text:
    Eutie E. Woodhouse v. Lyman E. Crandall, Receiver, etc.
    1. Banks and Banking — Deposits—When Special and When General. — A deposit is general unless expressly made special or specific, or the circumstances are such as to imply that it is not meant to be general, as where money is deposited inclosed in a box or bag, or sealed up. Whenever a bank has a right to mingle the deposit with' moneys of its own and treat it as a debt due from it to the depositor, or even though it is trust property given to the bank on condition that it will pay a certain sum to the cestui 'during his life, the deposit is general. In the absence of evidence to show that it is the duty of the bank, by agreement expressed or clearly implied, to keep the funds and their investment separate, it must be treated as a general deposit.
    Intervening Petiti-m, of a depositor in an insolvent bank. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Thornton & Chancellor and John M. Grimes, attorneys for appellant.
    Smith, Helmer, Moulton & Price, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

The appellee is receiver of the former banking firm of Meadowcroft Brothers — he having been appointed such in or about June, 1893 — and the prayer of the petition of appellant is that he be ordered to pay the deposit mentioned as a preferred claim against such firm.

On or about March 15, 1893, one Charles F. F. Wood-house, since deceased, leased to the petitioner, F. P. Furlong, certain premises in the city of Chicago. By the terms of said lease it was agreed that said Furlong should deposit with Meadowcroft Brothers as security for the faithful performance of the covenants of said lease on his part to be performed, the sum of $1,500, which said sum of money should remain with said Meadowcroft Brothers, for the purposes set forth in said lease.

Thereupon, said Furlong went to the office of said Meadowcroft Brothers, and there delivered to Frank R. Meadow-croft, one of said firm, in his private room in the bank, the sum of $1,500 in currency, and received from said.Meadowcroft a receipt as follows:

“Chicago, III., March 15, 1893.
Received of F. P. Furlong the sum of fifteen hundred dollars, to be by us held for a period of one year from this date, except upon the happening of the contingency hereinafter mentioned — as security for the faithful performance by said Furlong of his covenants in a certain lease of this date, wherein the said Furlong is lessee and Charles F. Wood-house is lessor,and the premises demised are the rear room on La Salle street, number 4, in the basement of the building known as the La Salle Block, corner of La Salle and Madison streets, Chicago, Illinois. Such portion of said sum as will satisfy whatever damage the said Woodhouse may sustain by the default of the said Furlong in the performance of the said covenants of said lease, to be paid by us to the said Woodhouse; and, after the expiration of six months of the term of said lease, and upon the conditions provided in said lease for so doing, said sum to be held by us to the credit of said Woodhouse, and paid to him, Woodhouse, in six equal installments of two hundred and fifty dollars each, one installment on the first day of Rovember, A. D. 1893, and one installment on the first day of each succeeding month thereafter during the term, of said lease.
Meadowcroft Brothers.”

Furlong then left the bank, taking with him the receipt. After Furlong went away, the mpney was turned over by Meadowcroft to one of the tellers in the bank and mingled with the funds of the bank. And as a method of keeping account of the money, Furlong not keeping any account in the bank, and Meadowcroft Brothers’ receipt for the money being outstanding, Meadowcroft made out and pinned to the duplicate or copy of the receipt retained by him, a cer- ■ tificate of deposit to Meadowcroft Brothers for the same amount. It was as follows:

“ Certificate of Deposit.
Rot subject to check.
Established 1860.
Ro. 3280. Meadowcroft Bros., Bankers,
R. W. Corner Dearborn and Washington Sts.
Chicago, III., March 18, 1893.
F. P. Furlong has deposited in this bank fifteen hundred
and no-100 dollars, payable to the order of Meadowcroft Bros., in current funds on the return of this certificate properly indorsed, with interest at the rate of four per cent per annum, if on deposit six months.
§1,500. Mkadoworoft Bros. Cashier.”

This certificate of deposit and the mingling of the money with the general deposits of the bank, ivas not known by Furlong or by Woodhouse, and the certificate was never delivered to anybody. It was simply pinned to the receipt as a part of the files of the bank, and was made out as a convenient method of accounting for the §1.500 that Meadowcroft Brothers had given their receipt for, and for identifying the source from which the money was received.

The receipt that was given was prepared for the purpose and taken to Meadowcroft by Furlong. There is no pretense that it does not express the intention of the parties to it. It is contended that the deposit was intended bj the depositor to be a special deposit, and that it was changed to a general deposit without the knowledge or acquiescence of the depositor, and that therefore the prayer of the petition ought to have been granted and''the receiver ordered to pay the fund to the petitioner.

The contract under which the money was received by Meadowcroft Brothers was fully expressed in the receipt. The making of the certificate of deposit formed no part of the agreement under which the money was left with Meadowcroft. His testimony and that of Furlong is express in that respect, and there is no testimony to the contrary. Looking at the receipt, therefore, to ascertain whether the deposit was special or not, ive find nothing in it that indi-' cates the character of the deposit was special. It was simply the case of a deposit of loose currency, with nothing to indicate that it was to be kept.separate from the general funds of the banking firm. It does not even seem to be the case of a deposit made by a depositor intending that it should be a special deposit, the character of which was changed by the banker to a general deposit, contrary to his duty, or agreement, express or implied. The distinction between different kinds of deposit is treated of in Chap. 13 of 1 Morse on Banks and Banking, and we refer thereto. It is said in Sec. 186 of that book:

“A deposit is general unless expressly made special or specific, or the circumstances are such as to imply that the deposit is not meant to be general; as where money is deposited enclosed in a box or bag, or sealed up. Whenever the bank has a right to mingle the funds deposited with its own and treat them as a debt due from it, even though the money may be trust property given to the bank on condition that it would pay a certain sum to the cestui during life, the deposit is general. In the absence of evidence to show that it is the bank’s duty, by agreement, express or clearly implied, to keep the funds and their investment separate, it must be treated as a general deposit.”

Many decisions of our Supreme Court are to the effect that money deposited as this was, is a general deposit, and where the bank has become insolvent, the depositor must be remitted to the position and rights of a general creditor only. Seiter v. Mowe, 182 Ill. 351; Bayor v. Am. Trust & Savings Bank, 157 Ill. 62; Mutual Accident Association v. Jacobs, 141 Ill. 261; Wetherell v. O’Brien, 140 Ill. 146; School Trustees v. Kirwin, 25 Ill. 73.

We have carefully considered the cases cited to us by appellant from the courts of other jurisdictions, but whatever may be thought of them, the rule adopted by our Supreme Court, and consistently adhered to for many years, must control us. The deposit was a general one, and no case was made for a claim against the receiver, as asked by the petition. Affirmed.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    Estate of George N. Hubbard v. Estella J. Hubbard.
    1. Wills — Evidence of the Circumstances of the Testator at the Time of Making His Will Admissible, but His Declarations Are IVof. — Evidence as to the circumstances of a testator at the time of making his will is properly admitted on the trial of a suit for the construction of the will, but testimony as to his declarations concerning his intentions and in what manner he wished to dispose of his property are not admissible.

      2. Same — Intention of the Testator Governs — Codicils.—Whenever a condition is presented calling for the construction of a will, the polar star of direction is the intention of the testator, and effect is, if possible, to be given to the entire instrument. The provisions of a codicil are to be construed so as to harmonize with the body of the will, if this can be fairly done.
    3. Same — Revocation by Cancellations and Erasures. — Where a bequest in a will has been erased by the testator by the drawing of lines across the words comprising it, the erased portion ceases to be a part of the will, as much so as if it had never been inserted in it. The rule, generally, is that the entire will or any of its provisions may be revoked by cancellation or obliteration as well as by burning or tearing it up.
    Bill for the Construction of a Will. — Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Statement. — This is a,n appeal from an order of the Circuit Court construing the will of George N. Hubbard, deceased.
    _ The devisory part of the will is as follows:
    “I give, devise and bequeath to my beloved wife, Estella Hubbard, the 158£ farm situated in Lee township, Allegan county, State of Michigan, according to deed and abstract of said property; also all building on same and all stock and implements and personal property.
    “ And 1 further bequeath to my wife, Estella Hubbard, my beneficiary policy now held by mé in' the Hotel Men’s Mutual Benefit Association of Chicago, Ills.
    “ And I further bequeath to my honored mother, Margaret Hubbard, eight thousand dollars in cash ($8,000) to be paid to her bv my executor hereinafter named within sixty days after my decease. The money is now in my safety box in the National Safety Co. vaults, Chicago. Lastly, I do nominate and appoint Monty Burke of Chicago, trustee of this will, and John Wauglmp the executor of this my last will and testament.
    “In testimony whereof I, the said George N. Hubbard, have to this my last will and testament contained on this sheet of paper subscribing my name and affix my seal this 3rd clay of Jan., 1895. George N. Hubbard. [Seal.] “ Witnesseth:
    “ Mary E. Masters. [Seal.]
    “ Jessie May Jennings. [Seal.]

      “I further bequeath to my sister, Fannie M. McMillan, the sum of $10 (ten dollars) in cash, the money in my safety box in the National Safe Deposit Go. vaults, Chicago, Ills., within sixty days after my decease.
    “I further bequeath to my beloved wife, Estella Hubbard, all money left in my safety box in National Safety Deposit Co. vaults, Chicago, Ill., after my funeral expenses and just debts are paid.
    “ Witnesseth:
    “ Within sixty days of my decease
    Geo. N. Hubbard. [Seal.]
    Mary E. Masters. [Seal.]
    Jessie May Jennings. [Seal.]”
    Mr. Hubbard had at the signing of the will $30,000 in the safety box mentioned by him.
    Henry C. Noyes, attorney for appellant.
    Wing & Chadbourne, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Evidence as to the circumstances of the testator at the making of the will was properly admitted, but testimony as to his declarations concerning his intentions and in what manner he wished to dispose of his property should not have been received. Lurie v. Radnitzer, 166 Ill. 609, 618; Hawhe v. Chicago & Western Indiana Ry. Co., 165 Ill. 561.

Whenever a condition is presented calling for the construction of a will, the polar star of direction is the intention of the testator. Effect is, if possible, to be given to the entire will, and the provisions of a codicil are to be so construed as to harmonize with the body of the will, if this can be fairly done.. 1 Eedfield on Wills, 4th Ed., 352, 363, paragraphs 13 and 34; 3d Am. and Eng. Encv. of Law, 294; 6tli Am. and Eng. Encv. of Law, 2d Ed., 183.

It is urged that there was no cancellation of the bequest of $23,000 once written in the instrument and afterward erased.

The case of Wolf v. Ballinger, 62 Ill. 368, to which our attention is called, is to the effect, only, that the erasure from a will by the testator, of the name of a devisee, and the interlineation of another name as a substitute, will not produce any change in the will as originally written; for the reason that a new devisee, the bequeathing of property to a party, can not be made save by an instrument witnessed as provided by statute; consequently, there not having been an "acknowledgment of the bequest to the substituted party, such as the law requires, the contemplated devise to the new party fails, and the erasure is disregarded, because the intent manifested by the testator was to change the direction of his gift and not to have it fail or become undevised estate. In Lurie v. Badnitzer, 166 Ill. 609, where a bequest in a will had been erased by the testator by the drawing of lines across the words comprising the devise the Supreme Court said:

“It must be conceded that the erased clauses are no more a part of the will than if they had been so completely erased that they could not be read or had never been inserted in the draft for such will.”

The rule, generally, is that the entire -Will, or any provision therein, may be revoked by cancellation or obliteration as well as' by tearing or burning. 29th Am. & Eng Encv. of Law, 276; Bedfield on Wills, Yol. 1, 807, paragraphs 8, 9, 10; Bigelow v. Gillott, 123 Mass. 122.

In the present case, the will remaining in the custody of the testator and no question of alteration by another arising, if the erased lines had been so obliterated that no word of them could be read, it would hardly be contended that the remaining portions were of no effect; yet the intent to revoke the erased devise would be no more clear than it is now.

As is said in Thonlinson’s Estate, 133 Penn. St. 245: How can we say that the testator did not intend to cancel this devise of $23,000, when as a matter of fact he did?

In the present case there is no claim that the erasure was made by any one save the testator.

It- is perhaps unnecessary to discuss the motives actuating the testator in making the erasure. Seemingly it worked no very material change unless the money in his box at the safety vaults was less than $23,000 plus $8,000 plus $10, plus the amount of funeral expenses and debts.

It may be that the testator, as time ran on, feared that this would be the case; and wishing to give his mother $8,000, changed his will so that the residuum only of the money at the deposit company should go to his wife.

The evidence as to a gift inter vivos of $20,000 to Mrs. Hubbard is not sufficient to establish it.

The decree of the Circuit Court is affirmed.


text:
    Simon Florsheim v. William H. Palmer, Ex’r, etc., for the Use of the Northern Trust Co., Trustee.
    1. Evidence — Contents of Lost Instruments. — The question as to whether sufficient proof has been given of the destruction or loss of an instrument to lay the foundation for the admission of secondary evidence of its contents, is a question resting in the sound discretion of the court. It is not necessary that proof of loss be beyond the possibility of mistake, but only to a moral certainty; reasonable proof; such as. according to the circumstances of the case, convinces the judgment that a bona fide search has been made and reasonable diligence and effort used in all places, and from all sources and means of discovery which the nature of the case would naturally suggest, and which were accessible to the party offering the. secondary evidence.
    2. Sureties— Where Buies of Law Applicable to Are Not Controlling. —The rules applicable to sureties are not controlling in a case where all are principals and the obligors have received — not a mere nominal consideration, or none at all — but an actual, and as they deemed, adequate reward.
    3. Demand — When a Suit is Sufficient and When It is Not. — Where a party promises to pay his own debt on demand, a suit is a demand; but when his undertaking is to pay if a certain thing happens, neither the amount to be paid, nor the time when payment, if ever, will be due, being known, and the happening of the event upon which payment depends lies peculiarly in the knowledge of the obligee, demand of payment is necessary before bringing suit.
    Assnmpsit, on a penal bond. Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed.
    Opinion filed January 21, 1902.
    Statement. — Simon and Philip Florsheim entered into bond to Marie M. Fenton, executrix, conditioned as follows :
    “ The condition of the above obligation is such, that whereas, the said Marie M. Fenton, executrix, has been damaged in the possession of certain premises known as Nos. 211 and 213 Wabash avenue, in said city of Chicago, and is about to commence suit against Cyrus M. Hawley and others to collect said damages, and whereas the above bounden Philip and Simon Florsheim, as the agents, and for said Cyrus JVL Hawley, desire to go in and upon said premises and remove a certain wall, and future and further damages may result to her. Now, in consideration of the premises, we obligate ourselves in the event said suit shall fail, or in the event a judgment should be rendered in her favor for less than the sum of $2,000 upon the trial of said cause, to immediately thereafter upon demand to pay to her or her attorney the sum of $2,000 and the costs of said suit. Any judgment in excess of said sum to belong to her, but if any judgment is rendered for less than said sum of $2,000, the same is to belong to us upon pajonent of said $2,000 and costs as aforesaid. ,

    Now, if the said Philip and Simon Florsheim shall perform all the covenants above mentioned, then this obligation to be void, otherwise to remain in full force and effect.”
    Thereafter Marie M. Fenton began suit against Cyrus M. Hawley to collect the damages alluded to in the bond, and obtained therein a judgment for $1,300. She having died, action was brought upon the bond by her executor,, and he has recovered a judgment for $700, from which this appeal is prosecuted.
    Moran, Mayer & Meyer, attorneys for appellant.
    Francis M. Walker, attorney for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

It is urged that there was not sufficient evidence of the loss of the bond to warrant secondary evidence of its contents. Whether sufficient proof has been given of the destruction or loss of an instrument to lay the foundation for admitting secondary evidence of its contents is a question resting in the sound discretion of the court. It is not necessary that proof of loss be beyond the possibility of mistake, but only to a moral certainty; reasonable proof; such as, according to the circumstances of the case, convinces the judgment that a T>ona fide search has been made and reasonable diligence and effort used in all places and from all sources and means of discovery which the nature of the case would naturally suggest, and which were accessible to him who offers the secondary evidence. It is not necessary that all the papers of a great office in which the lost instrument might reasonably be thought to be, be examined, but such files, compartments and places as the evidence shows it might in the course of affairs have been placed in, should be. Search in good faith must be made to appear. 1st Ed. Am. & Eng. Ency. of Law, Vol. 13, p. 1095; Carr v. Miner, 42 Ill. 179; United States v. Sutter, 21 How. 170-175; Miner v. Tillotson, 7 Peters, 99; Gathercole v. Miall, 15 M. & W. 319; Page v. Page, 15 Pick. 368; Viles v. Moulton, 11 Vt. 479; Taylor v. Clark, 49 Cal. 671.

“If a paper is shown to have been in particular hands, then the person must be produced into whose hands it has been traced; or if the natural and legitimate presumption is that it is in certain hands, then it must be proved by legal evidepce that it is not there, before secondary evidence of its contents is admissible. The evidence must satisfy the court that the paper is destroyed or can not be found.” Mullanphy Savings Bank v. Schott et al., 135 Ill. 655.

We see no sufficient reason for holding that the court improperly exercised its discretion in admitting secondary evidence of the contents of the bond.

Hor do we think that the commencement and prosecution to judgment of the suit against Cyrus M. Hawley only, was not a compliance with the conditions of the obligation. By giving this bond, to which there are no sureties, the obligors obtained leave, “ as the agents of Cyrus M. Hawley,” to go in and upon the premises of the obligee and remove a certain wall from which it was agreed future and further damages might result to her.

The recital that Marie M. Fenton was about to commence suit against Cyrus M. Hawley and others was not an agreement so to do, nor was a suit against others as well as against Hawley made a condition of the bond. A suit in trespass against Hawley and two irresponsible persons would have been a compliance with the language as to “others,” although a recovery as to Hawley alone, or no recovery against any one, was had.

The bond when accepted by the obligee amounted to a permit to the obligors “ as the agents and for Cyrus M. Hawley ” to go upon the premises of appellee and remove a certain wall, and was in effect an undertaking by the obligors that she should obtain judgment against Hawley for at least $2,000. The undertaking of the obligors was to, after the termination of the suit against Hawley, “immediately upon demand, pay to her or her attorney the sum of $2,000, and the cost of said suit,” if the suit against Hawley should fail or the judgment therein be less than $2,000; a judgment for less than $2,000, to belong to them upon payment of such $2,000.

The rules applicable to sureties are not controlling in a •case where all are principals, and the obligors have received —not a mere nominal consideration, or none at all — but an ¡actual, and as they deemed, adequate reward.

It is urged that the rule as to promissory notes payable upon demand is applicable to this undertaking. The distinction between debts and notes payable on demand and the obligation under consideration is, that in case of precedent debts payable on demand the amount of the same is fixed and known when the undertaking is made; that this sum will have to be paid at some time is also knowm.

Whether the obligors in the present case could ever have anything to pay, as well as, if anything, how much, and when, were things which, at the making of the bond, nobody knew. So as it appears the first that the obligors knew that the suit against Hawley had resulted in a judgment against him was when suit was brought against them,

If without demand the present suit was, under such circumstances, maintainable, it follows • that had obligors, upon being sued, gone at once and paid the $700, they must also have paid the costs of this suit up to that time incurred.

The position of appellee is that obligors defaulted in the payment of $700, so soon as judgment against Hawley was had, without notice or knowledge that any judgment against him had been rendered; and that consequently, without notice or demand, they can be cast in costs.

When a party promises to pay his own debt on demand, a suit is a demand; when his undertaking is to pay if a certain thing happens, neither the amount to be paid, nor the time when payment, if ever, will be due, being known, and the happening of the event upon which payment depends lies peculiarly in the knowledge of the obligee, demand of payment is necessary before the bringing of suit. Nelson v. Bostwick, 5 Hill (N. Y.) 37-42; Watson v. Walker, 23 N. H. 471; Whitton v. Whitton, 38 N. H. 127; Dix v. Flanders, 1 N. H. 246.

There not having been a previous demand, appellee was not entitled to maintain this action. Only for the error of law in this regard is the judgment of the court below reversed without a remandment of the cause.

The judgment of the Superior Court is reversed.


author: Mr. Justice Shepard

text:
    Chicago Terminal Transfer R. R. Co. v. Mathias Helbreg, Adm’r.
    1. Pleadings — In Actions for Damages Sustained by Reason of the Death of a Person from Negligence. — In an action for damages sustained by reason of the death of a person by the negligent acts of another, the fact as to whether the deceased left a widow or next of kin, must be alleged in the declaration and proved as alleged.
    2. Amendments — Where a Declaration Fails to State that a Person Killed by the Negligence of Another, Left Next of Kin Surviving Him.— In an action by the next of kin for damages sustained by reason of the death of a person from the negligent act of another, where the declaration fails to state that such deceased person left surviving him a widow or next of kin, an amendment after the trial and while a motion for a new trial is being heard, for the purpose óf remedying such defect, is properly allowed, where such amendment aims at nothing but perfecting the declaration, so as to enable the plaintiff to recover upon the cause of action already, but imperfectly stated.
    8. Damages — Where $1,500 is Excessive. — In an action under the statute against a railroad company for negligently causing the death of a person eighty-one years of age a judgment for §1,500 is excessive.
    4. Remittitub — Does Not Always Oure an Excessive Verdict. — In an action by the next of kin of a person alleged to have been killed through the negligence of a railroad company a verdict of §5,000 for the death of a person eighty-ohe years of age, being regarded by the trial court as so flagrantly excessive as to be accounted for only on the grounds of prejudice, passion or misconception, is not cured by a remittitur and the entry of a judgment for the sum of $1,600.
    Trespass on the Case. — Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Maecus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed January 21, 1902.
    Statement of Facts. — This is an action on the case brought by appellee, as plaintiff, against appellant, to recover damages resulting from the death of Gottlieb Ziroch, appellee’s intestate. Plaintiff filed his declaration in three counts, alleging the exercise of due care on the part of the decedent, and negligence on the part of the railroad company in improperly managing its train and backing the same upon the wagon in which the decedent was riding, causing his death; also negligence in not ringing a bell or blowing a whistle and in not employing proper safeguards to warn decedent of the "approach of the train. The allegation as to the beneficiary contained in each count is the same, and is as follows:
    “And the plaintiff avers that the said Gottlieb Ziroch left him surviving Sophia E. Sahúman, his daughter and next of kin, who is still living, and that by reason of the death of the said Gottlieb Ziroch as aforesaid, the said Sophia E. Schuman has been and is deprived of her means of support.”
    Defendant pleaded not guilty. The case was tried March ¡5, 1900, and on May 12, 1900, in pursuance of an order entered that day, which overruled the motion for a new trial and entered judgment and gave leave to the plaintiff to file an amendment to the declaration instanter, he did on that day amend his declaration by striking out of the original declaration the reference to the beneficiary above quoted, and inserting in lieu thereof the following:
    “And the plaintiff avers that the sand Gottlieb Ziroch left him surviving at the time of his death no widow, and only Sophia E. Schuman, who is his daughter and his only next of bin, and that the said Sophia E. Schuman is still living, and that by reason of the death of the said Gottlieb Ziroch the said Sophia E. Schuman has been and is deprived of her means of support, to wit, in the county of Cook aforesaid.”
    A verdict was found for plaintiff for $5,000, $3,500 of which was remitted by plaintiff, and judgment entered for $1,500. The facts as proven on the trial are as follows:
    On October 13, 1898, the appellant owned and operated a railroad, which, curving southerly and westerly, crossed the highway known as Western avenue a little south of the village of Blue Island, and outside of the corporate limits of any municipality. Western avenue runs north and south, and the roadway was carried across the railroad tracks on planking sixteen or eighteen feet long, laid across and in the center of the roadway, making a drive-way across the tracks sixteen or eighteen feet in width. At about 4 o’clock in the afternoon of the day in question, appellant had blocked the entire width of Western avenue by a train of some fifty-one cars, the engine attached thereto being around the curve north and east of the railway crossing. The extreme rear end of the train, the caboose or way car, blocked the crossing and remained so from five to ten minutes. While the crossing was so blocked, a number of teams came up, both from the north and south, and were detained until the train moved up so as to leave the entire crossing clear, whereupon several of the teams and some foot passengers crossed over; then the train backed up or bunted back until the rear end of the caboose stood just in the middle of the planking, leaving eight or nine feet of the west part of the planking clear, but blocking all 'the remainder of the planking and road-way east of this eight or nine feet of planking. Among those who were waiting-to cross when the crossing was entirely blocked, ivas the decedent, Gottlieb Ziroch, and one Peter A. Downey. All of the teams which were in a direct line in the central part of the roadway and ahead of Ziroch succeeded in crossing while the crossing was entirely clear after it had been first blocked and before the caboose was pushed back so as to block half of the crossing. Downey, who had been somewhat in the rear, drove up by the side of Ziroch and at his left or to the east of him, when the caboose was backed up so as to cover half the crossing, and immediately upon its stopping there Downey drove his horse in ahead of Ziroch and drove around the rear of the caboose and got over in safety, but as he was crossing, or immediately before crossing, heard the noise of the cars as the slack was being taken up, and, putting his whip to his horse, or using other means to urge him to a rapid gait, drove over and just escaped the car as it started to come back. Mr. Downey testified that not more than two minutes elapsed between the time when the last team crossed when the crossing was entirely clear, and the time when he drove over, during which time the caboose had backed up so as to cover half the crossing. Downey drove a little covered buggy, the top of which was up at the time; Ziroch was in am open one-horse wagon, sitting on the right hand or west side of the seat and was accompanied by a man named Cunningham, who sat at his left. Immediately upon Downey’s starting up, Ziroch urged his horse by slapping him with the reins, and followed close in the rear of Downey’s buggy, so close that as the rear of Downey’s buggy was leaving the south rail, Ziroch’s horse was going on to the north rail. Cunningham, who was with Ziroch, swears that he did not hear the noise of the cars as the slack ran back, nor any whistle or bell; that he did not look to see whether the train Was moving or about to move in any part of it, and does not know whether Ziroch looked or nut; that Ziroch made no noise and spoke no word indicating that he saw or heard any movement of the train or of the cars. A flagman in the employ of the railroad company stood in the roadway of

      Western avenue south of the track and very close up to the southwest corner of the caboose as it stood half way over the crossing. He was entirely hidden from Ziroch and Cunningham by the end of the caboose and the covered baggy driven by Downey. Whether the flagman made any effort to stop Downey and Ziroch from crossing is disputed, the flagman himself testifying that he did so, and that he called out to them to stop, which was corroborated by two girls working in a field about 200 feet distant, but is denied by a witness who was driving up from the south, and both Downey and Cunningham say they did not hear or see him give any warning. It is not contradicted, however, that the flagman was at his post. That the cars made considerable noise taking up slack is testified to by another witness, who was north from the crossing, and in a better position to hear such sounds than the witnesses at the crossing. The engineer testified that he had cut his train, and in recoupling, backed against the disconnected part, and not making his coupling, started up again, and again came back, which accounts for the two movements of the caboose over the crossing, after it had been pulled up so as to entirely clear it; that is, the first attempt at coupling probably drove the caboose half way over the crossing, and the second and successful one drove it back again. Ziroch was not struck by the caboose, but it struck the horse and the front end of the wagon. Cunningham jumped out in safety; Ziroch was thrown out and died in a few minutes. Ziroch was eighty-one years of age, but a man in good health, good eyesight and good hearing. He conducted a small farm a short distance south of this crossing, and man. aged the same with the assistance of his daughter. Downey, who was a witness for plaintiff, testified that he started up ahead of Ziroch just after the caboose had stopped, when it backed half way over the crossing, and took in the situation, and made up his mind that he could go over, and went over. When his horse was standing by the side of Ziroch, and before he started, he was two or three rods distant from the track, and on the stand testified that he remembered the facts so well because he was afraid he had led Ziroch into temptation. On the trial it was proven, over appellant’s objection, that Ziroch left no widow and no other children him surviving, except Sophia E. Schuman, but no evidence was offered negativing the possibility of other next of kin, such as children of deceased children, being left by Ziroch.
    Jesse B. Barton, attorney for appellant.
    Borman & McGrath, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

Omitting all consideration of the questions of negligence by the railwaj company or of contributory negligence by the deceased, raised by the record before us, we think the judgment of the Superior Court should be reversed for other reasons shown.

It has been held, from the time of the earliest decisions by our Supreme Court on the statute, until now, that the fact whether the deceased left a widow or next of kin,

' must be alleged in the declaration and proved as alleged. Chicago & Rock Island R. R. v. Morris, 26 Ill. 400; Quincy Coal Company v. Hood, 77 Ill. 68; Lake Shore & M. S. Ry. Co. v. Hessions, 150 Ill. 546; St. Luke’s Hospital v. Foster, 86 Ill. App. 282.

A defect in that respect, in the declaration, was conceded by appellee, who sought to remedy it by filing an amendment after trial and while the motion for a new trial was being heard, which was, by leave of court, allowed. This amendment was properly allowed, the amendment not stating any new cause of action or doing anything but perfecting the declaration so as to enable the plaintiff to recover on the cause already, though imperfectly, stated. Order Mutual Aid v. Paine, 122 Ill. 625.

But the judgment will have to be reversed for another reason. The jury awarded a verdict of $5,000, which the plaintiff remitted down to $1,500, and took judgment for that sum. By the terms of the statute the jury were entitled to award, for the benefit of the wife and next of kin, such damages as they should deem to be a fair and just compensation to them, with reference to the pecuniary injuries resulting to them from such death. Ho other fact than the pecuniary injury can be considéred in assessing the damages. Illinois Central Railroad Co. v. Baches, 55 Ill. 379; Chicago, Peoria and St. Louis R. R. Co. v. Woolridge, 174 Ill. 330.

It is said, in Illinois Central R. R. Company v. Weldon, 52 Ill. 290, and repeated with approval in the Woolridge case, supra, “ Some evidence should be given of the profits of the labor of the deceased (if he was a laboring man), and what he might, in all probability, earn for the future support of his wife and children. In this consists essentially the loss to the family.”

We do not think that, as argued by appellant, the decision in the Woolridge case is intended to limit the recovery of direct or lineal descendants “ to what may be estimated as the probable increase of the estate, had he lived; that is, not how much benefit the beneficiaries might receive from him during his life, but how much he would have accumulated, and which they would have inherited had he died intestate.” If there be found in the opinion in that case expressions appearing to sustain appellant’s understanding of it, we do not think they were so intended.

The deceased was eighty-one years old at the time of the accident. He lived on and cultivated, with the aid of his daughter, a small farm of twenty-seven acres, which he rented. It also appears he was able to do work on the farm, and was active and a “ pretty spry old man.” Sophia E. Schuman, his daughter, was forty-one years old and lived with him, and received her support, food, clothing and shelter from him. Her father gave her money twice, two or three dollars at a time. She also worked on the farm, gave up all her time to keeping up the house and farm, husked corn, dug potatoes, unloaded hay, etc. In fact, although it is not so shown, it is a fair inference, she did as much or more than the deceased about the farm and house.

It is not shown what the deceased usually earned or made out of the farm, except that he always paid his rent promptly. Presumably his earnings or savings, beyond the bare cost of living for himself and daughter, were small, and were not likely to be larger in the few remaining years of his life. Mow, for the jury to award a verdict for the outside limit fixed by the statute, for the pecuniary loss suffered, under such circumstances, is palpably so excessive as to justify the inference that they .were actuated by prejudice or partiality. The trial judge so undoubtedly thought, and required a remittitur of $3,500 to be entered as a condition of not granting a new trial. Had the verdict in the first instance been for $1,500, we would probably not disturb a judgment entered on it.

But the fact that the trial judge required so large a remittitur from the verdict that was given, does not cure the excessiveness of the verdict. Where the verdict is so flagrantly excessive as to be only accounted for on the grounds of prejudice, passion or misconception, a remittitur does not cure it. (Loewenthal v. Streng, 90 Ill. 74.) The excessiveness still clings to the judgment and enters into it, and every part of it. It shows that the prejudice or partiality entered as much into the finding of negligence of appellant and due care of deceased as in the sum that was awarded. A judgment, under such circumstances, for any amount, in effect substitutes the court for the jury, and defeats the statute, which requires that a jury shall fix the compensation at what is fair and just. North Chicago Street R. R. Co. v. Hoffart, 82 Ill. App. 539.

For the reasons stated the judgment is reversed and the cause remanded.


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    Mothers’ Remedies Co. v. The People, etc.
    1. Appeals — In Prosecutions Under the Pharmacy Act. — A prosecution for a violation of the pharmacy act, is quasi-criminal, and an appeal from such a prosecution in Cook county, is to be taken to the Criminal Court of such county. The nature of such prosecution is not to be determined by the name the justice before, whom it is had may see fit to give it.
    2. Jurisdiction — Uf Appeals in, Quasi-Criminal Cases. — The Circuit Court of Cook County has only original jurisdiction of quasi-criminal cases.
    Prosecution for a Violation of the Pharmacy Act-. — Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Appeal dismissed.
    Opinion filed January 21, 1902.
    Edwin L. Harpham and Louis P. Kraft, attorneys for appellant.
    Kitt Gould, attorney for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

This case was begun before A. JR. Porter, one of the justices of the peace in and for Cook county, Illinois, and is for an alleged violation of section 2 of an act entitled “ An act to regulate the practice of pharmacy in Illinois,” which is as follows:

“ Section 2. That it shall be unlawful for any person not a registered pharmacist, within the meaning of this act, to open or conduct any pharmacy, dispensary, drug store, apothecary shop or store for the purpose of retaiiing, compounding or dispensing medicines or poisons, and any person violating any of the provisions of this act shall be liable to a penalty of not less than twenty nor more than one hundred dollars for every such violation.” * * * Hurd’s Revised Statutes, 1895, page 1029.

A fine of $20 and costs was entered by the justice. An appeal was taken to the Circuit Court of Cook County.

The proceeding is quasi-criminal. C., R. I. & P. Ry. Co. v. Calumet, 50 Ill. App. 555. What a proceeding before a justice of the peace is, is not determined by what he may call it. Marking the papers in this case “ assumpsit ” did not make it an action of assumpsit.

“ An appeal in any case at law is a matter of positive law and only lies as provided by law.” In the Matter of Story, 120 Ill. 244, and cases set out at page 254; C., R. I. & P. Ry. Co. v. Town of Calumet, 50 App. 555; John Moeller et al. v. The People of the State of Illinois, 92 Ill. App. 152.

The Circuit Court has only original jurisdiction of quasi-criminal cases.

The appeal should have been taken to the Criminal Court. The appeal to this court is dismissed.

Appeal dismissed.


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    W. Dyniewicz v. N. C. Benziger et al.
    1. Appellate Court Practice — Presenting Rules of the Trial Court. —When it is desired to present the rules of the trial court for the consideration of the Appellate Court, such rules should be embodied in a bill of exceptions by the certificate of the trial judge showing that such rules were existing at the time of the trial.
    Assumpsit, on a promissory note. Appeal from the County Court of Cook County; the Hon. William C. DeWolf, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Statement. — This action, being a suit on a promissory note, was begun before a justice of the peace. From a judgment against him there rendered the defendant appealed to the County Court and from the judgment of that court appealed to this court, where the judgment of the County Court was reversed because the case had been prematurely placed and tried upon the short cause calendar. (87 Ill. App. 590.)
    The cause having been remanded to the County Court, appellant objected to its being re-docketed and moved that it be stricken from the short cause calendar. The objection was overruled and the motion denied.
    The plaintiff served on defendant a notice as provided by statute to place the cause on the short cause calendar, and it was, despite defendant’s strenuous objections, so placed, and thereafter tried, defendant refusing to appear at the trial.
    JSTo evidence save defendant’s note was introduced, whereupon the court gave a written instruction to the jury to find the issues for the plaintiff and assess his damages at §86.77, which the jury did.
    Defendant moved for a new trial and in arrest; these motions were overruled and judgment was entered on the verdict.
    From this judgment defendant prosecutes this appeal.
    Czarnecki & Koraleski, attorneys for appellant.
    E. W. Austin, attorney for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

It is not contended that the judgment is for more than is due and owing.

Whether the court should, when the case was re-docketed, have placed it on the general calendar or stricken it from the short cause calendar, is immaterial.

It was thereafter regularly placed on the short cause calendar, under notice properly given, and after having been once continued, was tried.

The defendant’s affidavit as to the existence of certain rules of court was not conclusive; the court is supposed to be familiar with its rules. If it is desired to present rules of the County Court for the consideration of this court, they should be embodied in a bill of exceptions by the certificate of the court that such rules were, at the time, existing.

The bill of exceptions in this case is merely that appellant’s attorney made affidavit that there were certain rules. So, too, as to orders of court; they can not be brought before this court by an affidavit that at certain times such orders were made, moved for and denied or entered. Mor can we accept as conclusive the affidavit of appellant’s counsel that the clerk of the County Court of Cook County ” did not, as by paragraph 14 of an act in regard to practice in courts of record, approved February 22, 1872, is required of him, furnish the judge of the court and the bar at each of said terms (December, 1899, January, February, March, April nor May of the year 1900) with a copy of the docket of causes pending in the County Court of Cook County in which should be set down all law cases in order according to the date of the commencement,” or the conclusion of the affiant that the clerk had not complied with paragraphs 15 and 16 of the act of February 22, 1872.

We find fastened to the record printed pamphlets purporting to be, one a calendar of cases in and the other rules of the County Court; but no certificate of the judge that they are or ever were such.

In the motion for new trial it is said, “ The court erred in overruling the motion for a new trial instanter.” Presuming that thereby is meant that the court erred in instantly overruling the motion for a new trial, we find no error in this regard.

Finding no error requiring a reversal of the judgment it is affirmed.


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    Carl Carlson et al. v. James H. Gilbert, Sheriff, etc., use of, etc.
    1. Appeals — Do Not Lie by Persons Not Parties to the Judgment Appealed From, — An appeal by a person not a party to the judgment appealed from is properly dismissed. 1
    2. Practice— What is Not a Waiver of Proof of the Execution of a Bond Under a Plea of Non Est Factum. — In an action of debt upon a replevin bond, the introduction of the bond without objection, under a verified plea of non est factum, is not a waiver of proof of the execution of such bond.
    Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Appeal dismissed as to appellant Hadley.
    Judgment reversed and cause remanded.
    Opinion filed January 21, 1902.
    Statement. — This was an action of debt, begun in the Circuit Court upon a replevin bond alleged to have been executed by one of the appellants, George A. Hadley, as principal, and by the other appellant, Carl Carlson, as surety.
    Each of appellants filed, among other pleas, a verified- plea of non est factum. The jury returned a verdict in favor of appellees. Debt, $990; damages, $831.08.
    After the verdict appellees moved to dismiss the suit against George A. Hadley, and asked for judgment- against Carl Carlson, the surety, alone. Judgment as asked against Carlson was entered.
    Lee, Lee & Schuchardt, attorneys for appellants.
    Gemmill & Foell, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

The motion to dismiss the appeal of George A. Hadley must be sustained. He is not a party to the judgment, nor, since the dismissal as to him, to the suit.

Plaintiff below made no proof of the execution of the bond; this, under the verified plea of non est factum, he was required to do.

The introduction of the bond without objection thereto was not a waiver of proof of execution thereof.

It was so far, merely a written document, to which was appended the name of Carlson. Proof that his signature was annexed thereto or that it was his deed was lacking".

Appellee did not move to strike the plea from the files, nor demur to it; nor object that it was verified before an attorney in the cause.

The plea may contain a trifling informality, but is substantially good and was sufficiently verified.

The appeal of George A. Hadley is dismissed; the judg. ment reversed and the cause remanded.


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    Albert Ackerman v. The People, etc., for the Use of, etc.
    1. Appeals — By Persons Not Parties to the Suit or Judgment. — An appeal does not lie in favor of a person who is not a party to the judgment nor to the suit in which it was rendered.
    Appeal from the Circuit Court of- Cook County; the Hon, Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Appeal dismissed.
    Opinion filed January 21, 1902.

    John M. Duffy, attorney for appellant.
    D. J. Downey, attorney for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

In this proceeding, begun before a justice of the peace, it appears that a judgment was rendered against one Joseph Oswald, from which he appealed; appellant being surety on the bond.

Appellant appears thereafter to have become a party to the proceedings by a suggestion of the death of Oswald and an order entered April 13, 1899, “ that the cause be revived in the name of Albert Ackerman, executor,”

Thereafter a verdict appears to have been given against Ackerman as executor of Joseph Oswald.

July 13, 1899, by stipulation, this verdict ivas set aside and a new trial granted, and it was “ further ordered that the order made and entered April 13, 1899, making Albert Ackerman, executor of Joseph Oswald, deceased, party defendant in place of Joseph Oswald, deceased, be and is vacated and set aside; and the appearance of L. P. Wilcox, attorney for said Ackerman, be and is stricken from the files, and “the death of defendants Joseph Oswald and Matthew Fleming is hereby suggested, and it is further ordered that this action proceed against the surviving defendant, Francis Jones, to abide any further order, judgment or decree made herein by this court.”

October 23, 1899, the appeal was dismissed for want of prosecution and a judgment of $20 was entered against Joseph Oswald.

June 15, 1900, appellant, on leave had, filed a “ written motion to vacate error in record.”

From the judgment against Oswald appellant prosecutes this appeal.

Appellant is not a party to the judgment nor was he to the suit in which it was entered. He can not appeal therefrom. The appeal is dismissed.


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    Chicago Terminal Transfer R. R. Co. v. Robert Schmelling.
    1. Railroads — When the Relation of Carrier and Passenger Ceases. —The relation of carrier and passenger does not cease until the ger has had a reasonable opportunity to leave the car at the place where his journey ends and passengers are discharged.
    . 2. Same — Right of Passengers to Leave the Cars by Designated Exits. —When a railroad company does not desire passengers to leave the cars by a particular exit it should forbid them to do so.
    3, Instructions — Making the Jury Judges of the Materiality of the Allegations of the Declaration. —On the trial of an action for personal injuries, an instruction by which the jury is to determine what are and what are not material allegations of the declaration, is improper, and should not be given.
    4. Harmless Error — Instructions Producing No Harm. — In an action founded upon negligence an instruction which is productive of no harm is not reversible error.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the. Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Statement. — This was an action on the case by Robert Schmelling against the Chicago, Burlington and Quincy Railroad Company and the Chicago Terminal Transfer Railroad Company. The declaration is in two counts. The allegations of the negligence being, some joint as to both defendants, and also several as to each of the defendants. A plea of not guilty was filed by each defendant. The trial resulted in a verdict and judgment against appellant for $4,000. As to the Chicago, Burlington and Quincy Railroad Company, the plaintiff entered a non-suit.
    It appears that the two defendant railroad companies owned and operated parallel railroads adjoining and near the place of tue accident, the westerly rail of the westerly track of the C., B. & Q. being from seven to eight feet east of the easterly rail of the easterly track of the Terminal Company. August 8, 1898, appellee took passage on an early morning train of the Terminal Company at Fifty-first street, to ride to Twenty-sixth street; he paid his fare, and when the train had stopped at Twenty-sixth street, or when it was slowing up to make that stop, he alighted from the easterly front platform of the front car of the train and moved directly east, and was about to step upon the track of the C., B. & Q. when he was struck by a locomotive belonging to it, knocked down and received injuries for which he instituted this suit.
    He was familiar with the location, from the fact that he had every morning for a year and a half prior to the accident taken passage on the same train and alighted at the same place, the train each morning stopping substantially at the same spot it did on the morning in question.
    In alighting from the Terminal train appellee did not look for the approach of a train on the C., B. & Q. track. At Twenty-sixth street is a railroad crossing; the tracks of the two defendant companies cross at right angles and are immediately south of the south line of Twenty-sixth street. All passenger trains on the Terminal road going north stop for this crossing and close up to it, and such stopping is advertised in its time-cards and was on the morning in question called out by the conductor, in the cars.
    West of the track oh which the Terminal train was running is another track of the Terminal Company and farther west is a switch track of the Terminal Company,'while on the east of the Terminal Company’s tracks are, first, the tracks on which the C., B. & Q. train was running and next east of it another track, and still farther east a switch track. Appellee’s business was that of a brick-laver, and he was employed east and north of the crossing ivhere the trains stop, thus requiring him to go east on Twenty-sixth street to Blue Island avenue, and northeasterly on Blue Island avenue to his place of business. Just north of the place of the accident two tracks of the Santa Fe road ran at right angles across the tracks of the Terminal and the C., B. & Q. Just north of the Santa Fe tracks is Twenty-sixth street, but there was no sidewalk on the south side of Twenty-sixth street. In the middle of Twenty-sixth street were two tracks on which electric cars ran east and west. At this Twenty-sixth street stopping place the Terminal Bail way Company had neither depot nor platforms. The ground between the tracks of the Terminal and the track of the Burlington was between five and seven inches below the level of the tracks and was composed of stone and sand. Apparently, each car of the two trains projected over the rails about fifteen inches. The distance from the step from which Schmelling alighted to the ground was between eighteen inches and two feet. The Terminal train going south overtook the C., B. & Q. train and passed it, but immediately began slowing up so that it had slowed up and stopped for the Santa Fe crossing while the O., B. & Q. train w-as passing it. When the Terminal train stopped and plaintiff alighted therefrom the C., B. &. Q. train was passing at considerable speed.
    Jesse B. Barton, attorney for appellant.
    Kickham Scanlan and Edgar L. Masters, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

The relation of carrier and passenger does not cease until the passenger has had a reasonable opportunity to leave the place where his journey ends and passengers are discharged. Elliott on Railroads, Sec. 1592.

Was appellee injured before he had, or in consequence of his failure to avail himself of such opportunity ?

It is said that he alighted upon the wrong side of the car; this may be, but he left the car by a way provided by appellant and without warning not to use it. If appellant did not wish to have him gét off as he did it should have forbidden his so doing. Penn. Co. v. McCaffery, 173 Ill. 169.

Appellant says:

“Appellant could have prevented appellee from going where he did go, by barring his exit from the east platform of the car, or by placing a barrier between its tracks and those of the O., B. & Q. or by giving him direct warning by words spoken or written. For all that appears in this case, either from the allegations of the declaration or > - the proofs, these things might have been done, and as it was upon appellee to allege and prove that they were not done it must be presumed they were done in the absence of such allegations and proof.”

We can not agree to appellant’s conclusion that “ it must be presumed ” these things “ were done, in the absence of . such allegations and proof.”

The alighting of appellee upon the cinder and stone covered ground upon which he stepped in getting off the car, did not terminate his relation as a passenger. He was then in a place wherein the distance between passing cars and engines would be from four and a half to five and a half feet. A very uncomfortable as well as dangerous position.

Appellant urges that he could have walked in safety thirty feet north to Twenty-sixth street and thus escaped injury. He might or he might not have so done without harm.

The ordinarily careful person remains as short a time as possible close to a railroad track along which trains are passing. The wind from the coming Burlington train might have thrown him off his feet; or a little swerving of . his body might have brought it in collision with car or locomotive.

The description of the situation did not impress court or jury below and it does not impress us as showing an exercise of that care for the safety of appellee which the law made it the duty of appellant to exercise.

He was a common laborer, but the duty to afford him a reasonably safe egress to a public street was the same as if he had been the President of the United States.

He was not injured by a train run by appellant but in his endeavor to escape from the insecure place in which appellant left him. There was a curve in the track of the C., B. & Q. road and neither Schmelling nor the man who immediately followed him out of appellant’s car saw the O., B. & Q. train until it was close upon appellee, and in his haste to get away from the dangerous spot upon which he alighted he stepped upon its right of way and was struck by its engine.

That the company whose passenger he was failed to discharge its duty to him we have no doubt. Whether he exercised ordinary care was a question for the jury, as to which the evidence is such that we can not say its conclusion is opposed to the preponderance of the evidence.

Complaint is made of the following instruction:

The court instructs the jury that if the plaintiff has proven all the material allegations of his declaration by a preponderance of the evidence, in manner and form as he has alleged them in his declaration, he is entitled to recover in this case.”

The instruction should not have been given. It is not the function of a jury to determine what are or what are not material allegations in a declaration. T., St. L. & K. C. R. R. Co. v. Bailey, 145 Ill. 159; Lumaghi v. Gardin, 53 Ill. App. 667.

The jury were, however, fully informed by other instructions as to what must be proven in order that the plaintiff might recover, notably the first, second, third, sixth, ninth, tenth, twelfth and thirteenth given at the instance of the defendant. The erroneous instruction was therefore productive of no harm and the judgment should be reversed because of it.

Finding no error requiring a reversal of the judgment it is affirmed.


author: Mr. Justice Adams

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    Mary E. Dean et al. v. Charles H. Baldwin et al.
    1. Corporations — Payment for Shares of Stock. — A resolution of the board of directors of a corporation to the effect that the company receive a formula for compounding dyes by a pretended process claimed by the discoverer to be known only to himself, in full payment for a large number of shares of stock, to be transferred to a third party, and for which such discoverer had paid nothing, is in law, if not in fact, a fraud on the company and on the stockholders who have paid in full for the shares held by them.
    2. Same — Subscriptions for Stock, How to be Paid. — The courts have inflexibly enforced the rule that payment of stock subscriptions is good as against creditors, only where the payment for such stock has been made in money or its equivalent.
    3. Same — Liability of Stockholders, How Measured. — As between a subscriber for stock or a stockholder and the corporation the market value of the stock is not an element affecting in any way the liability of the subscriber or stockholder to the corporation. Such liability is measured by the amount of the subscription for the stock at its par value, less any amount which has been paid upon it.
    Bill for Belief. — Appeal from the Superior Court of Cook County; the Hon. Elbridqe Hanecv, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed January 30, 1902.
    Statement. — November 21, 1900, appellants, Mary E. Dean and Francis S. Wilson, filed a bill against Charles H. Baldwin, George Gundling, Charles H. Sager, William Thompson and the Angel Dye Company, appellees. C harles H. Baldwin, Charles H. Sager and the Angel Dye Company demurred generally to the bill. The court sustained the demurrer, and appellants electing to stand by the bill, it was dismissed for want of equity. The following facts appear from the bill:
    The organization of the Angel Dye Company was completed by the recording "of a charter on April 14, 1899, the charter being issued by the secretary of state April 13, 1899. Prior to that time, about the month of November, 1898, one S. M. Angel" claimed to be the discoverer and inventor of a new dye for household uses which was the result of great elaborate research by him and his wife, and that the qualities were unknown to others and could only be produced by his formulae. In pursuance of his claim and for the purpose of testing same, on the 1st day of December, 1898, said S. M. Angel, Charles H. Sager and Harriet E. Peerstone, trustee, entered into an agreement in writing, which is made Exhibit A to the bill, which provided for a trial of the dyes, and if the parties should agree to the formation of a corporation for the manufacture and sale of said dyes, provided after the trial the parties should so wish to do, it was provided that Angel was to receive a certain percentage of stock, and he in payment therefor was to transfer to the corporation his formulas. Under this agreement the formulae were placed in escrow, to be kept secret and only known to said Angel; that thereafter it was finally agreed that upon the formation of the corporation Angel was to receive fifty shares of the capital stock fully paid up for his formulae. Some time thereafter, when it was decided to form a corporation, a license was procured from the secretary of state and books of subscription opened. Thereupon said S. M. Angel subscribed for fifty shares, for which he agreed to pay the sum of $5,000, such subscription reading as follows:
    “ We, the undersigned, hereby severally subscribe for the number of shares set opposite our respective names, to the capital stock of Angel Dainty Dve Company, and we severally agree to pay said company for each share the sum of one hundred dollars ($100).
    “ S. M. Angel...............50 shares.........$5,000.”
    That aside from said contract of subscription no other contract or understanding, written or verbal, was ever entered into between said company and said Angel, either as to his formulae, capital stock or his stock subscription, and no contract was made with said company that said Angel was to pay for said stock by the transfer to the corporation of the formulae.
    After the formation of the company said Angel commenced to work for it and to make in secret the household dyes which were sold by the company; that he received as full compensation for so doing a salary of $25 a week, which was the largest salary paid by the company, and as alleged in the bill, was greatly in excess of the value of his services or of the formulas to the company; that no contract was ever entered into between said company and said Angel, with reference to receiving his formulas for the payment of his subscription; still it was assumed or inferred by the parties that the contract heretofore mentioned, entered into between the parties some six months prior to the formation of the company, would be carried out by Angel and by the company, and acting on said assumption, when, on the 23d day of September, 1899, a partial distribution of stock was issued to the stockholders, to the amount that they had made payments in cash, in order that there might be no disagreement or discrimination, a certificate was issued to said Angel for fifty shares of stock of said company, as fully paid up, although at the time said company had received no compensation therefor, nor has the company ever received any compensation therefor, the said formulas during all said time remaining in escrow under the original agreement entered into prior to the formation of the company.
    Upon the expiration of the time, under the original contract, that the formulas were to remain secret and in escrow, said Angel, when called upon by the company to turn over said formulas, refused to do so, insisting that the contract made prior to the formation of the company had not been carried out by the parties thereto, but had been broken by them, he claiming the contract was terminated and no longer in existence; that, however, he was ready and willing to sell the formulae for a money consideration. The company considered said matter at an end, and terminated said employment of said Angel, and ceased all connection with said Angel, except that said Angel still retained said stock, for which the company had received nothing, and for which said Angel under his stock subscription had agreed to pay $5,000. The company thereafter proceeded to carry on its business and to manufacture the dyes without the use or aid of the formulas, and upon investigation found that the dyes could be made without the use of the formulas, and that the alleged new discovery of said Angel was a myth, and that the properties and characteristics of his dyes and the means and ways to produce them were well known to the dye trade, and the company had no trouble in securing information, without expense or cost to it, from the large dye manufacturers, as to the methods and ways of manufacturing household and package dyes, containing all the properties and characteristics claimed by Angel for his dyes, and further found upon investigation that the alleged secret invention and discovery of said Angel was no invention or discovery whatever, and that there was no merit or validity to his claim, as the same were well known to the dye world; that the only skill* or capacity the said Angel brought the business in the manufacture of the dyes, was his particular individual skill in selecting and testing dyes with reference to the production of particular shades and colors; that along said lines said Angel was an expert, by reason of the years of experience in the dyeing businéss, but that he had otherwise no other or greater information respecting dyes and their uses and properties, or as much, as many other men engaged in the dye business; that while the company did a fair business in the manufacture and sale of its dyes, the same, being a new product on the market, required a great deal of advertising and pushing, and an expenditure of a great deal of money, in consequence of which a large part of the capital stock of said company was used up; that thereafter, during the month of June, 1900, one George Gundling, who is made a party defendant to the bill, sought to purchase the Angel Dainty Dye Company, or a controlling interest therein; that said Gundling had numerous interviews with the stockholders of said company and with the" officers thereof, and came in touch with and negotiated with said Angel, with reference to the purchase of his formulas and the turning over of certificates of stock held by him; that the said Gundling at the time investigated the affairs of the said company and became acquainted with all the matters herein set forth, and of the exact status of all the affairs of the said company, and especially with reference to the dealings between said Angel and the company, and the contract made prior to the formation of said company by said Angel, and the parties hereinbefore mentioned; that at that time said Gundling stated that he had made an agreement with said Angel to purchase his said formula; for the sum of $300; that said Gundling, some time after he had been carrying on the investigation, called in as his counsel one Charles H. Baldwin, also made party defendant to the bill; that said Baldwin acquainted himself with the various matters hereinabove referred to, and read over and investigated said written contract hereinbefore set forth, entered into between said Angel and said Sager and Peerstone, ánd became and was acquainted with all the various proceedings with reference to said matters hereinbefore set forth; that thereafter, and some time during the month of September, 1900, the said Gundling became the owner of seventy shares of stock theretofore held by said Sager, and thereafter, on the first day of October, the said Baldwin, either as the representative of said Gundling, or in his own behalf, purchased from the said Angel his said formula; and paid therefor the sum of $300. At the same time said Angel transferred to said Baldwin his said certificate for fifty shares of the capital stock; that said Baldwin surrendered said certificate to the company and received a new certificate in his own name; that during the meantime, said Angel had resigned from the position of director of said company and said Gundling was elected to fill the vacancy. The board of directors then consisted of said Sager, Gundling and one Thompson. That on the 17th day of October, 1900, a meeting of the board of directors of the company was held and at said meeting said Gundling and Sager, constituting a majority of said board, passed a resolution whereby, in substance, it set forth and declared that the said Angel Dainty Dye Company receive from said Baldwin the said formulae for the manufacture of dyes, as full and complete payment for the said fifty shares of the stock so held by said Baldwin, and that transfer of said formulas to said company should constitute a full payment by said Baldwin of the subscription to the capital stock made by said Angel; that said resolution was passed under protest and objection of said Thompson, the other director of the company; that the said action of the board of directors was done by them with a full knowledge of all the conditions and matters hereinbefore set forth, and, as alleged, was in violation of the rights and interests of the complainants as stockholders in said company, and was done for the purpose of prejudicing the rights and interests of said complainants as stockholders of said company; that the said company was indebted in about the sum of $1,000; that all of the stock of said company other than the said fifty shares, had been fully paid up, and that therefore the only source, practically, from which said debts could be paid would be from said stock so held by said Baldwin; that all the said facts were well known to the directors of said company, and that the said resolution was passed by the said directors for the purpose of relieving the said Baldwin from the money justly due from him on his stock, and with the knowledge by the said directors that the said formulae had been purchased for a much less sum than $5,000, to wit, for the sum of $300, and with the further knowledge by the said board, that the said formulae and the use thereof in the manufacture of the dyes by said company were not necessary in the proper conduct and carrying on of the said business, and were not worth the said sum of $5,000, or anywhere near that amount.
    The bill prays for a rescission of the resolution passed by the board of directors October 17, 1900, and for an injunction against receiving the formulae mentioned in the bill in payment of the stock issued to Baldwin, etc.
    William Prentiss, attorney for appellants.
    So appearance by appellees.
   Mr. Justice Adams

delivered the opinion of the court.

It sufficiently appears from the bill that the pretended discovery and invention of Angel was no discovery; that what he claimed to have invented and discovered was well known to dye manufacturers before he claimed to have discovered or invented it; that he refused to turn over to the dye company the formulae for his alleged discovery, as he had agreed with the promoters, namely, in payment of stock for which he had subscribed, and which was issued to him and for which he paid nothing. It also appears that Baldwin, Gundling’s attorney, being acquainted with the status of matters as between Angel and the dye company, and knowing that Angel had paid nothing for the stock, purchased from Angel the useless formulae for the sum of $300, and that, thereupon, Angel transferred the fifty shares of stock of the nominal or par value of $5,000 to Baldwin. So far the dye company had received nothing for the Angel stock so transferred. It would seem, from the facts stated in the bill, that while Baldwin was the ■nominal purchaser of the formulae from Angel, and the assignee of the Angel stock, he, in fact, made the purchase for Gundling, and took the assignment of the stock for him, although in his, Baldwin’s, name. Gundling, as the bill avers, had, previous to the alleged purchase by Baldwin, informed stockholders and officers of the dye company that he, Gundling, had made an agreement with Angel to purchase his formulae for the sum of $300. The bill avers that Gundling was acquainted with the affairs of the company, and especially with the dealings between Angel and the company. All of the stock of the company was fully paid for, except the Angel stock. The bill avers that the formulae were not worth nearly $5,000, and substantially that they were valueless, and the very fact that the owner of the formulae, who, as the bill avers, was an expert in the dyeing business, and who, therefore, must have been well acquainted with the value of the formulae, sold them for $300, is evidence that they were not worth more than that sum, to say the least. In view of these facts, the resolution of the board of directors passed October 17, 1900, to the effect that the company should receive the formulae in full payment of the Angel stock, transferred to Baldwin, and for which Angel had paid nothing, was, in law, if not in fact, a fraud on the company and on the stockholders, who had paid in full for their stock. It was a fraud as to the corporation, because, if effective, it deprives it of a large amount of the capital on which it must rely for the carrying on of its business and the payment of its debts. It was also a fraud on other stockholders or subscribers for stock. Melvin v. Lamar Ins. Co., 80 Ill. 446.

In that case there was a subscription for 5,500 shares of stock, but there was a private arrangement between the subscribers and the company, by which the subscribers might, subsequently, surrender their shares and withdraw from the company all money paid by them. The court held this arrangement invalid, saying:

“All subscriptions are presumably upon the same basis, and all shares entitled to the same benefits and subject to the same burdens. In the subscription of each person every other subscriber has a direct interest. There purported here to have been a large amount of stock taken, whereas, in fact, there was really no stock taken — the issue of the shares to Cushman and Hardin being coupled with the right on their part to surrender them and take back their money. Such a private arrangement with an individual subscriber, although it may not be intended, is, in law, a fraud upon the other subscribers, and such agreement will be disregarded, and the party be held bound to all the responsibilities of a bona, fide subscriber. This is the doctrine, as we regard, abundantly established by judicial decisions.” Ib. 456-7.

In the present case the subscription for the Angel stock was absolute and unconditional, and the corporation could not legally receive in payment of the stock anything except money to the amount of its face value or property which the corporation might lawfully possess and use, and of value equal to the face value of the stock, at a fair estimate. Coleman v. Howe, 154 Ill. 458; Sprague v. Nat. Bank of America, 172 Ib. 149; Nat. Bk. of America v. Pac. Ry. Co., 66 Ill. App. 320.

In Coleman v. Howe, supra, the court say:

“ But if the property contributed is not valued in good faith, the shares of stock will not be fully paid up, either in law or fact, bv the contribution of such property. A declaration by the corporation that the shares are paid up will not avail against the creditors in case of insolvency. (2 Morawetz on Priv. Corp., Sec. 825.) The courts have inflexibly enforced the rule, that payment of stock subscriptions is good as against creditors only where payment has been made in money, or what may be fairly considered as money’s worth.’ (Wetherbee v. Baker, 35 N. J. Eq. 501.)”

In 2 Horawetz on Priv. Corp., Sec. 825, this language is used:

“ A contribution of property or services by a shareholder Avould undoubtedly discharge his obligation to creditors, in respect of the amount of capital to be contributed by him to the extent of the value of the property or services; and if the property or services so contributed Avere valued by the agents of the corporation, in good faith, at-a certain sum, creditors would be bound thereby, though the valuation may prove to be excessive. However, if property or services contributed by a shareholder to pay up his shares were not valued in good faith at the amount of capital to be contributed in respect to the shares, they Avould not be fully paid up by such contribution, either in fact or in law.”

It is clearly contemplated by the general incorporation law, that subscriptions for stock shall be in good faith and for the par value of the stock. Statutes, C. 32, Sec. 7.

As between a subscriber for stock, or a stockholder, and the corporation, the market value of the stock is not an element affecting in any Avay the liability of the subscriber or stockholder to the corporation. The liability of a stockholder is measured by the amount of the subscription for the stock, at its par value, less any amount Avhich has been paid on it. This is illustrated by numerous decisions. 1 IVlora-Avetz on Corporations, 2d Ed., Sec. 56.

The amount of the subscription for the Angel stock Avas $5,000, namely, fifty shares of the par value of $100 each. Baldwin, the assignee of the shares, Avith full notice that they were not paid for, stands in Angel’s shoes, or G-undling, if he is the real owner of the shares, is in like position.

The facts averred in the bill show that the resolution of October 17,1900, was passed by the vote of two directors, Gundling and Sager, the only other director, Thompson, protesting. The wrong-doing directors being a majority of the board of directors, the rule is that stockholders may file a bill. Bruschke v. Chicago S. Verein, 145 Ill. 433, 445.

It was error to sustain the demurrer and dismiss the bill, and the decree will be reversed and the cause remanded.