{
  "id": 5306220,
  "name": "Royal Trust Company v. Gustave A. Overstrom",
  "name_abbreviation": "Royal Trust Co. v. Overstrom",
  "decision_date": "1905-05-01",
  "docket_number": "Gen. No. 11,930",
  "first_page": "479",
  "last_page": "483",
  "citations": [
    {
      "type": "official",
      "cite": "120 Ill. App. 479"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "29 Ill. App. 120",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 457,
    "char_count": 9395,
    "ocr_confidence": 0.522,
    "sha256": "2398a1ca625fe517389813e14895a1bc9b8471c2ed75085f2d6bac3a96468074",
    "simhash": "1:9b9bcb24781cc721",
    "word_count": 1622
  },
  "last_updated": "2023-07-14T14:38:55.672753+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Royal Trust Company v. Gustave A. Overstrom."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Brown\ndelivered the opinion of the court.\nThe plaintiff in error, as the trustee in bankruptcy of American Engineering Works, sued the defendant in error in assumpsit in the Circuit Court of Cook County. The declaration contained the common counts and a special count alleging that the American Engineering Works, at the request of the defendant, purchased for and delivered to the defendant ten shares of stock in the Overstrom Concentrator Company, and the defendant in consideration thereof promised to pay $1,675 to said American Engineering Works.\nThe defendant pleaded the general issue, filing therewith an affidavit of a meritorious defense to the whole of plain t\"iff\u2019s demand, and thereafter a plea of set-off, alleging that the American Engineering Works was indebted to the defendant in the sum of $400 for royalties received by said American Engineering Works on patents for concentrating tables owned by defendant and by him authorized to be used by said Engineering Works on the agreement by it that one-half the royalties received by it be paid to defendant.\nThe cause being submitted to a jury on the issues thus made up, the jury found 'a verdict for the defendant and assessed the defendant\u2019s damages on the plea of set-off at $189.97., A motion for a new trial was made by the plaintiff and overruled by the court. Judgment was thereupon entered for the defendant and against the plaintiff upon the verdict, to reverse which judgment a writ of error has been sued out from this court. The errors assigned and argued and therefore to be noticed are that the verdict was contrary to the evidence and that the instruction given by the court to the jury was erroneous.\nThe testimony was sharply conflicting.\nFor the plaintiff, the president of the American Engineering Works, Mr. Billin, testified that Mr. Overstrom authorized him to buy stock in the Overstrom Company for any amount up to $200 a share, and that he bought it for the sum sued for and delivered it to Mr. Overstrom. He testified also that he did this for the American Engineering Works, and by implication, at least, that Overstrom knew he was so dealing with the Engineering Works, for Mr. Billin says Overstrom promised \u201cthat when he got his dividends from the Overstrom Concentrator Company, he would arrange that part of that would be turned back to the American Engineering Works in payment.\u201d Mr. Hews, a representative of. the plaintiff, testified that Mr. Overstrom told him \u201cthe account would be paid in full.\u201d\nOn the other hand, Mr. Overstrom, the defendant, denied making any request of Mr. Billin or the American Engineering Works to buy stock, denied that he knew the certificates had been bought until Billin informed him, and testified that some of the certificates were given to him by Billin without his asking for them a day or two before the trustee in bankruptcy was appointed for the Engineering Works, and the rest two or three weeks afterward, without any request for or mention of any money, and gave his version of the conversation with Mr. Hews as follows:\n\u201c At the time 1 got that statement I spoke with Mr. Hews about settling for that stock. I told Mr. Hews that I would never pay any \u00a7165 a share for stock that I could buy for \u00a750 or \u00a760. And then Mr. Hews said, \u2018 Well, won\u2019t you give the stock back to us ? \u2019 I said, Well, you pay what is due me of the foreign business and I will give you the stock.\u2019 \u201d\nThe defendant in error also produced a witness, H. L. Keen, to confirm other portions of his own testimony, not above given, concerning Mr. Billin\u2019s objects and proceedings in buying the stock in question, and Keen testified that Mr. Billin told him he had bought the stock to protect his interest in a controversy then arising between the Overstrom Concentrator Company and the American Engineering Works, because the Overstrom Concentrator Company was incorporated under the laws of Montana and a minor stockholder had a large right under such incorporation.\nThere was no dispute as to the indebtedness from the American Engineering Works to Overstrom. It was admitted in open court that outside of the stock transaction there was \u00a7189.87 so due.\nIt is evident from the above statement, without going further into the details of the testimony, that apart from the alleged error in the instruction, the question in this case is one of fact, depending on the credibility of witnesses. It was, therefore, for the jury, who saw and heard the witnesses\u2014not for us. If the defendant in error and his witnesses are to be believed in preference to the plaintiff in error, then we do not think there was any cause of action made out in behalf of the American Engineering Works or its trustee, despite the fact urged by plaintiff in error, that Overstrom has in his possession certificates of stock for which he has paid nothing. His testimony, above quoted, concerning his conversation with Mr. Hews, is not sufficient to prove the value of the stock even, but beyond this, evidence of value of the stock would not in this action be sufficient to base a judgment on in favor of the plaintiff.\nIf the defendant has stock in his hands belonging to somebody else, the law affords a remedy therefor; but it is not the remedy of a suit in assumpsit for money paid for him at his alleged special request. Mor are the other common counts in \u00e1ssumpsit a sufficient basis for such a remedy.\nOf course, as we have indicated, the evidence offered in behalf of the plaintiff would have justified the judgment asked in its behalf, but we cannot interfere with the verdict of the jury based upon their apparent belief in an entirely different state of facts.\nThe instruction complained of is as follows:\n\u201c The court instructs the jury that the plaintiff in this case sues in the place and stead, and for the benefit of the American Engineering Works, and in order to recover, he must prove by a preponderance of the evidence an agreement on the part of the defendant to purchase certain shares of stock in the Overstrom Concentrator Co. from the American Engineering Works, or to pay that' company for certain stock purchased by it for him. And if you believe from all the evidence in the case that the defendant did not so agree with the American Engineering Works, then your verdict should be for the defendant.\nThe court instructs the jury that if you believe from all the evidence that the evidence is evenly balanced, or preponderates in favor of the defendant, then you should find for the defendant.\u201d\nWe do not think this instruction erroneous. It might perhaps have been more carefully drawn to avoid any possibility of its proving misleading, but we do not think that in its fair meaning, as it must be supposed it was probably understood by the jury, it declares either that Mr. Billin\u2019s agreement on behalf of the company Would not bind the company, or that an agreement could not be by the jury inferred from all the facts and circumstances testified to surrounding the purchase of the stock and its delivery to Overstrom, if they thought such facts and circumstances as they believed took place justified such an inference. The language of Judge Wall in the City of Champaign v. Forrester, 29 Ill. App. 120, cited in the brief for defendant in error, seems very applicable here. \u201c Possibly the jury, on a careless reading, might give it the construction contended for; and if defendant was apprehensive that the jury might so misunderstand, it was its privilege to ask another instruction, making the point clear.\u201d\nAs we think that there is no reason in the points made and argued in this court for interfering with this judgment, we shall affirm it; but we do not wish to be understood to approve of the form of this judgment against a trustee in bankruptcy on a plea of set-off. It seems to us irregular.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Justice Brown"
      }
    ],
    "attorneys": [
      "Alden, Latham & Young, for plaintiff in error.",
      "Scott, Bancroft, Lord & Stephens, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Royal Trust Company v. Gustave A. Overstrom.\nGen. No. 11,930.\n1. Assumpsit\u2014when does not lie. Assumpsit does not lie to recover the value of personal property in the hands of the defendant as the property of another.\n2. Preponderance of evidence\u2014token instruction upon subject of, not erroneous. The following instruction while held to some extent inaccurate, is yet adjudicated as not constituting reversible error:\n\u201c The court instructs the jury that the plaintiff in this case sues in the place and stead, and for the benefit of the American Engineering Works, and in order to recover, he must prove by a preponderance of the evidence an agreement on the part of the defendant to purchase certain shares of stock in the Overs trom Concentrating Co. from the American Engineering Works, or to pay that company for certain stock purchased by it for him. And if you believe from all the evidence in the case that the defendant did not so agree with the American Engineering Works, then your verdict should be for the defendant.\n\u201c The court instructs the jury that if you believe from all the evidence that the evidence is evenly balanced, or preponderates in favor of the defendant, then you should find for the defendant. \u201d\nAction of assumpsit. Error to the Circuit Court of Cook County; the Hon. Charles M. Walker. Judge, presiding.\nHeard in this court at the October term, 1904.\nRehearing denied May 15, 1905.\nAffirmed.\nOpinion filed May 1, 1905.\nAlden, Latham & Young, for plaintiff in error.\nScott, Bancroft, Lord & Stephens, for defendant in error."
  },
  "file_name": "0479-01",
  "first_page_order": 517,
  "last_page_order": 521
}