Gregg v. C. M. Barnes Co.

110 Ill. App. 238, 1903 Ill. App. LEXIS 614

• Court: Appellate Court of Illinois
• Decided: October 30, 1903
• Status: Published

Opinion

Mr. Justice Stein

delivered the opinion of the court.

The correctness of the schedule of assets is attacked in respect of the plant only; the schedule giving it, consisting of the real estate, machinery and fixtures, a total value of $18,000, whereas, according to the proof it was worth §10,000. Deducting the difference, $8,000, from the total assets, there would still -be left as assets $00,800, and if from this we' further deduct $35,000 of liabilities instead of the $12,000 scheduled, the boiler company, having a surplus of $25,800 over all debts and liabilities, would still be largely solvent at the time of the making the representations.

Under the proof there can be no doubt that the boiler company was hard pressed for ready money to meet its maturing liabilities, and that appellant, as its president, was fully aware of this condition. The gravamen of the declaration, however, is the charge of fraud; and in that respect the proof is not clear. True, appellant made some statements concerning the financial status- of his concern and seemed unwilling to show its books of account; nevertheless, after making all proper allowance it was worth $25,800, a considerable sum of money, which would render any necessity for a resort to fraud apparently improbable. Had such been his aim and motive, he would likely have converted into cash, even at a great sacrifice, the three notes which he had obtained from appellee, and would not have returned to it the one for $1,000 which he did not succeed in getting discounted at the bank. To say the least, the evidence to prove fraud is doubtful and un satisfactory, and we are the more constrained to reverse on account of an incident which happened during the closing argument of appellee’s counsel, and which may have materially influenced the deliberations of the jury.

Counsel said:

“ The fact that the court did not take this case from the jurv at the request of defendant’s 'attorneys indicates that "there is sufficient evidence that the Standard Boiler Company was insolvent. If there was not sufficient evidence it would have been the duty of the court to take the case from the jury.”

“ Mr. London : I object to the statement and move it be stricken out.”

“ The Court: You may have an exception.”

The record then shows an exception in due form to the ruling of the court.

It is now insisted that there was ho ruling to except to; that it was appellant’s duty to obtain one, and not having done so he is not in a position to urge error. This contention is untenable. When the court said “ You may have an exception,” it in effect overruled the objection of counsel to the statement and his motion to strike it out. Trial courts do not always formally rule upon an objection, nor is there any necessity therefor. It is sufficient if they dispose of it in some wa}7, whether formall}7 or informally. It would be unseemly for counsel to insist upon a formal ruling after the court had in its opinion already disposed of the objection, and courts of review should not apply narrow, but liberal rules of construction in ascertaining the meaning of the record in matters of this character.

We are of opinion the remarks of counsel were objectionable and should have been stricken out. The refusal of the court to do so was equivalent to an approval of them and very likely operated upon the jury to the harm of appellant because it prevented them from giving to the evidence that free, unbiased and unprejudiced consideration to which appellant was entitled.

The judgment appealed from is reversed and the cause remanded.