Leathe v. Thomas

Mr. Justice Worthington

delivered the opinion of the court.

The record in this case is voluminous, covering over 1,300 pages, and is imperfectly abstracted. The statements submitted by counsel are doubtless clear to them, and to those familiar with the diversified transactions of the parties, but they are by no means readily comprehended by one depending upon an examination of the record as abstracted. The statement herewith presented gives the salient features of the case omitting many details not pertinent to the issues involved.

The material points made by appellant will be considered without reference to the order in which they are presented. It is insisted that the laws of Missouri do not authorize pleas of set-off in a suit upon a domestic judgment. And that, this being so, such pleas can not be entertained by the courts of Illinois, in a suit upon a judgment rendered in Missouri. This claim is based upon Sec. 1, Art. 4, of the Constitution of the United States, which provides that “ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.”

It is also claimed that the courts of one state will take judicial notice of the laws of a sister state, so far as is necessary to ascertain the faith and credit to be given to the judgments of such state when sued upon in another state, and that for this purpose the courts of Illinois will take judicial notice that the laws of Missouri do not provide that pleas of set-off may be interposed in suits upon judgments.

In support of this latter proposition, counsel cite Rea v. Hulbert, 17 Ill. 572. This case decides only that in a suit upon a judgment rendered in another state, the declaration need not aver that the court which rendered the judgment had jurisdiction. It holds that it will be presumed that such court had jurisdiction and that its proceedings were regular.

The validity of the judgment in the case at bar is not questioned. It is conclusive as to all defenses that were made, or might have been made, in contesting the cause of action sued upon. It is not necessary to take cognizance of any of the laws of Missouri in order to sustain the conclusiveness of the judgment. It is conclusive by virtue of the section of the Constitution of the United States, cited supra.

If appellant relied upon the statute of Missouri as a defense to the pleas of set-off, it should have been specially pleaded as a defense. Walker v. Maxwell, 1 Mass. 104; Holmes v. Broughton, 10 Wendell, 75; Sherrill v. Hopkins, 1 Cowen. 103.

The existence of such statute would then have been a fact to be proved, since the courts of one state do not take judicial cognizance of the laws of a sister state. Phillips on Evidence, Vol. 2, p. 427, and note on page 428 citing cases, and also many other cases to the same effect in note at bottom of page 413.

To the same effect is Mason v. Wash, Breese, 40; Bonnell v. Holt, 89 Ill. 77; Menard v. Hood, 68 Ill. 121.

In C. & A. R. R. Co. v. Wiggins Ferry Co., 119 U. S. 616, it is held:

“ Whenever it becomes necessary under Art. 47, Sec. 1, of the Constitution of the United States, for a court of one state, in order to give faith and credit to a public act of another state, to ascertain what effect it has in that state, the law of the other state must be proved as a fact.”

It is further said :

“ The courts of the United States when exercising original jurisdiction, take notice without proof, of the laws of the several states; but in this court, acting under appellate jurisdiction, whatever was matter of fact in the state court where judgment or decree is under review, is matter of fact here.”

To the same effect is Hanley and another v. Donoghue, 116 U. S. 4-5. A note in Phillips on Evidence, 2d Vol., p. 191, cites from cases which state argumentatively that if the federal courts take cognizance of state laws, that state courts should also take notice of the laws of other states. But in this note it is said:

“ We know of no decisions expressly settling that the court before which the judgment of a neighboring state is brought, may take judicial notice of the law under which it was rendered in ascertaining the local effects.”

If the courts of this state do not take judicial notice of the laws of Missouri, it is clear that appellant’s demurrer to the pleas of set-off could not be sustained, and this, too, without regard as to whether his contention that they could not be entertained under the law of Missouri is correct or not. This is for the obvious reason that the pleas of set-off to judgments are allowed by the law of this state, and there was nothing before the court to show that they were not allowed by the laws of. Missouri.

A general demurrer lies to a plea which on its face does not present a defense to the action.

A special demurrer lies to a fatal defect in the plea, which, if called to the attention of the court, can be cured, but which if not pointed out, is not fatal to the plea. The defect in either instance must be such as can be seen by inspection of the plea when the law involved is within the judicial cognizance of the court. But if the defect in the plea requires proof of some fact not disclosed by the declaration, or arising by the application of the law judicially taken notice 'of by the court, then the demurrer is properly overruled.

As counsel for appellant relies upon the statute of Missouri which he purports to cite, but which is not in evidence, to sustain his contention that the pleas . of set-off are subject to demurrer, and as the Circuit Court did not have judicial notice of such statute, it follows that the demurrers, both general and special, to the pleas of set-off, were properly overruled.

■ It is also to be noted, that after appellant’s demurrer was overruled he replied to the pleas, thus' resting his case upon the issues of fact presented by the pleadings.

In C. & A. R. R. Co. v. Clausen, 173 Ill. 102, it is said:

“No error in overruling a demurrer could be assigned in this court (the supreme court) for the reason that after the demurrer was overruled, the defendant pleaded the general issue and thereby raised an issue of fact which was tried. It has always been the rule in this state, that if a party wishes to have the action, of a court in overruling his demurrer reviewed in this court, he must abide by his demurrer.”

And again:

“ Defendant made a motion in arrest of judgment which was overruled, and that is assigned for error; but having once had the judgment of court on his demurrer, it could not again invoke it for the same reasons by moving in arrest. After a judgment overruling a demurrer to a declaration, there can be no motion in arrest of judgment on account of any exception to the declaration on the argument of the demurrer.”

The second assignment of error is:

“ The court erred in entertaining and adjudicating upon said pleas. It had no jurisdiction of the subject-matter of said pleas.”

What has been said upon the. previous assignment of error for overruling demurrer to pleas of set-off, applies also to this second assignment. It may be said in addition that “ a plea of set-off is in the nature of a declaration in cross-action.” * * *

“It is a counter-claim, as to which the defendant is plaintiff, and must establish his right as upon a distinct action.” Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 99.

“ It is tantamount to the institution of a cross-action by the defendant against the plaintiff in the same proceeding.” Litch v. Clinch, 136 Ill. 424.

Being in the nature of a cross-action, it is governed by the same principles as would govern an original action for the same cause.

Treating these pleas of set-off as in the nature of declarations in a cross-action, there was no plea to the jurisdiction tiled against them, nor was want of jurisdiction in any way suggested, except as the demurrers might be treated as raising the question.

It is not claimed that the statute of Missouri prohibits set-off from being pleaded in suits on judgments.

If there is no law that prevents a court from trying an issue of fact in cases where it has general jurisdiction, when both parties submit it for trial, although one party may not be authorized by law to compel such submission, it can not be said that the court does not have jurisdiction of the subject-matter.

When appellant brought suit in this state, he must be presumed to have known what the laws of the state were, and that they control the practice when a remedy is sought. That this is the law is well settled.

In treating of the statute of limitations as affecting foreign judgments, it is said in Ambler v. Whipple, 139 Ill. 324;

“Under the rule thus announced, a judgment valid and conclusive in the state where rendered, will be enforced in the other states upon the same footing as domestic judgments within such period of limitations as may be prescribed, in respect of such judgments by the law of the state where it is sought to be enforced.”

Again citing Hanley v. Donoghue, 116 U. S. 4:

“Judgments recovered in one state of the Union, when proved in the courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examined upon the merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties.”

In Bacon v. Howard, 20 Howard, 25, treating on limitations by states, it is said:

“There is no clause in the Constitution of the United States which restrains this right in each state to legislate upon the remedy in suits on judgments of other states exclusive of all interference with their merits.”

To the same effect is McElmoyle v. Cohen, Adm’r, 13 Peters, 312.

Appellant chose his forum. By his demurrers he submitted the right of defendant to file pleas of set-off to the decision of the court. Hot abiding by that decision, he voluntarily pleaded by replying to these pleas and submitting issues of fact to be decided. He can not now defend upon the ground that the court did not have jurisdiction to try the issues of fact raised by the pleadings.

The second assignment of error is not, therefore, sustained.

Appellant’s fifth exceptions to the referee’s report is as follows:

“ The referee failed to find that the claim made, that Leathe absolutely promised to pay the debts of the Belle-ville & St. Louis Railway Company, had been adjudicated in favor of said Leathe and against said Thomas, as shown by the evidence.”

While this exception is not pressed in argument, nor its overruling by the court specially assigned as error, it may be considered with the general assignment that the court erred in overruling exceptions to the report of the referee, and in rendering judgment for the amount found to be due by the referee. The alleged adjudication referred to, is the judgment of the United States Circuit Court of Appeals for the Southern District of Illinois. The history of this is as follows:

The Belleville & St. Louis Railway Company brought suit against appellant, Leathe, for the use of Edward L. Thomas, to the April term, 1894, of the Circuit Court of St. Clair County, for $00,000. The declaration consisted of one count. A copy of the deed from said railway company to Leathe, of March 25, 1893, was filed as a copy of the instrument sued on. The allegations were “ that one dollar and other valuable considerations ” referred to the debts of the said railway company, and that Leathe, by the acceptance of the deed, promised to pay said debts, and that one of these debts was an indebtedness to Edward L. Thomas of $60,000.

Leathe removed the cause by petition to the United States Circuit Court of the Southern District of Illinois. In that court two additional counts were filed. One of these counted upon the judgment at law of the St. Clair County Circuit Court in favor of said Thomas and against said railway company of December 21, 1893, for $53,022.23, which suit said Leathe had been notified to defend, and had employed counsel and had defended. It is the judgment upon which the referee bases his finding of the amount due from the railroad company to appellee. The other count was based upon the dismissal of Leathe’s bill in chancery to enjoin the prosecution at law of said suit.

These causes had been tried together in the Circuit Court of St. Clair County.

Upon the trial of the case in the United States Circuit Court, the first count of the declaration was dismissed and the case was heard by the court upon the two added counts. The record of the judgment at law and of the dismissal of the injunction suit was the only evidence introduced. On motion, this evidence was excluded and judgment rendered for defendant. The case was then taken by writ of error to the United States Circuit Court of Appeals, where judgment was affirmed.

The reason for the exclusion of the evidence of the judgment at law in the Circuit Court of St. Clair County is thus stated, in the opinion given by the court:

“It may be that, by reason of the facts alleged, the defendant in error was estopped by the judgment at law to deny the amount of the indebtedness of the railway company to Thomas, but the question of his personal liability to pay the debt was not an issue, and therefore could not have been concluded by the judgment.”

As to the record in the chancery cause, the court says:

"The proposition on which chief reliance is placed by the plaintiff in error is that the liability of the defendant in error to pay the debt was determined by the decree in the chancery suit. Together with various other matters of defense set up in answer to the bill in that case, the promise of defendant in error on sufficient consideration to pay the debts of the railway company, including that due to Thomas, was definitely averred, and the bill having been dismissed after a hearing upon the merits, it is insisted that the decree of dismissal is an adjudication between the parties of all the issues, and therefore a conclusive determination of the alleged liability of the defendant in error. The proposition is not sound, and it is believed to be without support in the decided cases. It is, of course, true that a decree in absolute terms dismissing a, bill, is an adjudication of the merits of the controversy; but that does not mean that such a decree must be regarded as establishing conclusively the truth of all matters of defense alleged where more than one defense had been pleaded.”

The court accordingly held that neither the record of the judgment at law in the Circuit Court of tit. Clair County, in favor of appellee, nor the record of the dismissal of appellant’s bill to enjoin the prosecution of the.law case, sustained plaintiff in error’s declaration, and therefore affirmed the'judgment of the lower court.

It is clear from this reference to the finding of the United States Court, that there was no adjudication in that court upon the issue as to whether Leathe promised to pay the debts of the Belleville & St. Louis Railway Company, as a consideration for the property conveyed by said deed. There is nothing in the opinion or judgment of the United States Court that decides any question now litigated. There was no error, then, in overruling the exception to the referee’s report, because it failed to find that the claim made, that Leathe absolutely promised to pay the debts of the Belleville & St. Louis Railway Company, had been adjudicated in favor of Leathe.

The only expression in the opinion of the court bearing upon any question now for consideration, is the sentence, “ It may be that by reason of the facts alleged, the defendant in error is estopped by the judgment at law to deny the amount of the indebtedness of the railway company to Thomas.”

This intimation, of course, decides nothing. But we think that it does correctly intimate that the law is upon the question of estoppel, as applied to the finding of the amount due Thomas from the railway company.

It is in evidence that at a meeting of the board of directors of the Belleville & St. Louis Railway Company September 8, 1893, the following resolution was passed t

“ Resolved, that the secretary of this company notify Samuel H. Leathe of the bringing of said suit (the suit of appellee against the company of December 21, 1893, in which he recovered judgment for $53,022.23), and inform him that the company will permit him to defend the same in his own name if he desires so to do.”

On the next day, notice of this resolution was given to Leathe by the secretary. Leathe employed counsel and alone defended the suit.

The judgment obtained is of no importance in this case, unless the evidence shows that appellant promised to pay the indebtedness of the Belleville & St. Louis Railway Company. If that promise is established, appellant is in no position to deny what the amount of the indebtedness of the company was to Thomas when the judgment was obtained, for the reason that this was the issue then decided in a proceeding in which the company did not defend and appellant did defend, denying that there was any indebtedness. Black on Judgments, Sec. 540; People v. Rickert, 159 Ill. 499.

The important issue of fact in this case is, what was understood by “ other valuable considerations ” in the deed from the Belleville & St. Louis Railway Company to appellant, and whether, as a part of said consideration, appellant agreed to pay the debts of said company. Appellant insists that the contract of January 24, 1893, controls. That contract provides that “ said Thomas and Adams are to receive the amounts as per statement rendered (Thomas’ letter to Leathe) and said Leathe to receive the amount to be advanced by him, and balance to go into the treasury of the railway company. First proceeds of bonds to be applied to payment of amounts advanced by Leathe until satisfied.”

Appellee insists that the agreement of March 25, 1893, controls, and that by it Leathe promised without any qualification to pay the debts of the company.

Appellee contends that because appellant did not sign the January contract until some time after March, 1893, and did not comply with some minor provisions contained in it, that said contract was never executed,-

It is also in evidence that the contract of January 24th was not signed by Leathe until some time in June or July, 1893, and that when signed Leathe suggested to Chipley that“ it would be well enough to forget the date we signed it.”

It is also in evidence that he declared that he would not proceed with the enterprise unless the charter of the Belleville City Bail way Company was substituted for the charter of the Belleville & St. Louis Bail way Company.

We think, however, that this contention of appellee is not sustained when all the evidence is considered together.

The instrument of January 24th became accepted by Leathe without Leathe’s signature, when, with the acquiescence of those signing it, he received the stock and bonds specified in it, and entered upon the building of the road. That he did this is not denied.

But if the enterprise was undertaken by Leathe under the conditions of the instrument of January 24th, it does not follow that its terms were not afterward modified. Under the terms of that instrument, Leathe was first to receive the amount that he should invest. Then Thomas and Adams were to receive the amounts which they had invested. Under the agreement of March 25th, as claimed by appellee, Leathe agreed to pay the debts of the Belleville & St. Louis Railway Company (which would include the amount the company owed appellee), without any qualification.

This difference presents an issue of fact which must be determined from the evidence of witnesses bearing directly upon the issue considered in connection with attendant circumstances that are disclosed by the testimony. In passing upon this issue of fact, the finding of the referee who was appointed by the court with the consent of both parties, and who saw and heard the witnesses, is entitled to the same consideration as the verdict of a jury. Butler v. Cornell, 148 Ill. 276; Butler v. Randall, 25 Ill. App. 586; Story v. De Armond, 77 Ill. App. 74.

The referee found that a part of the consideration of the deed of March 25th, of the Belleville & St. Louis Railway Company to appellant, was that appellant should pay the debts of the railway company.

Charles W„ Thomas, the brother of appellee, testifies in substance, that in the early part of 1893 he had a conversation with Leathe in his office in St. Louis in the presence of Chipley, Bart Adams, John T. Taylor and appellee, in reference to the Belleville City Railway charter; that Leathe said he would not build the road until that charter was procured; that plans and negotiations were had with reference to it, resulting in the agreement of March 25th; that at Leathe’s request, he drew the deed of the Belleville & St. Louis Railway Company to him, which Leathe, four or five days before March 25th, took with him to consider and to submit to his lawyer; that the consideration of that deed, while not expressed, was the payment by Leathe of all the debts of the Belleville & St. Louis Railway Company; that this was perfectly understood and frequently talked over, and was one of the plans suggested in order to make the payment of Leathe’s stock full and complete in the Belleville City Railway Company. The consideration of the payments of the debts of the Belle-ville & St. Louis Railway Company was not put in the deed at Leathe’s request, because, he said, investors looking after the bonds of the Belleville City Railway Company might become frightened at the debts of the Belleville & St. Louis Railway Company, over whose land the Belle-ville City Railway Company was going to build its roads, and he wanted it left out.

Alpheus Boling testified that he was a stockholder and. director in the Belleville & St. Louis Railway Company; that he was present at the meeting in Charles Thomas’ office March 25th. “ I understood that Leathe had bought the road from Edward L. Thomas and was to pay all the indebtedness of the road.”

Henry M. Needles testified that he was present at the meeting of March 25th, at Thomas’ office, the most of the time; that he had heard Charles W. Thomas’ testimony, and “ my recollection is substantially as his.”

At the time of the hearing before the referee, Chipley was seriously ill, of which illness he subsequently died, and could not be used as a witness. Appellant introduced his testimony given in a trial in which the parties in this record were parties, where he was called as a witness by appellee. Chipley testified as to the negotiations which led to making the contract of January 24th; that it was not signed by Leathe until about June or July 27th; that Leathe then suggested to witness that “ it would be well enough for us to forget the date of signing.” 1 do not remember the exact date we first heard of the Belleville City Railway charter. It was decided by Leathe and myself that this charter was the one we wanted to "act under. Leathe said he would not go ahead under the original proposition of January 24th. There were conversations held by Leathe, Charles W. Thomas and myself, into which details were gone into pretty thoroughly as to what was to be done under the Belleville City Railway charter. Charles W. Thomas said the buying of the Belleville & St. Louis Railway Company property-and issue of it to the Belleville City Railway Company would pay up the stock of the company.

“ Q. Now, Mr. Chipley, at the time of the making of the contract and the negotiations leading to the contract, for whom were you acting ? A. I was acting for L. M. Chipley and Samuel H. Leathe.

Q. How, Mr. Chipley, you remember the meeting of March 25th, at the office of Charles W. Thomas? A. Yes, sir.

Q. You know that there was a deed made on that day from the Belleville & St. Louis Railway Company to Mr. Leathe? A. Yes, sir.

Q. What for? A. To enable him to turn it over to the Belleville City Railway Company and pay up the stock of the company with it.

Q. What was he to pay for that to the Belleville & St. Louis Railway Company, if anything? A. He was to pay all outstanding debts of the company.

Q. Of what company? A. The Belleville & St. Louis Railway Company; and he was to assign the stock to the parties as agreed upon at the time.

Q. How, after Mr. Leathe got the property from the ‘Belleville & St. Louis Railway Company what did he do with it? A. He deeded it to the Belleville City Railway Company.

Q. Under the agreement spoken of? A. Yes, sir.

Q. How, had the agreement that was consummated by the action of the parties on the 25th of March been talked about before that? A. Yes, sir. In my office, by Mr. Leathe, Mr. Charles W. Thomas, yourself, Bart S. Adams, Taylor and myself. Needles, I believe, was interested but not present.

Q. Well, was it or was it not practically agreed on to do these things that were done on the 25th of March before the 25th of March? A. Yes, sir.

Q. How, then, this contract of January 24th, was it or was it not ever in force between the parties? A. That is the original; no, sir. That never was in force.

Q. Under what contract was Mr. Leathe going to build the road; that you know? A. Under the contract with the Belleville City Railway, entered into on the 25th of March.

Q. Do you know that from him ? A. Yes, sir; and from myself being present and being one of the parties to the transaction.”

On cross-examination he testified as folloxvs:

“ Q. The proposition was, as I understand you to say, originally, that Mr. Leathe should put up the money to complete this road and get fifty-one per cent of the stock of the road and pay himself out of the bonds thereon, and the balance was to pay the debts of the other parties, if there was enough left. A. Yes, sir.

Q. That was it? A. Yes, sir.

Q. Now, do I understand you to say that Mr. Leathe, knowingly, ever agreed to anything else than that? A. Well, that I could not tell you anything about. What Mr. Leathe might have agreed to I do not know.

Q. Was the understanding ever changed that he was to be paid first out of the proceeds of the bonds, and then the others? A. No, sir. Mr. Leathe was to be paid first. I had that inserted and suggested it myself, that Mr. Leathe xvas to receive his money back first. I was acting for Mr. Leathe in that matter, and made that suggestion.

Q. That understanding was never changed in anything that occurred, to your knowledge ? A. Not to my knowledge; no, sir.”

Appellee Thomas testified:

“ Leathe told me that he had not signed the contract (of January 24th); that he would not go into the enterprise if I did not purchase the Belleville City Railway charter. We had a number of meetings at Chipley’s office where propositions and details were discussed, and an agreement was finally reached. Witness states what was done at office of Charles W. Thomas on March 25th, and that it was then agreed by Leathe, the same day that the deed of the Belle-ville & St. Louis Railway Company was made to him, that he would pay the debts of said company as shown to him prior thereto, referring, as we understand his testimony, to the statement contained in appellee’s letter to appellant before January 24, 1893.”

Appellant Leathe testified, positively, denying that a part of the consideration for the deed of the Belleville & St. Louis Railway Company was, that he should pay the debts of the company, or that he promised to pay said debts, and denying that he refused to continue under the contract of January 24th, stating that it was Chipley who insisted on the Belleville City Railway charter, and that he, Leathe, did not consider it of much value.

Samuel Leathe, son of appellant, testified that he was present most of the time at the meeting of March 25 th, and never heard that my father was to pay the debts of the company. Am positive I would, have heard and known of it if it had occurred.

John M. Holmes, an attorney who represented the Adams.estate, testified:

“I understood that Chipley was acting for Charles W. Thomas in getting the charter of the Belleville City Railway Company; that he attended the meeting of "March 25th in the interest of the Adams estate; that Leathe on the way over asked witness to look after his interest; that no agreement was made at that meeting that Leathe would pay the debts of the Belleville & St. Louis Bail way Company; if there had been, my interest in the matter would have terminated then and there, and I would have acted upon it very promptly. Chipley was insisting on the contract of January 21th being in force as late as October, 1893, and I told Mr. Thomas, and at that time no question was made that the company was acting under any other contract than this one.”

Counsel for appellee insists that the claim of appellee that appellant promised absolutely to pay the debts of the railway company as a part of the consideration of its deed to him, is so unreasonable as to make the evidence of witnesses for appellant preponderate upon this issue of fact.

Whether a contract is reasonable or unreasonable, if induced without fraud and knowingly entered into, is not a factor for consideration when its enforcement is sought at law. The evidence tends to show that negotiations were had for several days before the transactions of the 25th of March were consummated. Appellant is shown to be a man of affairs, having a will of his own, and likely to understand what contracts he made. This court can not, from the evidence before it, fully understand and appreciate all the motives and anticipations of profits that may have influenced the parties in the re-organization of the companies and the agreements entered into on March 25th. It is clear that appellee parted with $25,000 of his stock as a condition precedent imposed by some party or parties before such re-organization could be effected.

Appellant knew from the letter of Thomas containing a statement of what the Belleville & St. Louis Railway Company owed appellee and the Adams estate, and by the contract of January 24th, that he was to pay this indebtedness, after first deducting what amount he might invest. If it appeared to him, that, by owning a majority of paid-up stock in both the Belleville City Railway Company, operated under a liberal charter, and a majority of the stock of the Crown Coal & Tow Company, and holding $500,000 of the bonds of the railway company to dispose of as he saw fit, increased profits would accrue to him to such an extent as to make it an object to secure the re-organization of March 25th, it is not for us to measure what profit he may have anticipated.

It is fair to assume that with counsel present to advise him, and having had the matter under consideration for days before March 25th, he believed that it was to his advantage- to enter into the agreements that were then made. If the venture proved profitable, it would repay not only his own investment, but also the investments of appellee and of the Adams estate. To this extent he was already liable. The only risk taken was the risk of the enterprise not proving profitable. Appellant may have considered, and doubtless did consider, that under the re-organization and with the entire business practically under his own control, and with ample means to carry it on, that there was no risk involved.

The argument of counsel, that the claim of appellee that appellant did agree to pay the indebtedness of the railway company is so unreasonable that witnesses for appellee testifying to such an agreement can not be believed, when viewed under all the conditions of the re-organization of the companies, does not forcibly appeal to our judgment.

Giving to the report of the referee, who heard the witnesses testify, the weight given to the verdict of a jury, and considering their evidence in connection with all the attendant circumstances, we can not say that the court erred in overruling the exception under consideration.

It is urged that the referee, if correct in his finding upon the issue of fact as to the appellant’s promise to pay the debts of the company, erred in not crediting appellant with the amount received by Charles W. Thomas from the sale of the stock of appellee held by him.

We see no error in not allowing this credit. The debts of the company were charges upon its entire stock. When its bonds were sold, the proceeds of the sale would apply upon the payment of its debts.

To charge a part of its debts upon the stock of one stockholder, instead of upon the stock of all, would be inequitable and unlawful.

This is true, if, as appellant contends, the enterprise was carried on under the contract of January 24th, the only change being the substitution of the one charter for the other. If not carried on under such contract, but under an entire change, and as a part of that change appellant agreed to pay the debts of the former company, then there is no reason why he should be relieved from his agreement, because something was received by appellee from the sale of stock acquired under the new agreement.

It is urged finally that the judgment is in excess of the ad damnum in the fourth plea.

It is sufficient to say to this objection that it was not made to the trial court, and is now for the first time urged. Such an objection is waived if not made before the court rendering judgment. Tomlinson v. Earnshaw, 112 Ill. 311; Utter v. Faffray, 15 Ill. App. 236; Hunt v. O’Brien, 59 Ill. 321; Fidelity & Casualty Co. v. Weise, 80 Ill. App. 499.

It may be said in addition that the ad damnum in the fourth plea, of set-off, that being the plea on which the referee found for appellee, and upon which judgment was rendered, was $65,000. On this plea the referee found that appellant owed to appellee the amount of. the judgment of December 21, 1893, for $53,022.23. Upon this interest was allowed in the sum of $21,356.17. The first plea of set-off counts upon interest with other claims with an ad damnum of $65,000. The total ad damnum on the two pleas was then $130,000, while judgment was rendered for $71,326.37.

Finding no reversible error in the record, the judgment of the Circuit Court is affirmed.