C.H. Albers Comm'n Co. v. Sessel

• Decision Date: 18 December 1901
• Citation: 193 Ill. 153,61 N.E. 1075
• Parties: C. H. ALBERS COMMISSION CO. v. SESSEL.
• Court: Illinois Supreme Court

193 Ill. 153

61 N.E. 1075

C. H. ALBERS COMMISSION CO.

v.SESSEL.

Supreme Court of Illinois.

Dec. 18, 1901.

Appeal from appellate court, Third district.

Action by C. H. Albers Commission Company against Marcus Sessel, executor of the estate of Peter J. Hendgen, deceased, on a claim against the estate of defendant's decedent. The claim was allowed in the county court, but disallowed in the circuit court. From a judgment of the appellate court (87 Ill. App. 378) affirming the judgment of the circuit court, plaintiff appeals. Affirmed.

Joseph S. Lawrie, for appellant.

E. W. Hayes and Bell & Burton, for appellee.

WILKIN, C. J.

This litigation arose in the county court of Macoupin county on a claim filed by appellant against the appellee as executor of Peter J. Hendgen, deceased. The claim was in the form of an account for moneys advanced and commissions earned in the purchase and sale of grain by plaintiff from and to third parties for the deceased during his lifetime, as his agent and under his directions, to the amount of $1,743.03. The claim was allowed in the county court, but on appeal to the circuit court by the executor it was disallowed, and judgment given for the defendant for the costs of suit. That judgment having been affirmed by the appellate court for the Fourth district, the claimant prosecutes this appeal.

The appellee executor has filed cross errors questioning the ruling of the circuit court in admitting certain depositions in evidence over his objection. The same cross errors were assigned in the appellate court, but there overruled.

The only evidence offered in support of the claim in the circuit court was in depositions. C. H. Albers, president of the claimant company, a corporation organized under the laws of the state of Missouri, and a stockholder in that company, testified that he was personally acquainted with the deceased during his lifetime, and had knowledge of the dealings by the company on his account; that the balance stated was due and unpaid; that he rendered an account to Hendgen, who admitted that it was just and correct, but claimed that he was unable to pay the same in full at once, as he was without means, and dependent entirely for a living upon his earnings as an insurance broker or agent, in which business he was engaged in the city of St. Louis, but agreed to pay what he could as he could, and proposed to the witness to deduct his commissions from insurance on grain placed by him for the company, and let the same be credited upon said indebtedness from time to time; that this proposition was accepted, and thenceforth, from time to time, up to the date of the last credit, January 8, 1894, Hendgen made such payments out of his commissions, and the same were credited on the indebtedness. He also testified that he took the deceased at his word when he stated he had no means, and knew nothing to the contrary until after his death, when he learned he had left an estate in Illinois. The bookkeeper of the claimant company, also a stockholder in the company, in his depositiontestified to substantially the same facts and to conversations or statements made by the deceased during his lifetime; also the deposition of a salesman of the corporation, William P. Hazard, likewise a stockholder in the company. These depositions were taken in the city of St. Louis some time prior to the hearing upon the claim in the county court, counsel for the executor being then present, but making no objection to the competency of the testimony. Upon the trial in the circuit court, upon the offer of the claimant to introduce those depositions, appellee objected upon the ground that each of said witnesses was incompetent to testify in the cause because each was a stockholder of the claimant corporation, and defendant was executor of the last will of the deceased, Hendgen, but the court overruled the objection, and permitted the depositions to be read to the jury.

Section 2 of chapter 51, entitled ‘Evidence and Depositions' (2 Starr & C. Ann. St. 1896, p. 1824), provides: ‘No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section [being section 1], when any adverse party sues or defends as the trustee or conservator of any idiot, * * * or as the executor, administrator, heir, legatee or devisee of any deceased person, * * * unless when called as a witness by such adverse party so suing or defending.’

We have held that stockholders in a corporation are interested within the meaning of this section of the statute, and are incompetent to testify against the representatives of a deceased party in their own behalf. Thrasher v. Railroad Co., 25 Ill. 393;Machine Co. v. Keifer, 134 Ill. 481, 25 N. E. 799,10 L. R. A. 696, 23 Am. St. Rep. 688. In fact, it is conceded by the parties that neither of the above-named witnesses was competent to testify in this case, and that the admission of their testimony would have been reversible error but for the fact, as is claimed, that the objection was waived by a failure to urge it upon the taking of the depositions; and in support of this contention Moshier v. Knox College, 32 Ill. 155;Frink v. McClung, 4 Gilman, 569;Kelsey v. Snyder, 118 Ill. 544, 9 N. E. 195;Kassing v. Mortimer, 80 Ill. 602; and Cooke v. Orne, 37 Ill. 186,-are relied upon. It will be found, however, upon an examination of these cases, that the last two are not in point, and that in the first two the question arose between living parties as to a common-law incompetency of the witnesses, which could have been removed by other evidence, or by the act of the witness releasing his interest. Kelsey v. Snyder was a bill against the administrator of an estate and the heirs of the intestate to declare and enforce a resulting trust in the deceased, and it was there held that the...