Eastman v. United Marble Co. , 224 Ill. App. 256 ( 1922 )

Mr. Presiding Justice Gridley

delivered the opinion of the court.

After a careful examination of the evidence both oral and documentary in the present case, and considering all of -the circumstances in evidence, we are unable to say that the jury were not amply justified in returning a verdict in favor of the plaintiff on the issues as made by the claimant’s interpleas and plaintiff’s1 replications thereto. The claimant failed to prove the allegations contained in his interpleas that the particular marble, in respect of which the statuary company in its answer as garnishee admitted an indebtedness to the marble company in the sum of $2,374.92, was Mead’s property. All that Mead’s deposition tended to prove, as we read it, was, that Mead had loaned the marble company on its note in September, 1917, the sum of $2,750; had also , loaned his credit to the marble company by subsequently in the samé year indorsing its two other notes at a bank aggregating $2,000 (which notes were still outstanding and had not been,taken up by him), and, as security for said loan of $2,750 and’ said loaned credit, had taken assignments of certain accounts to become due from the statuary company to the marble company for certain marble shipped, and yet had, without giving direct notice himself to the statuary company of said assignments, permitted the marble company to continue its dealings with the statuary company and to collect moneys on said accounts in its own name to all intents and purposes the same as if said assignments had not been made. Furthermore, the claimant’s evidence did not show with sufficient definiteness that the particular accounts so assigned to Mead were a part, or what part if any, of the indebtedness of the statuary company to the marble company at the time of the service of the attachment writ in the present proceedings. It appears from the testimony of- the witness, Schwarte, that the first notice that the statuary company received that Mead was in any way interested in the dealings then being transacted between it and the marble company, was January 22, 1918, when the statuary company sent its telegram, asking information as to Mead and how he was connected with a recent shipment made in his name, to which telegram the marble company replied by wire, explaining matters and saying, in substance, that Mead had no claim on said shipment. And there is a noticeable conflict in the testimony of Mead and that of Eaton, both witnesses for the claimant. Mead in his deposition, given on December 31, 1919, testified that up to that time no part of the alleged indebtedness of the marble company to him had been paid. In other words, he testified in effect that up to that time he had not realized anything on the accounts alleged to have been assigned to him as security for said indebtedness. Eaton, on the contrary, testified that when he was in Chicago in March, 1918, before plaintiff commenced the present attachment suit, he (Eaton) collected some money from the statuary company, on account of its indebtedness to the marble company, tried unsuccessfully to collect it all, aad that on his return to Butland he turned over to Mead what he did collect, less certain expenses deducted. In our opinion it does not sufficiently appear from all the facts and circumstances in evidence that at the time of the service of the writ on the Statuary company (March 16, 1918) the intervening claimant had, as against the attaching creditor, Eastman, a bona fide claim to the funds or any part thereof then in the hands of the statuary company and owing to the marble company.

It is earnestly contended by counsel for the intervening claimant that, because of the provisions of section 2 of the Evidence Act [Cahill’s Ill. St. ch. 51, ¶ 2], Eastman was an incompetent witness, and that the trial court erred in not granting the motion of said claimant, made at the close of Eastman’s testimony to exclude such of that testimony as referred to occurrences prior to the death of Mead on January 12, 1920. It is provided in section 1 of said Act [Cahill’s Ill. St. ch. 51, ¶ 1] : “That no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise, * * *; but such interest * * * may be shown for the purpose of affecting the credibility of such witness; # * And it is provided in section 2 of said Act [Cahill’s Ill. St. ch. 51, ¶ 2] in part as follows:

“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, when any adverse party sues or defends 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, and also except in the following cases, namely:

“First. In any such action, suit or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person, * * *.

“Fifth. When, in any such action, suit or proceeding, the deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposition by such deceased person, and not excluded for irrelevancy or incompetency.”

After considering the testimony of Mead, as read in evidence before the jury from his said deposition, we are of the opinion that, under the provisions of the fifth exception in said section 2 of said Act [Cahill’s Ill. St. ch. 51, ¶ 2, subd. 5], Eastman was a competent witness to testify to the facts which he did testify to, and that the trial court did not err in refusing to grant the motion of the claimant above mentioned. By said statute Eastman could testify in his own behalf “as to all matters and things” testified to by Mead in his deposition and not excluded from the jury. We do not think that Eastman was limited to a mere denial of Mead’s statements but was entitled to fully testify as to the facts and circumstances of the transactions so far as his knowledge extended, and thereby endeavor to rebut said statements. (See Turner v. Lee. 254 Ill. 141, 145; DeCosta v. Bischer, 287 Ill. 598, 604.)

Counsel for the claimant further urge that the trial court erred in admitting in evidence over objection the telegram of January 23, 1918, received by the statuary company and signed “United Marble Co.,” wherein it is stated “car billed in name John A. Mead because Eastman attached and tried to hold; this only way to get car to you; Mead no claim on car,” etc. It is contended that it was inadmissible (1) because it was not satisfactorily authenticated, and (2) because it was at most a declaration by an assignor subsequent to the assignment and therefore not binding on the assignee in the absence of evidence connecting the latter with the declaration. As to counsel’s first contention, we think that the telegram was sufficiently authenticated ,The original paper as received from the telegraph office by the statuary company was produced under a subpoena. On its face it clearly appears to be a reply to another telegram sent on the preceding day by the statuary company to the marble company, and which other telegram the claimant introduced in evidence. Under the circumstances further authentication was unnecessary. (Western Twine Co. v. Wright, 11 S. Dak. 521; Morgan v. People, 59 Ill. 58, 62.) Moreover, at the time the telegram was offered in evidence, the claimant did not question its genuineness. The only objections he then made to its introduction in evidence were that it was irrelevant to the issues and not binding upon him. As to counsel’s second contention, the general rule referred to is subject to some exceptions. (2 Wigmore on Evidence, par. 1086, p. 1298.) And, under the facts and circumstances disclosed, we think that the telegram was admissible as a declaration of Mead’s admitted agent, the marble company, whom he permitted to retain possession of and exercise full control over the property and accounts -|the same as if the assignments had never been made, and whom he intrusted to collect the ■ accounts for him in its own name. (Jones v. King, 86 Ill. 225, 228; 41 L. R. A., N. S., page 26, note C; 22 Corpus Juris, p. 366, sec. 438.)

Our conclusion is that the judgment appealed from should be affirmed, and it is so ordered.

Affirmed.

Bashes and Morrill, JJ., concur.