934, at a rental of $80 a month, payable in advance on the first of each month. The rent claimed was $160 for January and February, 1933, together with attorney’s fees of $24, and judgment for the amount claimed was entered February 8, 1935. March 6, 1935, defendant filed his verified petition to open up the judgment and for leave to defend the ease on its merits. The petition set up inter alia the execution of the lease and that defendant learned of the entry of the judgment on February 22nd, when he received a letter from the Harris Trust & Savings Bank notifying him that his account had been garnisheed by plaintiffs. It also set up that there was no power under the lease to confess the judgment after expiration of the term covered by the lease, September 30, 1934; that about August 1, 1934, defendant notified plaintiffs that he would not remain in the apartment unless certain repairs were made, and that on or about October 1st plaintiffs agreed they would make the requested repairs and would incorporate a provision to that effect in a new lease; that defendant thereupon agreed to remain in possession of the apartment, but on November 7th, plaintiffs informed him they would not make the repairs; that defendant then gave a 30-day notice that he would vacate the premises January 1, 1935; that he paid the rent up to that time and vacated the premises about the 17th of December, 1934; that no new lease had been executed except the oral agreement above stated.

On the same day the petition was filed, March 6, 1935, the court denied defendant’s motion to open up the judgment and for leave to defend; defendant excepted and an appeal bond was fixed by the court at $200; March 13th plaintiffs filed a notice of appeal. Other proceedings were had which we think unnecessary to mention here. March 23rd defendant filed a praecipe for record in which he specified what he. desired included in the record which called for substantially a complete record. It was also stated in the praecipe that it was not necessary “that a copy of the Bill of Exceptions [report of proceedings of the trial] he furnished you for this purpose in as much as an Order will be entered that the original Bill of Exceptions might be transmitted to the Appellate Court.” March 27,1935, defendant’s appeal bond was approved and filed. May 2nd defendant filed a notice which he had served on counsel for plaintiffs the preceding day, stating that he would ask for an order of court approving the report of the proceedings on the trial. And on the same day plaintiffs’ counsel notified defendant that he would move for a dismissal of the appeal. May 2nd an order was entered postponing both motions until May 21st. The following day an order was entered extending the time 30 days within which to file a report of the proceedings of the trial, and afterward a number of other orders were entered extending such time, the last of which extended the time for filing the report of the proceedings to August 9th. August 6th an order was entered overruling defendant’s motion for the court to sign and approve the report of the proceedings, plaintiffs’ motion to dismiss the appeal was sustained and the appeal dismissed. August 14th defendant filed a praecipe for record with the clerk of the court which apparently called for a complete record. Afterward plaintiffs filed a petition in this court for leave to appeal in accordance with the provision of sec. 76 of the Civil Practice Act, Ill. State Bar. Stats. 1935, [¶] 204. The application was opposed by defendant but it was allowed and the case is before us on its merits.

The lease in question demised the apartment from the 1st of October, 1933, to the 30th of September, 1934, inclusive, “and from year to year thereafter, unless and until this lease shall be terminated at the date last above mentioned, or at a like date in any subsequent year thereafter, by the giving by either party to the other of not less than sixty (60) days’ notice in writing of such termination.” The power to confess judgment contained in the lease provided that an attorney of record might authorize a judgment “against Lessee, for the amount of rent which may be then due, by virtue of the terms hereof, or of any extensions or renewals hereof, or by virtue of any holdover after the termination hereof.”

The lease was attached to and made a part of plaintiffs’ statement of claim and can therefore be considered by this court whether or not, on the hearing of defendant’s motion to open up the judgment and for leave to defend, other evidence was introduced, including the lease. Sec. 74, If 202, Civil Practice Act, Ill. State Bar Stats. 1935.

Counsel for plaintiffs says in his brief that defendant having questioned “both the jurisdiction and interposed alleged defenses to the merits thereby submitted himself to the jurisdiction of the court for all purposes. ’ ’ Obviously this contention is true; but defendant was seeking to have the judgment opened up and for leave to defend on the merits, because it appeared that there was no warrant for entering the judgment after the time covered by the lease had expired, and the fact that defendant had entered his general appearance was of no consequence.

In Hymen v. Anschicks, 270 Ill. App. 202, where the terms of the lease were substantially the same as the lease before us, we held that judgment by confession was not warranted after the term covered by the lease had expired.

For the reasons stated in the Hymen case the judgment and order of the municipal court of Chicago appealed from are reversed and the cause remanded.

Reversed and remanded.

McSurbly, P. J., and Matchett, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    George D. Kimball, Appellant, v. James W. Ryan et al., Appellees.
    Gen. No. 38,527.
    Opinion filed February 3, 1936.
    Rehearing denied February 17, 1936.
    Samuel J. Andalman, of Chicago, for appellant.

      Peden, Melaniphy, Eyan & Andreas, Michael F. Eyan and Julius C. Greenbaum, all. of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendants to recover damages for an alleged libel. Defendants interposed a motion to strike the complaint on the ground tíiat it did not state a cause of action. The motion was sustained, the complaint stricken, judgment entered against plaintiff for costs, and he appeals.

It is alleged in the complaint that an aldermanic election was to be held February 26,1935, in the City of Chicago; that under the law, one desiring to become a candidate was required to file his petition with the election commissioners of the City of Chicago; that the petition should be signed by a certain number of qualified and registered legal voters of the ward in which a person desired to submit his candidacy to the voters; that plaintiff, a qualified voter of the ward, was requested by the candidate to circulate the candidate’s petition and obtain signatures to the petition to be filed with the election commissioners; that plaintiff, in accordance with the request, obtained the signatures of 25 qualified voters of the ward to the candidate’s petition, and this petition, together with 37 other similar petitions, was filed with the election commissioners; that the petitions so filed contained the requisite number of signatures of voters, and that the candidate complied with all the requirements of the law to entitle his name to appear on the official ballot as a candidate for alderman of the seventh ward at the election on February 26, 1935.

It is further alleged that two other candidates filed their petitions with the election commissioners so that their names might also appear on the ballot as candidates for aldermen at the same election; that one of the candidates was the sitting alderman who desired to run for re-election; that defendants were members of the Democratic Club of the ward and upon the filing of the petitions of plaintiff and the other candidates, defendants entered into a conspiracy for the purpose of procuring the re-election of the sitting alderman and to prevent the names of the two opposing candidates from appearing upon the ballot, “and did then and there enter into a conspiracy and agreement to commit slander and libel against the plaintiff and others” to carry out their purpose of preventing the two opposing candidates’ names from appearing on the ballot; and for the purpose of carrying out the conspiracy it was agreed that one of the defendants should file written objections to the petitions of the two opposing candidates with the election commissioners who were “designated by law to hear and pass upon” such objections; that one of defendants, pursuant to said agreement and conspiracy, filed written objections in which it was stated that many of the registered voters whose names were written on the petition, did not in fact sign such petitions but that their signatures were forgeries, and that the objector, in and by such written statement, charged that a number of persons whose names appeared to be signed to the petitions circulated by plaintiff and others did not, in fact, sign such petitions, and that many of the signatures obtained by plaintiff were forgeries; that in such objections, pursuant “to said conspiracy,” it was further stated that the circulators of many of the sheets of the petition, did not, in fact, personally circulate the sheets, and did not personally see all of the persons whose names appeared on the sheets write their names thereon, as was asserted by the circulator in his affidavit to each of said sheets, and that by such statement the objector “intended to and did charge” that plaintiff did not personally circulate the sheet and did not see all of the persons whose names appeared on the sheet write their names on it; that “in pursuance to said conspiracy” the objector further stated in such objections that the circulators of the sheets did not appear before notaries public whose signatures and seals were áttached to the sheets, and that a number of the circulators of the sheets did not, in fact, sign the sheets as purported in the presence of notaries public, and did not swear to such petitions before them; that by such statement the objector intended to and did charge that plaintiff did not, in fact, appear before a notary public and did not sign and subscribe to the petition in the presence of the notary and did not swear to such petition; that in pursuance of such conspiracy by the defendants the objector further stated in the objections filed, that the circulators of many of the sheets did not personally see each of the signers sign the sheets as purported by the affidavit, and specified certain names which appeared on four different sheets, including the one circulated by plaintiff, and that by such statement the objector intended to and did charge that plaintiff did not circulate the sheet procured by him, did not see all of the persons sign their names to the sheet, as he stated in his affidavit to the sheet, and thereby defendants charged that “plaintiff committed perjury”; that in furtherance of the conspiracy it was stated in the objections filed that a number of the circulators of the sheets did not appear before the notaries public whose names and seals were attached to the several sheets as purported, and did not sign their names in .the presence of the notaries, and among those circulators plaintiff was named; that in and by such statement the objector intended to and did charge that plaintiff did not, in fact, appear before, the notary public, and that he did not swear to the petition, and therefore plaintiff was charged with committing perjury; that in furtherance of the conspiracy it was further stated in the objections filed that a number of the signatures on the sheets were written by the same persons and were not, in fact, signed by the persons as purported to be done. Then follow a number of names that appear upon the several sheets, including the sheet circulated by plaintiff, and it is charged that by such statement the defendants intended to and did charge that two names appearing on the sheet circulated by plaintiff were not signed by such persons, and therefore charged plaintiff with having committed perjury in his affidavit attached to such sheet. It was further alleged that the signatures on the sheet circulated by plaintiff were the genuine signatures of the persons whose names appeared thereon, and that the statement made in the objections was false and that plaintiff did make the affidavit as shown by the sheet circulated by him.

It was further alleged that in furtherance of the conspiracy defendants procured some person unknown to plaintiff to sign a purported affidavit before a notary public. The purported affidavit is then set up verbatim and purports to be made by one of the persons whose name appears on the sheet or petition circulated by plaintiff, in which such person purports to swear that she did not sign such petition; and in the purported affidavit it is said that it is made for the purpose “of presenting the same before the Board of Election Commissioners ... in connection with objections filed to the nominating petition of Floyd M. Saxon,” one of the candidates. It is then alleged that the statement or affidavit was a forgery and known to be such by defendants, and that by procuring it defendants intended to and did charge that plaintiff had committed perjury, whereas the fact was that the person whose name appeared on the sheet circulated by plaintiff did sign it; and that five similar statements or affidavits were obtained and similar charges are made in reference to them.

It is further alleged that in furtherance of the conspiracy defendants procured a person unknown to plaintiff to forge the name of a person, whose name appeared on the sheet circulated by plaintiff, to a purported affidavit, that such person had not signed the sheet; that defendants knew this affidavit was a forgery and that by it defendants “charged and published to the world at large” before a notary public before whom it was purported to have been sworn to, and others, that plaintiff had committed perjury when he swore to the sheet circulated by him, whereas in truth and in fact, the person whose name appeared on the affidavit did sign the petition circulated by plaintiff; that in furtherance of the conspiracy defendants procured another false and fraudulent affidavit purporting to have been sworn to before a notary public, and the same charges are made in the complaint as to this alleged affidavit as in the one above mentioned. And it is further charged that in furtherance of the conspiracy defendants procured 150 other similar forged affidavits as to the genuineness of signatures to the petition of one candidate and 66 of the affidavits signed to the petition of the other candidates, and that all of such affidavits were forged and contrary to the facts; that all the signatures to the petition circulated by the plaintiff are genuine.

It is then alleged that at the time in question there was a statute in effect which provided for the nomination of candidates for alderman by petition and that such petitions should conform with the provisions of the election and ballot laws then in force in the City of Chicago; that there were certain election laws then in effect, which are set up in the complaint, and that the ■ statute which required the several petitions circulated (as was the one by plaintiff) required that each sheet. be sworn to by the circulator; and it is alleged that plaintiff signed and swore to the petition or sheet circulated by him; that the defendants, in furtherance of the conspiracy, well knew that all of the statements made in the affidavit to the petition circulated by plaintiff were true, but maliciously intending to injure plaintiff in his good name and reputation, they wickedly composed and published the written statements above mentioned; that such statements were false and scandalous, and that by such statements defendants meant to charge that plaintiff swore falsely to the affidavit attached to the petition circulated by him, and further, intended to charge him with forgery of certain names appearing on the petition, and. that he was thereby damaged.

Plaintiff’s theory in this court, as stated by his counsel, is that the allegations of the complaint with reference to the objections filed before the election commissioners to the two aldermanic petitions are mere inducements, and that the basis of his suit is the publishing by defendants of the eight statements or affidavits mentioned in the complaint and which were to be used in support of the objections filed. We think this position is not borne out by the record. '

The complaint is in 47 paragraphs, the first 27 have to do solely with the objections filed before the election commissioners. The allegations concerning the eight alleged affidavits claimed to be procured by defendants in furtherance of the conspiracy, are mentioned in paragraphs 28 to 35, inclusive, and most of the allegations of the remaining paragraphs of the complaint likewise have to do with the objections to the petition filed with the election commissioners.

Defendants contend that the Board of Election Commissioners is a quasi judicial body whose duty it is, under the law, to pass upon the sufficiency of. petitions filed by persons seeking to become candidates for aider-man and to hear any objections filed to such petitions; that the written objections filed in the instant case, and the affidavits filed in support thereof, are absolutely privileged; that this appears from the allegations of the complaint, and therefore plaintiff’s action for alleged libel will not lie.

It is the law that a person is not subject to be sued for slander or libel for defamatory statements in papers filed in a judicial proceeding or before bodies whose duties are quasi judicial, boards or commissions. Krumin v. Bruknes, 255 Ill. App. 503. But this rule of law obviously does not render one immune who has made such defamatory statements; he may be dealt with under the criminal law. Vol. 1, Cooley on Torts, 3rd Ed., p. 425.

In the Krumin case an action was brought seeking damages for an alleged libel, the basis of which was the alleged defamatory statements contained in affidavits- concerning the plaintiff which were filed with the Naturalization Bureau, plaintiff having applied for citizenship, and this court held that such statements were absolutely privileged, and that an action for libel could not be maintained; in discussing* the question we said (p. 510): “There are many cases holding that defamatory statements in papers filed in a judicial proceeding are absolutely privileged. Strauss v. Meyer, 48 Ill. 385; Jones v. Brownlee, 161 Mo. 258; Michael v. Matson, 81 Kan. 360; Shinglemeyer v. Wright, 124 Mich. 230; Rall v. Donnelly, 56 Ill. App. 425; Beggs v. McCrea, 70 N. Y. S. 864.”

Judge Cooley in his work, on the page cited, said: “Cases absolutely privileged, so that no action [for slander or libel] will lie, even though it be averred that the injurious publication was both false and malicious. . . .

“Of the cases absolutely protected, that of the witness in judicial proceedings has already been alluded to. No action will lie against him at the suit of the party injured by his - false testimony, even though malice be charged; but he must be left to be dealt with by the criminal law. The rule assumes, however, that he will not wander from the ease in giving his testimony, and abuse his privilege by testifying to that which is impertinent and immaterial, and which has not been called out by questions of counsel.”

So too, it was held that a letter to the railroad commission of Texas in answer to a complaint filed before it, which letter contained an alleged libel, was absolutely privileged. The commission was created by the State legislature and the statute provided for a filing of complaints before the commission, which was authorized to summon witnesses and compel their attendance.

And in Independent Life Ins. Co. v. Rodgers, 165 Tenn. 447, the court said (p. 455): “Absolute privilege, as distinguished from qualified privilege, has béen extended to many inquiries that are not conducted before courts of justice or courts of record ... to proceedings before the interstate commerce commission.”

The creation of the board of election commissioners is authorized by statute. (Ch. 46, ft 255, Ill. State Bar Stats. 1935.) “In every city, village and incorporated town so adopting this act there shall be created a board of election commissioners, which shall be composed of three members, . . . and shall be appointed by the county court . . . such appointment shall be entered of record in such court, and when qualified such commissioner shall be an officer of such court.” Then follow other sections specifying the duties of the commissioners. Section 198 empowers the board to hear evidence under oath regarding residents of lodging houses. By other sections of the act the election commissioners are authorized to hear objections filed to nominating petitions, and the commission is authorized to administer oaths, subpoena and examine witnesses, etc., all of which; we think, make the board of election commissioners a quasi judicial body. In view of the statute we hold that objections filed to the alder-manic petitions mentioned in plaintiff’s complaint rendered the persons filing them, so long as the statements made in the objections are relevant, immune from a suit for an alleged libel.

We are further of the opinion that the eight alleged statements or affidavits which plaintiff contends are libelous are also privileged because they were to be used in support of the objections filed before the election commissioners. If persons appeared before the commission on the hearing of the objections and testified to the facts set up in the affidavits, although the testimony might be false it would be privileged, and as stated by Judge Cooley in his work on Torts, “No action will lie against him at the suit of the party injured by his false testimony, even though malice be 'charged; but he must be left to be dealt with by the criminal law. ’ ’ If such sworn testimony is privileged, with greater reason ought the affidavit be privileged.

Furthermore, in none of the alleged affidavits is there any reference made to plaintiff, either directly or by implication. Nor is there any language used from which it might be inferred that he was being spoken of in a derogatory manner. The notaries public before whom the persons making the alleged affidavits appeared, even if they read the affidavits, would have no intimation that plaintiff was being criticized. And the allegation of the complaint that plaintiff was, by innuendo, charged with making a false affidavit, is not warranted by the language of the affidavits. The innuendo cannot enlarge or restrict the natural meaning of the words used in the affidavit. 25 Cyc., p. 449. It is there said: “The office of the innuendo is to connect the defamatory matter with other facts and" circumstances sufficiently expressed before, for the purpose of showing the meaning and application of the charge.

“The innuendo is only explanatory of the words to which it is attached and it cannot enlarge or restrict the natural meaning of the words, introduce new matter, or make certain that which was uncertain, except insofar as it connects the words published with the extrinsic or explanatory circumstances alleged in the inducement. If the publication is not actionable per se, it cannot be made so by innuendo.”

Plaintiff also contends that the court should not have heard defendants’ motion to strike their complaint over plaintiff’s objection during the summer when the court was in recess and hearing only matters of emergency ; that there was no emergency in hearing- defendants ’ motion to strike. The record discloses that plaintiff was taking depositions before a master who was sitting as an examiner, and that he insisted in going ahead with "the examination of a great many witnesses. Under the chancery practice complainant was entitled to take the depositions of witnesses (sec. 24, ch. 51, Cahill’s 1933 Stats.) before an issue was formed. Schmidt v. Cooper, 195 Ill. App. 531, affirmed in 274 Ill. 243. This same procedure is now available in an action at law. (Supreme Court Rule 19, par. 242, ch. 110, Ill. State Bar Stats. 1935.)

In the Schmidt case a bill was filed and depositions were being taken before the issue was made up. A witness refused to testify before a master who was acting as a commissioner and he was adjudged by the court to be in contempt. He appealed to this court and the judgment was affirmed. "We there said (p. 535): “No point is made that the bill does not state a cause of action. ’ ’

In the instant case defendants challenged the sufficiency of the complaint and moved that it be stricken. In view of the fact that plaintiff was insisting on continuing to take depositions during the summer recess of the court, while defendants were insisting that the complaint did not state a cause of action, we think it was more of an emergency for the court to dispose of the motion to strike than it was for plaintiff to continue during the recess to take depositions, and since we hold that the complaint was properly stricken, it is clear that the action of the trial court was entirely proper.

For the reasons stated the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    The People of the State of Illinois, Appellant, v. Roy McArthur, Appellee.
    Gen. No. 38,538.
    Opinion filed February 3, 1936.
    Rehearing denied February 17, 1936.

      Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    Elwyn E. Long and John J. Power, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the

court.

Defendant, Boy McArthur, filed his petition under sec. 72 of the Civil Practice Act, praying that the judgment by which he was convicted, in the criminal court of Cook county, of receiving a stolen automobile, knowing the same to have been stolen, and the sentence under such conviction be set aside and held for naught, and a new trial ordered on the ground that errors of fact had been committed in the trial of the criminal case.

The People, by the State’s attorney, filed a motion to dismiss the petition, which was overruled; the court then heard the testimony of a witness and also considered the evidence taken on the trial of the criminal case and ordered that the judgment of conviction be reversed and set aside. The order then continues: “And the Court being fully advised in the premises doth find the said Defendant, Boy McArthur, Not Guilty.

“It is further ordered by the Court that,the sentence and judgment heretofore entered herein be set aside and vacated. And it is further ordered that the said Defendant, Boy McArthur, be discharged.” To reverse this judgment the People prosecute this appeal.

Since the proceeding under sec. 72 is civil in its nature and the judgment entered upon such proceeding is final, either the State or the defendant is entitled to a review of the judgment. People v. Green, 355 Ill. 468.

The record discloses that defendant, Boy McArthur, with two others, was indicted by the criminal court of Cook county on the charge of receiving a stolen automobile knowing it to be stolen. There was a trial before the court without a jury. The defendant was found guilty and sentenced on the finding. He sued out a writ of error from the Supreme Court where the judgment of conviction was affirmed. People v. McArthur, 359 Ill. 121. The Supreme Court, in its opinion, discussed the evidence and said (p. 124): “that the evidence fully sustained the finding* of the court and that no error has intervened requiring reversal of the- judgment. ” That opinion was filed December 19', 1934, and a rehearing* was denied at the February term 1935. March 29,1935, McArthur filed his petition seeking relief under section 72 of the Civil Practice Act. Section 72 of the Civil Practice Act, which went into effect January, 1934, is identical with section 89 of the old Practice Act, which latter section was repealed by the Civil Practice Act. In discussing what one must show to be relieved from a conviction in a criminal case, by virtue of the provisions of sec. 89 of the old Practice Act, the court in People v. Crooks, 326 Ill. 266, said (p. 280): “Errors of fact which may be availed of on writ of error coram nobis or under a motion made in' pursuance of Section 89 of our Practice act include duress, fraud and excusable mistake. . . . The writ of error coram nobis, or a motion under said statute, is an appropriate remedy in criminal cases as well as in civil cases. Such a writ lies to set aside a conviction obtained by duress or fraud, or where by some excusable mistake or ignorance of the accused, and without negligence on his part, he has been deprived of a defense which he could have used at his trial and which if known to the court would have prevented a conviction, or to set aside a conviction based on a plea forced by fear of mob law or by other fear of the defendant induced by misconduct of the officers of the court or by other officers of the law in whose custody a confession was obtained by such unlawful means.”

In the instant case defendant bases his right for relief on the ground of an “excusable mistake,” i. e., that counsel for defendant on the trial of the case failed to call Herman N". Shocke as a witness for defendant, and failed to properly examine some of the other witnesses. Counsel in their brief state that on the instant hearing they decided to call Shocke, and he was called and testified, although, they say, “well knowing that in doing so they would be charged with negligence and carelessness. However, they now contend that any such alleged carelessness or negligence may, and should, under the peculiar.circumstances of this case, be regarded as merely an ‘ excusable mistake. ’ ’ ’

In response to an inquiry by the court as to why Shocke was not called as a witness on the trial of the criminal case, defendant’s counsel answered, “Because his [Shocke’s] boy was arrested at the time; they took his son into custody and Mr. Shocke wouldn’t have anything to do with it, and I wouldn’t have him here as a hostile witness.” It is obvious, and as we understand there is no contention to the contrary, that Shocke was available as a witness at the time of the trial of the criminal case, but his counsel saw fit not to call him. Certainly, this is not such an “excusable mistake” as would warrant the court in giving relief under section 72 of the Civil Practice Act, because as stated in the Crooks case, the excusable mistake which may be availed of by a defendant under that section must have occurred without negligence on the part of defendant. Certainly that is not the case before us.

Moreover, the testimony of Shocke was not of such a character as to necessarily warrant the court in finding the defendant not guilty of the charge made against him in the indictment.

Shocke testified that at the time in question the defendant, McArthur, and some other boys wanted to put an automobile in his garage; that he asked defendant about the car and defendant replied that he was exchanging "the car or buying it from Bay Duchene and another boy named Bogers; and that defendant was giving his father’s Chevrolet car and some money for the car; that the witness’ son was there at the time; that if the witness would permit defendant to leave the car over night they would get it in the morning; that the witness agreed to this. He further testified that a day or so afterward the police came and took the caraway from the garage, and at that time the police asked the witness about his boy and accused the son of being in a serious situation. The witness further testified that the night some of the boys were arrested he talked to McArthur about the matter; and that he had known defendant about four or five years.

The trial judge, after considering all the evidence he had heard on the trial of the criminal case, and the further evidence adduced on the hearing of the motion, was of opinion that defendant was not guilty, and discharged him. We think this could not be done under the law. There was not such an excusable mistake as wuuld warrant the court in interfering with the judgment of conviction theretofore entered and which had been affirmed by the Supreme Court.

The judgment of the criminal court of Cook county is reversed and the matter is remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


author: Mr. Justice Dove

text:
    Stefan Gavurnik and Anna Gavurnik, Administrators of the Estate of Stefan Gavurnik, Deceased, Appellees, v. Benjamin F. Miller, Appellant.
    Gen. No. 8,990.
    Opinion filed February 10, 1936.
    Robertson, Crowe & Spence, of Chicago, and Run-yard & Behanna, of Waukegan, for appellant; Burt A. Crowe, of counsel.
    Robert L. Huttner, of Chicago, and J. E. Bairstow, of Waukegan, for appellees; J. E. Bairstow, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This is an action to recover damages for the wrongful death of Stefan Gavurnik, a boy 16 years of age. The original complaint consisted of two counts. At the conclusion of all the evidence, the first count was withdrawn from the consideration of the jury and the case went to the jury upon the issue made by the second count and the answer thereto, resulting in a verdict in favor of the plaintiffs and against the defendant for $4,000, upon which judgment was rendered, and the record comes to this court for review by appeal.

The second count charged that on August 15, 1934, Stefan Gavurnik, then 16 years of age, was riding a bicycle in a southerly direction on State Highway Route 59 and that appellant was driving his automobile also in a southerly direction along said pavement and overtook Gavurnik and commenced to pass him. This count of the complaint then averred that Gavurnik was in plain view of appellant, that appellant saw him and could have slackened his speed, but he did not do so. This count then charged that appellant, after having so seen Gavurnik, failed to reduce the rate of speed of his car and wilfully, wantonly and maliciously, and with a conscious indifference to consequences, drove his automobile along the highway and struck the said Gavurnik, thereby causing Ms death, which occurred on August 18, 1934.

The evidence discloses that it rained most of the day of August 15, 1934 and that during the afternoon of that day, Gavurnik and Anton Stepan, another boy 17 years of age, and a sernor in Mgh school, started on their bicycles for Wooster Lake from Lake Catherine and that about five o ’clock in the afternoon, they were riding along Route 59, going* in a southerly direction just south of the entrance to the Chain 0’Lakes Country Club; that the pavement was 18 feet in width and was wet and the shoulders along the highway were muddy; that the highway as it passes the entrance to the Chain 0’Lakes Country Club is straight and level and so continues for at least 1,600 feet south of the entrance; that it was not raining when the accident happened and there was no other traffic in the road except the automobile, a Tudor Ford sedan, driven by appellant, which was going in a southerly direction, and the two boys on their bicycles; that it was broad daylight and appellant observed the boys on their bicycles when they were about 300 yards ahead of him, and they were then riding side by side, close to the right or west side of the pavement. Appellant testified that when he was within a distance of 100 or 150 feet from them, he blew his horn but did not observe that either boy turned around and that when he was within about 25 feet from the boys, he started to turn his car to the west and into the other traffic lane in order to pass the bicyclists and that as he did so the deceased suddenly turned his bicycle also to the left, got up on the pedals of his bicycle and cut across the road in front of him; that in an endeavor to avoid hitting the deceased, appellant then turned his car to the right, but his left front fender struck the bicycle upon which G-avurnik was riding, knocking him off and as a result thereof he sustained injuries from which he died. According to appellant’s testimony, he was driving at a speed of about 45 miles per hour and did not reduce it or attempt to use his brakes because the pavement was wet. According to the testimony of Anton Stepan, the only other occurrence witness, he, Stepan, looked back for no particular reason and saw appellant’s car approaching in the west traffic lane and it was then about 125 feet in the rear of the boys. Stepan thereupon advised the deceased that an automobile was approaching and immediately Gavurnilc turned his bicycle to the east and had proceeded to about the middle of the road when appellant’s horn was sounded; that Gavurnik continued to the east side of the pavement and Stepan observed him until he was about one foot west of the east edge of the pavement, when he was struck by appellant’s car. When the horn sounded, this witness estimated that appellant’s car was about' 100 feet to his rear and traveling at the rate of 50 to 60 miles per hour.

From the evidence it is apparent that as soon as Gavurnik became aware of the presence of .appellant’s car, he immediately increased his speed and turned his bicycle to the east, and when the accident happened, he had proceeded across the pavement and his front wheel was within a short distance of its east edge and he had advanced three or four feet further south on the pavement than his companion Stepan, who remained on the west side of the pavement. After leaving his companion and starting toward the opposite or east side of the pavement, he, Gavurnik, continued diagonally across the pavement and over into the north-bound traffic lane without altering his course. There was no other traffic on the highway and appellant saw the boys when they were about 300 yards in front of him and at that time he did not give any warning of his approach. About the only difference in the version of the respective witnesses is that Stepan says that the deceased turned to the left and started diagonally across the pavement before the horn on appellant’s car sounded and had reached almost the center of the pavement when it did sound, while appellant says that both boys were riding side by side and so continued after he sounded his horn and until he was within about 25 feet of them, when at that time the deceased suddenly turned to the left and crossed his path directly in front of him, and in order to avoid him he, appellant, then turned his car to the right. Appellant says he was about 100 or 150 feet back of the boys when he sounded his horn and Stepan says he was about 100 feet to their rear. Appellant says he was driving all the time at a speed of about 45 miles per hour, while Stepan estimates it at 50 or 60 miles per hour.

In order to sustain the judgment of the trial court, upon the issues made by the pleadings, it was in cum-bent upon appellees to prove by a preponderance of the evidence that the accident was caused by the wilful and wanton misconduct of appellant in operating his automobile. In the recent case of Farley v. Mitchell, 282 Ill. App. 555, the court said: “A great deal of language has been used in many cases in the attempt to define with mathematical certainty the difference between ordinary negligence and wilful and wanton negligence. More recent cases have held that this is virtually impossible; that whether an act is wilful and wanton depends upon the particular circumstances of each case. In Bernier v. Illinois Cent. R. Co., 296 Ill. 464, the court said: ‘It is difficult, if not impossible, to lay down a rule of general application by which we may determine what degree of negligence the law considers equivalent to a wilful or wanton act.’ And in Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, it was said: ‘What degree of negligence the law considers equivalent to á wilful or wanton act is as hard to define as negligence itself, and in the nature of things is so dependent upon the particular circumstances of each case as not to be susceptible of general statement.’ However, the decided cases seem to agree that one of the factors distinguishing a wilful and wanton act is, such absence of care for the person of another as exhibits a conscious indifference to consequences. Lake Shore & Michigan Southern Ry. Co. v. Bodemer, 139 Ill. 596; Walldren Express & Van Co. v. Krug, 291 Ill. 472; Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392; Brown v. Illinois Terminal Co., 319 Ill. 326; Streeter v. Humrichouse, 357 Ill. 234.”

In the instant case counsel for appellees insist that inasmuch as the evidence discloses that appellant was traveling between 45 and 60 miles per hour on a wet pavement, that he observed these boys when he was 300 yards in their rear and drove toward them knowing that they were unaware of his approach and that he continued toward them without slackening his speed and without any warning until he was within 125 feet of them, that he did not attempt to stop his car because he was afraid it would skid, that he continued in the center of the pavement until he was within 125 feet from them and then sounded his horn, which could have only confused them, the only reasonable inference that can be drawn from this evidence is that it exhibits a conscious indifference to consequences and an utter disregard for the safety pf others which makes a case of legal wilfulness and wantonness in the operation of his car.

We are unable to agree with this contention. It may be that the deceased became confused when he heard the warning from appellant’s horn and it may be that a more skilful driver than appellant could have driven his car in between the bicyclists and not injured either and it may be that a more careful driver would have slackened his speed and sounded a warning sooner than appellant did, but a failure to do these under the circumstances as shown by this record were in our opinion no more than negligent omissions of duty and do not show an indifference to consequences, nor are they equivalent to a wilful and wanton act.

The only traffic in the highway besides appellant’s automobile were the bicycles being ridden by the two boys and they were going in the same direction as appellant. Stepan estimates that the car, when he looked around, was about 125 feet in the rear and was about 100 feet in the rear when the horn sounded. As soon as Stepan saw the car, he communicated that fact to the deceased and instantly the deceased turned his bicycle to the east and continued in a south-easterly direction, diagonally across the pavement, without once altering his course. It is a matter of common knowledge that paved State routes are heavily traveled. Mantonya, v. Wilbur Lumber Co., 251 Ill. App. 364. The deceased was an experienced bicyclist and knew that automobiles traveling at a much faster rate than he could travel were likely to be approaching from the rear. The evidence is that until he was so advised by his companion, he was traveling well over to the west side of his own traffic lane, and not more than 1 Yz feet east of Stepan, who was near the west edge of the pavement. Had he remained there, the accident Avould not have occurred. He, the deceased, was in no danger had he remained where the law says he should have remained, but he left a place of safety at a time when he knew an automobile was approaching from the rear and would soon pass him, and he deliberately rode diagonally across his own traffic lane, not only to the east side thereof, but had reached about the center of the highway when, according to the evidence most favorable to appellee, the horn of appellant’s car Avas sounded and notwithstanding that warning, he, the deceased, continued in his diagonal course across the east traffic lane and had proceeded so that his front wheekwas within a short distance from the east edge of the pavement and his rear wheel extended back several feet northwest into the east traffic lane, and this was the position of the bicycle which he was riding Avhen the left front fender of appellant’s car struck it.

In our opinion the trial court erred in not directing a verdict for appellant at the close of all the evidence and for that reason the judgment is reversed.

Judgment reversed.


text:
    Walter J. Richert, Appellant, v. James E. Bennett et al., Appellees.
    Gen. No. 8,998.
    Opinion filed February 10, 1936.
    W. H. Dyer and John H. Beckers, both of Kankakee, for appellant.
    Moses, Kennedy, Stein & Bachrach, of Chicago, and Eva L. Minor, of Kankakee, for appellees; Walter Bachrach and Arthur Magid, of Chicago, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

The defendants in this case are James E. Bennett, Frank A. Miller, Frank F. Thompson, Thomas Bennett and Emmet Gr. Barker, a partnership doing a brokerage business in Chicago, Illinois, with a branch office in Kankakee, of which Melvin H. Cooley was manager.

The evidence discloses that Cooley had a personal trading account in the defendants’ office at Chicago, which he carried in the name of his wife, Mary E. Cooley, and this account bore the number 52. Mr. Cooley not only put his own stock deals or transactions and those of his wife, through this account, but also through this account from time to time he put throug’h the stock deals and transactions for several of his friends, and among the latter were those of Walter J. Richert, the plaintiff herein.

The evidence further discloses that the Mary E. Cooley account, bearing the number 52, was a voluminous one and during all the period covered by the transactions in this case it contained a large and substantial equity. The method of doing business which Cooley employed was that when one of Mr. Cooley’s friends desired to buy stock on margins hut did not desire to put up cash or collateral to cover the margins, Mr. Cooley would take the order and put it through this account without requiring his friend to deposit cash or collateral with the order to cover margins. The margin ordinarily required by defendant was 30 per cent of the market price of the stock on the day it was purchased. Thus, if one should purchase on margin 100 shares of a certain stock which was selling on that date at $30 per share, he would have to put up 30 per cent or $9 per share as margins to protect the account. If the market price of the stock went down additional margins would he required so that at all times, after deducting the loss resulting from the drop in the market, the margins on deposit would represent 30 per cent of the market price. If margins were not kept good and the stock dropped to $21 per share, it would be sold and the transaction closed, the customer losing $9 per share, and the commission on the purchase and sales. If, on the other hand, the market advanced to say $40 per share, the customer could order it sold, withdraw his margin of $9 per share and receive in addition a profit of $10 per share, less commissions. When Mr. Cooley took an order from one of his friends, if there was enough equity in the account to apply on margins, he could put the order through it and thus favor his friend by requiring no margin until such time, if ever, as the stock went down enough to make it unsafe for him to carry it. As long as the market price remained constant or was advancing, he was taking no chance of losing. If the price declined, he could call on his friend to put up the necessary margins to protect his stock. In a deal of this kind, the stock ordered was purchased by Melvin H. Cooley in the name of Mary E. Cooley and charged to her account number 52. If the price went down, Mr. Cooley would call for margins and the person for whom the stock was ordered could put up cash or collateral to protect his account with Mr. Cooley.

In the instant case, it is the contention of the plaintiff that on the 25th of September, 1929, he went to the office of defendant in Kankakee, managed by Melvin H. Cooley, and ordered of the defendant through • the manager 100 shares of the capital stock of “American Agricultural Chemical Preferred” and margined it with an assigned certificate for 100 shares of Mid-Continent Petroleum Corporation stock; he testified that he heard Mr. Cooley give the order to the telegraph operator in these words “Buy one hundred American Agricultural Preferred, and charge it to account fifty-two,” and saw that he, Cooley, wrote "on a piece of paper something which he supposed was an order. He insists that he did not know at the time what account 52 meant, and did not learn its meaning until it was explained during the trial, and thought he was dealing with the defendant through its office manager and not with Mr. Cooley as an individual or independent broker.

The plaintiff further testified that on October 30, 1929, Mr. Cooley told him the house was calling for more margin on his stock and that he gave to Cooley an assigned certificate for 100 shares of Pure Oil stock.

The theory on which plaintiff bases his right to recover is that on September 25, 1929, he gave to defendants, through their manager at Kankakee, an order to buy 100 shares of the preferred capital stock of American Agricultural Chemical Company, and at the same time deposited with them for margins on that order 100 shares of the capital stock of the Mid-Continent Petroleum Corporation, and on October 30, 1929, delivered to them 100 shares of the capital stock of the Pure Oil Company ,vthat defendants did not execute his order for the 100 shares of American Agricultural Chemical Preferred, but did convert to their own use the 100 shares of Mid-Continent Petroleum and the 100 shares of the capital stock of the Pure Oil Company; that the 100 shares of Mid-Continent Petroleum was worth 32% on September 25, 1929, the date it was put up, or a total of $3,212.50; that he is entitled to recover from defendants that sum, together with interest thereon at five per cent for five years and two months, amounting to $829.90; that he is also entitled to recover the value of the 100 shares of the Pure Oil Company stock, worth on October 30, 1929, 24%, or a total of $2,475, together with interest upon that amount for five years and one month at five per cent, or $629.06, making a total of $7,146.46, and this is the amount for which he seeks a judgment.

In the circuit court a jury was waived and upon a trial of the issues made by the pleadings, the court found that the plaintiff was dealing with Mr. and Mrs. Cooley individually and through account 52 and that the defendants were not liable and rendered judgment in favor of the defendants and against the plaintiff in bar of the action and for costs, and from that judgment the record is brought to this court for review.

Appellees, the defendants below, concede that Mr. Cooley was their manager and agent at the Kankakee office and that he carried on transactions and put through deals in the account of Mary E. Cooley which they carried as account 52. It was their contention in the trial court, however, that they never received any order from appellant to buy for him 100 shares of the preferred stock of the American Agricultural Chemical Company, and never took or received from him as collateral on margins 100 shares of Mid-Continent Petroleum or 100 shares of the capital stock of the Pure Oil Company.

We think a preponderance of competent evidence in this record establishes the following facts:

1. That appellant gave his order to Mr. Cooley to purchase for him the 100 shares of American Agricultural Chemical Preferred on the 25th day of July, 1929, and not on the 25th day of October as appellant claims, and that it was bought for him July 25, 1929, through account 52; that the Mid-Continent and Pure Oil certificates of stock were put up with Mr. Cooley by appellant on September 25, 1929, and October 30, 1929, respectively, to cover margins upon notice in each case from Mr. Cooley that margins were required in order to protect the deal; that about a year thereafter, appellant accepted from Mr. Cooley, his wife and son, a written statement that his account was long the three blocks of stock mentioned; that by this statement, signed by the Cooleys, they agreed to carry the account for appellant for one year at six per cent interest.

2. That appellant, from his dealings and conversations with Mr. and Mrs. Cooley and others connected with them, knew that he was dealing with Melvin H. Cooley, not as agent of appellees nor as manager of their Kankakee office, but as an individual or independent broker, and that his deal was being carried in account 52.

3. That an account was rendered about September 17, 1931, to appellant by Mrs. Cooley, showing he owed to the Cooleys the sum of $5,132, which appellant said he was unable to pay and requested Mrs. Cooley to carry him another year, as they had done for the previous year; that Mrs. Cooley refused and appellant declined to put up other collateral.

4. That thereupon Mrs. Cooley informed appellant that she would sell him out that day and at once walked into the branch office of appellees at Kankakee and ordered appellant’s 300 shares of stock sold and thereafter rendered appellant a statement showing credits for sale on the 17th day of September, 1931, of 100 shares of American Agricultural Chemical Preferred @ 10, or a total of $983.50, of 100 shares of Mid-Continent Petroleum @ 7, or a total of $688.50, and of 100 shares of Pure Oil Company stock @ 6% or a total of $641.50. Other charges and credits on the statement disclosed a balance due the Cooleys of $3,074.50.

5. That appellant discussed with Mrs. Cooley his indebtedness, expressed a doubt about owing the amount claimed but said in substance that if the amount was right, he would pay it if he ever got the money.

6. That at all times from the 25th day of July, 1929, up to September 17, 1931, the Cooleys had in account 52 or in their safety box in Kankakee 100 shares or more of the capital stock of American Agricultural Chemical Company, 100 shares or more of the capital stock of Mid-Continent Petroleum Corporation and 100 shares or more of the capital stock of the Pure Oil Company, and were in a position to deliver same to appellant at any time he paid or secured to them the amount he owed them.

It is insisted by appellant that the evidence shows that the certificates originally representing the stock which was delivered by appellant to the Cooleys as collateral and which were handled through account 52 for appellant were, during the period, canceled and other certificates issued in lieu thereof to other persons than appellant, and that this amounts to a conversion. The evidence does so show, but appellant’s conclusion is erroneous. He misconceives the nature of corporate stock and the function of certificates representing such stock. Corporate stock is fungible, that is, one share of stock is the same as any other share of the same class in the same corporation and falls within the term of fungible goods as defined in sec. 76 of the Uniform Sales Act, Ill. State Bar Stats. 1935, ch. 121a, If 79. It does not follow that a change of certificate is a change in the property represented by the certificate. Certificates may be canceled and new ones issued without changing the property right in the stock which the certificates represent. If appellant had put up an assigned certificate for 100 shares of his stock for margin, and if the deal had been closed with a profit to him and he became entitled to take down his stock so held for margins, he could not demand that the identical certificate be returned to him, but would be required to accept any certificate for the same number of shares of the same stock in the same class in the same corporation. Richardson v. Shaw, 209 U. S. 365.

We do not believe any useful purpose would be served by discussing in this opinion the contention that improper evidence was admitted by the trial court upon the hearing. The case was tried by the court and in our judgment the competent evidence in the record sustains the findings hereinabove set forth and from the competent evidence in the record, we agree with the trial court that appellant’s dealings, while with a person conceded to be appellees’ agent, were by him knowingly carried on with that person, not as an agent of appellees, but as an individual or independent broker.

In this state of the record, the trial court properly-held that appellees were not guilty of having failed to purchase for appellant on his order 100 shares of American Agricultural Chemical Preferred stock, as I alleged in his complaint, because he gave them no such order, and the trial court also properly found from the evidence in this record that appellees were not guilty of wrongfully, fraudulently, and unlawfully selling 100 shares of Mid-Continent Petroleum, and 100 shares of Pure Oil stock delivered to them to secure them for margins on the American Agricultural Chemical stock and were not guilty of converting the proceeds thereof to their own use, as charged by appellant, because no such delivery was ever made to them for such purpose.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Wolfe

text:
    Anna Schipper et al., Appellants, v. Block and Kuhl Company and Jean M. Morron, Appellees. Jean M. Morron, Cross Appellant, v. Anna Schipper et al., Cross Appellees.
    Gen. No. 8,959.

      Opinion filed February 10, 1936.
    Rehearing denied and opinion modified April 7, 1936.
    Shelton F. McGrath, Clyde B. Birkett and Arthur B. Copeland, of Peoria, for appellants.
    Winston, Strawn & Shaw, of Chicago, and Miller, Elliott & Westervelt, of Peoria, for appellee Jean M. Morron; E. W. Everett and J. D. Black, both of Chicago, Frank T. Miller, of Peoria, and Donald G. Beste, of counsel.
    Hunter, Kavanagh & McLaughlin, of Peoria, for cross appellee Block & Kuhl Co.
   Mr. Justice Wolfe

delivered the opinion of the court.

This suit was brought by some of the stockholders of the Block & Kuhl Company, an Illinois corporation, to enjoin it from further performing the covenants of a written lease, entered into on July 1, 1920, between the corporation and Jean M. Morron, and also to restrain actions at law by Jean M. Morron to recover from the corporation, rent stipulated in the lease to be paid to her by the corporation. We shall hereafter designate the complaining stockholders as the complainants, the Block & Kuhl Company as the lessee, and Jean M. Morron as the lessor.

Block & Kuhl Company was incorporated in 1914. The articles of incorporation provided, in part, as follows: “The object for which it is formed is to do a wholesale manufacturing business, and to buy, sell and deal in, at wholesale and retail, all kinds of manufactured and unmanufactured products.”

It may be stated that the lease demises for a period of 99 years a parcel of real estate fronting 20 feet on Adams street in the city of Peoria, at a monthly rental, and contains a covenant that the lessee shall erect a building on the leased premises by July 1, 1934. The lessor has brought actions at law to collect rent past due under the terms of the lease. Further, it is the contention of the complainants that when the lessee executed the lease it exceeded or abused the general power conferred on it by its charter to own and control real estate and that it is now doing unauthorized acts, transactions and business, for the reasons that it acquired improperly, and now holds improperly, real estate under the lease beyond its legitimate requirements and needs, for corporate purposes, under its charter. The suit is a proceeding in a court of equity to secure a judicial cancellation of the lease.

The foregoing statement will clarify three propositions which have been considered by this court. 1. The case does not concern a wholly ultra vires act of the lessee in the sense of the term that the lessee had no power under its charter to acquire the real estate, and occupy it, as a leasehold and erect a building on the premises.

In 1932, the lessor brought an action at law in the .circuit court of Peoria county against the lessee for rent due and payable under the terms of the lease for June, July, August and September of 1932. In November, 1933, the lessor brought a like action for rent then due under the lease and matured since September, 1932. The lessee has pleaded the defense of ultra vires to the actions. The lessee has in the actions, and also in the snit at bar, repudiated the lease for the reasons heretofore stated.

Therefore the complainants cannot protect their interests, as stockholders, in the funds and property of the lessee, by or through any action of the lessee by reason of any claimed or alleged abuse of the powers of the lessee by the lessee. In other words, if the lessee could defend the actions at law by urging that the lease, or the performance thereof by the lessee, is ultra vires of the corporation, the complainants would be attempting to enjoin the lessee from performing the covenants of the lease, when in fact it is not doing so. (Stewart v. Erie & Western Transp. Co., 17 Minn. 372; Clark v. Apex Gold Min. Co., 13 N. M. 416, 85 Pac. 968; Baxter v. Board of Trade, 83 Ill. 146; City of Chicago v. Cameron, 120 Ill. 447.)

The complainants, being stockholders of the lessee, have the right to prosecute this suit because they are among the real beneficiaries of the lessee and they cannot obtain redress or relief through the lessee for alleged abuse of its powers. (Marseilles Land & Water-Power Co. v. Aldrich, 86 Ill. 504; City of Chicago v. Cameron, supra.) The right of the complainants to maintain this suit, however, may be barred by laches, ratification or acquiescence on the part of the complainants on the grounds of equitable estoppel. The question of the ratification of the lease by the lessee is not here referred to. (Vide, Klein v. Independent-Brewing Ass’n, 231 Ill. 594.) We are dealing with private rights and the question of public policy is not involved.

This doctrine of estoppel is stated in the case of Berkeley County Court v. Martinsburg & Potomac Turnpike Co., 92 W. Va. 246,115 S. E. 448, as follows: “Equity will not allow a stockholder with notice of a contract which he complains of as ultra vires, or with the means of becoming acquainted therewith, to wait an unreasonable length of time, with the view to ascertaining whether the contract will result profitably, and then repudiate it if he finds it will result in loss.” The doctrine is also stated in Vol. 6 of Fletcher Cyclopedia of Corporations (1st Ed.) in sec. 4073, as follows: “A stockholder who participates as an officer or as a stockholder in illegal or ultra vires transactions on the part of the directors or stockholders, or consents thereto, or who, with full knowledge of the intention to engage in such transactions, acquiesces therein, instead of objecting and taking steps to prevent the same, is estopped to afterwards sue in equity to set the transactions aside; and it can make no difference that he sues on behalf of himself and other stockholders, and that there are other stockholders who might maintain the suit.” (Leigh v. National Hollow Brake-Beam Co., 224 Ill. 76.) (See also Memphis & C. R. Co. v. Grayson, 88 Ala. 572, 7 So. 122; Baker v. Spokane Sav. Bank, 71 F. (2d) 487; and Bissell v. Michigan Southern & N. I. R. Co., 22 N. Y. 258.) Rabe v. Dunlap, 51 N. J. Eq. 40, 25 Atl. 959.

Before the incorporation of the lessee in 1914, Schipper & Block, a corporation, operated a large department store in its own buildings situated on the corner of Adams and Fulton streets in the city of Peoria. These buildings, when the lessee was incorporated, consisted of a nine-story steel frame building, including basements, and a 10-story steel and concrete building connected by a bridge over an 18-foot alley, named Fulton Court, which runs parallel with Adams street and separates the two buildings. The two buildings are not situated on the same lot of Original Peoria. Adams street runs north and south; 171 feet east of Adams street is Fulton Court; 171 feet east of Fulton Court is S. Washington street which runs parallel with Adams street and it is one block east of Adams street. The nine-story building, called the Big White Store, is located on lot five and occupies the entire lot having a frontage of 72 feet on Adams street and extending 171 feet on Fulton street. Lot six lies between Fulton Court and S. Washington street and it is directly east of lot five; it has a frontage on S. Washington street of 72 feet and a depth on Fulton street of 171 feet. The 10-story building, known as the Fulton street annex, is located on the west 75 feet of lot six. Adjoining and north of lot six is lot seven having the same dimensions as lot six and fronting on S. Washington street. In 1914 Sehipper & Block also owned two large warehouses situated on lot seven Avhich were used in connection with their department store to store china and furniture.

Sehipper & Block, in 1914, also held a 99-year lease on what is known as the Anderson property which fronts 30% feet on Adams street with a depth of 171 feet to Fulton Court. The Anderson property adjoins the Big White Store on the north.

The lessee (Block & Kuhl) was incorporated to operate the business of Sehipper & Block. After the lessee Avas incorporated, Sehipper & Block leased to it, under 99-year leases, the properties so owned by Sehipper & Block and assigned to the lessee its lease on the Anderson property.

On January 31, 1920, the lessee acquired from New- . ton Matthews, by a 99-year lease, a parcel of land fronting 21 feet on Adams street and having a depth of 171 feet to Fulton Court, and adjoining the Anderson property on the north. On February 2, 1920, the lessee purchased the fee of another parcel of land fronting 21 feet on Adams street, AAÚth a depth of 171 feet, and knoAvn as the Hodges property and adjoining the MattheAvs on the north. Thus, the lessee had a frontage on Adams street of 144 feet with a depth of 171 to Fulton Court, before July 1, 1920, when the lease now in question is dated. It also appears in evidence that the lessee for several months before the lease is dated was negotiating with the lessor for her property.

In 1919, the lessee purchased from Sehipper & Block a building located at the corner of Washington and ' Fulton streets, known as the Arnett Building", and adjoining the Fulton street annex on the north and the warehouses on the east. This building was an old one and it was never used by the lessee in conducting its business. The lessee disposed of the property in 1931.

In 1916, the lessee improved the Anderson property, adjoining the Big White Store on the north, by erecting a building which is in reality an extension of the Big White Store. The new building is a seven-story steel building and in every way conforms with the Big White Store building. This new building" before and in 1920 was being operated as part of the Big White Store. In 1920, therefore, the lessee occupied by its department store 92% feet fronting on Adams street.

From the foregoing it is clear that the lessee in 1920 was increasing its ownership and control of real estate fronting on Adams street which is one of the principal business streets of the city of Peoria having a population in 1920 of 95,000 persons. The property demised in the lease in question (the Morron property) adjoins the Hodges property on the north. The lessor’s tract of land adjoins the Hodges property and it has a frontage on Adams street of 20 feet and a depth of 171 feet to Fulton Court. When the Matthews property was leased by the lessee, under a 99-year lease, one J. P. Schnellbacher held a lease to the property which did not expire until 1933 and Schnellbacher retained possession of the property under his lease during the year 1920 when the lease now in question was dated. When the lessee acquired the Hodges property, it was also subject to a lease. Schipper & Block was incorporated in 1879. Before 1920, it is safe to say that the lessee was doing an annual business of over $3,000,000. On January 26, 1920, the lessee adopted a resolution to increase its capital stock from $1,200,-000 to $1,450,000.

Whether or not the lessee exceeded its power by executing the lease now in question could not be ascertained by an examination of its charter. A determination of that question depended upon an inquiry of facts extraneous to the charter. The facts and situation, as above stated, do not justify us in holding that the lease was voidable by the lessee ab initio. In the case of People v. Pullman’s Palace Car Co., 175 Ill. 125, it was held that a corporation had a right to erect a building for its own purposes and that in so doing it had a right to take into consideration its probable prospective requirements and look after and prepare for the future, and that there was no reason why such parts of the building as were not required for present use for the accommodation of its business should remain vacant, but that the same might be lawfully rented to other persons. It was further held, however, that: A corporation could not be permitted, under mere color and pretense of furnishing accommodations for the transaction of its own affairs, to construct houses or rooms for the purpose of renting the same, and engage in renting such houses or rooms as a business, if such pursuit was, beyond and distinct from which it was created to pursue and accomplish.

The evidence in this case shows that at the time the lease was entered into between the parties, that the lessee was doing a good business and the lease was believed by the corporation to be a profitable - one. The corporation had a right to acquire a reasonable amount of property for the expansion of their business. That the lease has not proven to be a benefit to the lessee is regrettable, but does not have any bearing on the validity of the lease at the time it was ( executed. It is our conclusion that the lease in question was not ultra vires of the corporation.

Bach of the complainants was a stockholder of the lessee in 1920 and each continued to be such a stockholder until the filing of the present suit. The suit /x was filed November 2, 1933. During the time the lease was being enforced by the lessee, from November 1920 (when the lease was delivered) until November 2, 1933, the law afforded the complainants the right to appeal to the courts, through the lessee, for an injunction to restrain the lessee from abusing its powers under its charter, and, if unable to secure redress from such alleged misconduct on the part of the lessee through it, to file a bill of the same character as the one filed in the present suit. The complainants must be held to have been possessed of knowledge for many years that the lessee acquired the lessor’s property by leasehold interest therein and had agreed to erect a building thereon by 1934. The acquiescence of the complainants in the performance of the lease by the lessee for so many years, coupled with the fact that the lessor has sustained irreparable and incalculable damages because of the failure of the lessee to erect such a building, estops the lessee from maintaining this suit. Kadish v. Garden City Equitable Loan & Bldg. Ass’n, 151 Ill. 531, 538.

Section eight of the Business Corporation Act, Ill. State Bar Stats. 1935, eh. 32, 8, does not give the complainants a right to sue in equity which they did not have at common law. The section reserves to the complainants in a suit of this kind the prior existing right to urge the alleged ultra vires acts of-the lessee. If we are to set aside and enjoin the performance of the lease because we deem, it equitable to do so, as the section provides, then we must be governed by equitable principles and rules heretofore established by the decisions and authorities.

The chancellor dismissed the bill for want of equity. The lessor filed a cross-bill and has now assigned cross errors in this court that the trial court erred in not awarding to her a money judgment for rent matured under the terms of the lease and also for her attorney’s fees in defending this suit. The cross errors cannot be sustained. People v. Fisher, 335 Ill. 406; Fuller v. Hansen, 187 Ill. App. 417.

What we have here said, of course, is without prejudice to cross appellant’s right to proceed to take any steps in any other proceeding to recover their attorney fees and rent as they may be advised.

The decree of the chancellor dismissing the bill for want of equity is affirmed.

Affirmed.


author: Mr. Justice Stone

text:
    Charley Stepanian et al., Appellants, v. Armenag Asadourian and Sourma Ovoian, Appellees.

      Opinion filed March 6, 1936.
    Rehearing denied February 25, 1936.
    Charles A. Lich, of St. Louis, and ft. W. Bopiequet, of East St. Louis, for appellants.
    Joseph B. McGlynn and Philip G. .Listeman, both of East St. Louis, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of St. Clair county sustaining as the last will and testament of Kirkor Arakelian, deceased, an instrument of writing purporting to be his last will and testament and having been duly admitted to probate in the probate court of St. Clair county as and for his last will and testament.

The complaint after charging the usual formal matters in such cases charged (1) that the purported signature to the instrument was a forgery, (2) general lack of testamentary capacity, and (3) undue influence on the part of certain persons, naming them. Before beginning the taking of testimony, the last two charges were withdrawn by appellants, leaving only the charge of forgery as alleged. Appellees answered, denying the charges of the complaint except as to paragraphs 2 and 3 which alleged in substance that the instrument . in question was admitted to probate in the probate court of St. Clair county as and for the last will and testament of the said Kirkor Arakelian, deceased; that Armenag Asadourian, who had been named in said instrument as the executor thereof, had relinquished his right to act as such and that no action had been taken on said relinquishment and no administrator with the will annexed had been appointed. These allegations appellees admitted. Upon the issue thus made up the trial proceeded, the court following Rule 25 of our Supreme Court rules, requiring appellants to make their opening statements first and to offer their evidence first, awarding them the opening and the closing of the case. Appellants objected to this procedure and moved the court to require appellees, the proponents, to make formal proof of the execution of the will according to the practice which formerly obtained in such cases. The court denied this motion and among other things in the order of denial held that the burden of proof in the case was upon appellants.

The testator was a man unlearned either in the English language or the Armenian which was his native tongue. He could not read or write in either language and only knew about 20 words of English. The signature to the alleged will was by mark.

Appellants offered to prove by a number of witnesses that the alleged testator, subsequent to the date of the alleged will, had made statements to them on different occasions to the effect that he had never made a will. This testimony was refused admittance by the court and the court’s action in that regard is assigned as error. Some of the witnesses tendered by appellants on this subject were parties plaintiff. It is clear that they were not competent witnesses and the court properly refused to allow them to testify. They were not competent to testify even had the subject matter of their testimony been competent for the jury to have. Formal offer of the same testimony by the same witnesses was made and denied by the court. Appellants did not offer the will in evidence but rested their case without any testimony tending to establish their complaint.

Appellees offered no testimony but, at the close of appellants’ case, moved the court for a directed verdict. At the time this motion was offered, there was no evidence in the record either tending to prove or disprove any issue made by the pleading. The proponents had offered none and the court had admitted none for the contestants. The court allowed the motion and instructed the jury as follows :

Gentlemen of the Jury: The plaintiffs rested their case. The Court previously held this morning that the burden of proving the charges in their complaint was on the plaintiffs and now at this time, the attorneys for the defense have made a motion that the court direct the jury to find for the defendants. That motion is allowed. The Court instructs you that under the evidence offered in this case for the plaintiffs the plaintiffs have not made a case supporting the contentions of their complaint that the Will admitted to probate in the Probate Court of this County was not the Will of the deceased, Kirkor Arakelian, and the Court instructs you to find that the Will of the deceased was his last Will and Testament and that will be your verdict, gentlemen.”

A motion for a new trial was overruled and a decree followed finding and adjudging “That the writing referred to in the complaint, be and is hereby declared to be the last will and testament of Kirkor Arakelian, deceased.” Appellants sought review of the case and there being no freehold involved, an appeal was perfected to this court. Many errors are assigned only three of which are argued, viz.: That there is no evidence in the record justifying the instruction to the jury to uphold and sustain the purported will.

That the court erred in requiring plaintiffs to present evidence in the case wherein the sole issue was forgery, before requiring the proponents to put the will in evidence and to offer testimony of the attesting witnesses.

That the court erred in excluding testimony in the nature of declarations made by the deceased shortly prior to his death and after the date of the alleged execution of the purported will to the effect that he had never made a will.

We shall not discuss at any length the contention of appellants that the court erred in refusing the proffered testimony to the effect that the testator had made declarations that he had not made a will. In an unbroken line of decisions our Supreme Court has held that such declarations are not competent except as they bear upon the testamentary capacity of the alleged testator. It is claimed that our Supreme Court has not so held in a case in which forgery of the signature was the issue. We think that the language in Gregory v. Richey, 307 Ill. 219, is broad enough to cover this issue. The court there said: “It has been held by this court in many cases, — and it is unnecessary for us to go into detail as to the reasons therefor, — that declarations or statements of a testator or a grantor cannot be admitted in evidence for the purpose of invalidating either a will or a deed. Waters v. Waters, 222 Ill. 26.”

In Floto v. Floto, 233 Ill. 605, the Supreme Court in discussing this subject said: “While it is true that the authorities are not harmonious on this subject, it is unnecessary to discuss those in other jurisdictions, as the rule has long been recognized by this court that prior declarations of the testator or prior wills cannot be offered for the purpose of varying or controlling the operation of the contested will. The reasons for this rule have been so fully and frequently set forth in former decisions that it is unnecessary to restate them here. Harp v. Parr, 168 Ill. 459; Compher v. Browning, 219 Ill. 429; Waters v. Waters, 222 Ill. 26; Cheney v. Goldy, 225 Ill. 394.” The court did not err in sustaining the objection to the proffered testimony or in refusing the offer of same.

The right of the Supreme Court to promulgate rules of procedure binding upon itself and all inferior courts is not debatable. It has such power and has made such rules, among which is Rule 25 of the Supreme" Court rules adopted by said court on December 22,1933.

Said Rule 25 is as follows:

“In proceedings to contest the validity of a will, testament or codicil, the contestant shall in the first instance proceed with proof to establish the invalidity of such instrument; and the proponent may then present evidence to sustain the will, testament or codicil. ’ ’

In Donovan v. St. Joseph’s Home, 295 Ill. 125, Mr. Chief Justice Cartwright, writing for the court, had the following to say:

“The question which party has the burden of proof first came before the court in Rigg v. Wilton, 13 Ill. 15, and the court there said that the Illinois statute had been adopted from Kentucky, where it had been, interpreted, and the same interpretation was applied. It was held that on the trial of an issue under the statute the burden of proof is on the party affirming the execution' and validity of the will, and consequently he has the right to open and conclude the case; that the issue is to be submitted to the jury as a new and original question, without regard to the fact that the instrument has been admitted to probate, and while the certificate of the oaths of the witnesses at the time of probate may be offered in evidence by either party, it is to receive such weight, only, as the jury may think it deserves in connection with the other proof in the case. This rule has never been changed but has been repeated in many cases. (Tate v. Tate, 89 Ill. 42; Moyer v. Swygart, 125 id. 262; Purdy v. Hall, 134 id. 298; Bevelot v. Lestrade, 153 id. 625; Bardell v. Brady, 172 id. 420; Egbers v. Egbers, 177 id. 82; Hart v. Hart, 290 id. 476.) That burden never shifts from one party to the other. (Slingloff v, Bruner, 174 Ill. 561; 10 R. C. L. 897; 16 Cyc. 926.) In Egbers v. Egbers, supra, the court said: ‘The term “burden of proof” has two distinct meanings. By the one is meant the duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises; by the other is meant the duty of producing evidence at the beginning or at any subsequent stage of the trial in order to make or meet a prima facie case. Generally speaking, the burden of proof, in the sense of the duty of producing evidence, passes from party to party as the case progresses, while the burden of proof, — meaning the obligation to establish the truth of the claim by a preponderance of evidence, — rests throughout upon the party asserting the affirmative of the issue, and unless he meets this obligation upon the whole case he fails. This burden of proof never shifts during the course of a trial but remains with him to the end.’

“The burden of proof is on the proponent of a will to prove that the will was in writing and signed by the testator or by some person in his presence and by his direction and was attested in his presence by two or more witnesses, and that the testator was of sound mind and memory at the time of signing or acknowledging the same; and this is sufficient to establish prima facie the validity of the will. It is the duty of the proponent of a will to offer in chief not only the evidence making a prima facie case, but all other evidence relating to the issue of testamentary capacity; (Craig v. Southard, 148 Ill. 37; Slingloff v. Bruner, supra; Albrecht v. Kittle, 248 Ill. 72.) ”

In Klein v. Schommer, 347 Ill. 632, which was a will contest in which the issue was that the purported will was a forgery, the Supreme Court said:

“The court erred, however, in instructing the jury as to the burden of proof. Instruction No. 11 given for the proponents was as follows: ‘The court instructs the jury that if they believe that the proponents have established soundness of mind of Anna Baumhardt, deceased, at the time of the making óf the will in question, by the oath of two or more of, the subscribing witnesses to the will, and that the will was legally executed, acknowledged and witnessed, as explained in these instructions, then the proponents have made out a prima facie case; and thereupon the burden of proof is on the contestants to prove by a preponderance of the evidence that the will in question is invalid by reason of forgery, fraud or any other cause, as alleged by the contestants; and if the evidence is left evenly balanced, the verdict should be in favor of the validity of the will. ’

“The burden of proof in a will contest as to the execution of the will is always on the proponent and it never shifts. (Sellers v. Kincaid, 303 Ill. 216; Donovan v. St. Joseph’s Home, 295 id. 125.) It was error to give this instruction, and for the same reason to give instruction No. 14, which states the same rule. The court gave an instruction for the contestants (No. 4) which stated the correct rule: ‘The court instructs the jury that where a mil is propounded for probate and is attacked as a forgery, the burden of proving its genuineness is upon the proponent.’ This instruction was inconsistent with those given for the proponent, and the jury therefore had no definite rule to follow.”

Further in the same opinion the court said:

“Refused instruction No. 2 asked by the contestants stated that the burden which rests upon the proponents to prove execution includes the burden of showing that the'signatures on both sheets of proponents’ exhibit No. 1 were the signatures of Anna Baumhardt. Under the issue and the evidence in this case this was a correct statement and the instruction should have been given. ’ ’

In Buerger v. Buerger, 317 Ill. 401, the court said, “On will contests the trial is de novo and it is necessary for proponents to establish the will without regard to the fact that the instrument has been admitted to probate in the Probate Court. ’ ’

. Such was the rule of procedure prior to the promulgation of Rule 25, above. Since the enactment of said rule our Supreme Court has had before it the case of Ginsberg v. Ginsberg, 361 Ill. 499. That was a bill to contest the will of Rachel L. Ginsberg on the charge of undue influence and also a want of testamentary capacity. The trial court followed Rule 25 as was done in the case at bar. At the close of the evidence offered on behalf of proponents the court took the case from the jury and instructed it to find for the proponents. In affirming the decree the Supreme Court said:

“The appellant insists that the trial court did not have the power to direct a verdict at the close of his evidence. He contends that the effect of Rule 25 of this court is merely to change the order of proof by requiring the contestants to introduce their proof first, and that the burden of proof remains as it was before the Civil Practice act was passed and Rule 25 was adopted. He contends that section 13 of article 4 of the constitution would be violated if Rule 25 is held to put the burden of proof upon the contestants of a will. His argument is that the Civil Practice act can embrace the subject of procedure alone, and that a change of the burden of proof amounts to a change in the substantive law of wills, which, he says, would contravene the constitutional provision that no act shall embrace more than one subject ‘and that shall be expressed in the title.’ Rule 25 provides: ‘In proceedings to contest the validity of a will, testament or . codicil, the contestant shall in the first instance proceed with proof to establish the invalidity of such instrument ; and the proponent may then present evidence t.o sustain the will, testament or codicil. ’

“The appellant relies upon Donovan v. St. Joseph’s Home, 295 Ill. 125, and Klein v. Schommer, 347 id. 632, to sustain his contention that the rule involving the burden of proof had become part of the substantive law of wills. The rule that in a will contest the burden . of proof is' upon the proponents was established in Rigg v. Wilton, 13 Ill. 15, where we observed that our statute was copied from that of Kentucky and adopted the construction given it by the Kentucky Supreme Court. The cases relied upon by the appellant do not hold that this rule is a part of the substantive law of wills. It is clear that instead it was always a rule of procedure. It comes clearly within the inherent rule-making power of this court. (People v. Callopy, 358 Ill. 11.) The contention that a change was made in the substantive law of wills by the adoption of Rule 25 cannot be sustained.

“The appellant’s contention contains the added objection that the trial court was not authorized or empowered to direct a verdict at the close of the evidence offered by a contestant. A motion to direct a verdict in a will contest has been held to be governed by the same rules as govern such motions made in actions at law. (Brownlie v. Brownlie, 351 Ill. 72, 78; McCune v. Reynolds, 288 id. 188, 190.) The party resisting such a motion is entitled to the benefit of all the evidence, considered in its aspect most favorable to him, together with all reasonable presumptions to be drawn therefrom. The motion raises the question whether there is any evidence fairly tending to prove the allegations of the bill. If such evidence has been educed, although it may be opposed by the greater weight of the countervailing testimony, the case should be submitted to the jury. (Brownlie v. Brownlie, 351 Ill. 72, 78; Miles v. Long, 342 id. 589.) It can scarcely be urged that in any action at law it would be improper for the defendant to interpose a motion to direct a verdict at the close of the plaintiff’s evidence. If no evidence tending to prove the allegations of the declaration, bill or complaint were introduced, or if but a bare scintilla of evidence had been educed by the plaintiff, the court should allow such a motion. (Libby, McNeill & Libby v. Cook, 222 Ill. 206.) The question then presented by the appellees’ motion was whether the appellant had educed any evidence fairly tending to prove either the allegation of undue influence or that of want of testamentary capacity.”

In the case at bar there was no evidence tending to show that the will was forged. In view of the holding in the Ginsberg case, supra, the court properly took the case from the jury. The decree of the circuit court is affirmed.

Decree affirmed.