author: Mr. Presiding Justice Matchett

text:
    Louis Price and Joe Lowe, trading as Starch Products Company, Appellants, v. Neiman Brothers Company, Appellee.
    Gen. No. 30,700.
    1. Sales — sufficiency of evidence to show waiver by vendees of right to inspect goods before acceptance. Where a written contract for the purchase and sale of merchandise to be shipped from Holland to New York City provided that any question of the quality of the goods must be raised before their removal from the docks at destination, it was a reasonable inference that if the goods were not inspected at the docks, the right of inspection was waived.
    2. Sales — time when title passes as to goods shipped f. o. b. shipping point. If a contract provides that the shipment is to be made f. o. b. the point of shipment, both at common law and under the Uniform Sales Act the title to the goods passes to the buyer on delivery thereof to the carrier.
    3. Sales — effect of Uniform, Sales Act upon right of buyer to inspect goods. Uniform Sales Act § 47 does not alter the common-law rule as to the right of a buyer to inspection of the goods purchased.
    4. Sales — sufficiency of evidence to show intention of vendees to waive inspection of goods before acceptance and payment. Where a written contract for the purchase and sale of merchandise to be shipped from Holland to Chicago via New York City provided for an inspection of the goods at the docks in New York City but the vendees made none there, and the contract further provided for payment by a sight draft drawn against the bill of lading, evidence held to show an intention on the part of the vendees to waive inspection.
    Appeal by plaintiffs from the Municipal Court of Chicago; the Hon. William E. Viner, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed March 29, 1926.
    Netherton & Netherton, for appellants.
    Laramie & Sherwin, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is prosecuted by plaintiffs to reverse a judgment for costs entered against plaintiffs and in favor of defendant upon the finding of the court.

Plaintiffs below are appellants here. They sued for damages alleged to have been sustained through the refusal of defendant to take and pay for 300 bags of caraway seed, for which defendant had given a written order.

In the course of a colloquy between the court and counsel, there was a request by plaintiffs for a non-suit, which was denied, and a finding as heretofore set forth. No evidence was offered in behalf of defendant, and the facts of the case are practically undisputed.

The evidence tends to show that plaintiffs who are a copartnership of New York entered into a contract in writing with the defendant, a corporation doing business at Chicago, Illinois, which was. as follows:

“Standard Arrival Contract of the American Spice Trade Association As Amended, effective on and after Feb. 29, 1924.

“Starch Products Co., 291 Broadway, New York, February 8, 1924.
“Sold for account of M Starch Products Co., to M. Neiman Bros., 3100 W. Polk St., Chicago, Ill.
“Quantity 300 bags.
Article Prime Dutch Caraway Seed.
Quality f. a. q. of the season.
Approval. Any question respecting quality to be made before removal from dock, or, as provided in Buie 8.
Price 1414c per pound, duty paid. f. o. b. New York.
Shipment from Holland.
By Steamer or Steamers during August and/or September, 1924, direct or indirect to New York.
Terms net cash, sight draft against bill of lading.
Payable in Gold, or its equivalent in New York Funds.
Weights gross for net-shipping.
Tares none.
Insurance for account of seller.

“All questions arising out of this contract shall be subject to the rules of the American Spice Trade Association, printed on the reverse of this contract.

“Buyer: Accepted Neiman Bros. Co. by Louis G. Neiman, Starch Products Co.”

On October 4, 1924, the plaintiffs delivered the caraway seed to a common carrier at New York, and the carrier issued its uniform bill of lading of that date, acknowledging receipt of the goods in apparent good order, contents and conditions of contents of package unknown.

The bill of lading further provided that the surrender of the bill of lading properly indorsed should be required before the delivery of the property; that inspection of the property covered by the bill of lading would not be permitted unless permission was indorsed on the original bill of lading, or given in writing by the shipper. It appears from the bill of lading that the seed was consigned to the order of the plaintiffs at Chicago with directions to notify the defendant at 3100 Wesx Polk Street, Chicago.

At the same time the plaintiffs drew a sight draft on defendant for the purchase price of the seed, amounting to $4,615.86, attached the same to the bill of lading and forwarded it to the Central Manufacturing District Bank at Chicago, to whose order the draft was payable. The goods arrived in Chicago, and defendant was notified, whereupon on October 9,1924, it telegraphed the plaintiffs at New York as follows:

“Just received notice from N. Y. C. B». It. that seed arrived in Chicago. We desire inspection. Instruct railroad at once to permit us inspection.”

Plaintiffs- replied:

“Answering your telegram you bought sight draft basis therefore expect your prompt payment.”

The defendant refused to honor the draft, and on October 28,1924, attorneys for plaintiffs wrote calling attention to the- telegrams which had passed between the parties, and stating:

“As counsel for Starch Products Co. we have to advise you that our client demands strict compliance on your part with your contract of purchase, dated February 8, 1924, the term therein stated being ‘net cash sight draft against bill of lading.’ For your information, the 300 bags of Prime Dutch Caraway Seed F. a. q. of the season purchased by you under your said contract of February 8, 1924, has been stored by the railroad company at the Taylor Street Freight House, 118 West Taylor Street, Chicago, and on behalf of the Starch Products Co., we demand that you take up the sight draft at once and remove the merchandise from warehouse; otherwise, within five days from this date our client will be compelled to avail itself of such remedies as the law provided for its protection.”

The colloquy between court and the counsel indicates that it was the opinion of the court that the defendant was entitled to an inspection of the goods before honoring the draft, and the defendant in error argues to the same effect, citing chapter 121a, section 16, ¶ 19, Callaghan’s Ill. St. Ann.; chapter 121a, section 47, ¶ 50, of the same statute; Brandenstein v. Geo. Rasmussen Co., 192 Ill. App. 545, and Wiener v. Lincoln Crushed Stone Co., 224 Ill. App. 146.

The Uniform Sales Act, which became the law of this state on July 1, 1915, is, we think, controlling, and Brandenstein v. Geo. Rasmussen Co., supra, which was decided prior to that time and upon a contract made several years prior to that time, is of course not applicable or controlling. Wiener v. Lincoln Crushed Stone Co., supra, was decided subsequent to the enactment of the Uniform Sales Act, but the contract of sale, which was there construed by the court, is clearly distinguishable from the contract which is here to be construed.

The sections of the Sales Act, applicable to the facts which appear in this record, are sections 20, 46 and 47 of chapter 121a, Callaghan’s Ill. St. Ann., Vol. 7.

Paragraph 2 of section 20, provides in substance that where goods are shipped, and by the bill of lading the goods are deliverable to the seller, or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed' to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.

Section 46 provides that where, in pursuance of a contract to sell, or a sale, the seller is authorized or required to send the goods to the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer, except in the cases provided for in section 19, rule 5, or unless a contrary intent appears.

Section 47 provides that where goods are delivered to the buyer, which he has not previously examined, he is not deemed to' have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.

Paragraph 3 of said section, however, provides that: “Where goods are delivered to a carrier by the seller, in accordance with an "order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words ‘collect on delivery,’ or otherwise, the buyer is not entitled to examine the goods before payment of the price in the absence of agreement permitting such examination. ”

In the last analysis, the question is one of the intention of the parties. The written contract here in evidence provides that the shipment is from Holland to New York, and that any question as to the quality must be raised before the removal from the docks. From this provision of the contract, we think it would be reasonably inferred that if inspection was not made there, it would be waived.

Again the contract provides that the terms are net cash, sight draft against the bill of lading, and such an agreement has, irrespective of the provisions of the Uniform Sales Act, been construed to mean that the draft must be paid before the buyer has the opportunity for inspection. Whitney v. McLean, 38 N. Y. Supp. 793; Plumb v. J. W. Hallauer & Sons Co., 145 App. Div. 20, 130 N. Y. Supp. 147.

It is undoubtedly the general rule of the common law, as well as under the Uniform Sales Act, that if a contract provides that shipment should be made f. o. b. at the point of shipment, the title thereto passes to the buyer at the time of delivery to the carrier. Runkle Co. v. Twin City Produce Co., 224 Ill. App. 13; Sparta Produce Exchange v. Wilson & Co., 223 Ill. App. 126.

Construing section 47 of the Sales Act, Williston on Sales, second edition, vol. 2, § 479, p. 1246, says:

“The right of inspection may, of course, be given up by the buyer and the surrender need not be in express terms. Any agreement, the performance of which, according to its terms, is or may be inconsistent with inspection before payment of the price, will prevent the existence of the condition. A common illustration of such an agreement is a contract which' provides for payment of the price on receiving-documents of title. Such an agreement generally indicates the expectation of the parties that the goods will be in the hands of a bailee at the time the price becomes payable. The documents are likely to arrive before the goods if the transit is a long one. Often, it is true, inspection is expressly provided for. Even if it is not, though the buyer must pay the price before inspection, if the goods do not conform to the contract the buyer clearly may recover the price which he has paid. Moreover, the contract may expressly provide for inspection before payment of the draft, or usage may establish the right.”

Section 47 of the Uniform Sales Act has not altered the rules of the common law. Williston on Sales, second edition, § 470, p. 1229.

In Lawder & Sons Co. v. Albert Mackie Grocery Co., 97 Md. 1, Lawder & Sons of Baltimore, Maryland, sold to Mackie Grocery Co., of New Orleans, Louisiana, 700 cases of tomatoes. The contract stated, “terms cash less one and one-half per cent, buyer to give shipping instructions when requested by seller. To be delivered as packed during- season of 1901, f. o. b. Baltimore.”

Question was raised under this contract as to the right of the vendee to inspect the goods before acceptance. The court held that the mere fact that the buyer had the right to inspect the goods would not necessarily mean that the' inspection was to be made at the residence or place of business of the buyer, and that where the contract provides for delivery to a particular place, the vendee' was obligated to accept or reject at that place, unless otherwise provided for in the contract.

In Brown v. Raritan Chemical Works, 188 App. Div. 578, 177 N. Y. Supp. 309, the vendee sued the vendor upon his agreement to sell and deliver three hundred kegs of crystal chlorate of potash at 60 .cents per pound, immediate delivery, terms net cash, and the defense was that the vendor had duly presented to the plaintiff a delivery order covering the potash crystals and demanded payment, but that plaintiff refused to accept the delivery order or the goods or to make payment therefore, unless an inspection of the same was permitted by the defendant; that the vendor issued a permit, but that the vendee failed to make the inspection withirC a reasonable time and that the contract was thereby breached by the vendee. The court said that if the vendee had a right to an inspection, the question of whether the opportunity offered by the defendant was a reasonable one would have been an issue of fact for the jury, but the court was of the opinion that under the contract the vendee did not have any right to an inspection because the terms of the same were net cash against delivery order and that these terms conclusively negatived any idea that an inspection was to be allowed to them; that by agreeing to pay cash on production of the delivery order, they effectually waived any right to examine the goods themselves.

In Cochran v. Chetopa Mill & Elevator Co., 88 Ark. 343, 114 S. W. 711, the plaintiff sued the defendant for failure to deliver to him 400 sacks of corn chops, which the plaintiff had purchased from defendant for a certain price, no conditions being annexed to the order or acceptance, and it appearing that the vendee had refused to pay a draft drawn against him for the amount of the goods until he had inspected the same, it was held that he had breached the contract and could not recover.

In the contract here sued on, it appears that an inspection was provided for by agreement of the parties at New York. The defendant did not avail himself of this opportunity, and we think must, therefore, be held to have waived it. There was no provision in the contract for an inspection at Chicago, and defendant was therefore not entitled to it at Chicago.

Moreover, the provision of the contract for payment by a sight draft drawn against the bill of lading would further indicate the intention of the parties to waive an inspection.

We think, therefore, the court erred in finding for the defendant and in entering judgment for it, and for that error, the judgment will be reversed and the cause remanded for another trial.

Reversed cmd remanded.

Johnston and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr, Justice Johnston Hr. Justice McSurely,

license: Public Domain

text:
    Gregory T. Van Meter, Administrator, Appellee, v. Fred C. Gurney et al., Appellants.
    Gen. No. 29,870.
    1. Saving questions fob review1 — necessity for making claim, of variance between proof and declaration dwring trial. A question of variance between the proof and the declaration is not saved for review unless specifically pointed out on the trial.
    2. Appeal and ebbob — questions raised by objection that case proved was predicated upon a theory of liability not claimed in declaration. A contention that a declaration stated a cause of action against defendants as joint tort feasors and not one based upon the relation of master and servant, while the proof adduced was all to the point that if the defendants were liable at all, they ■were liable under the doctrine respondeat superior, while involving a question of variance, also includes the question whether the cause of action alleged in the declaration is supported by the proof.
    3. Saving questions fob review — motions to direct verdict for defendants as questioning sufficiency of evidence to sustain cause of action alleged. The question whether the proof sustains the cause of action alleged in a declaration is saved for review by defendants’ motion at the close of plaintiff’s evidence to direct a verdict for defendants and a renewal of such motion at the close of all the evidence.
    4. Appeal and error — presumptions in favor of construction of declaration conforming to case made by proof. Where it is urged, on appeal, that a declaration does not allege the existence of the relation of master and servant between the defendants, and that the proof makes out a case resting wholly upon the existence of that relation, the reviewing court, in determining the nature of the case alleged, will indulge every reasonable presumption and intendment in favor of the declaration, since it is to be tested as after verdict and not as if on demurrer.
    5. Master and servant — declaration in action for injury to third person as charging liability as joint tort feasors rather than on doctrine respondeat superior. Declaration in an action against a police captain and his chauffeur, the latter a patrolman assigned to drive the captain’s automobile, for negligently causing the death of a pedestrian, held to allege a cause of action against the defendants as joint tort feasors only, and not to allege facts sufficient to establish the relation of master and servant between such defendants as predicate for a cause of action based upon the doctrine respondeat superior.

    6. Master and servant — scope of master’s liability under doctrine respondeat superior. Under the doctrine respondeat superior the master is liable for every negligent act of his servant, where the act was within the scope of the servant’s duties, whether the master was negligent in fact or whether the negligence of the servant is imputed to the master on the ground of public policy.
    7. Master and servant — applicability of doctrine respondeat superior where master and servant also liable as joint tort feasors. The fact that a master has so participated in a negligent act of his servant that they may properly be held liable therefor as joint tort feasors does not destroy the relation between them nor terminate the master’s liability under the doctrine respondeat superior.

    8. Master and servant — joint negligence of master and servant in action for wrongful death by negligence in operation of automobile as question of fact for jury. In an action against a police captain and his chauffeur, the latter a patrolman, assigned to drive the captain’s automobile, charging them with joint negligence resulting in the death of a pedestrian, evidence held to make it a question of feet for the jury whether the captain was jointly negligent with his chauffeur in that, being present in the automobile at the time of the accident, he failed, as the principal or master of the chauffeur, to exercise the supervision and control over the driver that ordinary prudence required in the circumstances.
    9. Master and servant — sufficiency of evidence, in action for wrongful death against master and servant, to show joint negligence of defendants. Evidence in an action against a police captain and his chauffeur, a patrolman assigned to drive the car, based upon their alleged joint negligence in so driving the automobile as to cause the death of a pedestrian, held sufficient to sustain the finding of the jury that the defendants were jointly negligent as alleged.
    10. Appeal and error — presumption as to influence of belief of jury, as disclosed by special verdict, upon their general verdict. The court cannot legitimately presume, on review, that a general verdict against defendants charged as joint tort feasors is based upon the belief of the jury that they were guilty of wanton and wilful negligence, merely because the jury, in answer to special interrogatories, found them guilty of wanton and wilful negligence.
    11. Evidence — presumptive knowledge of automobile drivers as provisions of Motor Vehicle Act regarding speed. Drivers of automobiles are presumed to know the provisions of the Motor Vehicle Act in regard to the rates of speed of automobiles.
    12. Appeal and error — presumptions as to general and special verdicts. While all reasonable presumptions will be indulged in favor of a general verdict, nothing will be presumed in aid of a special finding.
    13. Appeal and error — presumption as to award of damages in conformity with instructions. Where the jury in an action for wrongful death were instructed, if they found against defendants, to assess the damages “at such sum as they shall believe, from the evidence, fair and just compensation, based upon the pecuniary loss, if any, resulting from the death,” but while fairly and fully instructed upon the question of wanton and wilful negligence, were not instructed upon the theory of exemplary or vindictive damages, it cannot be presumed, on appeal, that the jury included exemplary or vindictive damages in their general verdict for plaintiff, even though the presumption be indulged that the general verdict was based upon the belief of the jury, as shown by their special findings to that effect, that the defendants were guilty of wanton and wilful negligence.

      14. Death by wrongful act — sufficiency of declaration to support findings of wanton and wilful negligence. Declaration in an action for wrongful death held sufficient to support special findings of wanton and wilful negligence, where it included allegations that the automobile was being operated in a wanton, reckless and malicious manner “without any regard for the life of the deceased.”
    15. Death by wrongful act — sufficiency of evidence■ to support findings of wanton and wilful negligence. Findings that the defendants in an action for wrongful death were guilty of wanton and wilful negligence held not manifestly against the weight of the evidence.
    16. Evidence — admissions of party as competent substantive evidence when offered by opposing party. Admissions of a party to a suit are always competent and admissible as substantive evidence when offered by the opposite party, and evidence of such admissions is not subject to the objection that it is hearsay.
    1Y. Master and servant — testimony as to statements by alleged master as competent to establish existence of relation. Testimony of witnesses as to statements made after an accident by one of two defendants jointly charged with responsibility therefor, was competent substantive evidence to establish that the other defendant was the servant of the defendant making such statements.
    18. Master and servant — sufficiency of evidence, in action for injury to third person, to show existence of relation of master and servant between defendants. In an action for wrongful death alleged to have been caused by the joint negligence of the defendants, evidence held to show that the relation of master and servant existed between such defendants.
    19. Appeal and error — harmlessness of exclusion of evidence as to issue where fact clearly established by other evidence. Where the evidence in action for wrongful death clearly showed that the relation of master and servant existed between the defendants jointly charged with responsibility therefor, it was not prejudicial error to refuse to allow the defendant master to specifically deny certain statement of other witnesses touching that issue, or to explain certain statements credited to him by such witnesses.
    20. Master and servant — sufficiency of instruction to indicate necessity of finding joint negligence of defendants. Instructions, in an action for wrongful death charged to the joint negligence of master and servant, held sufficiently to indicate that both defendants were not to be found guilty because the evidence proved the guilt of one.
    21. Instructions — propriety of instruction in language of statute. In general, an instruction in the language of the statute may be regarded as sufficient.

      22. Highways — when instruction in language of Motor Vehicle Act touching speed of automobiles not misleading. An instruction, in an action for wrongful death alleged to have resulted from negligence in the operation of an automobile, touching the rate of speed of automobiles and couched in the language of the Motor Vehicle Act, Cahill’s St. eh. 95a, If 23, held not open to the objection that it probably misled the jury, especially in view of another instruction on the same subject given at the request of the defendants.
    23. Damages — propriety of reference to ad damnum in instruction. An instruction is not erroneous because mentioning the amount of damages claimed in the declaration unless there is something in the instruction which tends to give the jury to understand that they should allow the full amount so claimed.
    24. Damages — when reference to ad da/mnum in instructions not erroneous. An instruction, in an action for wrongful death, which told the jury that the damages, “if any,” could not exceed “the sum of $10,000 claimed in the declaration filed herein,” held not erroneous as tending to lead the jury to believe that they should find the full amount of damages claimed in the declaration.
    25. Damages — verdict for $9,360 as• excessive in action for wrongful death. A verdict for $9,360 held not so excessive, in an action for wrongful death alleged due to the negligent operation of an automobile wherein the jury were instructed to award only compensatory damages, as to require reversal on appeal.
    McSurely, J„ specially concurring.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed March 29, 1926.
    Peden, Kahn & Murphy and Edward C. Higgins, for appellants.
    James L. Bynum, for appellee.
   Mr, Justice Johnston

delivered the opinion of the court.

This is an action of trespass on the case brought by Gregory T. Van Meter, administrator of the estate of Michael F. O’Rourke, deceased, against Fred C. Gurney and Perry C. DeForrest, to recover damages for the death of O’Rourke, who was struck and fatally injured by an automobile which the plaintiff alleges was under the control and operation of Gurney and DeForrest.

Gurney and DeForrest each filed the plea of the general issue, and a special plea alleging nonownership and operation of the automobile.

The case was tried before the court and a jury. The jury found the defendants guilty and assessed the plaintiff’s damages at $9,360. The court entered judgment on the verdict. From the judgment the defendants have prosecuted this appeal.

The accident occurred at the corner of Seventy-fifth Street and Dorchester Avenue, thoroughfares in the City of Chicago, in the evening between seven and eight o ’clock. Seventy-fifth Street runs east and west and Dorchester Avenue runs north and south. At Dorchester Avenue, and for two blocks west of Dorchester Avenue, Seventy-fifth Street is a business street. Seventy-fifth Street is one of the main thoroughfares on what is called the South Side of Chicago. At the part of the street where the accident happened the street is about 66 feet wide from curb to curb. At the time of the accident the ' automobile was being driven in an easterly direction on Seventy-fifth Street. There was an arc light on the northeast corner and one on the southwest corner of Dorchester Avenue and Seventy-fifth Street, but the street was not well lighted. The lamps on the automobile were lighted. Gurney was a captain in the police department of the city of Chicago. DeForrest was a patrolman in the department and was designated as a chauffeur. He was assigned to drive Gurney’s automobile and he was Gurney’s regular driver.

On the day of the accident Gurney had used the automobile in attending a funeral, and at the time of the accident he and DeForrest, with two other occupants of the car, were returning from the funeral. The automobile was not Gurney’s but belonged to a man named Richard F. O’Connor, from whom it had been borrowed by DeForrest to take Gurney to the funeral. Gurney’s automobile was out of order, and the night before the funeral DeForrest told Gurney that he would get an automobile and call for him the next day. Gurney did not know from whom DeForrest intended to get the automobile. DeForrest made the arrangements with O’Connor for the loan of O’Connor’s automobile, and Gurney had nothing to do with the actual arrangements that DeForrest made with O’Connor. The automobile was a Paige five-passenger automobile. At the time of the accident DeForrest was driving and Gurney was sitting on the rear seat. As they approached Dorchester Avenue a boy of 11 years of age, named Stanley Nesbit, started to cross Seventy-fifth Street at a point approximately 50 or 60 feet west of Dorchester Avenue. When he had reached about the middle of Seventy-fifth Street he was directly in front of the approaching automobile and only a few feet from it, and it was evident that if the automobile continued in its course the boy would be struck by the automobile. In this situation DeForrest, the driver of the automobile, applied the brakes, turned the automobile sharply toward the left and avoided hitting the boy directly with the front of the automobile, but hit him glancingly and knocked him down without, however, seriously injuring him. The automobile continued going, ran up on the sidewalk at the northwest corner of Dorchester Avenue and Seventy-fifth Street and struck and fatally injured O’Rourke. The front wheels of the automobile were over the curb of the street. 0 ’Rourke was under the automobile and it was necessary to back the automobile before he could be removed. When the automobile was turned to avoid striking the boy it was going at the rate approximately of 25 to 35 miles an hour. The weather was clear but it had been cold and was turning warmer, and the street was damp or in a condition sometimes described as “sweating.”

Section 22 of the Motor Vehicle Act, chapter 95a, Illinois Statutes [Cahill’s St. ch. 95a, ¶ 23], provides as follows:

“If the rate of speed of any motor vehicle or motor bicycle of said first division [vehicles designed for carrying not more than seven persons], operated upon any public highway in this State where the same passes through the closely built-up business portions of any incorporated city, town or village exceeds ten (10) miles an hour, or if the rate of speed of any such motor vehicle or motor bicycle operated or. any public highway in this State where the same passes through the residence portions of any incorporated city, town or village exceeds fifteen (15) miles an hour, or if the rate of speed of any such motor vehicle or motor bicycle operated on any public highway in this State outside the closely built-up business portions and residence portions within any incorporated city, town or village exceeds twenty (20) miles an hour # * * such rates of speed shall be prima facie evidence that the person operating such motor vehicle or motor bicycle is running at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.”

The first ground on which the defendants ask for a reversal of the judgment is that the plaintiff has failed to establish the cause of action alleged in the declaration.

Counsel for the defendants argue that the declaration states a cause of action against the defendants as joint tort feasors, and does not state a cause of action on the doctrine of master and servant, and that “the evidence introduced by the plaintiff to establish a liability against both defendants is all to the point that on the occasion in question DeForrest was. operating and driving the automobile as- the servant of Gurney, and the claim is made, under such evidence, that Gurney is liable as master for the acts of DeForrest, on the doctrine of respondeat superior.” In other words, the contention of counsel for the defendants on the evidence is that if the defendants are liable at all they are liable on the doctrine of master and servant and not on the ground of joint tort feasorship.

Counsel for the plaintiff contends that the objection of counsel for the defendants involves a question of variance between the proof and the declaration, and that as the variance was not pointed out specifically on the trial, the question of variance was not saved for review.

If the question was one only of variance, the contention of counsel for the plaintiff would be correct. Linquist v. Hodges, 248 Ill. 491, 497; Carney v. Marquette Third Vein Coal Min. Co., 260 Ill. 220, 225; Libby, McNeill & Libby v. Scherman, 146 Ill. 540, 549; Harris v. Shebek, 151 Ill. 287, 292, 293. But although the objection involves the question of variance, it also includes the question whether the cause of action alleged in the declaration is supported by the proof. As the defendants made a motion at the close of the plaintiff’s evidence to direct a verdict in favor of the defendants, and renewed the motion at the close of all the evidence, the question whether the proof sustains the cause of action alleged in the declaration was saved for review. Chicago Union Traction Co. v. Brethauer, 223 Ill. 521, 525.

In considering the question whether the declaration alleges a cause of action on the doctrine of master and servant, every reasonable presumption and intendment will be indulged in favor of the declaration, as the declaration is. not to be tested as if on demurrer, but as if after verdict. Wagner v. Chicago, R. I. & P. R. Co., 277 Ill. 114, 119; O’Rourke v. Sproul, 241 Ill. 576, 589, 590.

The general, rule in regard to what the declaration should allege in order to show the relationship of master and servant is stated in 39 Corpus Juris, p. 1352, as follows:

“The complainant must allege the existence of the relationship of master and servant, that such relationship existed at the time of the injury, and with respect to the particular transaction from which the tort arose. Nevertheless, a direct averment of these facts is not necessary, but it will be sufficient to allege the facts which establish such relationship.”

In the case at bar the declaration does not allege in terms that the relationship of master and servant existed between the defendants. But counsel for the plaintiff maintains that the relationship is sufficiently established by the following averments in the declaration: “The defendants and each of them for themselves and for each other, were the owners of, were in the possession of, were using and operating a certain automobile * *■ * over a certain public street, to wit, 75th street”; that “it then and there became and was the duty of the defendants and each of them, for themselves and for each other, to have so controlled, managed and operated the said automobile in such a careful and prudent manner, etc.”; yet “the defendants, or either of them, acting for themselves and for each other, did not regard their duty in that behalf, but on the contrary thereof did then and there, for themselves and for each other, carelessly and negligently, etc.”; that “the defendants and each of them did then and there violate the said statutes” (Motor Vehicle Act); that “the defendants and each of them did then and there manage,, control and operate the said automobile in a wanton, reckless and malicious manner and without any regard for the life of the deceased.”

In our opinion these allegations are not sufficient to establish the relationship of master and servant between the defendants, even when all intendments and presumptions are indulged in favor of the allegations. In our view the allegations state a cause of action against the defendants only as joint tort feasors. We do not think, however, that counsel for the defendants are correct in their contention that the proof fails to sustain a cause of action on the theory of joint tort feasors, and that on the evidence the defendants could be held liable only on the doctrine of master and servant. If the right of the plaintiff to recover should be considered from the aspect of the evidence alone, we are of the opinion that the defendants could be held liable jointly both on the theory of tort feasorship, and on the doctrine of master and servant, or the equivalent relationship of principal and agent. But when the declaration, which charges only tort feasorship, is considered in connection with the evidence, the plaintiff’s right of recovery must be restricted to tort feasorship.

In the case of Shaffer v. Union Brick Co., 128 Fed. 97, in discussing the question of the joint liability of the master and the servant when both are negligent in fact, the court said (pp. 100, 101):

“The negligent act of the servant complained of may be done in the presence of the master and under his direction, or in the absence of the master, in pursuance of his express direction or command. In such case both servant and master are liable to an injured third party, and both are negligent in fact, and liable because they are negligent. In such case the cause of action against both is for negligence in fact, and such cause of action may be joint or several, at the election of the party injured.”

In the case at bar the question whether Gurney was negligent in fact depends largely on the relationship that existed between Gurney and DeForrest. If Gurney were merely an occupant of the automobile as a stranger to DeForrest, the question whether he was negligent in fact would be different from the question whether he was negligent in fact if he was the master or principal of DeForrest..

Counsel for the defendants argue with confidence and earnestness that the evidence does not show that the defendants were joint tort feasors; that according to the evidence the only ground on which the defendants could be held liable, if at all, would be on the doctrine of respondeat superior, and that the law is well settled that a joint action against master and servant cannot be maintained where the- liability against the master is sought to be imposed “solely under the doctrine of respondeat superior.”

We do not think that it is accurate to say that a joint action against the master and the servant cannot be maintained for the servant’s negligence, where the liability against the master is sought to be imposed “solely under the doctrine of respondeat superior.” Such an interpretation of the doctrine of respondeat superior gives the doctrine too restricted a scope.

As defined in Cyclopedia of Law and Procedure, vol. 34, pp. 1673, 1674, the rule of respondeat superior is- as follows:

“Literally ‘Let the principal answer.’ A general rule which charges the master with liability for the servant’s negligence- in the master’s business causing injury to third persons; founded on this principle, that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it.”

In general the principles governing the rights, duties and liabilities growing out of the relations of master and servant, are the same as the law of principal and agent, as the law of principal and agent is an outgrowth and expansion of the law of master and servant. 31 Cyc. p. 1191. In the case at bar it is immaterial on the facts whether the relationship between Gurney and DeForrest is termed principal and agent or master and servant.

From the above statement of the doctrine of respondeat superior it will be observed that the doctrine is broad enough to hold, the master liable for every negligent act of his servant, where the act was within the scope of the servant’s duties, whether the master is negligent in fact or whether the negligence of the servant is imputed to the master on the ground of public policy. In other words, we do not think that the doctrine of respondeat superior is limited or restricted to those cases only where the master was absent when the servant committed the negligent act, or did not participate in the act, or did not direct the servant to commit the act, or did not ratify or adopt the act as his own subsequently. We think the doctrine of respondeat superior applies also to cases where the master is negligent in fact. In such cases the master could be held as a joint tort feasor with the servant, and also be held on the doctrine of respondeat superior. Or to express our idea in another way, we do not think that the doctrine of respondeat superior ceases to apply merely because the doctrine of joint tort feasorship also' may be applicable. The relationship of master and servant still exists even though the master and servant may be liable as joint tort feasors. The joint liability does not destroy the relationship of master and servant. The duties and obligations imposed by law on the master are not terminated because he may become a joint tort feasor with his servant. Suppose, for example, that a master was sued for the negligent act of his servant on the theory of respondeat superior, and on the trial the evidence established not only the relationship of master- and servant, but also showed that the master was a joint tort feasor with his servant, should a motion be allowed which is made by the defendant at the close of the plaintiff’s case to exclude the evidence and direct a verdict in favor of the defendant on the ground that the proof did not sustain the cause of action for the reason that the doctrine of respondeat superior is not applicable where the master is a joint tort feasor with the servant? We think not. In our view the master could be held liable on the doctrine of respondeat superior, notwithstanding the fact that he was also a joint tort feasor.

The cases in which the master is absent or is not negligent in fact, and is held liable on the ground of public policy, are cases merely typical of the largest class of cases to which the doctrine of respondeat superior applies.

It is true that in some of the cases the courts do say that a joint action cannot be maintained against the master and the servant for the servant’s negligent act, where the master is held liable “solely on the doctrine of respondeat superior.” In those cases, however, it will be found that the master was either absent, or not negligent in fact, and was held liable on the ground of public policy, and that probably what the writers of the opinions had in mind and intended to say when they used the term respondeat superior was that the master could not be held jointly with the servant where the master was absent, or was not negligent in fact, and was held liable on the ground of public policy, as in such cases the liabilities of the master and the servant would be different, the servant being liable personally for the wrongful act, and the master being-liable for imputed negligence on the ground of public policy.

The rule as to when the master and the servant cannot be sued jointly is generally stated in the form in which it appears in the opinion of Mr. Justice Taft in the case of Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 Fed. 637 (p. 642):

“The master cannot be joined as defendant in the action against his servant for negligence, where the master is not personally concerned in the negligence, either by his presence or express direction.”

On this question, however, the decisions are in hopeless conflict and confusion. 18 Ruling Case Law, sec. 241, p. 780; 39 Corpus Juris, p. 1314. There is even a difference of opinion concerning the weight of authority in regard to the question. The Cyclopedia of Law and Procedure, vol. 26, p. 1545, and Ruling Case Law, vol. 18, sec. 241, p. 780, take contrary views on the question of the weight of authority.

In Illinois the precise question has not been decided by the Supreme Court. The question has been before the Appellate Courts of Illinois, but there is a conflict in their decisions.

In the case of Johnson v. Magnuson, 68 Ill. App. 448, where the master was absent and the negligence of his servant was imputed to him on the ground of public policy, it was held that a joint action could be brought against the master and the servant. The rule announced in Johnson v. Magnuson is the one adopted in the following cases: Wright v. Compton, 53 Ind. 337, 339, 340; Phelps v. Wait, 30 N. Y. 78, 79; Schumpert v. Southern R. Co., 65 S. C. 332, 336, 339; Suydam v. Moore, 8 Barb. (N. Y.) 358, 367, 368; Greenberg v. Whitcomb Lumber Co., 90 Wis. 225, 232.

In the case of Herman Berghoff Brewing Co. v. Przbylski, 82 Ill. App. 361, after an extended review of the authorities, the court (Mr. Justice Shepard dissenting) refused to follow the case of Johnson v. Magnuson, supra, and held (p. 374) that “a judgment cannot be sustained against the master and servant jointly in a case where the master is liable only upon the doctrine of respondent superior.”

We do not think that the court intended to say that whenever the doctrine of respondeat superior is applicable there cannot be a joint action against the master and the servant. The defendants in the case were master and servant, and the negligent act of the servant was committed in the absence of the master and without his express direction or ratification. The master could have been held liable only on the ground of public policy. When the court said that “a judgment cannot be sustained against the master and servant jointly in a case where the master is liable only upon the doctrine of respondeat superior/’ the court probably meant that in that particular class of cases in which the master is held liable under the doctrine of respondeat superior on the ground of public policy only and is not negligent in fact, the master and servant cannot be joined.

The case of Herman Berghoff Brewing Co. v. Przbylski, supra, has been cited with approval by Illinois Appellate Courts in the following cases: Schmidt v. Balling, 91 Ill. App. 388, 390; McNemar v. Cohn, 115 Ill. App. 31, 36.

The grounds on which the court based its decision in the case of Herman Berghoff Brewing Co. v. Przbylski, supra, were (p. 374) that the master is held liable by virtue of public policy and not on the theory that the act of the servant is the act of the master; that the servant’s liability on the other hand arises because of his personal act in committing the wrong, and that liabilities created on two such different grounds should not be joined.

In the case of Parsons v. Winchell, 5 Cush. (Mass.) 592, the court said (p. 594) that if a joint judgment should be obtained against the master and the servant where the master was. not negligent in fact, but was held liable only on the ground of public policy, the judgment and execution would be against the master and servant jointly, as joint wrongdoers, and if the master alone should satisfy the execution he could not call on the servant for reimbursement, nor even for contribution. The reasons for the rule given in the cases of Herman Berghoff Brewing Co., supra, and Parsons v. Winchell, supra, are the reasons generally assigned by the courts which hold that master and servánt cannot be joined in one action where the master is not negligent in fact, and is held liable only on the ground of public policy. Parsons v. Winchell, supra; Mulchey v. Methodist Religious Society, 125 Mass. 487, 489, 490; Warax v. Cincinnati, N. O. & T. P. Ry. Co., supra; Hukill v. Maysville & B. S. R. Co., 72 Fed. 745, 754, 755; Helms v. Northern Pac. Ry. Co., 120 Fed. 389, 395, 397; McIntyre v. Southern Ry. Co., 131 Fed. 985, 987; Shaffer v. Union Brick Co., 128 Fed. 97, 100.

In the recent case of McHale v. McQuigg, 236 Ill. App. 295, we held that the two codefendants, Mrs. Frederick McQuigg and Mr. Frederick McQuigg, could not be sued jointly on the doctrine of respondeat superior, as the evidence showed that Mr. McQuigg was absent at the time of the accident and the evidence did not show that Mrs. McQuigg was acting as the agent of Mr. McQuigg when the accident occurred, and further we held that the two codefendants could not be held jointly on the ground that they were guilty of joint negligence, as the evidence showed that Mr. McQuigg was not a joint tort feasor with Mrs. McQuigg. In the opinion of the court, which was written by Mr. Justice McSurely, it is stated:

“It is not controverted that when the automobile struck plaintiff it was operated solely by Mrs. Mc-Quigg, and that her husband, Mr. McQuigg, was not present. * * * There is a total lack of evidence as to any concert of action or common intent of defendants with reference to the operation of the automobile at the time of this accident. So far as the record shows, the defendant, Mr. McQuigg, neither owned the car nor operated it at any time and was entirely unaware of and unconnected with this particular trip. The only relation he is shown to have had with the occurrence is Ms appearance on the scene after the accident.”

In all of the cases we have examined that hold that the master and the servant cannot he sued jointly, the master was absent when the negligence was committed. The implication from those cases is that if the master were present at the time of the servant’s negligent act, a materially different question might arise in respect of the joint liability of master and servant. This is obviously so, as the facts and circumstances connected with the negligent act of the servant might be such when the master was present as to render the master a joint tort feasor with his servant.

There are cases that imply that the mere presence of the master when the servant commits the negligent act may be sufficient to render the master liable as a joint tort feasor.

In the case of Warax v. Cincinnati, N. O. & T. P. Ry. Co., supra, the court said (p. 642): “The cases which support the view that the master cannot be joined as defendant in the action against his servant for negligence, where the master is not personally concerned in the negligence, either by his presence or express direction, are as follows. ’ ’ Citing cases. It will be noted that the statement “either by his presence or express direction” is in the alternative.

The same language, namely, “by his presence or direction,” is used in the Cyclopedia of Law and Procedure, vol. 26, p. 1545, and in L. R. A. (N. S.) vol. 12, p. 670.

In the case of French v. Central Const. Co., 76 Ohio St. 509, the court uses substantially the same language, as follows (p. 517): “Neither committed in the presence of the master nor by his express direction.” Citing cases.

In the case at bar we do not hold, as a matter of law, that the mere presence of the defendant, Gurney, at the time the accident occurred, renders Gurney jointly liable with DeForrest. We are of the opinion that the question whether Gurney was jointly negligent with DeForrest was a question of fact for the jury to decide, and that in determining that question the presence of Gurney could be considered in connection with all of the other facts in the case. The question for the jury was whether Gurney, as DeForrest’s principal or master, failed to exercise the supervision and control over DeForrest that ordinary prudence required in the circumstances.

We are of the opinion that the evidence is sufficient to support a finding of the jury that Gurney and DeForrest were joint tort feasors, and further that the evidence is sufficient to hold Gurney liable on the doctrine of respondeat superior. However, as the declaration states a cause of action on the theory of joint tort feasorship only, and not a cause of action on the doctrine of master and servant, or in other words, respondeat superior, Gurney can be held liable only on the ground of tort feasorship.

The jury were instructed on the theory of principal and agent and master and servant at the request of the defendants as follows:

“The court instructs the jury that if they find from the evidence that the defendant, Perry G. DeForrest, at the time and place of the happening of the accident in question was not acting as the agent or servant of the defendant, Fred 0. Gurney, and that the defendant, Fred 0. Gurney, was not driving or operating or controlling the automobile in question, then they should find the defendant, Fred C. Gurney, not guilty.”

It will be observed that the instruction, which is a peremptory one, states the law more favorably for the defendants than they were entitled to have it stated, in that it ignores the question whether Gurney was a tort feasor, and permits him to be found not guilty even though he may have been a tort feasor.

There are adjudicated cases which tend to support our conclusion that there is sufficient evidence to justify a finding of the jury that Gurney was negligent in fact as a tort feasor.

Tn the case of Bell v. Jacobs, 261 Pa. 205, which was an action for injuries caused by an automobile in which the defendant was riding, and which was being driven for the defendant by a party named Fink, who was acting temporarily as the defendant’s chauffeur, the court said (pp. 207, 208):

“Defendant had secured Mr. Fink, an expert workman, to make some repairs to the automobile, and, before leaving it at the repair shop, they were taking it for a drive to see what was needed. Fink was acting as chauffeur, and defendant sat beside him, but made no request or suggestion as to' the driving of the car. It wa’s defendant’s car, and he acquiesced in what Fink, who was acting for him, did, and cannot be excused because he was not personally at the wheel. A man out riding in his car is not relieved from responsibility for its management because, with his permission, another is acting as driver; and this is especially so where the owner tacitly assents to the manner in which the car is driven. There is a presumption, not here rebutted, that an owner present in his car has power to control it.”

In the case of Byram v. McGuire, 40 Tenn. 529, 533, 534, it was held that a master was liable for the act of his servants although not committed in the actual presence of the master, but committed while the master was so near at hand that he must have known that the act was being done, and that he should have controlled the servants.

On the general proposition whether in the case at bar the automobile was being operated negligently, expressions of the court in the following cases are pertinent: Morrison v. Flowers, 308 Ill. 189, 196, 197; People v. Camberis, 297 Ill. 455, 460, 461.

In the case of Morrison v. Flowers, supra, the court said (p. 197):

“When a motor vehicle is proceeding along at a lawful speed and is obeying all the requirements of the law of the road and all the regulations for operation of such machine, the driver is not, as a general proposition, liable for injuries received by a child who darts in front of the machine so suddenly that its driver cannot stop or otherwise avoid the injury; but if one is running his automobile at a speed in excess of the statutory limit or at an unreasonable or dangerous speed, he cannot escape liability because the child who is injured ran in front of the automobile so suddenly that the accident was then unavoidable.”

In the case of People v. Camberis, supra, the court quoted the following language with approval (p. 461):

“One who wilfully or negligently drives an automobile on a public street at a prohibited rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another, may be guilty of homicide; and this is true although the person who is recklessly driving the machine uses, as soon as he sees a pedestrian in danger, every effort to avoid injuring him, provided that the operator’s prior recklessness was responsible for his inability to control the car and prevent the accident which resulted in the death of the pedestrian.”

Drivers of automobiles are presumed to know the provisions of the Motor Vehicle Act [Cahill’s St. ch. 95a] in regard to the rates of speed of automobiles. People v. Camberis, supra; People v. Falkovitch, 280 Ill. 321, 325.

Counsel for the defendants contend that the judgment should be reversed for the reason that, in answer to special interrogatories, the jury found that both defendants were guilty of wanton and wilful negligence, although the declaration does not allege properly wilful and wanton negligence, and the evidence does not show wilful and wanton negligence.

Counsel for the plaintiff maintain that the defendants are conclusively bound by the special findings of the jury for the reason that the special findings were not specifically objected to by the defendant on the motion for a new trial. Without deciding the question whether the objections of counsel for the defendants to the special findings have been saved for review, we have examined the objections and we are of the opinion that they are without merit.

The implication of the contention of counsel for the defendants in respect of the special findings is that the special findings indicate that the general verdict of the jury was based on the belief that the defendants were guilty of wanton and wilful negligence and that the jury awarded damages on that basis. We can not presume legitimately that the general verdict is based on wanton and wilful negligence merely because in answer to the special interrogatories the jury found that the defendants were guilty of wanton and wilful negligence. The rule is that where the declaration charges both wilful and ordinary negligence, even though the proof shows ordinary negligence and not wilful negligence, a recovery may be had on ordinary negligence. Guianios v. De Camp Coal Min. Co., 242 Ill. 278, 281.

It is also the rule that all reasonable presumptions will be indulged in favor of a general verdict while nothing will be presumed in aid of a special finding. Devine v. Federal Life Ins. Co., 250 Ill. 203, 206; Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 350.

In the case of Chicago City R. Co. v. Jordan, 215 Ill. 390, cited by counsel for the defendants in support of their contentions in respect of the special findings, the court did not hold that the special findings of wanton and wilful negligence alone justified the inference that the general verdict was based on wanton and wilful negligence. The court said (pp. 397, 398) that the jury were not instructed fairly on the question of wanton and wilful negligence, and that “taking the instructions and the special interrogatories together, and the answer of the jury to the interrogatory, which was based upon no evidence, it seems clear they regarded great negligence as wilful or wanton.”

In the case at bar the jury were fairly instructed on the question of wanton and wilful negligence. Furthermore, no instructions were given on the theory of exemplary or vindictive damages. The only instruction on the question of damages related to compensatory damages. Therefore, even if we should indulge the presumption that the general verdict is based on wanton and wilful negligence, we cannot further presume that as part of the damages awarded the jury included exemplary or vindictive damages contrary to an instruction which told the jury that if they should find the defendants guilty of negligence they should assess the damages “at such sum as they shall believe, from the evidence, fair and just compensation, based upon the pecuniary loss, if any, resulting from the death of the said Michael 0’R.ourke.”

We further are of the opinion, as an independent ground of our decision, that the allegations in the declaration are sufficient to support the special findings of wanton and wilful negligence, and that the findings are not manifestly against the weight of the evidence. Walldren Express & Van Company v. Krug, 291 Ill. 472, 477.

The case of Harris v. Piggly Wiggly Stores, Inc., 236 Ill. App. 392, recently decided by this division of the Appellate Court, is cited by counsel for the defendants as authority that the allegations in the case at bar do not allege properly wanton and wilful negligence. We think that the allegations in the two cases are materially different. In the case of Harris v. Piggly Wiggly Stores, Inc., supra, the allegations charged in substance merely that a motor truck was wantonly and wilfully operated at a high, reckless and dangerous rate of speed. The court said these allegations were not sufficient; that there should have been other allegations charging that the defendant injured the plaintiff “through volition with knowledge actual or implied.” In the case at bar the allegations not only charge that the automobile was operated in a wanton, reckless and malicious manner, but that the automobile was so operated “without any regard for the life of the deceased.”

Counsel for the defendants contend that the relationship of master and servant has not been shown to exist between Gurney and DeForrest by competent evidence. The relationship was established by witnesses who testified to statements made by Gurney after the accident. Counsel for the defendants maintain that the statements which the witnesses testified Gurney made were not substantive evidence. We do not agree with the" contention of counsel for the defendants. The rule is well settled that admissions of a party to a suit are" always competent and admissible as substantive evidence when offered by the opposite party, and that evidence of such admissions is not subject to the objection that the evidence is hearsay. Stump v. Dudley, 285 Ill. 46, 47; Johnson v. Peterson, 166 Ill. App. 404, 405. Furthermore, the relationship of master and servant between Gurney and DeForrest is established clearly by Gurney’s own testimony.

Counsel for the defendants contend that the trial court committed reversible error in not allowing Gurney to deny specifically certain parts of the testimony of the witnesses who testified to the statements of Gurney in regard to the relationship of master and servant between Gurney and DeForrest, and also in not permitting Gurney to testify as to whether there was a customary meaning in the police department in regard to the expression “my man,” which the witnesses testified Gurney used in reference to DeForrest.

We do not think that Gurney was prejudiced by the rulings of the trial court in the respects complained of. Gurney was allowed to testify fully as to his version of the statements attributed to him by the witnesses. The term “my man” was not of controlling importance. It was only cumulative evidence on the question of the relationship of master and servant between Gurney and DeForrest. There was other testimony which plainly showed the relationship.

Counsel for the defendants further contend that seven of the instructions given on behalf of the plaintiff were erroneous. The objection to the first instruction complained of is that “under this instruction the jury might find that the plaintiff had proved his case against DeForrest by a preponderance of the evidence, but nevertheless was required by the instruction to find a verdict against both defendants.”

When the instruction in question is considered with the other instructions in the case we do not think that reasonably construed it would be susceptible of the interpretation contended for by counsel for the defendants.

Furthermore, an instruction which we have set out above and-which was given by the court at the request of the defendants expressly told the jury that if they believed that DeForrest was not acting as the agent or servant of Gurney, and that Gurney was not operating the automobile, the jury should find Gurney not guilty. This instruction, which was, a more favorable statement of the law than Gurney was entitled to, indicated' to the jury that both defendants were not to be found guilty merely because the evidence showed one guilty.

The second instruction objected to by counsel for the defendants is an instruction in the language of section 22 of the Motor Vehicle Act [Cahill’s St. ch. 95a, ¶ 23] in relation to the rate of speed of automobiles. Counsel for the defendants contend that the jury “were left to their own interpretation of the statute, and nobody knows how they interpreted it or applied it to the evidence.”

The general rule is that ordinarily an instruction in the language of the statute may be regarded as sufficient. Mertens v. Southern Coal & Mining Co., 235 Ill. 540, 551; Kellyville Coal Co. v. Strine, 217 Ill. 516, 536; Donk Bros. Coal & Coke Co. v. Peton, 192 Ill. 41, 43, 44; Mt. Olive & S. Coal Co. v. Rademacher, 190 Ill. 538, 543; Ward v. Meredith, 220 Ill. 66, 68; People v. McIntosh, 242 Ill. 602, 606. In approving an instruction in the language of the Motor Vehicle Act in the case of Geschwinder v. Comer, 222 Ill. App. 417, the court said (p. 421):

“In cases where the Motor Vehicle Act was under consideration, it has been held that an instruction which lays down a rule of law in the words of the law itself is good.”

In the case of Harris v. Piggly Wiggly Stores, Inc., supra, cited by counsel for the defendants in support of their contention, the court recognized the general rule, but held that in the particular case the jury were probably misled by the instruction and that the giving of the instruction was reversible error.

In the case at bar we do not think that reasonably it can be said that the jury were misled by the instruction in question, when the instruction is read in connection with the following instruction given at the request of the defendants:

“The court instructs the jury that the law in this state does not regulate a precise speed in miles per hour at which a motor vehicle must at any given time or place be run, but the law only states that such rate of speed must be no greater than is reasonable and proper, having regard to the traffic and the use made of the way, or so as to endanger the life or limb or property of any person, and leaves it to the jury to say under all the circumstances surrounding any given case whether or not the automobile in question was being propelled at a speed that is reasonable and proper, having regard to the traffic and the use made of the way, or so as to endanger the life or limb or property of any person.”

The third instruction complained of by counsel for the defendants defines ordinary care. We think that the instruction is substantially correct.

The fourth instruction which counsel for the defendants objects to defines negligence. The definition of negligence given in the instruction is substantially the same as the definition of negligence given in Bouvier’s Law Dictionary. We do not think the criticisms of the instruction made by counsel for the -defendants are sound.

The objection to the fifth instruction complained of by counsel for the defendants is similar to the objection urged against the first instruction complained of, namely, that “under the instruction if the jury believed that DeForrest was guilty of negligence, then the jury’s verdict should be against both defendants.” When this instruction is read with the other instruction we do not think that reasonably it could be construed as contended for by counsel for the defendants.

The sixth instruction objected to by counsel for the defendants relates to wanton and wilful negligence. We think that the instruction is substantially correct.

The seventh instruction objected to by counsel for the defendants relates to the question of damages. Counsel for the defendants contend that the instruction “does not say to whom such sum awarded by the jury shall be a fair and just compensation, nor does the instruction tell the jury by whom the ‘pecuniary loss’ must be sustained.” We do not think that the objection of counsel for the defendants is well taken. The instruction, is further objected to by counsel for the defendants for the reason that the instruction told the jury that the damages,, “if any,” could not exceed “the sum of $10,000 claimed in the declaration filed herein.” The rule is that an instruction is not erroneous which mentions the amount of the damages claimed in the declaration, unless there is something in the instruction which tends to lead the jury to understand that they should allow the full amount so claimed. Central Ry. Co. v. Bannister, 195 Ill. 48, 51, 53; Kellyville Coal Co. v. Strine, supra. We do not think that there is anything in the instruction in the case at bar that would lead the jury to believe that they should find the full amount of damages claimed in the declaration.

In considering the objections of counsel for the defendants to the instructions, it may be stated that 18 instructions were given on behalf of the defendants, and that these instructions fully presented the defendants’ theory of the case to the jury.

The final contention of counsel for the defendants is that the judgment should be reversed on the ground that the damages awarded by the jury are excessive. We do not think that we would be justified in reversing the judgment on that ground.

For the reasons stated the judgment is affirmed.

Affirmed.

Hatchett, P. J., concurs.

Hr. Justice McSurely,

specially concurring: I concur in the conclusion but not in all that is said in the opinion.


author: Mr. Justice Johnston

text:
    Bridget Newman, Appellee, v. John Newman, Appellant.
    Gen. No. 30,455.
    1. Husband and wife — resumption of marital relations as abrogating decree of separate maintenance. Where following the entry of a decree for separate maintenance the parties resumed marital relations and lived together as husband and wife for a period of three months, and there was no evidence to show that the reconciliation was not genuine and in good faith, the decree was abrogated by the act of resuming relations.
    2. Husband and wife — termination of alimony order in separate maintenance decree by resumption of marital relations. Where following entry of a decree for separate maintenance the parties abrogate the decree by resuming matrimonial relations, an order for the payment of alimony included in such decree thereby becomes void.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. John R. Caverly, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed March 29, 1926.
    Eugene L. McGarry, for appellant; Otto L. Kolar, of counsel.
    Daniel Madden, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by John Newman from an order ” of the circuit court of Cook county of July 31, 1925, finding Newman guilty of contempt of court for failure to pay his wife, Bridget Newman, alimony amounting to $125, under a decree of separate maintenance, and directing that Newman be committed to the county jail.

The decree of separate maintenance was entered on October 22, 1924. In the latter part of January, 1925, Newman and his wife resumed marital relations and lived together and cohabited until the latter part of April, 1925, when they separated again. The order appealed from finds that from June 27, 1925, to the date of the order there is due to the complainant the sum of $125.

In our view of the case the only question to be determined is whether the decree of separate maintenance has been abrogated by the resumption of the marital relations by the parties after the decree. It is admitted that after the decree Newman and his wife resumed marital relations and lived together and cohabited for a period of about three months. There is no evidence that Newman resumed the marital relations for the purpose of depriving his wife of her rights under the decree. As far as the record shows the reconciliation was made in good faith by Newman and was genuine.

In our opinion the resumption of marital relations by the parties abrogated the decree of separate maintenance, and consequently the order for alimony under the decree is void. We have not been referred to any case in which the Supreme Court of Illinois has decided the precise question, but our conclusion is sustained by analogous principles announced in the cases of Boyd v. Boyd, 188 Ill. App. 136, 138, 140; Kuntz v. Kuntz, 80 N. J. Eq. 429, 430, 431; Shelthar v. Gregory, 2 Wend. (N. Y.) 422.

In the case of Boyd v. Boyd, supra, it was held that a separation agreement between husband and wife was abrogated by the resumption of marital relations. In support of its opinion the court cited the following cases: Shelthar v. Gregory, supra; Carson v. Murray, 3 Paige (N. Y.) 483; Zimmer v. Settle, 124 N. Y. 37; Wells v. Stout, 9 Cal. 479; Smith v. King, 107 N. C. 273; Archbell v. Archbell, 158 N. C. 408; Roberts v. Hardy, 89 Mo. App. 86; Gaster v. Gaster’s Estate, 90 Neb. 529; Knapp v. Knapp, 95 Mich. 474.

In the case of Kuntz v. Kuntz, supra, the husband and wife resumed marital relations while a bill for separate maintenance brought by the wife was pending, and the court held that the reconciliation “abrogated the cause of action.”

In the case of Shelthar v. Gregory, supra, on a separation agreement between husband and wife a bond was given by the husband to secure the separate maintenance of the wife. Subsequently they became reconciled and lived together. The court held that the resumption of the marital relations terminated the separation agreement and that “the bond which had been given for her separate maintenance must fall with the contract or agreement out of which it arose and upon which it was founded.” The court further held that a subsequent abandonment of her husband by the wife would not revive the bond that the husband had given to the wife.

Since we are of the opinion that the order for alimony under the decree is void, it follows that the order finding Newman guilty of contempt for failure to pay alimony and directing that he be committed to the county jail, is also void.

For the reasons stated the order of the trial court is reversed.

Reversed.

Hatchett, P. J., and McSurely, J., concur.


text:
    Stony Island Trust & Savings Bank, for use of Michael Shea, Appellant, v. Stony Island State Savings Bank, Appellee.
    Gen. No. 30,560.

      Sales — holder of cause of action in tort as creditor within meaning of Bulh Sales Act. The holder of a cause of action, against a bank based upon its sale to him of a bond consummated by means of false and fraudulent representations is not a creditor of the bank, within the meaning of the Bulk Sales Law, so as to require his notification in the event of a sale of the bank’s assets to another bank, especially where the bank has no knowledge at the time of such a sale that he is making such a claim against it.

      Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Charles Schaefer, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 29, 1926.
    John F. Cashen, Jr., for appellant.
    Deneen, Healy & Lee, for appellee; Roy Massena and Clyde Y. Morris, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Michael Shea, the plaintiff, from a judgment in favor of the Stony Island State Savings Bank, the garnishee, in a garnishment proceeding brought by the plaintiff against the Stony Island State Savings Bank.

On September 1, 1922, the plaintiff purchased a bond from the Stony Island Trust and Savings Bank for $1,032.88. On February 25, 1923, the Stony Island Trust and Savings Bank sold to the Stony Island State Savings Bank all of its assets of every kind and description, including fixtures. On May 9, 1924, the plaintiff brought an action against the Stony Island Trust and Savings Bank, in which the plaintiff alleged that the $1,032.88 which the plaintiff had paid to the Stony Island Trust and Savings Bank for the bond was obtained by false and fraudulent representations. In this action the plaintiff obtained a judgment against the Stony Island Trust and Savings Bank. On May 18, 1925, the plaintiff filed its garnishee summons against the Stony Island State Savings Bank seeking to reach property of the Stony Island Trust and Savings Bank.

The only contention of counsel for the plaintiff is that the sale of the Stony Island Trust and Savings Bank of all of its property to the Stony Island State Savings Bank was fraudulent and void as to the plaintiff, for the reason that the plaintiff was a creditor of the Stony Island Trust and Savings Bank at the time of the sale, and should have been notified of the sale in accordance with the provisions of section 1, chapter 121a, of the act relating to Sales of Personal Property [Cahill’s St. ch. 121a, ¶ 1], commonly known as the Bulk Sales Act.

The record shows that the notice provided for in the statute was not given to the plaintiff.

Assuming for the sake of argument that the sale was one within the contemplation of the Bulk Sales Act, we are of the opinion that at the time of the sale the plaintiff was not a creditor of the Stony Island Trust and Savings Bank within the meaning of the Bulk Sales Act. At the time of the sale the claim of the plaintiff was unliquidated. It had not been merged into a judgment. Furthermore, the record does not show that prior to the sale the plaintiff ever made any demand on the Stony Island Trust and Savings Bank in respect of his claim, or that the Stony Island Trust and Savings Bank knew that the plaintiff was asserting that he had such a claim.

In the case of Superior Plating Works v. Art Metal Crafts Company, 218 Ill. App. 148, which was a case similar to the case at bar, it was held that one who held an uncertain unliquidated claim arising out of a breach of contract for the sale of goods was not a creditor within the meaning of the Bulk Sales Act. In the opinion, which was written by Mr. Justice Matchett, it is said (p. 151): “The Bulk Sales Law is in derogation of the common law and therefore should be strictly construed as to its application. We think it clearly should not be applied to parties holding claims in tort, and the same reasoning would lead us to conclude that the holder of a claim, such as this one, which was uncertain, unliquidated and contingent, would not be a creditor within the meaning of the act. To hold otherwise would give to claimants possessing uncertain and speculative demands a power to harass and interfere with the business of persons against whom such claims are made, which we think could not have been within the intention of the legislature.”

For the reasons indicated the judgment of the trial court is- affirmed.

Affirmed.

Hatchett, P. J., and McSurely, J., concur.


author: Mr. Justice McSurely

text:
    John P. Duke et al., Appellees, v. Tom Olson, Appellant.
    Gen. No. 30,596.
    1. Conflict of laws — what law governs liability of stockholder to creditors of banking corporation of sister state. Where a resident of this state acquires stock in a hanking corporation of a sister state, he thereby agrees to be obligated to creditors of the bank to the extent of the liability imposed by the statutes of that state, to be enforced as provided by the laws of that state, regardless of the place of his residence.
    2. Banks and- banking- — contractual nature of stockholder's liability under statute governing banking corporations. The liability of a stockholder of a bank of a sister state to- an assessment equal to the amount of his investment in such stock, although based upon the statutory provision stating such liability, is contractual in its nature,' and enforceable as any other contract in the courts of this state.
    3. Courts — jurisdiction of municipal court of Chicago- over action to enforce liability of stockholder of bank of sister state. The municipal court of Chicago has jurisdiction of an action by the banking commissioner of a sister state to enforce the double liability of a stockholder of a bank of that state created by the statute under which such bank was organized, the obligation being contractual in its nature.
    4. Corporations — when sale .of stock of foreign corporation not in violation of Blue Sky Law. Where a purchase of stock in a foreign corporation by a resident of this state was induced by the representations of a relative of the, purchaser, also a resident of the state, who had become interested on his own account by reading a circular descriptive of such stock handed to him, by a fellow employee, none of such intermediaries being authorized to sell stock or to solicit subscriptions therefor by the corporation, and the sale being consummated by the sending and acceptance of a telegraphic order, the transaction was not in violation of the Illinois Securities Law.
    5. Courts — controlling effect of decision of court of sister state modifying rule of liability of stockholder of bank of that state under governing statute. The fact that at the time a resident of this state became a stockholder of a bank of a sister state it was judicially determined in that state that under the governing statute the liability assumed by such stockholders was subject to certain limitations, does not entitle the stockholder to the benefit of such limitations, in an action to enforce his liability under that statute, where prior to the institution of the action the courts of that state had abandoned their conclusion as to such limitations and had announced a rule eliminating them.
    6. Barks and banking — presumptive necessity of action by officer of sister state to enforce liability of stockholder of bank of such state. In an action to enforce the liability of an Illinois stockholder of a bank of a sister state, based upon a statute of that state authorizing such enforcement by the bank examiner as soon after taking possession of the bank as in his judgment may be necessary, it must be assumed that the official bringing the suit has proceeded according to law, and the question whether the condition of the bank necessitated the enforcement of such liability is not open to inquiry.
    7. Constitutional law — impairment of obligation of contracts by judicial action. Constitutional provisions with reference to statutes impairing the obligation of contracts do not apply to interpretations of the law by judicial decision.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Theodore F. Ehler, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 29, 1926.
    Albert Fink and Francis M. Lowes, for appellant; Henry N. Shabsin, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit brought to enforce double liability of a stockholder of a bank, tried by the court, in which judgment was against the defendant for $1,244.16, from which he appeals.

Plaintiff Duke is supervisor of banking of the State of Washington, and Farnsworth, the other plaintiff, is director of taxation and examination of Washington. The two are the successors in office of the bank commissioner of the State of Washington. They will hereinafter be called the bank commissioner. Defendant is a resident of Illinois and a stockholder of the Scandinavian-American Bank of Tacoma, Washington, organized under the laws of Washington and authorized to do a general banking business at Tacoma.

The statement of claim alleged that on January 15, 1921, it appeared to the bank commissioner that the bank was insolvent and thereupon he took possession of the assets and affairs of the said bank for liquidation; that the defendant on February 10, 1920, bought 10 shares of the capital stock of the said bank and is still such a stockholder; that section 11 of Article XII of the Constitution of Washington is as follows: “Each stockholder of any banking corporation or insurance corporation or joint stock association shall be individually and personally liable equally and ratably, and not one for another, for all contracts, debts, and engagements for such corporation or association accruing while they remain such stockholders to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares”; that section 285 of the statutes of Washington is as follows: “The stockholders of every bank and trust company shall be individually and personally liable, equally and ratably, and not one for another, for all contracts, debts, and engagements of such corporation accruing while they remain as stockholders, to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares. * * * Such liability may be enforced by the examiner as soon after taking possession of any bank or trust company as in his judgment the same may be necessary. The failure of the stockholders of any bank or trust company immediately upon possession being taken by the examiner ' to make good all impairment of its assets shall be conclusive evidence that the enforcement of double liability is necessary”; that since January 15, 1921, the stockholders have failed to make good any part of the impairment of the bank assets; that said bank commissioner determined it was necessary to enforce the double liability of the stockholders to the full amount of 100 per cent of the par value of the stock, that is, $100 on each and every share thereof for the purpose of paying its debts; and that defendant was duly notified of this assessment on each share of stock owned by him and demand was made that it be paid, which was refused. There were also other allegations.

Defendant argues that this provision of the Washington statute being a special statutory remedy of another State the courts of Illinois will not enforce it against a citizen of this State.

The Federal statute in relation to national banks is the genesis of the Washington statute. Duke v. Force, 120 Wash. 599. By section 5234 of the United States Rev. St. the comptroller of the treasury, when he deems it necessary, may appoint a receiver of a national bank .with power to take possession, etc., and enforce individual liability of the stockholders. In passing upon this statute in Kennedy v. Gibson, 75 U. S. 498, it was said:

“It is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him.”

To the same effect is Casey v. Galli 94 U. S. 673; United States v. Knox, 102 U. S. 422.

The Washington Supreme Court in passing upon its statute followed the conclusions of the Federal Court. In Hanson v. Soderberg, 105 Wash. 255, the court said: “The state bank examiner is clothed with power to finally determine the necessity for making assessment upon the stock of an insolvent bank, and the amount of such assessment, without any judicial inquiry into the matter.”

The court also held against the objection that the statute conferred upon a ministerial officer judicial power, citing Bushnell v. Leland, 164 U. S. 684; Ex parte Chetwood, 165 U. S. 443.

Duke v. Force, supra, was decided upon the assumption that the state bank examiner had this power, and to the same effect was Duke v. Johnson, 123 Wash. 43, where it was said:

“The conclusion, therefore, is that, upon the failure of a state bank, the then real holders of stock in that institution are liable up to an amount equal to the par value of their stock for all contracts, debts, and engagements of the bank which become due upon its failure; that this obligation is a secondary one, enforceable by the state banking authorities.”

That the bank commissioner has authority under the statute to collect the superadded liability of stockholders residing in Washington without any preliminary judicial determination, seems to be conceded by the defendant, but it is argued that before the commissioner can proceed against a stockholder-resident of this State to enforce a special statutory remedy of the State of Washington there must- be a preliminary judicial determination of the condition of the bank and the necessity for and the amount of any assessment against the stockholder.

The greater weight of authority holds that the liability of a subscriber to the capital stock of a bank is contractual. In I Miche on Banks and Banking, page 163, it is said:

“Bank stockholders ’ individual liability, though statutory, is contractual in its nature. It is legal and not equitable. It is based upon the contract of subscription, an implied term of that contract being the declaration of the statute that a certain contingent liability should follow the subscription.”

This is also the conclusion of the compiler as noted in 33 L. R. A. (N. S.) 898. In Morawetz on Private Corporations, section 870, it is said, in substance, that, if the company’s charter provides that the shareholders shall be subject to a special individual liability to creditors, persons becoming shareholders agree to become liable individually to the amount specially provided for in the charter or Incorporation Law, to all persons giving credit to the corporation and that the parties contracting with the corporation do so upon the faith of this liability.

In Bell v. Farwell, 176 Ill. 489, treating of the liability of an Illinois stockholder in a Kansas bank, sued on in Illinois to enforce his liability, it was said that while the liability of the stockholder is one imposed by statute it is at the same time a liability arising out of contract. In Howarth v. Lombard, 175 Mass. 570, the character of such liability is discussed at length with the conclusion that the bank stockholder residing in Massachusetts must be regarded as having agreed or contracted to be subject to the obligation imposed by the statute of Washington, including the liability for an assessment. In the recent case of Hirning v. Hamlin (Ia.), 206 N. W. 617, it was held that such obligation upon the stockholder was contractual in its nature and enforceable as such in the courts of other States, citing a large number of decided cases. It was there held that the provisional liability of the stockholder was just as obligatory as his original liability to pay for stock, and that: “It would be intolerable that the rights and obligations of stockholders of corporations should vary according to or depend upon the laws of the lex fori or the lex domicilii. It is well settled therefore that the law of the state creating the corporation controls in the determination of their rights and obligations, though not necessarily the remedy.”

The cases cited to the contrary by defendant are not in point. Smith v. Kastor, 195 Ill. App. 458, was an action to enforce liability arising out of the unlawful acquisition of stock. Young v. Farwell, 139 Ill. 326, was a bill in equity to enforce a stockholder ’s liability against an Illinois resident holding stock in a Michigan corporation before there had been any proceeding in Michigan to determine the condition of the corporation.

It must be assumed that when defendant subscribed for his stock he understood the constitution and statute relating to banks as construed by the court of Washington. He must be presumed to have agreed that the bank commissioner was clothed with power to determine the necessity for making an assessment upon his stock and the amount of such assessment without any judicial inquiry into the matter. He acquired the stock in contemplation of a possibility of such an assessment being made in this manner. Furthermore, it clearly would not be just either to creditors or stockholders to require the character of the proceedings by the bank commissioner to depend upon the respective residences of stockholders.

Upon reason and precedent we hold that when defendant acquired his stock he agreed to be obligated to the extent of the liability imposed by the statute of Washington, to be enforced in the manner provided by the laws of that State wherever he may reside.

What we have said disposes of the objection to the jurisdiction of the Municipal Court of Chicago, which has jurisdiction of suits upon contracts.

Defendant contends that the stock was sold to him in violation of the Illinois Securities Act, sometimes called the Blue Sky Law, and therefore such sale was void. This act renders void sales of a foreign corporation made in Illinois unless certain statements and documents relating to the company are filed with the secretary of state. The record does not disclose that the stock in question was offered for sale or sold in Illinois.

In the fall of 1919, William C. Juhnke, a defendant in a similar case, which has been consolidated with this for hearing, saw a circular in his office at the Union Station in Chicago, where he was employed by the Chicago, Milwaukee & St. Paul Railroad Company, it was given to him by one of the dining car stewards working for this railroad. This circular purported to have been issued by the Scandinavian-American Bank and contained a statement of the business and of an au-. thorized increase of the capital stock with the price of the new stock, and concluded: “Tour subscription solicited. Make application to F. C. Hewson, Manager Bonds and Investments, Scandinavian-American Bank of Tacoma.” Juhnke induced his father-in-law, this defendant, to buy some of the stock, and Juhnke wired to the bank at Tacoma for fifteen shares, five for himself and ten for' Olson. The bank acknowledged receipt. and sent subscription blanks to Juhnke. Herman Juhnke, Sr., a defendant in another of the consolidated cases, testified that his son William “said he thought it was a good thing. He did not charge me anything for helping me in the matter. He was not working for the bank at all.”

The purchase of stock by defendant and others was induced as a friendly act "by "William C. Juhnke, who had no authority from the bank to solicit subscriptions. Under similar circumstances, it was held that there was no violation of the Blue Sky Law. People v. Hill Top Metals Min. Co., 300 Ill. 564.

Lastly, it is contended that the rights of the defendant are to be determined by the law as it was judicially construed by the Supreme Court of Washington at the time when he purchased his shares of stock; that in Shuey v. Holmes, 21 Wash. 223, in construing the constitution and statute upon which this suit is based, the Supreme Court held that the stockholder was obligated only for contracts and debts arising after he acquired stock and not for those created prior to the day he became a stockholder; and that it was therefore necessary to segregate the debts and contracts existing before the time he became a stockholder from those accruing afterwards. However, in Duke v. Johnson, supra, the conclusion in the Shuey case was overruled, the court holding specifically that the conclusion in the Shuey case was erroneous and not justified by the ordinary meaning of the language used in the constitution and statute and by the previous decisions of that court.

There is considerable evidence in the record tending to show the condition of the bank at the time defendant acquired his stock. This involves a more or less complicated statement of assets and liabilities, and based upon these figures counsel argue in direct contradiction to each other as to what they show with reference to the condition of the bank. This illustrates forcibly the impracticability of deciding this question in each suit brought to enforce the stockholder’s liability. A defending stockholder in one case might prevail in this respect and another one might lose, and the uniformity of the assessment would be destroyed by the variant results of the trials. The language of the court in Duke v. Johnson, supra, upon such a situation is pertinent. In holding that the stockholders are liable for all contracts and debts, whenever accruing, the court said that any other interpretation of this provision would be “visionary and futile.”

“Under that other interpretation, creditors of a failed institution would be, in a great majority of cases, and in practically all cases where banks had had an existence for some period of time and their stock had been dealt in to any great extent, deprived of any benefit from the enforcement of the superadded liability. The litigation would be interminable. The results would be almost ml, and it would be a practical impossibility to determine the liability of the various persons who had been stockholders during the entire existence of the bank in question. Death, insolvency, removal from the state — all the various accidents and changes coming from lapse of time and altered conditions — would make a recovery of any substantial amount from former owners of the stock a matter of pure speculation, and, as a matter of fact, the attempt to collect such liability would cost more in the preparation and trial of such suits than could be recovered in the event judgments were obtained.”

We must assume that in this case the bank commissioner proceeded according to law. It would result in confusion to require the trial court here in each suit against a stockholder to investigate the condition of the bank for the purpose of ascertaining whether or not the commissioner made the proper assessment.

It has been held that a judicial decision is not a law and that a change of decision, is not a promulgation of a new law. Hence, constitutional provisions with reference to statutes impairing the obligations of contracts do not apply to judicial decisions. Alferitz v. Borgwardt, 126 Cal. 201; Swanson v. City of Ottumwa, 131 Ia. 540; Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154. In New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 18, the court held:

“In order to come within the provision of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by a law of the State. The prohibition is aimed at the legislative power of the State, and not at the decisions of its courts.”

"We are of the opinion that the law and the record justified the conclusion of the court, and the judgment is affirmed.

Affirmed.

Hatchett, P. J., and Johnston, J., concur.