Bishop v. American Preservers' Co. , 157 Ill. 284 ( 1895 )

Mr. Justice Magruder

delivered the opinion of the court:

Upon the trial of the case below, the plaintiff, the appellee here, introduced in evidence a certificate of incorporation, signed by the Secretary of State of West Virginia and dated June 20, 1888, declaring six corporators therein named to be a corporation by the name of “American Preservers’ Company;” and also a bill of sale, executed on July 24, 1888, by the appellant to said company, granting to it, in consideration of the transfer to him of 831 shares of its stock, the goods, effects and chattels described in an annexed schedule, and his business and the good will of the same, with the appurtenances. The plaintiff then examined one B. E. Ryan, the secretary and general manager of said company, and who was also the secretary of the “American Preservers’ Trust” and one of the trustees of said trust. Ryan testified that he made demand upon appellant for the property before bringing this suit; that he received the bill of sale from appellant and delivered to him a certificate for 331 shares of the stock of said company, but, at the same interview and “within an hour or two,” took back said shares and delivered to appellant 662 certificates of trust of the “American Preservers’ Trust;” that as secretary of the company he delivered the 331 shares of stock; that as secretary of the trust he delivered the trust certificates; that he received back the 331 shares of stock as an officer of the trust; and that, at the same interview and upon receipt of the bill of sale, he then and there appointed appellant manager and custodian of the property described in the bill of sale, with directions to conduct the business and report to him, Ryan, all the purchases and sales and receipts and disbursements. After the examination of Ryan, the plaintiff rested.

The defendant then offered to introduce evidence, oral and written, tending to sustain the averments of his fourth plea. Some of this evidence was rejected when offered, some of it was admitted when offered, but all of it, upon motion of the plaintiff, was finally ruled out, and the jury were instructed to find the issues for the plaintiff. We cannot notice all the objections to specific offers of testimony, nor pass upon the rulings of the court in detail. We deem it sufficient to consider the general ground upon which the action of the trial court was based, and the general theory, which the defendant sought to - maintain by his offered and rejected testimony.

The court below seemed to take the view, that the plaintiff was an independent and legally organized corporation, and that, as the defendant had executed a bill of sale of his property and business to that corporation, and then assumed to act as its custodian and agent in the management of the property and business, he was estopped from denying the plaintiff’s title or right of possession.

On the other hand, it was claimed by the defendant below, that a combination was formed among all the manufacturers of and dealers in fruit butters, jellies, preserves and like products in the United States under the name of the “American Preservers’ Trust,” for the purpose of controlling the manufacture and sale of said products, and preventing competition therein, and raising the market price thereof, and thereby securing a monopoly therein; that this combination was organized, and sought to effect its purpose, under and in pursuance of a written agreement signed by the parties to the * combination; that the plaintiff company was formed in accordance with the provisions of this agreement and for the purposes of accomplishing the objects of the trust; that those objects were illegal and against public policy; that the agreement was illegal and void, as providing for a combination in restraint of trade in staple articles of food in general use and demand by the inhabitants of Illinois; and that the transfer of defendant’s goods and machinery and business by means of a bill of sale to the plaintiff, and the delivery of the shares of stock to defendant, and the re-delivery thereof to the trustees of the combination in exchange for trust certificates, and the appointment of defendant as custodian of the property and agent to carry on the business theretofore exclusively his own, were all parts of the illegal scheme and aids in the accomplishment of the unlawful objects of the trust.

We are inclined to think that the claim thus made by the défendant, and which is set up in his fourth plea, would have constituted a good defense to the action, if he had been allowed to establish it by proper evidence.

First — A preliminary question arises as to the action of the trial court in excluding the offered copy of the trust agreement. The original agreement was not in the possession of the defendant, and it is claimed that a proper foundation was not laid for the introduction of secondary evidence. Proof of the contents of a document may be established by secondary evidence when it is in the possession of the adverse party who withholds it at the trial, provided that a notice to produce the original has been duly served where such notice is requisite. <1 Taylor on Evidence, part 2, sec. 440; 21 Am. & Eng. Ency. of Law, pages 984, 985). Secondary evidence may be offered to prove the substance of a document which it is out of the power of the party to produce; and this rule applies to papers out of the jurisdiction of the court, provided due effort be made to obtain such papers. (1 Wharton on Evidence, sec. 130; 21 Am. & Eng. Ency. of Law, page 986). The notice to produce the original may be given either to the adverse party himself or to his attorney. (21 Am. & Eng. Ency. of Law, page 989).

In the case at bar, notice to produce the original agreement and the by-laws of the company and of the trust was served upon the attorneys of the plaintiff, including Mr. A. L. Weil hereinafter named. Subpoena duces tecum was also served upon Ryan, the secretary and manager of the company and secretary and manager of the trust, and upon A. R. Bremer, president of the company and one of the trustees of the trust. Ryan swears, that he was present and saw the defendant, Bishop, sign the trust agreement, and that, after it was signed, it was put into the hands of “the custodian of the agreement, the solicitor of the trust, A. Leo Weil, this gentleman here,” and that he saw it within a day or two thereafter. Weil, a resident of Pittsburgh in Pennsylvania, where the principal office or place of business of the plaintiff was required by its charter to be kept, and whose name was signed to the replications as one of the plaintiff’s attorneys, and who assisted in the conduct of the trial, was examined as a witness at the trial, and swore, that Bishop signed the agreement; that there were two copies of the agreement; that one was deposited with a safe deposit company in Pittsburgh; that the other was in his possession in accordance with the terms of the agreement; that the trust had been dissolved; that a large number of papers had been left in Pittsburgh when it was dissolved; that he had caused search to be made in his office at Pittsburgh to obtain these papers and had been unable to find them; and that the by-laws were attached to the trust agreement. Ryan and the defendant do not speak of more than one original agreement as having been signed by the defendant, but, if there was a duplicate original, it sufficiently appears that both were within the control of Weil, who drew the agreement, and was the legal adviser and solicitor both of the plaintiff and of the trust, in which plaintiff was an associate member.

Prior to the trial a bill in chancery had been filed by one Meyer in the circuit court of Cook county against the president and secretary of the plaintiff, Bremer and Ryan, and other parties, setting up the trust agreement, and Ryan had filed an answer thereto, admitting the existence of the trust agreement in words and figures as pleaded in the bill. The defendant below, upon the trial, offered in evidence the said bill and answer, as showing a copy of the trust agreement which had been admitted to be correct by the plaintiff, or its officers and managers. This copy was shown to the defendant when he testified, and he swore that he signed the original agreement in the latter part of May, 1888; that Ryan and Weil were present; that he “never saw it but that once;” that, when he saw it, it was lying'on the table, and Ryan was very particular about it, and (“I think”) took it in his hands; that they would not let him make a copy of it; that he could not compare any copy of it with the original without having the original, and never had the original except at that time; that he read it through, but there was a great deal of it, and he could not remember its entire language; that the copy shown him, set out in said bill, “is a copy of the agreement I signed as near as I can tell.” It furthermore appears from the testimony of Mr. Weil, that during the trial he had a copy of the trust agreement in his possession which he had found in the office of the plaintiff company, but he declined to produce it.

We are referred by counsel for appellee to the case of Dickinson v. Breeden, 25 Ill. 186. There, it was held, that, where a party, desiring to introduce secondary evidence of the contents of a deed, had knowledge of the grantee’s residence, the latter’s deposition should be taken to prove the existence of the original, and that it was lost, or so mislaid that it could not be found after diligent search. We cannot see why the facts of the present case do not bring it within the doctrine of the Breeden case.The existence of the original trust agreement was established by the testimony of three witnesses; and the original draftsman of the agreement and the custodian to whose possession it had been entrusted, was examined orally as a witness, and swore that he had caused search to be made for it, and that .it could not be found. But if the evidence was not conclusive-as to the loss or destruction of the original, the defendant showed that it was beyond the jurisdiction of the court and in the possession or under the control of the plaintiff, and that the latter, after being notified, declined to produce it. We are, therefore, of the opinion that the trial court erred in not receiving in evidence the offered copy, if it would have been material testimony when introduced.

Second — It is contended, however, by counsel for appellee, that, “even had a proper foundation been laid and proper secondary evidence of the alleged trust agreement been offered, its reception would have established no material fact, and its rejection was not error.” Hence, the next matter presented for consideration relates to the pertinency or materiality of the agreement, and of the other excluded evidence offered in connection with it.

There can be no doubt, that this trust agreement is an illegal contract as providing for such a combination in restraint of trade as is forbidden by public policy.

In Craft v. McConoughy, 79 Ill. 346, where certain firms made an agreement, by the terms of which they attempted to form a combination for stifling competition and controlling the price of grain, cost of storage and expense of shipment, and thereby monopolizing the entire grain trade of the town and surrounding country, we said: “That the effect of this contract was to restrain the trade and commerce of the country, is a proposition that can not be successfully denied. We understand it to be a well settled rule of law, that an agreement in general restraint of trade is contrary to public policy, illegal and void.”

In People ex rel. v. Chicago Gas Trust Co. 130 Ill. 268, we held, that an agreement, tending to prevent competition and create a monopoly, is void by the principles of the common law, because it is against public policy; and that public policy favors competition in trade to the. end that its commodities may be afforded to the customer as cheaply as possible, and is opposed to monopolies, as tending to advance market prices to the injury of the general public.

Again in More v. Bennett, 140 Ill. 69, we held that contracts restraining the freedom of trade, or diminishing competition, or regulating the prices of commodities or services, are prohibited by the law; and that all combinations of capitalists or of workmen for the purpose of influencing trade in their especial favor by raising or reducing prices are so far illegal, that agreements to combine cannot.be enforced by the courts. To the same effect are Case of Monopolies, 6 Coke, pt. 11, p. 84; Arnott v. Coal Co. 68 N. Y. 559; Morris Run C. Co. v. Barclay C. Co. 68 Pa. St. 173; Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Mill and Lumber Co. v. Hayes, 76 Cal. 387; American Preservers’ Co. v. Taylor Manf. Co. 46 Fed. Rep. 152; 9 Am. & Eng. Ency. of Law, pages 884, 895, 896.

The agreement recites, that it is designed by its signers to form a trust for the purpose of securing cooperation in the business of manufacturing preserves, etc., and of selling and dealing in the same in home and foreign markets. This co-operation, to be secured through the extraordinary powers conferred upon the nine trustees named in the agreement six of whom are designated by name and authorized to elect three others, could not result otherwise than in a grinding monopoly, controlling all trade in the business specified, and raising or depressing prices therein at the will of the trustees. Such trustees are empowered to organize corporations with all or any of the powers specified in the purposes of the agreement; and the stock of such corporations is to be issued to or purchased by said trustees. For this stock the trustees are to issue certificates of trust. The agreement is to go into effect within sixty days from the time those, holding the majority of the stock in seven specified corporations formed or to be formed, shall transfer the same to the trustees. Each signer of the agreement agrees to assign and transfer to said trustees absolutely all the shares, which he may own in said corporations formed or to be formed, and is to receive therefor, not money, but trust certificates, equal to the appraised amount of the earning capacity of his stock as fixed by the trustees and the stockholder. The trustees are authorized to purchase in the same way, by the issue of trust certificates, other stocks of the same companies, and also the property and business of any firm or individual engaged in the business of manufacturing and dealing in said products. The trustees are to exercise supervision over the corporations whose stocks are transferred to them, and are empowered to élect themselves directors and officers in such corporations, and procure such management of the same as will be conducive to the interests of the holders of the trust certificates. These trust certificates are divided into shares of the par value of §100.00 each, and are prepared by the trustees. They provide, that the holders thereof, shall be bound by the terms of the trust agreement and of the by-laws passed in pursuance thereof, and are intended to show the interest of each beneficiary in the trust. The trustees hold the stocks transferred to them in trust for the holders of the certificates, and are to receive and hold the dividends or interest upon said stocks, and are to distribute the same by declaring dividends upon the certificates. The stocks so transferred to the trustees are to be held by them for the benefit of all the owners of the trust certificates. The trust is to continue for twenty-five years, subject to the right of 75 per cent of the holders of the certificates to terminate it after the expiration of one year, and of 65|- per cent of such holders to terminate it at the end of five years; and the trustees can not sell or surrender any of the stocks held by them during the continuance of the trust, without the consent of a majority in number and value of the holders of the trust certificates.

It will thus be seen, that the agreement in question makes provision for welding together all the interests, , engaged in the business named in the agreement, into one giant combination or partnership under the absolute dominion and control of a board of nine trustees. Its illegal purpose is apparent upon its face, and, therefore, under the decisions above referred to, it must be held to be void as being injurious to the public interest.

The object of the testimony of the defendant, upon the trial below, was to show that the plaintiff, the American Preservers’ Company, was a party to this illegal combination, and that the execution of the bill of sale to it was to enable it to carry out the unlawful designs of such combination. If this testimony as offered had been received, it would have tended to show, not only that the plaintiff company was under the control of this board of trustees, but that it was in a partnership with other corporations. The corporators named in plaintiff’s charter and whose names are signed to the agreement therein set out, upon the basis of which they were declared to be a corporation, were trustees in the trust. The court below ruled out testimony, showing that these trustees held stock in more than a dozen different corporations in the different States of the Union, besides the stock in the plaintiff company transferred to it by the defendant and others. 'The agreement was illegal as providing for a partnership among corporations. It is a violation of law for corporations to enter into partnership. The provisions of the general Incorporation act'of Illinois are to the effect, that every corporation organized in this State must manage its own affairs separately and exclusively, and cannot enter into any contract or relation, by which it is divested of such power of exclusive management, or by which its franchises are vested in a partner or any outside board, with equal power to direct its business. (Whittenton Mills v. Upton, 10 Gray, 582 ; People v. N. R. S. R. Co. 121 N. Y. 582). The appellee here, a foreign corporation, so far as it was doing business in this State through any control which it assumed to exercise over the business transferred to it by appellant, was subject to the same restrictions and duties as corporations formed in this State, and could have no other or greater powers. (1 Starr & Cur. Stat. page 619, chap. 32, sec. 26). It was, therefore, unlawful for it to be operating in this State as a member of a partnership of corporations. (State v. Nebraska Distilling Co. 29 Neb. 700 ; Mallory v. Oil Works, 86 Tenn. 598; People ex rel. v. Chicago Gas Trust Co. supra).

But it is urged that, even if the trust agreement was illegal in the respects and for the reasons above indicated, yet its illegality could not prevent a recovery in this action of replevin for the alleged reasons, that the motive of parties forming a corporation cannot be inquired into in a collateral proceeding; that the contract' evidenced by the bill of sale was an executed one; and that defendant having received the goods as agent of the plaintiff could not assert a claim adverse to his principal.

It is not necessary to discuss the doctrine contended for by appellee, that, where a corporation, as indicated by its articles of association, is legal, and the incorporation is effected in the manner prescribed by law, the intention of the corporators is immaterial. The purpose of the offered testimony was to show, that the sale made to the appellee was an illegal sale, and that the bill of sale, upon which appellee relied to show its title and right of possession, was executed to accomplish an unlawful object. Such proof was entirely consistent with the defacto existence and legal organization of appellee as a corporation. Appellant offered to prove, that he was compelled by Ryan to sign the trust agreement in May, 1888, by the threat, that his business would be ruined by the manufacturers and dealers who had agreed to form the trust; and he swore that he had never heard of appellee until the following July, when Ryan came to him and told him that he must sign the bill of sale to the company, in order to put the stock into the trust. It may be a serious question, whether there was any real sale of the property described in the bill of sale. A sale presumes a vendor on one side and a vendee on the other, each having life and existence and the power and ability to contract, and each acting independently and of his own free choice. But here the vendor, Bishop, and the vendee, the American Preservers’ Company, were controlled and directed by an outside force, the trustees named in the trust agreement acting through Ryan, their representative. Ordinarily, the vendee becomes owner and does what he pleases with his own, but, here, the trust agreement in effect directs the vendee upon what terms it shall hold the property transferred to it, and limits the further sale of the same. Ordinarily, the vendor fixes the price of what he sells, but, here, the trust agreement virtually leaves the fixing of the value of what is sold to the trustees. The proof introduced showed, that appellant had nothing to do with arranging for 331 shares of stock in the appellee company as the value of his property and business, nor did he determine that 662 certificates of trust were a fair equivalent for the stock. All this was settled and arranged beforehand by Ryan. (People v. N. R. S. R. Co. supra).

But if it be assumed, that appellant executed the bill of sale and submitted himself to the control of the trustees, or of appellee, voluntarily and of his own free will, then it follows that he was particeps criminis with them in the unlawful venture. He, as well as appellee, was a party to the unlawful contract evidenced by the bill of sale. If appellee had been an individual, instead of a corporation, and appellant had executed the bill of sale for the purpose of defrauding his creditors, it will not be contended that the bill of sale could be relied upon as a basis of recovery by either party.

In Kirkpatrick v. Clark, 132 Ill. 342, the action was ejectment by the grantee in a deed against the grantor therein, who was in possession of the premises. The defendant offered to show, that the deed had been executed for the purpose of defrauding the defendant’s creditors, but the evidence was rejected, and we reversed the case holding that the ruling was erroneous. In that case, we applied the maxim in pari delicto potior est conditio defendentis et possidentis, and held that, where parties concerned in illegal agreements are in pari delicto, the law will not aid either, but will leave them without remedy against each other; and it was also there held, that the above maxim applied to executed transactions as well as to those which are executory, and would be enforced by courts of law as well as courts of equity. “Whatever the parties to an action have executed for fraudulent or illegal purposes, the law refuses to lend its aid to enable either party to disturb.” (Smith v. Hobbs, 10 Me. 71). See also Craft v. McConoughy, supra, and Halloran v. Halloran, 137 Ill. 100.

In the case at bar, the appellant never parted with the possession of the property. After he executed the bill of sale, he still continued his business the same as before, though subject to the orders and direction of the trust. The beginning of the action of replevin admits his possession, as replevin does not lie against one not in possession. (Wells on Replevin, 77; Hall v. White, 106 Mass. 599). We see no reason why the doctrine of the' Kirlcpatriclc case does not apply here, although the action is replevin and not ejectment, and although the property involved is personalty and not real estate. The bill of sale rests under the ban of the law, as well when executed to carry out the illegal agreement hereinbefore set forth, as if it had been made for the purpose of defrauding creditors. The law will not aid the appellee to recover the property, but will leave both it and appellant where they were when the suit was begun.

Counsel for appellee claim, that, by the bill of sale, appellee became the owner of the property and then turned over the possession of it to appellant under an arrangement by which the latter was to manage it for appellee. Under this view of the case, the agreement, thus made after the sale, was as unlawful as the contract embodied in the bill of sale itself, because appellant thereby agreed to aid in carrying out the illegal purpose of the trust agreement. Letters from Ryan to appellant were introduced in evidence but finally excluded by the court, directing appellant to advance the price on jellies in Chicago so many cents; not to sell at lower prices without referring the matter to him (Ryan); not to offer any goods in Indiana; not to go below a certain price, “but in competition with outsiders * * * not (to) hesitate to make any price that will do the business;” to send schedules of the stock on hand and estimates of the fruit needed for the season; how to charge paper given and received in the course of business; and how to make entries on the books, etc. These letters, and other offered proof, showed that appellant was holding the property and managing the business under the direction of the trust and under the instructions of its secretary.

The general rule of law is, that a contract made in violation of a statute is void, and that, when a plaintiff cannot establish his cause of action without relying upon an illegal contract, he cannot recover. (Miller v. Ammon, 145 U. S. 421; Penn v. Bornman, 102 Ill. 523; Comrs. of Drainage District v. People, 138 id. 87). In Shaffner v. Pinchback, 133 Ill. 410, we held that, where two persons contribute money to be used by one of them for the purpose of betting or wagering the same on horse races, or if they are partners in the business of betting on horse races, and the money advanced by the plaintiff to the defendant is in furtherance of such business, the plaintiff cannot recover of the defendant any money so contributed or advanced, upon the ground that betting money on a horse race is gaming and in violation of law, and a contract in aid of the offense of gaming is prohibited by statute and void, and no recovery can be had on it; and we there said, that plaintiff and defendant, being jointly engaged in a business which was in violation of law, “were, in respect to such business, in pari delicto, and the law will refuse its aid to assist either, but will leave them in the positions in which they have placed themselves.”

Cobbey in his work on the Law of Replevin (sec. 149) says: “One who has parted with his property under a contract which is against public policy cannot maintain replevin for it. The law will leave the parties in the situation in which they have placed themselves.”

In Stout v. Watson et al. 19 Ore. 251, the action was replevin, and the plaintiff relied upon a bill of sale in the nature of an assignment, which was void under the statute as not being for the benefit of all the creditors; and the court held, that a motion for a non-suit, made by the defendant at the close of plaintiff’s evidence, was improperly disallowed, because' the plaintiff had no other evidence of title to the property in controversy except the bill of sale, which had been executed in violation of the statute, or contrary to its provisions, and was therefore void.

In Hutchins v. Weldin, 114 Ind. 80, the action was replevin to recover possession of a horse; plaintiff claimed that he was the owner and entitled to the possession of the horse, and that the defendant had possession of it without right, and unlawfully detained it; there was evidence authorizing the jury to find, that the plaintiff, by an executed contract, had parted with his title to and right to the possession of the horse, but that the contract, although fully executed by the parties thereto, was contra bonos mores and void as against public policy; verdict and judgment below were for the defendant, and the Supreme Court of Indiana, in affirming the judgment, said: “The law in such a case will leave the parties just where it finds them. If the contract has not been executed, it will not be enforced; if it has been executed, the law will not extend relief. Where a contract void as against sound morals or public policy has been fully executed by both parties, and suit brought under, upon or against such contract, potior est conditio defendentis.”

When the issue in an action of replevin is one of title, the plaintiff must prove a title, on which he can base a lawful possession. (20 Am. & Eng. Ency. of Law, page 1054).

As to the claim that the relation of agent and principal existed between appellee and appellant, we do not think that the existence of snch a relation, if it had been found by the jury to exist, would authorize a recovery by appellee, if the facts offered to be proven by the defendant had been established by his evidence. It may be admitted to be true, as a general principle in the law of agency, that the agent may not dispute his principal’s title; but there are exceptions to this general principle. (Mechem on Agency, sec. 525). The law will not enforce the performance of an agency, which has for its object, or tends directly to promote, the commission of an illegal act, or an act opposed to public policy, such as the creation of fictitious and unnatural values, or the control or monopoly of traffic in the staple articles of commerce, or the prevention of free and natural competition therein. Ordinarily in such case it will assist neither party. (Mechem on Agency, secs. 20, 35). In illegal transactions prohibited by law, or morals or public policy, an agent cannot recover either for his services, or for his advances and disbursements, nor will the law assist the principal to recover his property or its proceeds. The guilt of both is deemed to be equal, and the maxim is, in pari delicto potior est conditio defendentis. “Bach party is left precisely where he is found at the time of the controversy to bear the burden of his own abandonment of his duty to the law of his country.” (Story on Agency— 8 ed. — secs. 195, 330, 344).

In Samuels v. Oliver, 130 Ill. 73, where it appeared that a principal had employed an agent to buy and sell grain with the illegal purpose of controlling the market and price thereof, and this fact was known to the agent, we held, that such principal would not be permitted to recover against the agent for moneys received by him in the course of such business; and it was there said: “When the employment of an agent relates to the performance of an immoral or illegal act, * * * neither party can make the contract the basis of a suit against the other. Advances for illegal purposes fall within the same rule, and cannot be recovered by the principal of the agent, or the agent of the principal.”

There are cases, which hold that, if the contract is founded on a new consideration, although in relation to property respecting which there had been unlawful transactions between the parties, it will not be regarded as unlawful. If the promise be unconnected with the illegal act and founded on a new consideration, it will not be tainted by the act. For instance, a principal may recover from his agent money paid to the agent by a third person from whom such money may have been due to the principal upon an illegal transaction, because the contract of the agent to pay the money to the principal is not immediately connected with the illegal transaction. But the law will not assist the principal to recover against the agent, where the contract between them grows directly out of the illegal transaction, and the agent has been concerned in the execution of the illegal transaction and participated in it. The maxim above quoted has application as between the immediate parties to an illegal contract. Here, the offered testimony was for the purpose of showing, that the agent aided and assisted the principal in carrying out the objects of the illegal combination, and was a party to the contract of sale executed in the interest of the illegal transaction, and that the assumed agency, if there was one, had for its object the accomplishment of the unlawful purpose.

We are, therefore, of the opinion that the action of the trial court in refusing to admit the defendant’s offered testimony and in excluding that which was admitted, can not be sustained upon any of the grounds urged in support of it, and that, in the rejection and exclusion of such evidence, said court committed error.

Other points, some of them of much force, are discussed by counsel. These relate to the admitted abandonment of the trust, and defendant’s alleged rescission of the contract and attempted withdrawal from the trust, and the trial court’s refusal to submit the case to the jury upon such proof as was before them. We do not deem it necessary, however, to discuss the questions growing out of these other matters, or to pass any opinion upon them. For the reasons above indicated, the judgments of the Appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.