{ "id": 2584818, "name": "Charles W. Pardridge v. Alonzo J. Cutler", "name_abbreviation": "Pardridge v. Cutler", "decision_date": "1902-11-13", "docket_number": "", "first_page": "89", "last_page": "98", "citations": [ { "type": "official", "cite": "104 Ill. App. 89" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "172 Ill. 595", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "36 Ill. App. 189", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "83 Ill. 33", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2657584 ], "opinion_index": 0, "case_paths": [ "/ill/83/0033-01" ] }, { "cite": "79 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2687743 ], "opinion_index": 0, "case_paths": [ "/ill/79/0328-01" ] }, { "cite": "48 N. H. 203", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 1050287 ], "opinion_index": 0, "case_paths": [ "/nh/48/0203-01" ] }, { "cite": "148 Ill. 296", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3060629 ], "opinion_index": 0, "case_paths": [ "/ill/148/0296-01" ] }, { "cite": "42 Ill. 131", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "79 Ill. App. 42", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "178 Ill. 585", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3147253 ], "opinion_index": 0, "case_paths": [ "/ill/178/0585-01" ] }, { "cite": "173 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5538266 ], "opinion_index": 0, "case_paths": [ "/ill/173/0043-01" ] }, { "cite": "168 Ill. 504", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3187543 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/168/0504-01" ] }, { "cite": "68 Ill. App. 569", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5199229 ], "opinion_index": 0, "case_paths": [ "/ill-app/68/0569-01" ] } ], "analysis": { "cardinality": 748, "char_count": 19708, "ocr_confidence": 0.576, "pagerank": { "raw": 8.724443257361318e-08, "percentile": 0.4940064073233613 }, "sha256": "7ac1c54d139afd0b2c7f961be62bf1a6b074fcd46f7fb1a9b5de00da8dc91d75", "simhash": "1:32cc4bf7bea9aeb6", "word_count": 3434 }, "last_updated": "2023-07-14T16:34:57.519371+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Charles W. Pardridge v. Alonzo J. Cutler." ], "opinions": [ { "text": "Mr. Justice Windes\ndelivered the opinion-of the court.\nThis suit was assumpsit by appellee, a broker doing a commission business on the Chicago Board of Trade under the name of Cutler & Co., against appellant, to recover for certain moneys alleged to have been lost, and commissions earned, in certain transactions in the purchase and sale of grain by appellee for appellant on said board in the years 1892 and 1893. The declaration was the common counts and the pleas general issue and six special pleas, setting up in different form and in substance that the transactions in question were gambling transactions under the statute, and illegal. Issues were made and a trial had'in July, 1896, resulting in a verdict and judgment in favor of appellee for $54,062, which was affirmed- by this court, but reversed by the Supreme Court for errors in procedure. A second trial in April, 1901, resulted in'a verdict of $54,062.50 and judgment thereon, from which this appeal is taken.\nThe leading facts in the case appear in the opinions of this and the Supreme Court, reported in 68 Ill. App. 569, and 168 Ill. 504, except that certain rules of the board offered on the first trial, and evidence relating to a note of appellant of $62,000 are not in this record.\nIn view of the conclusions reached, after the most careful consideration of the whole record and arguments of counsel, which are very voluminous, we deem it unnecessary to refer further to the evidence in this connection than to say that, upon the main issues of the trial, viz., as to whether the transactions in question were or not gambling transactions under the statute, and therefore illegal, and whether there was an agreement between appellant and appellee after March, 1892, that the former was to have a credit of $100,000 with reference to the transactions in question, under which appellee was to carry the transactions, the record presents a conflict in the evidence; that upon the whole evidence, in view of this conflict, there was, as we think, no error in refusing to take the case from, the jury (168 Ill. 504, supra), and that had the verdict been in appellant\u2019s favor the evidence is, in our opinion, sufficient to sustain it.\nComplaint is made of numerous rulings of the court upon the admission and exclusion of evidence and as to remarks by the trial judge during the progress of the trial, which, it is claimed, were calculated to create a prejudice in the minds of the jurors against, appellant and the defense to the suit interposed by him. To discuss all these rulings and the remarks of the court so that their bearing upon the issues and the probable effect upon the minds of - the jury could be made to appear with clearness, would unduly extend this opinion and serve no useful purpose. We will only refer to a few, which will, in our opinion, show that the attitude of the court toward the defense was calculated to and probably did create prejudice with the jury against appellant and his defense, that improper evidence was admitted and proper evidence excluded from the consideration of the jury.\nDuring the examination of the plaintiff, with regard to a certain transaction which he says that he had for Mr. Pardridge upon the board, as to whether it was a sale or a purchase, the following occurred:\nCounsel for plaintiff: \u201c That isn\u2019t correct at all. The commodity is mentioned under the head of purchase. It is plain as the nose on the judge\u2019s face.\u201d\nThe Court: \u201c What does he say this is ? \u201d\nCounsel for defendant: \u201c He says it is a sale.\u201d\nThe Court: \u201c Gentlemen, it seems to me\u2014many years ago when I was a young man, I had a good deal of experience in this business. \u2022 Mr. Cutler, there is such a thing as a report of a purchase; that is one thing you know, isn\u2019t it?\u201d\nThe Witness: \u201c Yes, sir.\u201d\nThe Court: \u201cAnd a report of a sale. There is such a thing known to you in the trade and in your course of business; isn\u2019t that true ?\u201d A. \u201cYes, sir.\u201d\nThe Court: \u201c Very. well. Then when a transaction is closed down\u2014when \u00cd used to speculate, I speculated in xvhisky. Mow, I bought 100 barrels of whisky, for example, and my broker reported to me that he bought it; it was all done by telegraph. Mow, he reported, bought on an order 100 barrels of whisky, for example, so much, and on another day there would come a report of a sale, if I ordered him to sell, that he sold 100 barrels of whisky; then would come an account of purchase and sale, the purchase and sale which would show the purchase. Either it may have been made a month before, and the sale, and the charges, if there ever were\u2014in those days you may be sorry you were not on earth, when it was 2\u00bf per cent every sixty days.\u201d\nThis language of the learned trial judge, to which appellant\u2019s counsel preserved an exception, -we think was, in view of the defense made, that all the transactions under investigation were in violation of the statutes, calculated to impress the jury unfavorably, to say the least, toward the defense. Especially is this true as to that part in which the judge says he had had a \u201c good deal of experience in this business,\u201d and that he had \u201c speculated in whisky.\u201d True, the court did not say that the business in which he had had experience was illegal, and that his speculations were in violation of the statute, but the language is such that the jury might have drawn the inference that the court\u2019s experience -was in an unlawful business. Appellant\u2019s counsel claimed that the very transaction being investigated was an unlawful one, and the court clearly referred to that transaction when he spoke of having \u201c experience in this business.\u201d\nAgain, during the examination of the same witness, he produced a copy of a notice which he claimed to have sent to Mr. Pardridge, which was objected to by appellant\u2019s counsel for the reason the copy was illegible. Appellant\u2019s counsel had been notified to produce the original of the notice, but had failed to do so. Why, the abstract does not show. To the objection of counsel the court said:\n\u201c Perhaps if the original was produced here, it might be more legible, but I don\u2019t think it quite lies in the mouth of attorneys, when it is not produced, to say that a copy is \u2022 not entirely legible.\u201d\nIn the subsequent examination of the witness it appears that the copy referred to was not distinct enough for the witness to read it. We think the remarks of the court were not justified and should not have been made. If counsel had the possession of the original and refused to produce it, the criticism of counsel by the court would have had some basis.\nThe same witness, upon being examined as to a trading card made by one Bangs, relating to an alleged transaction between the parties, was asked by plaintiff\u2019s counsel what his recollection was as to the transaction. After having looked at the card, the witness proceeded to answer, when appellant\u2019s counsel objected, to which the court said: \u201c I think he knows about it. He may state.\u201d To this ruling an exception was preserved. We think the ruling was clearly error. It told the jury, in effect, that the witness knew about the matter as to which he was asked to testify. Whether the witness so knew was a question for the jury after hearing his evidence, and the court should not have given an opinion as to the witness\u2019 knowledge. Marzen v. People, 173 Ill. 43-58; Ill. C. R. R. Co. v. Souders, 178 Ill. 585-93.\nIt is said by appellee\u2019s counsel that an instruction given by the court of its own motion, to the effect that the jury \u201c must not understand any remark made by the court during the trial as an instruction by the court upon any question of fact,\u201d and that all questions of fact were for the jury, and were to be determined from the evidence alone, counteracts any remarks of the court. This court affirmed the Souders case, supra, (79 Ill. App. 42-8), and attempted to excuse improper remarks of the trial court, because of like instructions, but the case was reversed because of the trial court\u2019s remarks. The Supreme Court, among other things, said :\n\u201c It is error for the court to make any remark indicating his opinion upon any fact necessary to be proved. * * * Every one knows the importance juries ordinarily attach to the remarks and opinions of the court.\u201d i\nOn the direct examination of the appellant he was being examined with reference to the transactions in question, and had testified about a conversation with Mr. Cutler, and was asked the following question, to which an objection was interposed by plaintiff, to wit:\nQ. \u201c After you had this conversation with Mr. Cutler, your third conversation, about March 1, 1892, did you ever communicate to him anything more regarding vour intention ? \u201d\nAlso the following question, to which an objection was made, to wit :\nQ. \u201c Well, did you ever have any further conversation with him about the matter of delivering grain after this third conversation about the 1st of March, 1892? \u201d\nThe objections were sustained and exceptions preserved. It is apparent \u2022 from the record that counsel for appellant was endeavoring to establish by the evidence sought to be elicited by answers to these questions, the nature of the transactions in question and the \u2018intention of the parties engaging therein, as bearing upon. the question being tried, viz., whether the transactions were gambling or otherwise. We think there was error in sustaining the objections, and it is cause for reversal.\nThe court also, in the same connection, refused to permit appellant to answer what his intention was at the time of the several transactions, with reference to receiving the grain bought and delivering the grain sold; also as to the settlement of the various trades made. This, we think, was a material matter on the issue being tried, was competent, and its exclusion was error. Miner v. Phillips, 42 Ill. 131; Wohlford v. People, 148 Ill. 296; Delano v. Goodwin, 48 N. H. 203.\nCounsel for appellee say the intention of appellant in these respects was immaterial because not communicated to appellee. The witness had previously testified to a conversation had with appellee, which indicates quite clearly, as we think, what appellant\u2019s intention in all these deals was, viz., to violate the statute; but that there should be no question about it, he should have been allowed to state what in fact he intended in that regard.\nThe witness Schroeder, who was Mr. Cutler\u2019s bookkeeper, was called, and proved the latter\u2019s books of account, which were admitted in evidence; among others, the ledger, which showed a balance against Mr. Pardridge of $61,865.05. Mr. Cutler only claimed on the trial $54,062.50, and testified, in effect, that he did not claim the full amount of the balance because the difference between his claim and what the ledger showed was made up by certain trading which Mr. Cutler did for appellant\u2019s boy, and interest. Sehroeder testified that he made the entries in the books which went to make up the balance of Mr. Pardridge\u2019s account, but on cross-examination the court refused to allow the witness to testify as to many of the items that went to make up this balance, and what some of the different items were for, and refused to permit the witness to testify as to what different cash items in the account going to make up the balance were for, apparently upon the theory that the evidence was immaterial, because counsel for plaintiff stated they were not sued for.\nWe think that all of these rulings were erroneous, since the evidence, if permitted, would have shown if the claim of appellant\u2019s counsel was correct, that many of the items inquired about were for what is known as \u201c puts and calls.\u201d The rulings were especially erroneous, as we believe, in so far as they relate to \u201c puts and calls, since other evidence in the record tends to show that many of the transactions on account of which Mr. Cutler claimed to recover, were of that nature, and it was essential, such transactions being clearly within the prohibition of the statute, that they be separated and eliminated from the balance claimed by him before there could be any recovery. If illegal transactions entered into and constituted a part of the balance so claimed they would vitiate the whole account, and there could be no recovery unless the illegal part was separated from the other items of the account. Pickering v. Cease, 79 Ill. 328; Lyon v. Culbertson, 83 Ill. 33; Wheeler v. McDermid, 36 Ill. App. 189.\nThe same witness having testified that he had knowledge with regard to a certain transaction on account of which the plaintiff claimed to recover, was asked, in effect, if he knew from a conversation with Mr. Cutler why a certain entry was made upon the books, that is, \u201c changed oyer,\u201d to use the language of the witness, to which he answered, \u201cYes, certainly.\u201d An objection was made bj? plaintiff\u2019s counsel, when the court, among other things, said it was not for him (the witness) \u201c to speculate as to what moved some one else to do a certain thing.\u201d This we think was error, since the witness was asked to state the knowledge which he had acquired from Mr. Cutler. The witness was later allowed to state his knowledge in this respect, but that did not obviate, as we think, the prejudicial effect of the court\u2019s remark above quoted. The court also, on two other occasions during the cross-examination of the same witness, made use of language which in effect characterizes the testimony of this witness as being \u201c surmise.\u201d From an examination of the record, we do not think the court\u2019s remarks in this respect were justified by any evidence of the witness. Even if justified by the evidence, the court should have refrained from stating his opinion before the jury.\nWhile appellant\u2019s counsel was cross-examining the same .witness with reference to the manner in which the books were kept, apparently in a respectful manner, the following occurred, to-wit:\n\u201cCounsel for defendant: Q. You know there are transactions bad upon privileges in this account; I mean in this customers\u2019 ledger that you have read from. A. Yes, sir.\nThe Court: Point one out to me. Take the customers\u2019 ledger and point one out to me and give the details of the transaction.\nCounsel for defendant: We object to the question and except.\nThe Witness: The put and call cards\u2014\nThe Court: I don\u2019t care about the put and call card; point one out to me in the ledger. A. 1 can\u2019t do it, but I know they are in there, on the customers\u2019 ledger.\nThe Court: Point one out to me, and give me the details of it, and what it is. Just take and point it out to me. If you know they are in the ledger, just point it out to me.\nA. I have a good memory, but I can\u2019t remember a certain transaction for eight or ten years.\n(Exception by defendant to the remarks and questions of the court.)\u201d\nWe think the action and language of the court was calculated to embarrass, if not to intimidate the witness. The jury also might well have inferred from the court\u2019s questions that he thought the witness was testifying falsely, or, at least, was disposed to answer favorably to the appellant. We think the court\u2019s questions, repeated as they were, error.\nIn Dunn v. People, 172 Ill. 595, the court, in considering somewhat similar action by the trial judge, made use of the following language :\n\u201c Though at times the court may, by an opportune and carefully considered question, elucidate a point, aid an embarrassed witness or facilitate the progress of a trial, without in any degree influencing the jury or arousing distrust in the minds of the parties or their attorneys, yet the examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree, which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable.\u201d\nThe evidence tends strongly to show that one Eims, who was called for the defendant, acted as agent of Hr. Cutler with regard to his transactions with Mr. Pardridge. Appellant\u2019s counsel sought to prove conversations between Eims and Pardridge about making payments' called for by Eims when Eims was sent by Cutler to Pardridge to get money on account of their dealings, Eims being authorized, as he says, by Cutler, to say to Mr. Pardridge that when the market got eased up he would send back the money for which he, Cutler, had sent him. Objection was made and the court sustained the objection. The court also refused to allow Mr. Pardridge to testify to these same conversations. The evidence sought to be elicited had a material bearing upon the claim of Pardridge, which was a leading part of the defense sought to be made, viz., that he bad a contract with Cutler by which the latter was to \u201c carry him for $100,000; \u201d that is, that Cutler should credit Pardridge until, in his dealings, losses, if they occurred, should reach that amount.\nWe think the rulings in this regard were erroneous and very prejudicial to appellant.\nIn the examination of the witness Mims, he was asked by appellant\u2019s counsel if he had anything to do with regard to any \u201c put or call \u201d trading between Messrs. Cutler and Pardridge, to which he answered yes. He was then asked what, if anything, he had to do with reference to those trades, to which an objection -was made, and the court ruled that if he had any conversation with Mr.\u2019 Cutler on the subject, it was competent, and limited his answer in that way. This, we think, was error, as it is apparent, we think, from the witness\u2019 testimony, that he was familiar with these transactions, was acting for Mr. Cutler, and knew of their nature.\nTo the numerous other rulings of the court upon the evidence and the court\u2019s remarks during the trial, of which complaint is made, we have made no reference, for the reason that upon another trial they may be avoided, and we think the ones referred to specifically constitute such error as entitles the appellant to another trial.\nComplaint is made of the refusal of certain instructions by the court, but after careful examination of each of them we find no reversible error in the court\u2019s rulings thereon.\nThe judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Justice Windes" } ], "attorneys": [ "YouNti, Makbel, Bradley & Frank, and Shops, Mathis, Zane & Weber, attorneys for appellant.", "A. B. Jbnks and William A. Foster, attorneys for appellee." ], "corrections": "", "head_matter": "Charles W. Pardridge v. Alonzo J. Cutler.\n1. Witness\u2014Knowledge of Witness Is a Question for the Jury.\u2014A ruling of the court which tells the jury, in effect, that the witness knows about the matter as to which he is asked to testify, is erroneous. Whether the witness so knows is a question for the jury after hearing his evidence.\n2. Same\u2014Examination the Function of Counsel.\u2014The examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional in a high degree,which will justify the presiding judge in entering upon and conducting an extended examination of a witness.\n3. Evidence\u2014Of Intention. When a Matter Material to the Issue.\u2014 When the intention of a party is a matter material to the issue, he has a right to testify as to what it was.\n4. Same\u2014Account Containing Illegal Items.\u2014If illegal transactions enter into and constitute a part of an account, they vitiate the whole account and there can be no recovery unless the illegal part can be separated from the other items of the account.\nAssumpsit, for commissions earned, etc. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in this court at the October term, 1901.\nReversed and remanded.\nOpinion filed November 13, 1902.\nYouNti, Makbel, Bradley & Frank, and Shops, Mathis, Zane & Weber, attorneys for appellant.\nA. B. Jbnks and William A. Foster, attorneys for appellee." }, "file_name": "0089-01", "first_page_order": 113, "last_page_order": 122 }