text:
    Babka Plastering Company et al., Appellees, v. City State Bank of Chicago et al., Defendants. Appeal of Samuel B. Allison et al., Appellants.
    Gen. No. 35,171.

      Opinion filed December 29, 1931.
    West & Eokhart, Slottow & Levitón, Robert E. Turney, David Eichberg, Sanders, Childs, Bobb & Wescott, Marshall & Marshall and Elmer M. Lees-man, for appellants; Elmer M. Leesman, Prank Gr. Marshall, Thomas L. Owens and William Rothmann, of counsel.
    Brown, Fox & Blumberg, for appellees; Charles LeRoy Brown and Jacob Logan Fox, of counsel.
   Mr. Justice Keener

delivered the opinion of the court.

December 14, 1929, the complainants Babka Plastering Company, William Horalek, Helen Campbell and Jerry 0. Novak, filed their amended and supplemental bill on behalf of themselves and of all other creditors of the City State Bank of Chicago, organized under the Banking Act of Illinois, by which they sought to enforce the constitutional superadded liability of stockholders of the bank under section 6, Cahill’s Rev. Stats, of Illinois, ch. 16a, f 6, entitled “Banks.” The appellants Fred Becker, Peter H. Behl, Timothy Crimmings, Leo Gr. Haas and D. S. Komiss, filed their answers demanding strict proof of the various allegations. Samuel B. Allison filed a general and special demurrer, which was overruled. He elected to stand by his demurrer and the bill as to him was taken as confessed. December 21, 1929, the Chicago Title & Trust Company was appointed receiver with power to receive payment in satisfaction of the liabilities of the stockholders to the creditors. The cause was referred to a master to take the testimony and report his conclusions of law and fact. The master filed Ms report. Objections filed thereto, ordered to stand as exceptions, were overruled and December 19, 1930, the court entered a decree ordering the payment of the full amounts of their liabilities by 79 defendants on account of their respective holdings of stock. Six of the defendant stockholders have perfected separate appeals which were consolidated for a hearing.

By the decree the court found inter alia that the City State Bank of Chicago was organized December 1, 1913, for the purpose of doing a general banking business in Chicago, under “An Act concerning corporations with banking powers”; its capital stock was $50,000 which subsequently was increased to $400,000 ; that November 2, 1929, the auditor of public accounts made an examination of the bank and as a result closed the bank and it ceased doing business; that November 11, 1929, the auditor of public accounts having ascertained that the bank was being conducted in an illegal, fraudulent and unsafe manner, and that the impairment of its capital stock could not be made good, appointed a receiver of the bank and its assets; that November 13, 1929, the Attorney General of the State filed a bill for the purpose of restraining and enjoining the bank from doing business, confirming the appointment of the receiver to liquidate and distribute its assets and dissolve the corporation, and on that date the appointment of the receiver was confirmed and he has since been liquidating the property and effects of the bank, and converting its assets into cash; in those proceedings a dividend of 20 per cent of the amount of their respective claims has been paid to the creditors of the bank; that at the time of the entry of the decree the bank owed Babka Plastering Company $1,336.21; William Horalek $49.54; Helen Campbell $268.80; and Jerry 0. Novak $75.22; that portions of these several items of indebtedness accrued to the appellees from time to time while persons named in the decree were stockholders in the bank; that the creditors of the bank number upwards of 23,500; that the proceeding is a representative suit on behalf of appellees and other creditors of the bank; that the amounts due to all of the creditors aggregate $2,705,489.42; that appellees proved the claims of all such creditors; that the indebtedness which has accrued and is now due and owing to said creditors accrued from time to time while the persons named in the decree as stockholders remained such stockholders ; that no part of it has been paid and it remains due and payable; the decree then sets forth the names of the stockholders, the number of shares of stock held by each during the period stated and the liabilities to the creditors.

In the decree the chancellor after making the above findings adjudged and decreed that a writ of injunction issue restraining permanently each and all creditors of the bank from instituting or prosecuting, without leave of court, any suit against any of the stockholders of the bank for the purpose of enforcing the liability of any or all of the stockholders of the bank, or any or all of the creditors thereof; confirmed the appointment of the Chicago Title & Trust Company as receiver; empowered the receiver to collect all money found in the decree to be due from the stockholders to the creditors of the bank, and to hold the money subject to the further order of the court; that there be paid within 10 days from the entry of the decree to the receiver by the several defendants in satisfaction and discharge of their respective constitutional superadded liabilities as stockholders of the bank the following sums: (Here follow the names and amounts, among which are the following: Samuel B. Allison as holder of 10 shares $1,000; Fred Becker as holder of 10 shares $1,000; Peter H. Behl as holder of 20 shares $2,000; Timothy Crimmings as holder of 5 shares $500.; Leo Q-. Haas as holder of 10 shares $1,000, and D. S. Komiss as holder of 25 shares $2,500.) It was also ordered in said decree that the receiver cause public notice to be given, directed to the creditors of said bank, notifying them to present to the receiver their respective claims as such creditors, and all persons whose claims shall not have been presented within the time specified in said notice shall be barred from the proceeds of the liabilities of the stockholders of the bank which may be recovered, and shall be barred from in any manner enforcing the liabilities of the stockholders to the creditors under section 6, art. 11 of the Constitution, and the court retained jurisdiction of the cause for the purpose of causing distribution to the creditors of said bank.

The theory of the appellees is that the instant case is a representative suit for the benefit of all the creditors of the bank, brought by them as creditors, on behalf of all the creditors, and that they can require all the stockholders of the bank to pay to the receiver appointed by the court the maximum amount which the stockholders could be held for under section 6 of art. 11 of the Constitution which provides that, “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an ámount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder”; that the liability of stockholders is contractual, primary, direct and immediate, and is to the creditors who may sue, either individually at law or collectively in a representative suit; that the creditors may proceed against all or against only a part of the stockholders, by a single suit in equity, by any number of creditors representing all other creditors, for the purpose of enforcing the liabilities of all stockholders; require all creditors to come in and prove their claims and obtain an equitable distribution of all the funds collected among all the creditors of the bank, and that the existence of a liability on the part of the stockholders does not depend upon the ascertainment of the existence or extent of a deficiency of the bank’s assets to pay creditors. On the other hand, it is the contention of the appellants, as we understand it, that the constitution does not permit creditors whose combined claims fall short of the maximum stock liability to enforce that liability in equity, and that they (the stockholders) cannot be compelled to pay their liability under the constitution to anyone other than the creditors themselves. We are of the opinion that appellants’ contention cannot be maintained; to do so would be to render it impossible to enforce the recoveries in an equity case and the depositors would be driven to innumerable suits at law, resulting in a multiplicity of suits and inequality in the separate recoveries.

It appears from the evidence that the aggregate amount of the claims of the appellees is $1,729.77, and that their claims accrued while the appellants were stockholders of the bank. The stock liability which they seek to enforce is represented by a capitalization of $400,000, and the decree requires each of the stockholders to pay the maximum amount which the stockholders could be held for under the constitution, the total of which exceeds the amount of the claims of the individual appellants. Samuel B. Allison held his shares from April 13, 1929, to September 23, 1929, and the unsatisfied liabilities accruing during that period amounted to $740,832.28; Becker held his shares from April 4, 1929, to June 29, 1929, and the unsatisfied liabilities accruing during that period amounted to $216,922.39; Behl held 10 shares from August 2, 1929, to August 16, 1929, and 10 shares from August 2, 1929, to November 2, 1929, and the unsatisfied liabilities accruing during the first period amounted to $86,062.56, and from August 2, 1929, to November 2, 1929, to $1,695,762.46; Crimmings held his shares from August 4, 1929, to November 2, 1929, and the unsatisfied liabilities accruing during that period amounted to $1,681,541.48; Haas held 5 shares from September 18, 1929, to September 23,1929, and 5 shares from September 18, 1929, to November 2, 1929, and the unsatisfied liabilities accruing during those periods amounted to $42,485.18 and $1,400,310.28, respectively, and Komiss held 25 shares from October 4, 1929, to November 2, 1929, and the unsatisfied liabilities accruing during that period amounted to $1,229,102.84.

It would not be out of place to incorporate in this opinion a review of the law governing suits against stockholders of Illinois banks, and we shall proceed to do so. When Illinois was admitted into the Union in 1818, only two banks were in operation. (People v. Marshall, 6 Ill. 672, 684.) One of these banks became the State Bank of Illinois. It failed before the adoption of the Constitution of 1848, and its liquidation was taken over by the State. (People ex rel. Koerner v. Ridgley, 21 Ill. 65.) All the banks which existed in Illinois prior to 1848 had failed. (People ex rel. Badger v. Loewenthal, 93 Ill. 191, 199.) Art. X of the Constitution of 1848 imposed a liability upon the stockholders of certain banks, bnt that provision was applicable only to banks of issue. (People ex rel. Badger v. Loewenthal, 93 Ill. 191, 197 — 200.) During the time the Constitution of 1848 was in effect, by special acts of the legislature, about 175 charters were granted to banks of deposit and not of issue. (People ex rel. Badger v. Loewenthal, supra; People v. Gould, 345 Ill. 288, 293.) Those charters varied in their provisions with reference to stockholders’ liabilities. Many of those banks failed during the panic of 1857 and the years of the Civil War with disastrous results to the depositors. A number of suits for the enforcement of the stockholders’ liabilities under the several charters later reached the Supreme Court and resulted in the adoption in a series of decisions of certain principles governing that liability. Because the charters varied considerably one from the other the decisions so rendered are not always applicable to suits brought under the provisions of the Constitution of 1870. After the adoption of the Constitution of 1870 the legislature enacted the General Bank Act of 1887. By this act each stockholder was made liable for his ratable share only, and no more. In Dupee v. Swigert, 127 Ill. 494, section 6 of the Bank Act of 1887 was declared unconstitutional, because it provided for a liability different from that imposed by the constitution. In 1889 the legislature amended section 6, and as so amended, it has incorporated in it the very language of the constitution, and has added to it certain provisions as to recording issues and transfers of stock and also the following: “No transfer of stock shall operate as a release of liability provided in this section.” Thereafter, neither the provisions of the Constitution of 1870, nor the amended section 6, received any further construction until the cause of Golden v. Cervenka, 278 Ill. 409, decided April 19, 1917, which held that the liability is primary and absolute and attaches the moment the debt is contracted by the bank; that it is a liability of all stockholders to all the creditors, the remedy for its enforcement is in equity and is governed by equitable principles — the stockholders being answerable as original and principal debtors.

The question upon whom the right to enforce the remedy devolves, and the mode of procedure that will be adopted, have been in controversy in many of the courts of last resort. It is true these courts have not been of the same opinion; however, the generally accepted rules are that the fund created by the statute is in the nature of a security for the common benefit of the creditors; that the stockholders are in effect partners who assume a contractual, primary liability, running directly and immediately to the creditors, each stockholder being severally and invidually liable for every debt accruing while he held the stock, with a limitation of the liability to the amount of his stock and that a suit in equity affords the most effectual and convenient remedy for its enforcement. (Fuller v. Ledden, 87 Ill. 310; McCarthy v. Lavasche, 89 Ill. 270; Hull v. Burtis, 90 Ill. 213; Eames v. Doris, 102 Ill. 350; Thompson v. Moisser, 108 Ill. 359; Tunesma v. Schuttler, 114 Ill. 156; Queenan v. Palmer, 117 Ill. 619; Schalucky v. Field, 124 Ill. 617; Colton v. Mayer, 90 Md. 711; Pfohl v. Simpson, 74 N. Y. 137; Farnsworth v. Wood, 91 N. Y. 308; Golden v. Cervenka, 278 Ill. 409; American Nat. Bank of Mt. Carmel v. Holsen, 331 Ill. 622; Dukeman v. Beisley, 250 Ill. App. 537; Rosenfeld v. Horwich, 221 Ill. App. 304; Candor v. Mercer County State Bank, 257 Ill. App. 192, and Golden v. Cervenka, 212 Ill. App. 665.)

In Terry v. Little, 101 U. S. 216, the court said: “Undoubtedly, the object was to furnish additional security to creditors, and to have the payments when made applied to the liquidation of debts. So, too, it is clear that the obligation is one that may be enforced by the creditors; but as it is to or for all creditors, it must be enforced by or for all. The form of the action, therefore, should be one adapted to the protection of all.” (Italics ours.)

In Pfohl v. Simpson, 74 N. Y. 137, 143-144, it was said:

“Nor is there any difficulty in segregating the liability of each stockholder, and devoting the avails of it to the benefit of the creditor, or class of creditors who have the right to avail of it; so that no stockholder shall he held for the debt of a creditor which was not created while he was a stockholder, and so that no creditor shall lose the benefit of the liability of a stockholder who was such when his debt was created. ' Indeed, a suit in equity laying hold of all the stockholders in like category and promoted for the benefit of all creditors having like interest, is peculiarly adapted to work out exactly just and equable results. . . . The object and effect is only to bring to one forum the determination of rights which must, if prosecuted separately, more or less conflict to mutual harm. Before that one forum, in one suit, the respective rights and the respective liabilities can be ascertained and determined, and each get his own, and be subjected to his own, and not another’s.”

In Golden v. Cervenka, 278 Ill. 409, 435, it was said:

‘ ‘ The stockholders ’ liability created by the constitution is to the creditors of the corporation, and is a several and individual liability on the part of each stockholder to each creditor. It is not a liability to the corporation or to the creditors of the corporation as a class, but to each individual creditor on the part of each individual stockholder.. Therefore, it is the creditors, alone, individually, or collectively, who can enforce the liability by such remedies as the law affords.”

The main argument of appellants’ counsel is that the instant case is an unauthorized interference with the rights of creditors in the collection of the indebtedness due the creditors individually. They have labored strenuously to convince the court that the bill cannot be maintained, and great reliance is placed upon the case of Wincock v. Turpin, 96 Ill. 135, which was a bill filed by Turpin as receiver of the bank, and Potter, a depositor, alleging it was brought by Turpin as trustee of all depositors. The bill prayed that Wincock and others who had commenced suits at law he restrained from prosecuting those suits. A demurrer to the bill was overruled and the bill taken as confessed. The Supreme Court reversed the cause on the ground that the bill was indefinite, vague and uncertain, and held the liability is legal, is created by statute, and must be controlled by its provisions, and when the statute creates a liability, the remedy is invariably at law, unless the statute provides for proceedings in equity; that when the statute has declared the liability of stockholders shall be to the depositors other persons are precluded from interfering or intermeddling with a matter which alone interests or concerns the depositors; that the statute having conferred the right on the depositors, they should be left alone to seek a remedy if they choose, without interference by others. And on page 143 the court said:

“It may be a state of facts might exist which would authorize a court of equity to bring before it all the stockholders and depositors and determine their rights and adjust equities, marshal the fund and distribute it pro rata, but no such case is made by this bill; and until such a case shall be made we must leave the depositors to pursue their remedies under the law.”.

We have carefully considered the argument of counsel but are compelled to the conclusion that the contention of the appellants cannot be sustained and that the great weight of authority holds that when one creditor sues on behalf of all other creditors the represented creditors are as much before the court as the one creditor directly suing, and are equally bound by the decree, as each creditor has an identity of interest in the questions involved, in the relief sought, in the fund to be collected and the rights of each must be considered in making an equitable apportionment; that where the parties interested are numerous and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of others. In Guilfoil v. Arthur, 158 Ill. 600, 605, it was said:

“It is a general rule, and one well understood, that all persons interested in the subject matter, of the litigation should be made parties complainant or defendant. But there are exceptions to this general rule. In section 97 of Story’s Equity Pleading, in speaking on this subject, the author says: ‘The most usual cases assigning themselves under this head of exceptions are, . . . (3) where the parties are very numerous, . . . and it is impracticable to bring them all before the court.’ In section 107 . . . it is said: ‘As there is privity of interest the court will allow a bill to be brought by some of the parties in behalf of themselves and of all the others, taking care that there shall be due representation of all substantial interest before the court.’ ” (See also Smith v. Swormstedt, 16 How. (U. S.) 288, 302-303; Knopf v. First Nat. Bank of Chicago, 173 Ill. 331, 333; Lee v. City of Casey, 269 Ill. 604, 606; People v. Clark, 296 Ill. 46, 50-51.) The right to proceed in such a suit is not defeated by the fact that the liability of the stockholders is several and not joint. (Golden v. Cervenka, 278 Ill. 409, 435-436; Pfohl v. Simpson, 74 N. Y. 137; Bagley & Sewall Co. v. Ehrlicher, 40 N. Y. S. 922; Low v. Buchanan, 94 Ill. 76; Harper v. Union Mfg. Co., 100 Ill. 225, and Harmon v. Auditor of Public Accounts, 123 Ill. 122.

The TjVincock case was followed by Eames v. Doris, 102 Ill. 350, in which Otis, as receiver, and Eames and other creditors of the bank, appealed from a decree dissolving an injunction which had been granted to restrain Doris and other creditors of the bank from prosecuting actions at law against its shareholders to enforce the stock liabilities under its charter. The bill prayed the stockholders pay to the receiver the sums due the creditors from the stockholders in order that the same may be distributed equally; that the persons interested in and entitled to such funds be ascertained and that the creditors be enjoined from prosecuting their actions against the stockholders. The court said, page 356:

“But the court never has held that there might not be resort to a court of equity to enforce the liability, or that one creditor might not, at the instance of the whole tody of the other creditors, be restrained from the prosecution of his individual suit, where its prosecution would be to the prejudice of the equal interest of all the creditors.” (Italics ours.) And the court further held that the facts authorized the interposition of a court of equity and said, page 357:
“The liability constitutes a fund for the benefit of all of these two classes of creditors, and they are entitled to share in it in proportion to the amount of their debts. ... If individuals of these two classes of savings and trust depositors be allowed to prosecute their separate suits, they may recover payment of their demands in full, while others of the classes having claims equally equitable, may be enabled to obtain no payment whatever, or but a partial one. Hence the propriety, in the case of such a deficiency in a common fund for the common benefit of creditors, of a proceeding in equity by one or more in behalf of all the creditors, in order that the equitable principle that equality is equity, may be applied, — that single creditors, by individual suits, may be prevented from an appropriation to themselves of the entire or unequal benefit of the security, to the exclusion of others equally entitled, and that there may be a collection, and pro rata distribution of the whole fund among all the creditors. . . . The avoiding of a multiplicity of suits is a further ground of equitable jurisdiction. ’ ’

Tunesma v. Schuttler, 114 Ill. 156, was an action in assumpsit brought by a depositor of a bank against a stockholder under section 9 of the charter of the bank, which provided that when default shall be made in the payment of any debt or liability contracted by the bank, the stockholders shall be held individually responsible for an amount equal to the amount of the stock held by them respectively. The stockholder filed a plea that one Berls and other creditors of said bank, on behalf of themselves and all of the creditors of the bank, filed their bill against the bank praying that a receiver of the assets of the bank be appointed; that the bank be declared insolvent and its affairs wound up, its assets collected and its debts paid; that the bank was declared to be insolvent and a receiver was appointed and empowered to collect and dispose of the assets, and that Berls and others for themselves and all other.creditors of the bank filed their amended and supplemental bill making all stockholders parties defendant thereto; that an injunction was issued by said court in said cause restraining the further prosecution of said suit until the final hearing of said cause and that a decree was finally entered finding all of said defendant stockholders liable for the debts and liabilities of said bank to its creditors. Plaintiff replied that he had no knowledge of the proceedings mentioned in the plea, was not a party thereto, and received none of the benefits arising therefrom, and that said court of chancery had no jurisdiction of this plaintiff nor of the subject matter constituting the plaintiff’s cause of action. The court sustained a demurrer to the replication. The Supreme Court affirmed the judgment and in discussing* the questions involved said, p. 164:

“Wincock v. Turpin, 96 Ill. 135, is cited as an authority against the jurisdiction of a court of equity to enforce the rights of depositors under a charter provision similar to the one now under consideration. It is true the bill in that case was for the purpose of enforcing a liability of the same kind as that now under consideration, and that the right to relief, under the bill as framed in that case, was denied; but the case does not decide that a bill will not lie in any case to enforce this liability.” And on page 165: “. . . we see nothing in it (referring to the Wincock case) to justify the conclusion that a bill of this kind will not lie under any circumstances, but, as already stated, the very contrary is conceded. All doubt on this question, however, is completely removed by the later case of Eames v. Doris, 102 Ill. 350, which expressly holds that a bill of this kind will lie, so that the only question now is, so far as the present inquiry is concerned, do the facts stated in the bill under consideration bring the case within the general principle or rule established by that case? We have no hesitancy in saying they do. The insolvency of the bank, deficiency in assets to pay creditors, the personal liability of stockholders to the depositors, the existence of some nine hundred unpaid depositors, some of whom were trying, by separate suits at law, to get an advantage over the others, and that such separate litigation would waste and exhaust the proceeds of this liability of the stockholders, the only fund to which depositors could look for payment, is all clearly stated in the bill. This was sufficient. The fundamental principle upon which bills of this ldnd are maintained, is equality of benefit and burden among a numerous class of persons similarly situated, in respect to a particular fund. The principle that equality is equity, has its foundations deeply laid in equity law, and is one of the most fruitful sources of equity jurisdiction.”

In the case of Queenan v. Palmer, 117 Ill. 619, 626, the court said:

“Undoubtedly the law is, where a common fund exists upon which numerous persons have claims, equity will seize hold of it, and pay it out ratably upon their respective claims, or pay them in full, if the fund shall be sufficient for that purpose, in cases where it is wrongfully withheld. It may not be always known in advance whether the common fund will be sufficient to satisfy all demands upon it, and to ascertain that fact is a well recognized head of equity jurisdiction. Treating the liability the statute creates upon the stockholders in this bank as a common fund, out of which depositors may be paid, as well as out of the assets of the bank itself, the jurisdiction of a court of equity to seize such fund, and control it for the benefit of depositors, would hardly be questioned where an exigency arises that demands the exercise of such power.” And on page 628: “That it is the correct construction of the charter that the responsibility imposed upon stockholders is primary, and exists with the obligation of the corporation itself, and that it constitutes a common fund for the benefit of depositors or others, seems clear, both upon principle and upon authority, and hence the jurisdiction of a court of chancery in such cases is equally clear.”

Palmer v. Woods, 149 Ill. 146, was a bill brought by complainants against the stockholders of the Springfield Savings Bank for the payment of amounts alleged to be severally due them as creditors of the baiik. The stockholders filed pleas setting up proceedings in a former case against all of the complainants. The question, therefore, was, Should the complainants in this case be held by a decree in another to which they were not parties and to which they never consented? The court on page 153 said:

‘ ‘ That the proposition is against the general rule is admitted, but an attempt is made to bring it within exceptions to that rule. The exception relied upon is stated by the chancellor in Hallett v. Hallett, 2 Paige, 12, thus: ‘If there are many parties standing in the same situation as to their rights or claims upon a particular fund, and when the shares of a part cannot be determined until the rights of all the others are settled or ascertained, as in the case of creditors of an insolvent estate or residuary legatees, all the parties interested in the fund must, in general, be brought before the court, so that there may be but one account and one decree settling the rights of all. And if it appears on the face of the complainants’ bill that an account of the whole fund must be taken, and that there are other parties interested in the distribution thereof to whom the defendants would be bound to render a similar account, the latter may object that all who have a common interest with the complainants are not before the court. In these cases, to remedy the practical inconvenience of making a great number of parties to the suit, and compelling those to litigate who might otherwise make no claim upon the defendants or the fund in their hands, a method has been devised of permitting’ the complainants to prosecute in behalf of themselves and all others standing in the same situation who may afterwards elect to come in and claim as parties to the. suit and bear their portion of the expenses of the litigation. If such parties neglect to come in under the decree after a reasonable notice for that purpose, the fund will be distributed without reference to any unliquidated or unsettled claims which they might have had upon the same. But if the rights of such absent parties are known and ascertained by the proceedings in the suit, provision will be made for them in the decree. ... In either case the court will protect the defendants against any further litigation in respect to the fund.”

The instant case illustrates the propriety and fitness of the rules announced. There are some 23,500 persons represented by appellees. It is apparent that to require all the parties to be brought upon the record, as would be required in a suit at law, would amount to a denial of justice. The right may be defeated by objection to parties, from the difficulty of ascertaining them, or if ascertained, from the changes constantly occurring by death or otherwise.

It is also contended that appellees have failed to prove the insolvency of the bank. There is no merit in this contention. A bank is insolvent when it is unable to meet its liabilities as they become due in the ordinary course of business, or when it cannot pay its depositors on demand. (7 C. J. 727.) It appears from the evidence that on November 2, 1929, the auditor of public accounts made an examination of the bank and found that among the resources of the bank and carried as assets were certain worthless items aggregating $1,036,277.29; that the resources available for liquidation and payment of the depositors and other creditors were so depreciated that the capital stock had become impaired to such an extent that it could not be made good and that the bank was conducted in an unsafe manner; that the auditor of public accounts closed the bank and appointed a receiver who duly qualified and has since been liquidating and distributing its assets, and one year thereafter paid its creditors only twenty per cent of their claims, leaving still due and unpaid $2,705,489.42. These and other facts clearly show that the bank was insolvent at the date of the filing of the bill. Furthermore, it was not necessary to prove that the bank was insolvent as the liability of the stockholder to the creditor is primary, and is regarded as that of partners, occupying the same relation to the creditor as the bank itself, owing the same debt to the depositor as the bank owes and he can be sued for the debt just as the bank may be sued, and as soon as the bank may be sued. (Schalucky v. Field, 124 Ill. 617, 622.)

It is finally claimed by the appellant Allison that the court,, erred in overruling his general and special demurrer, his contention being that none of the appellees could have a cause of action against him unless his claim accrued during the time Allison was a stockholder ; that nowhere in the bill was there an averment as to the date or dates when the claims of the appellees accrued. The demurrer admitted the truth of the facts properly pleaded in the bill, as distinguished from conclusions or inferences of law. In the bill the appellees alleged the names and the number of shares held by the respective stockholders, and among them is Allison, and that he held 10 shares from April 13, 1929, to September 23, 1929; that the bank owed its creditors upwards of three and one-half million dollars constituting liabilities of the bank which accrued to the creditors while the persons named as stockholders remained such stockholders, all of which liabilities were and are evidenced by pass books or certificates of deposit, and that for such liabilities the stockholders were liable to said creditors to an amount equal to their shares of stock held by said respective stockholders while said respective liabilities accrued. It further alleges the amount of the indebtedness of the bank to each of the four appellees and that the several items of indebtedness accrued from time to time, while the persons named as stockholders were such stockholders and that no part of said several items of indebtedness has ever been paid by said bank or by any of said stockholders. It further alleges that the bill was brought on behalf of all other creditors of the bank and that other- creditors of the bank have threatened and are threatening to commence divers suits at law each against some one or other of the stockholders in order to recover from said stockholders separately the amounts of the liabilities of said bank to the particular creditor or creditors; that in said suits at law said creditors will obtain judgments against those of said stockholders who held their respective shares during the respective times when the several liabilities sought to be enforced accrued, and that said judgments will be for large portions of the amounts of the liabilities of said stockholders under the constitution and thereby said creditors so threatening and intending* to bring and'maintain said suits at law will appropriate to themselves an unjust and inequitable advantage over the appellees and other creditors of said bank in satisfaction of their respective claims against said bank; and that the amounts which may be collected from said stockholders of said bank on account of their liabilities to the creditors of the said bank should, in equity, be applied to the common benefit of said creditors in satisfaction of the liabilities of said bank to its creditors severally accruing* to each creditor during* the respective time or times said stockholders remained stockholders thereof. After examining the allegations of the bill, and considering the briefs and arguments of counsel and reviewing many adjudicated cases, we have reached the conclusion that the bill sufficiently alleged such ultimate facts as entitled the appellees to maintain the bill and that the chancellor did not err in overruling the demurrer.

Being* of the opinion that the decree of the circuit court is supported by law and the evidence, it is hereby affirmed.

Affirmed.

Q-ridley, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scahlah

license: Public Domain

text:
    Marland Refining Company, Appellant, v. John A. Lewis and Charles Roovaart, Defendants. Charles Roovaart, Appellee.
    Gen. No. 35,248.

      Opinion filed December 29, 1931.
    Doyle & Hackett, for appellant.
    George J. Drobnis and Ellis & Hackett, for appellee; William F. Struokmahh, of counsel.
   Mr. Justice Scahlah

delivered the opinion of the court.

From an order entered January 21, 1931, vacating a judgment against the defendant Charles Boovaart, appellee, and granting him leave to plead, the plaintiff, Marland Befining Company, a corporation, has appealed.

The record contains a mass of irrelevant and immaterial matter, and, therefore, we have been forced to spend considerable time in ascertaining the pertinent facts that bear upon the merits of this appeal. Plaintiff sued John A. Lewis and Charles Boovaart, defendants, in an action in assumpsit. The declaration charged that the defendants were liable in damages for breach of a contract that undertook to protect plaintiff in the matter of payment for merchandise delivered to a third person. No affidavit of merits was filed with the declaration. The summons was made returnable to the July term, 1930, and personal service was had on appellee in time for that term. No service was ever had on defendant Lewis. Appellee, by his attorney, entered his appearance July 3, 1930, but no demurrer or plea was filed in his behalf. The case was placed on the trial calendar of Judge Bush. On October 18, 1930, which toas the last day of the September term of the court, plaintiff, by its attorneys, appeared before Judge Normoyle and, on their motion, the suit was dismissed as to defendant Lewis, and appellee was defaulted for failure to plead to the declaration, and thereupon, upon motion of plaintiff’s attorneys, the court' assessed plaintiff’s damages at the sum of $29,846.46, and judgment was entered against appellee for that amount. It is conceded that no notice of any kind was given to appellee or his attorney that application would be made for default and judgment, and that counsel for plaintiff knew at the time they made the motions for default and judgment that the appearance of appellee had been filed in the cause. On November 12, 1930, appellee filed a motion to set aside and vacate the judgment and for leave to plead to the declaration, and in support of it he filed two affidavits. One, by the attorney for appellee, averred that he was never served with notice that the attorneys for plaintiff would ask for a default of appellee for failure to file a plea; that the cause had not been reached on the call of the trial calendar at the time judgment was entered; that at the time the judgment was entered the cause stood assigned to Judge Eush; that service had not been had upon defendant Lewis; that the declaration “was never verified by the plaintiff or anyone in its behalf and no affidavit of meritorious claim was attached to the declaration.” The second affidavit, made by appellee, averred, inter alia, that the instrument in writing, attached to plaintiff’s declaration, was not executed by appellee in his individual capacity but was executed by him as an officer of The Jewett and Sowers Oil Company, a corporation; that after it was executed by appellee and came into possession of plaintiff, the name, “The Jewett and Sowers Oil Company,” had a line drawn through it by some person or persons to appellee unknown, “leaving such document apparently signed by this defendant in his personal capacity”; that appellee never signed or purported to sign said instrument “or became obligated to the plaintiff verbally or otherwise as an individual for the indebtedness mentioned and set forth in such document or otherwise ’ ’; that the instrument sued upon had been altered and changed without the consent of the Oil Company or appellee and the instrument ‘ ‘ does not now correctly state and set forth the provisions of the contract as originally entered into by the parties to said contract.” It is agreed that at the time of the entry of the judgment the following were two of the rules of the circuit court:

“Rule 20. No motion will be heard or order made in any cause without notice to the opposite party when an appearance of such party has been entered except where a party is in default or when a cause is reached on the call of the trial calendar.
“Rule 21. . . . "Where a party is in default for want of appearance no notice shall be required, except upon the order of the court.”

Plaintiff did not file any affidavits in rebuttal of those filed by appellee. Instead, it filed a general demurrer to the motion, “and each and every of the affidavits filed in support of said motion.” On December 19, 1930, the court entered an order overruling the demurrer of plaintiff, and the plaintiff electing to stand by its demurrer, the court entered an order vacating and setting aside the judgment order of October 18, 1930, and granting appellee leave to file a plea of the general issue to plaintiff’s declaration instanter. The plaintiff thereupon prayed an appeal from this order, which was allowed, conditioned upon its filing its bond in the sum of $500 within 30 days, and it was also allowed 60 days within which to file its bill of exceptions. Appellee filed, at once, a verified plea of the general issue and thereupon, upon motion of plaintiff, a correction was made in the judgment order of October 18, 1930. In December, 1930, the first division of this court filed an opinion in the case of Swiercz v. Nalepka, 259 Ill. App. 262, in which Rule 20 and Rule 21 were construed together, and it was held that under Bule 20, when a cause has not been reached upon the trial calendar, no order can properly be entered where an appearance is entered without notice and that in such a case, where no notice is given to the defendant, it is error to enter a default judgment and it is proper to grant a motion made under section 89 of the Practice Act to vacate the default and judgment. The Supreme Court refused .a certiorari in that case. (See 259 Ill. App. xv.) Because of that decision, apparently, plaintiff abandoned its appeal from the order of December 19, 1930, and on January 13, 1931, its attorneys served notice that they would, on the following morning, move the court “to permit the plaintiff in said cause, respondent in motion to set aside default heretofore entered herein, to withdraw general demurrer heretofore filed in behalf of said respondent and ask leave to file instafiter stipulation to receive in evidence certain rules of said court covered by such stipulation, heretofore executed on behalf of said parties, copies of which are herewith handed you, and that we will also then and there ask leave to file instanter demurrer to the evidence introduced on the petition to set aside default heretofore entered herein.” This motion was entered and continued from time to time. On January 19,1931, the attorneys for plaintiff served notice that upon the hearing of the motion they would ask to have received in evidence certain affidavits made by the two attorneys of plaintiff. On January 21,1931, the trial court, over the objection of appellee, entered an order vacating the order of December 19, 1930, and plaintiff then offered in evidence two affidavits made by plaintiff’s attorneys, which were to the effect that at the time when plaintiff’s attorneys moved for a default and judgment, on October 18,1930, one of the attorneys stated to the court that an appearance had been filed in the cause by appellee and that no notice of the motion for a default and judgment had been served upon the attorney for appellee. Plaintiff, over the objection of the appellee, was allowed to file the affidavits. Plaintiff then presented to the court the following demurrer:

“Demurrer to Evidence in Matter of Motion to Set Aside and Vacate Judgment Entered in the Above Entitled Cause.
“Be It Remembered, That no jury having been demanded to try the issue on the motion to set aside and vacate judgment entered in the above entitled cause, the Petitioner to prove and maintain the. said issue on his part showed in evidence to the Court a writing in words and figures following, to-wit: (Here follows the motion made by the appellee to set aside the default judgment, of October 18, 1930.)
“And the Petitioner further to prove and maintain the said issue on his part showed in evidence to the Court a writing in words and figures following, to-wit: (Here follows the affidavit of appellee’s attorney made in support of the motion to vacate the default judgment of October 18,1930.)
“And the Petitioner, further to prove and maintain the said issue on his part showed in evidence to the Court a writing in words and figures following, to-wit: (Here follows the affidavit of the appellee made in support of the motion.)
“And the Petitioner further to prove and maintain the said issue on his part showed in evidence to the Court a writing in words and figures following, to-wit:
“It is hereby stipulated and agreed by and between the Plaintiff and the Defendant Charles Roovaart, by their respective attorneys, that there were in full force and effect when judgment by default was entered in this cause against the said defendant Charles Roovaart, on the 18th day of October, A. D. 1930, certain rules of procedure regularly adopted and entered of record by the Judges of the Circuit Court of Cook County, in the following words and figures, to-wit:
“ 1 General Bule 20. Notice of Motion — When Bequired. No motion will be heard or order made in any cause without notice to the opposite party, when an appearance of such party has been entered, except where a party is in default or when a cause is reached on the call of the trial calendar. “ ‘General Bule 21. Notice of Motions — How Given. Notice to the opposite party must be in writing stating the motion, time and place of hearing, and designating the Judge before whom the same is to be made. Notice of motion for leave to amend pleadings or to file any petition, pleading or other document must be accompanied by a copy of the paper proposed to be filed. Notice of all motions together with copies of all papers in support thereof must be served upon the opposite party or his attorney or solicitor of record in any of the following methods:
“ ‘(a) By delivering a copy thereof to the attorney or solicitor of record for the opposite party before four P. M. of the business day next preceding- the day mentioned in the notice for calling up the motion, or by leaving a copy thereof at his office with some person in charge thereof in his behalf. Such service on Saturday must be had before twelve o’clock noon.
“ ‘(c) By depositing in the mail copies thereof, properly addressed to the attorney or solicitor for the opposite party at least thirty-six hours before the motion is to be called up for hearing; in com- ■ puting such time, Sundays and legal holidays shall be excluded. When notice is given by mail the motion on presentation to the court must be accompanied by the affidavit of the person who mailed the notice, stating the time and place of mailing, together with the complete address appearing on the envelope.
“ ‘Where a party is in default, for want of appearance no notice shall be required, except upon order of the court.
11 1 Common Law Buie 2. Setting Aside Default. When either party neglects to file the proper pleadings within the time fixed by law or the rule of the Court, such party shall be considered in default and may be proceeded against accordingly. Defaults will not be set aside except upon affidavit of the party, agent or attorney, filed, setting forth a meritorious cause of action or defense. In which case the default may be set aside on such terms as the Court may deem just, and the pleading for want of which such default existed, shall be filed forthwith, unless the Court shall otherwise direct. ’ And Common Law Buie 1 hereinafter set forth.
“It is further stipulated and agreed that the said rules so adopted as aforesaid may be received in evidence when motion to set aside judgment order of October 18, 1930 is called up for disposition. (Italics ours.)
“(Signed) Doyle & Hackett Attorneys for Plaintiff
“(Signed) George J. Drobnis Attorney for Defendant Charles Boovaart.
“And the Bespondent, to prove and maintain the said issue on its part showed in evidence to the Court a writing in words and figures following, to-wit:
“It is hereby stipulated and agreed by and between the Plaintiff and the Defendant Charles Boovaart, by their respective attorneys, that there was in full force and effect when judgment by de-
fault was entered in this cause against the said defendant Charles Roovaart, on the 18th day of October, A. D. 1930, a certain rule of procedure regularly adopted and entered of record by the Judges of the Circuit Court of Cook County, in the following words and figures, to-wit :
“ ‘ Common Law Rule 1. Default. In all suits at law made returnable to any term of the Court where process has been duly served and declaration filed ten days before the first day of the term, the defendant shall plead or demur before the opening of Court on the morning of the third day, and the Plaintiff shall be entitled to judgment by default in all suits where the plea or demurrer is not so filed, unless the party has obtained an extension of the rule so to plead or demur. Any defendant entering his appearance without service will be required to plead or demur to the declaration at such time as he would be so required if he had been served with process on the day of the entry of his appearance. ’
“It is further stipulated and agreed that the said' rule so adopted as aforesaid may be received in evidence when motion to set aside judgment order of October 18, 1930 is called up for disposition. (Italics ours.)
“(Signed) Doyle & Hackett
Attorneys for Plaintiff “(Signed) George J. Drobnis
Attorney for Defendant Charles Roovaart.
“And the Respondent, further to prove and maintain the said issue on its part showed in evidence to the Court writings in words and figures following, to-wit: (Here follow the affidavits of the two attorneys for the plaintiff.)
“And the Respondent says that the matters as aforesaid so shown in evidence to the Court by the Petitioner are not sufficient in law to maintain the said issue on the part of the Petitioner and that it, the said Respondent, is not bound by the law of the land to answer the same. Wherefore, for want of sufficient matter in that behalf to the Court shown in evidence, the Respondent prays judgment that the said Petitioner may be barred from having or maintaining his aforesaid action against it.
“ (Signed) Doyle & Hackett
Attorneys for Marland Refining Company, Respondent.”

Thereupon the following occurred: “Mr. Hackett (attorney for plaintiff): We now present an order overruling our demurrer to the evidence and praying an appeal.” The following also occurred: “Mr. Ellis (attorney for appellee): You are demurring to the evidence, and you can’t offer evidence on a demurrer. Mr. Hackett: I can’t demur until the evidence is offered, and I am offering it. Mr. Drobnis (attorney for appellee): You demur to your own evidence. Mr. Hackett: I demur to all the evidence including yours and mine. Mr. Ellis: I object.” Counsel for plaintiff then presented to the court a written order which recites, inter alia, “that said Demurrer to evidence filed by the said Marland Refining Company, Plaintiff, be and the same hereby is overruled, and the Plaintiff electing to stand by its Demurrer to evidence, it is Ordered, Adjudged and Decreed That order of this Court heretofore entered in this cause vacating and setting aside judgment of default against Charles Roovaart and granting leave to said Charles Roovaart to file plea of general issue be and it hereby is confirmed.” This order was thereupon entered by the court and plaintiff has appealed therefrom.

It is clear that the judgment order of December 19, 1930, vacating and setting aside the judgment order of October 18, 1930, and granting appellee leave to file a plea of the general issue to plaintiff’s declaration, was the only proper one that could have been entered in view of the showing made by appellee in support of his motion. (See Swiercz v. Nalepka, supra.) After the decision in that case was rendered counsel for plaintiff apparently realized the futility of the appeal from the order of December 19, 1930, and abandoned it. Upon the original hearing of appellee’s motion to set aside the judgment order, plaintiff had the right to offer evidence in support of the judgment but it did not see fit to do so and elected to stand by its demurrer. When the trial court vacated the default judgment and allowed appellee to plead and the latter filed his plea, he was entitled, under the then state of the record and the law, to defend against the claim of plaintiff, and the trial court had no right to take away from him that right without his consent. In our judgment, the trial court erred in vacating, upon the motion of plaintiff, the order of December 19, 1930, but, in any event, the instant appeal is without merit.

The practice of demurring to evidence is but seldom resorted to and has been superseded by less technical and cumbersome modes of procedure. (See 6 Enc. of Pl. & Pr. 439; Rockhill v. Congress Hotel Co., 237 Ill. 98, 100.) “A demurrer to evidence is a statement by the party demurring, that he will proceed no further, because the evidence offered on the other side is- not sufficient to maintain the issue.” (6 Enc. of Pl. & Pr. 439.) “The demurrer is only applicable to the evidence of the party holding the affirmative of the issue.” (Ib. 440.) “A demurrer to evidence is analogous to a demurrer in pleading, the party from whom it comes declaring that he will not proceed further because the evidence offered on the other side is not sufficient to maintain the issue.” (Puterbaugh Com. Law Pl. & Pr. (10th Ed.), 106.) “Where a party demurs to the evidence the general rule is that no evidence introduced by him can be considered upon the demurrer. He is deemed to have waived it. The demurrant attacks the evidence of his adversary, and, in the very nature of things, this attack cannot be aided by his own evidence.” (6 Enc. of PL & Pr. 444.) “It follows also, from the very nature of the practice, and the principles governing it, that when defendant demurred, it was solely upon the evidence of the plaintiff or that adduced in his behalf; that is, the defendant could not adduce evidence in his own behalf, either in conflict with that of plaintiff, or independent of it and in support of his defense, and incorporate such evidence in his demurrer. If he demurred to plaintiff’s evidence, he must necessarily waive his own. Not to do so would be contrary to the very nature and objects of a demurrer to evidence. Co. Litt. 72a; Baker’s case, 5 Coke, 104a; Gibson v. Hunter, 2 H. Blackstone, 187; Cocksedge v. Fanshaw, 1 Doug. 119; Judith v. Green, 5 Rand. (Va.) 1.” (Pratt v. Stone, 10 Ill. App. 633, 637. Opinion by McAllister, J.) The insertion of the evidence given on both sides “cannot regularly be done. The defendant could not by demurring cause his own evidence to be taken for true, and the court cannot without usurping the province of the' jury, decide upon its truth. In principle it is not less absurd for a party to demur to his own evidence, than it would be to demur to his own plea; and it is believed that there is no precedent to be found in the English books for the former, no more than there is for the latter practice.” (Woodgate’s Admx. v. Threlkeld, 3 Bibb. (Ky.) 527.) “But when the demurrer was so framed as to let in the defendant’s evidence, and thus to rebut what the other aimed to establish, and to overthrow the presumptions arising therefrom, by counter presumptions, it was the duty of the circuit court to overrule the demurrer, as incorrect and untenable in principle.” (Dormady v. State Bank, 2 Scam. (Ill.) 236, 244. Italics ours.) It is plain that counsel for plaintiff have mistaken the office of a demurrer to evidence. Counsel for appellee, upon the hearing, called attention to the fact that plaintiff could not include in its demurrer to the evidence the affidavits offered in its behalf, and that the effect of such a demurrer would be that plaintiff was demurring to its own evidence. Counsel for plaintiff thereupon insisted that it was demurring to all the evidence offered by appellee and plaintiff. Counsel for plaintiff did not, in the demurrer to the evidence, nor by any motion, ask that appellee be directed to join in demurrer. The proper practice, of course, was to ask the court to direct appellee to join in demurrer. However, in the instant case the trial court could not, under proper practice, direct appellee to join in demurrer, for the reason that a party holding the negative of the issue cannot after introducing repellant testimony demur to the evidence and compel his adversary to join in demurrer. (See cases already cited.) Counsel for plaintiff, without waiting for the trial court to pass upon the sufficiency of its demurrer, stated: “Mr. Hackett: We now present an order overruling our demurrer to the evidence and praying an appeal,” and he then presented to the court a written order, which was entered and from which the appeal has been taken. The procedure insisted upon by plaintiff was not strictly a formal one but that fact is not important as, in any event, it would be the duty of the trial judge, in view of the character of the demurrer, to overrule it “as incorrect and untenable in principle.” (See Dormady v. State Bank, supra, 244.) It is to be noted that while plaintiff was permitted to introduce affidavits to the effect that the trial court at the time that he entered the order of default and judgment knew that no. notice had been given to appellee that plaintiff would move for such an order, nevertheless, plaintiff, by electing to stand by its demurrer, prevented the trial court from passing upon the issue of fact as to whether the court knew of the lack of notice. By reason of its attitude in the trial court plaintiff has no right to argue here as to the effect of the alleged facts set up in its affidavits.

In this court plaintiff argues that the attorney for appellee was negligent .in his conduct of the case and that therefore appellee is not entitled to ask relief under section 89 of the Practice Act, Cahill’s St. ch. 110, 1Í 89. This contention appears to be an afterthought and is without merit, as appellee was justified in relying upon the protection afforded him by Buie 20.

It would be a grave reflection upon justice if plaintiff were to prevail upon the instant appeal. The judgment order of the circuit court of Cook county is affirmed.

Affirmed.

G-ridley, P. J., and Kerher, J., concur.


author: Mr. Justice Eldredge

text:
    R. O. Ahlenius, Appellee, v. Bunn & Humphreys, Inc., Appellant.
    Gen. No. 8,506.

      Opinion filed November 4, 1931.
    Rehearing denied January 7, 1932.
    Stone & Taylor and B. L. Catron, for appellant.
    W. K. Bracken and Bracken, Livingston & Murphy, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

The rights of the parties in this case are controlled by paragraph 73 of chapter 32, Cahill’s Illinois Bev. Stat. which is as follows: “Any stockholder objecting to any action of the corporation in leasing, exchanging or selling all of its corporate assets, or objecting to a merger or consolidation with another corporation (the corporation acquiring such assets by lease, exchange, sale, merger or consolidation being hereinafter referred to as the ‘acquiring corporation’), shall be obligated to sell and transfer to the acquiring corporation and the acquiring corporation shall become and be obligated to purchase such share or shares, together with all rights and interests thereby represented, including all cash or securities or other benefits accruing to such share or shares, from or by reason of the sale, lease, merger or consideration at a price equal to the fair value of such share or shares with interest on such fair value at the rate of five per cent per annum from the date such sale, lease, merger, or consolidation was consummated. If such fair value and interest is not paid to such objecting stockholder by such ácquiring corporation within thirty days after a mailing of notice thereof to the stockholder at his last known address as shown by the records of the corporation of such sale, lease, merger or consolidation, then such objecting stockholder may, within sixty days thereafter, file a petition in the Circuit Court of the county in which the principal office of the acquiring corporation is located, asking for a finding and determination of the fair value of such shares of stock. Upon the filing of such petition, the practice and procedure thereon shall be the same, so far as practicable, as that under the eminent domain laws of this State, but the court shall have full power and authority to do all things and enter all such orders as it may deem equitable and just for the purpose of preserving and protecting the rights of the parties of the proceeding during the pendency thereof. Such fair values shall be ascertained and determined as of the date of the consummation of such sale, lease, merger or consolidation, and without regard to any depreciation or appreciation because of or on account of such sale, lease, merger or consolidation.

“The court shall enter judgment against such acquiring corporation for the amount of such fair value, and interest thereon, which judgment may be collected as other judgments at law. Upon the payment of such judgment such stockholder shall cease to have any interest in such stock or in the property of the corporation. Such stock may be held and disposed of by the corporation as it shall see fit.

“Unless such objecting stockholder shall file such petition within the time herein limited, such stockholder and those claiming under him shall be conclusively presumed to have authorized, approved and ratified such sale, lease, merger or consolidation. If at the expiration of thirty days from the time of the consummation of such sale, lease, merger or consolidation, the person in whose name such share or shares shall stand, shall not be living, or shall be under disability, his executor, administrator, guardian, or conservator, as the case may be, shall be entitled to file such petition within ninety days after mailing of a notice thereof to the stockholder at his last known address as shown by the records of the corporation of the consummation of such sale, lease, merger or consolidation. ’ ’

In 1928, J. F. Humphreys & Co., a corporation, with its principal office at Bloomington, Illinois, and John W. Bunn & Co., a corporation, with its principal office at Springfield, Illinois, each organized under the laws of this State and each engaged in the wholesale grocery business, merged and consolidated into one corporation known as Bunn & Humphreys, Inc., which is the appellant on this appeal. On May 16, 1929, it. 0. Ahlenius, appellee, who was a stockholder of J. F. Humphreys & Co., filed his petition in the circuit court asserting therein that as a stockholder of said corporation he objected to said consolidation and requested that the value of his stock should be determined and the same paid to him by the acquiring company. . The cause was submitted to the court for trial and the court found the value of said stock to have been $12,842.72 and entered judgment against appellant for that amount. There are three questions to be disposed of on this appeal: (1) Was appellee an objecting stockholder ? (2) If he was an objecting stockholder, did he file his petition in apt time? (3) Did the court err in its finding of the amount of the fair value of the stock ?

The statute under which this action is brought has never been considered or construed by any appellate tribunal in this State so far as we have been able to discover. In the construction of statutes it is first necessary to ascertain, if possible, what the intention of the legislature was in using the terms and language employed therein. It is evident that the legislature in passing the present statute had in mind the protection of stockholders, especially minority stockholders, in the preservation to them of the fair value of their stock upon the consolidation or merger of the corporation in which they held such stock with another corporation if they did not desire to substitute such stock for stock in the acquiring corporation. The purchase of stock in a corporation organized for pecuniary profit is simply an investment of money in the business of that corporation and certificates of stock are simply evidence of such investment. The statute prevents the forcing of a stockholder to invest his money in another corporation when he does not desire to do so. The term “objecting stockholder” should not receive a literal and narrow construction. In our opinion these words mean any stockholder in a corporation who for any reason, sufficient unto himself, prefers to take the fair value of his stock in the corporation in which he holds the same rather than accept other stock in the acquiring corporation.

The statute provides that the practice and procedure upon the filing of the petition shall be the same, so far as practicable, as that under the eminent domain laws of this State. Under the procedure and practice in eminent domain proceedings, objections to the right of the petitioner to file the petition or to the jurisdiction of the court are legal objections and must be determined before the merits of the case are heard. Chicago & M. Elec. R. Co. v. Diver, 213 Ill. 26; Illinois Cent. R. Co. v. Roskemmer, 264 Ill. 103. In the cases of Ward v. Minnesota & N. W. R. R. Co., 119 Ill. 287, and Lieberman v. Chicago & S. S. R. T. R. Co., 141 Ill. 140, it was held that if a defendant in an eminent domain proceeding went to trial on the merits without objecting to the right of petitioner to condemn his land for public purposes, he will be held to have waived the necessity of making proof of such right. In the present case appellant made no legal objections to the right of appellee to file his petition except by propositions of law submitted to the court at the conclusion of all the evidence. The act makes no other reference of the right of the petitioner' or respondent to have the value of his stock determined by a jury and while the question of a jury trial is not involved in this particular case because the cause was submitted to the court for trial, yet, if the parties were entitled to a jury, the objections now made to the right of the petitioner to file his petition would have had to have been made prior to such jury hearing. Even under the practice prevailing in eminent domain proceedings, if the cause was submitted to the court for trial without a jury, the legal objections to the right of the petitioner to condemn would have to be first settled before the court heard evidence upon the value of- the property. In the present case, if the legal objections to appellee’s right to file his petition had been first heard and determined and if the court had found that he had no such right, then the large amount of testimony introduced in regard to the fair value of the stock would have been unnecessary. Unquestionably, the above rule of procedure which obtains in eminent domain proceedings would be practical as well as useful in proceedings under this statute. However, in order to do no injustice to the parties in this proceeding, we will discuss the merits of these legal objections the same as if they had been properly made. The evidence shows that J. F. Humphreys & Co. (hereinafter designated as Humphreys & Co.) had been engaged in the wholesale grocery business and had existed in one form or another since 1854 with its principal office in Bloomington, Illinois. In June, 1928, its capital stock was $800,000, consisting of 4,000 shares in preferred stock at a par value of $100 each and 4,000 shares of common stock of a par value of $100 each. At this time all the common stock was outstanding, of which Bogers Humphreys owned 3,793 shares. There were also at this time 1,223 shares of preferred stock outstanding. John W. Bunn & Co. (hereinafter designated as Bunn & Co.) had also been in the wholesale grocery business for many years with its principal office at Springfield, Illinois. Geo. W. Bunn, Sr., as an individual and as trustee of the estate of John W. Bunn, deceased, owned and controlled a substantial majority of the stock in Bunn & Co. There were but seven stockholders in Humphreys & Co. and an equal number in Bunn & Co. For about 10 years prior to the consolidation, R. 0. Ahlenius, appellee, had been vice president and general manager of Humphreys & Co. He was also owner of 150 shares of its common capital stock of a par value of $100 each. He first bought 10 shares October 30, 1918, at $125 per share. His next purchase was of 90 shares January 16, 1920, at $133 per share and his last purchase was 50 shares March 19, 1924, at $154.35 per share. On the first day of June, 1928, Rogers Humphreys for and on behalf of Humphreys & Co. and George W. Bunn, Sr. for and on behalf of Bunn & Co. entered into a preliminary agreement in writing for the consolidation of the two companies. This agreement provided partly, in substance, that the said Bunn and the said Humphreys shall forthwith take steps to submit to their respective stockholders in accordance with the provisions of the statute and to be passed by said stockholders, suitable resolutions, providing for the merger or consolidation of the two companies, which said resolutions shall specify the terms and conditions of said merger, which terms and conditions shall be substantially as follows: (a) Bunn & Co. shall, prior to said merger, sell or dispose of all of its assets which are not by this contract to be taken into the common enterprise, and Humphreys & Co. shall do likewise, the general description of such assets is, (1) real estate; (2) accounts being doubtful; (3) certain furniture and equipment; (4) and any other assets not specified as becoming assets of the consolidated company. This agreement also contains the following provision: “It is further understood that appropriate Resolutions shall be prepared for presentation by the respective Boards of Directors of the consolidating companies and for adoption at the stockholders’ meetings, which resolutions shall embody all of the portions of said agreement that are essential to be included in the action of said Boards of Directors and said stockholders.”

Appellee testified, although this testimony was excluded by the court as being immaterial, that during the negotiations by Humphreys & Co. and Bunn & Co. for said consolidation Rogers Humphreys informed him that he would try to procure a similar position for him in the new firm as he held in Humphreys & Co. but if he could not do so he would buy his 150 shares of stock and that Rogers Humphreys later informed him that he could not procure a position for him in the new company on account of the opposition of Bunn & Go.; that he thereupon informed Rogers Humphreys that he had several business opportunities offered to him, the acceptance of which would require the sale of his stock in Humphreys & Co. arid that Rogers Humphreys refused to buy said stock.

A special meeting of the board of directors of Humphreys & Co. for the purpose of considering the consolidation was held June 4, 1928, and appellee was present at this meeting. At this meeting a resolution was adopted part of which is as follows:

“Whereas negotiations have been had with John W. Bunn & Co. of Springfield, Illinois, an Illinois corporation, engaged in the wholesale grocery business, looking to the consolidation of said corporation with the corporation of J. F. Humphreys & Co.; and
“Whereas this Board of Directors believes said consolidation to be for the best interests of said Company.
“It Is Therefore Resolved that J. F. Humphreys & Co. do merge and consolidate with John W. Bunn & Co., an Illinois corporation, and that the terms and conditions of said merger or consolidation shall be as follows:
“1. Each of said corporations shall sell or dispose of all its real estate, doubtful accounts, and such furniture and equipment as shall not be necessary for the proper conduct of the consolidated business.
“2. The inventories of John W. Bunn & Co., together with its accounts receivable and notes deemed good, office furniture and fixtures, delivery equipment and insurance, including like assets of the Capitol Grocery Company, the same being represented by its capital stock, which is now owned by the said John W. Bunn & Co., together with all cash on hand possessed by either John W. Bunn & Co. or the Capitol Grocery Company as at the close of business June 30, 1928, shall constitute the contribution of the said John W. Bunn & Co. to the capital assets of said consolidated corporation; and the inventories of J. F. Humphreys & Co., together with its accounts receivable and notes deemed good, office furniture and fixtures, delivery equipment and insurance, together with all cash on hand as at the close of business June 30, 1928, shall constitute the contribution of J. F. Humphreys & Co. to said capital assets.
“3. The value of the assets provided for in Item 2 above shall be determined as at the close of business June 30,1928, at their then cost price or market value, whichever shall then be the lower. ’ ’

Appellee voted for this resolution relying upon the agreement of Rogers Humphreys that the latter would purchase his stock if he was not given a position in the consolidated company. The minutes of this meeting also show that a resolution was passed calling a meeting of the stockholders for the 26th day of June, 1928, for the purpose of considering the foregoing resolution. The following proceedings also appear in the minutes of this meeting: “The President thereupon announced that in order to comply with the proposed plan of consolidation that it was necessary for this company to dispose of its real estate and doubtful accounts, that one of the stockholders, Rogers Humphreys, had submitted for the action of the Board a Proposal in the following words and figures, that is to say:

“Bloomington, Illinois, June 4, 1928. “To J. F. Humphreys & Co.
‘1 G-entlemen:
“I propose to purchase, acquire and take over the real estate of J. F. Humphreys & Co., .described as follows:
“The West Half of the Southeast Quarter of the Southwest Quarter of Section 24, Township 22 South, Range 28 Bast, in the County of Orange and State of Florida.
“The South one-half of the Southeast one-fourth of the Southeast one-fourth of Section 19, Township 11, Range 7 Bast of the Third Principal Meridian, situated in the County of Coles and State of Illinois.
“The West one-half of Lot 3 and all of Lot 2, in Block 10, of the Original Town of Lexington, in the County of McLean and State of Illinois.
“Lots 1 and 2, being the whole of the Harber Brothers Company subdivision of the North end of Block 5, of Miller, Foster and Others Addition to the Town (now city) of Bloomington as shown in Book 4 • of Plat Books of McLean County, at page 536, situated in the City of Bloomington, McLean County, Illinois.
“Lot 11, Block 5, in Bell’s Addition to the City of Bloomington, situated- in the County of McLean, in the State of Illinois, now carried in the name of Rogers Humphreys.
“Lot 672 in the Harvard Park Second Plat in the City of Springfield, Illinois, the same being a subdivision situated in the Southwest Quarter of Section 3, and the Northwest Quarter of Section 10, Township 15 North, Range 5 West of the Third Principal Meridian, situated in Sangamon County, Illinois, now carried in the name of Rogers Humphreys; and to at the same time purchase and take over certain accounts of J. F. Humphreys & Co. deemed doubtful, a list of which is attached hereto and to pay for the same by the transfer to J. F. Humphreys & Co. of . . . shares of the capital stock of the said J. F. Humphreys & Co. now standing on its books in my name.
Rogers Humphreys.”

A resolution was adopted approving of the sale of the real estate and accounts to Rogers Humphreys in accordance with his written offer. Appellee was present and voted for these resolutions. At the stockholders ’ meeting held June 26, 1928, a resolution was adopted approving the resolutions adopted by the board of directors. At this meeting the president stated that in order to comply with the requirements of a proper certificate to the Secretary of State it would be necessary to determine the exact holdings of the various stockholders as a result of the appraisal and inventory provided for in the resolution theretofore adopted and that this could not be determined until after the close of business June 30, 1928, and suggested the advisability of adjourning said meeting for four weeks in order to provide ample time for the taking of said inventories and fixing of said rights at which time a resolution embodying all of the necessary information could be passed, and in accordance with these suggestions the following resolution was adopted:

“Be It Resolved that this meeting be, and is hereby adjourned, to meet at the office of the Company on the 24th day of July, 1928, at two o’clock p. m., to there consider and pass upon a Resolution first hereinabove adopted for the consolidation of this company with that of John W. Bunn & Co. of Springfield, Illinois, and including in addition thereto the specific data required with reference to the holdings of the individual stockholders so that a proper return thereof can be made to the Secretary of State.” It appears that no business was transacted at the special adjourned meeting of the stockholders of July 24, but that said special meeting was adjourned from time to time until September 21, 1928. In the meantime at one of the adjourned stockholders’ meetings held August 10, 1928, appellee presented at said meeting the following communication:
“Bloomington, Illinois, August 10, 1928 “To the Stockholders of J. F. Humphreys & Company, in Adjourned Meeting Assembled.
‘1 Gentlemen:
“This meeting was called to be held on June 24, 1928, at which time a resolution was adopted to the effect that J. F. Humphreys & Company do merge and consolidate with John W. Bunn & Company, as Bunn-Humphreys Company, Inc. As a stockholder of J. F. Humphreys & Company I voted for said resolution at said meeting, in consideration of Rogers Humphreys having assured me, prior to the holding of that meeting, that he would arrange to take over or purchase my 150 shares of the Common Capital Stock of said J. F. Humphreys & Company.
“Inasmuch as Mr. Humphreys has since informed me that he will not be able to comply with his promise because of opposition from the Bunn interests, I deem it advisable, and in this manner, to inform all of the stockholders of said J. F. Humphreys & Company now assembled in the adjourned meeting of the above recited facts.
“It was my right and privilege, under the law, at said meeting of June 24, 1928, and it is also my right and privilege at this adjournment thereof, to object to the said merger or consolidation of said J. F. Humphreys & Company with said John W. Bunn & Company; and it is also my right and privilege now, and for the reasons above stated, to change my vote upon said resolution and to give notice to said acquiring corporation to pay to me in due course the fair value of my said 150 shares of Common Capital Stock of said J. F. Humphreys & Company, and I do hereby object to said merger or consolidation of said J. F. Humphreys & Company with said John W. Bunn & Company and I do hereby give notice to all parties concerned that it is my intention to change my vote on said resolution from the affirmative to the negative. I also do hereby give notice to said stockholders here assembled, and to said acquiring corporation, to pay to me in due course as provided by the statutes, the fair value of my said 150 shares of Common Capital Stock of said J. F. Humphreys & Company.
“I do now, therefore, move the reconsideration of said resolution adopted at the meeting of the stockholders of J. F. Humphreys & Company held on June 24, 1928, concerning the merger or consolidation of said J. F. Humphreys & Company with said John W. Bunn & Company.
(Signed) R. 0. Ahlehius.”

At the meeting of the stockholders on September 21, 1928, Rogers Humphreys declared that since the last meeting of the stockholders the inventories and assets of Humphreys & Co. and Bunn & Co. had been carefully checked and reduced to its sound values and that the proportionate amount of stock going to each stockholder had been determined and that it was found among other things that it was difficult to determine the value of the proposed accounts receivable which were by resolution adopted on June 4,1928, to be taken out of the company and purchased by Rogers Humphreys and it was desirable to separate said assets and have the same set apart and given into the charge of the consolidated company to be liquidated for the use and benefit of the stockholders of Humphreys & Co. as they now appear upon the books of said company and that such an arrangement had been made and that the value of the assets to be turned over to Rogers Humphreys■ under his proposal had been determined upon that basis and the proportionate shares of stock which he was to surrender to the company for the assets taken out had likewise been determined and was in fact 1,102 shares and that it would be in order to pass resolutions touching the consolidation of said companies. Whereupon the following resolution was presented and adopted, all of the stockholders present voting therefor except appellee, who voted against the- adoption of the resolution. The resolution is as follows:

“Be It Resolved that the action of the officers and Directors of J. F. Humphreys & Co. with reference to the assets proposed to be taken out of said company in exchange for capital stock by Rogers Humphreys as above explained by the President of the Company be, and it is hereby approved. ’ ’

At this meeting the following resolution was also adopted, appellee voting against it:

“Be It Resolved that John W. Bunn & Co. a corporation with its principal place of business at Springfield, Illinois, and J. F. Humphreys & Co., a corporation with its principal place of business at Blooming-ton, Illinois, be, and the same are hereby consolidated into a single corporation, upon the terms and conditions hereinafter set forth, which conditions are as follows:” (Here follow complete details of the consolidation.)

It is apparent that the final resolution for consolidation was not adopted by the stockholders of Humphreys & Co. until September 21, 1928, and this resolution was voted against by appellee. At this meeting the minutes show that appellee stated in explanation of his negative vote that it was not his intention or purpose to oppose the consolidation of Humphreys & Co. and Bunn & Co. but that his negative vote was to preserve his own rights under the statute. He further stated that he had given formal notice and demand to the acquiring corporation that they purchase his 150 shares of common stock. It is submitted by appellant that because appellee voted for the original resolution for consolidation at the directors’ meeting held June 4, 1928, and for the similar resolution adopted by the stockholders at their first meeting held on June 26, 1928, that he is now estopped from claiming that he was an objecting stockholder. This contention cannot be sustained. Appellee had the right at any time before the adoption of the final resolution for the consolidation to register his objection thereto. He may have had many reasons during the progress of the negotiations to have changed his mind.

It is claimed also by appellant that appellee is barred from recovering the fair value of his stock for the reason that he is guilty of laches in filing his petition. The statute requires that if the fair value of such stock is not paid to such objecting stockholder by the acquiring corporation within 30 days after mailing of notice thereof to the stockholder at his last known address as shown by the records of the corporation of such consolidation, then such objecting stockholder may within 60 days thereafter file his petition in the circuit court of the county in which the principal office of the acquiring corporation is located asking for a finding and determination of the fair value of such shares of stock. It is conceded no such notice was ever mailed to appellee at any time. Therefore, he was not bound by the 60-day limitation.

After the final resolutions of consolidation were adopted negotiations for the purchase of appellee’s stock by appellant were carried on between it and appellee and by their respective attorneys until April 5, 1929. These negotiations consisted of offers and counter-offers between the parties and it was not until the latter date that it was conceded by the parties and their attorney that no amicable agreement could be reached as to the purchase of appellee’s shares of stock by appellant and appellee was informed by appellant that it had withdrawn all offers for the purchase of said stock and was not further interested in the matter. The petition was filed by appellee May 16, 1929. Under these circumstances laches in bringing the action cannot be presumed.

The statute provides that the fair value of the stock shall be ascertained and determined as of the date of the consummation of such consolidation and without regard to any depreciation or appreciation because of or on account of such consolidation. It is contended by appellant that the date of the consolidation was the date on which the' secretary of state issued his certificate of consolidation which was October 22, 1928, and the trial court so held and determined the fair valuation of the shares of stock of appellee as of that date. Appellee contends that the date of consolidation so far as appellee is concerned was June 30, 1928, because the agreement between the consolidating companies was that the value of all the assets and the amount of liabilities of each of the consolidating companies was to be determined as of that date and that the value of the real estate and other assets sold to Rogers Humphreys and the value of the stock which he exchanged therefor were all fixed and determined as of June 30, 1928. We are of the opinion that the actual consolidation was consummated on September 21, 1928, the date when the final resolutions for consolidation were adopted by a vote of both of the merging companies but it is also our opinion that the actual date óf consolidation can have but little bearing on the rights of the parties in this proceeding, notwithstanding that the statute-fixes the date at which the value of an objecting stockholder’s stock shall be fixed as the date of consolidation because the statute also provides that such fair valuation shall be ascertained and determined without regard to any depreciation or appreciation because of or on account of such consolidation. The statute never contemplated that during the process of consolidation and as a part of the agreement thereof either of the consolidating companies could divest itself of a large portion of its assets and thereby reduce the value of the stock owned by an objecting stockholder. All the real estate of Humphreys & Co. and a large amount of its other assets were transferred to Rogers Humphreys by that corporation in exchange for 1,102 shares of the common stock thereof owned by Rogers Humphreys. In order to arrive at the value of the property, real and personal, so transferred to Rogers Humphreys and to determine the value of the stock to be given by him therefor, the stockholders’ meeting was adjourned- from June 26 to September 21. During this time complete inventories of the assets and liabilities of the property of Humphreys & Co. and a thorough examination thereof were made and caused to be made by Rogers Humphreys with the assistance of the witness Flood, one of the officers of the consolidated company. As a result of this examination it was determined that the value of the assets of Humphreys & Co. transferred to Rogers Humphreys was $128,349.94 and that the proportionate shares of stock which Rogers Humphreys was to surrender to the company for such assets taken out “was in fact 1,102 shares,” thus determining that the value of each share of common stock of Humphreys & Co. at that time was $116.47 and the record of the transfer on the books of the company shows that the valuation of these 1,102 shares of the common stock of Rogers Humphreys was received by Humphreys & Co. at' this valuation. We know of no better evidence of the value of the common stock of Humphreys & Co. on June 30,1928, than that placed upon it by each of the consolidating companies after an examination by them for the purpose of determining such value extending over a period of three months. Under the procedure and practice which obtains in eminent domain proceedings, recent sales of land similar to that sought to be condemned has always been considered competent evidence. The trial court refused to adopt this valuation of the stock but decided that said valuation should be determined as of October 22, 1928, when the certificate of consolidation was issued by the secretary of state. Among other things he eliminated the item of $100,000 which was carried on the books of Humphreys & Co. as an asset for the good will of the company, for the reason that there was some oral testimony to the effect that Humphreys & Co. for the past two or three years prior to that time had not made a profit though no books of the company were introduced to support this evidence. The corporation itself either as a firm, partnership or corporation had existed since 1854. On January 12,1891, Humphreys & Co. was organized as a corporation and thus at the time of the consolidation had existed as such for 37 years. At the time of the consolidation it was employing 100 people and its business had averaged approximately $2,000,000 a year. Counsel for appellee made the following offer of proof to which the court sustained an objection: “Then I offer to show, if I am permitted to ask the question and the witness to answer it, that J. F. Humphreys & Co. were organized as a corporation on January 12, 1891; that this corporation took over and continued the wholesale grocery business of Humphreys, Evans & Co., which had been in business as wholesale grocers in Bloomington for many years prior to the date of the incorporation of J. F. Humphreys & Co.; that the company covered a large territory, had many hundreds of customers among retail grocers and others, a large number of traveling salesmen, and, among other things, it developed, established and put on the market brands of goods known as Wedding Bing and Wish Bone brands, which became known as standard and high class brands identified with this business, and have a large value in the trade. That the business also included handling and roasting of coffees and other products; that many brands were put out under the name of J. F. Humphreys & Co., and identified with it as among the best that the market provided for this kind and class of goods in the wholesale business; that this company stood among the highest in the country and had a reputation, and has yet, of being one of the oldest, most conservative and of the highest class in the country. All of which, notwithstanding the fact that there may have been some losses at times, under our contention makes the good will of substantial value and amount.”

In 28 C. J. 730, it is held: “Good will is property recognized and protected by law as such, and capable of sale or other transfer from one owner to another in connection with a transfer of the property, business, or other rights to which it is incident. It is an asset which may be sold in connection with a business to pay creditors.”

Quoting further from the same authority it is held (page 735): “Business corporations, as well as individuals, may have a good will connected with their property, business, or other rights; it is the'property of the corporation alone, and can be transferred only by it. . . . As the good will adheres to the corporate business, where a stockholder sells his stock his interest in the good will of the business goes with it. ... No rigid and unvarying rule for the determination of the value of good will has been laid down by the courts; each case must be determined on its own facts and circumstances. The determination of the question must, within proper limits, be left to the jury, whose conclusion must rest upon evidence legitimately tending to establish value and supporting the verdict. . . . The purchaser of a business together with its good will may in turn assign such business and good will to another.”

In 12 R. C. L. 978, it is held: “It has repeatedly been held that good will is a valuable asset of the business of which it is a constituent part, unless of too uncertain and contingent a nature to be the subject of appraisement and estimation.” The trial court also in arriving at the valuation of the fair value of the stock in addition to eliminating from the assets of the company the property, real and personal, transferred to Rogers Humphreys and the good will, eliminated a number of other items carried as assets on the books of the company and declared some of the contested items assets and some of them liabilities and arrived at his finding of the value of the stock in the amount hereinbefore noted. In our opinion it is unnecessary to discuss these particular items for the reason that we find from the evidence that the fair valuation of the stock held by appellee should have been computed at the rate of $116.47 per share, in accordance with one of the cross errors assigned, making the total for the principal debt $17,470.50 on which interest should have been charged at the rate of five per cent per annum from September 21, 1928. If at the close of business of Humphreys & Go. on June 30, 1928, the fair value of the common stock owned by Rogers Humphreys was $116.47 per share as determined by both of the consolidating companies, then .the 150 shares of said common stock owned by appellee had an equal value and such value could not be depreciated or appreciated because of or on account of such consolidation. As this cause was submitted to the court for trial without a jury it is ordered that the following judgment be entered herein:

It is ordered and adjudged by this court that the judgment of the circuit court of McLean county be and the same is hereby reversed.

It is further ordered and adjudged by this court that R. 0. Ahlenius, petitioner, have and recover of and from Bunn & Humphreys, Inc., a corporation, respondent, the sum of twenty thousand one hundred forty-four dollars ($20,144) damages, together with his costs by him in this behalf expended and that execution issue therefor.

Reversed.