#### Marvin H. Bordner, Appellee, v. James B. Depler, Appellant.

1. Evidence—when opinion of witness competent as to question of value. The question being as to the value of corporate stock, a witness who has been an officer of the company, is familiar with its affairs and who states that he has an opinion as to such value, held, competent to give the same.

*5272. Evidence—must he confined %£o issues. Evidence is incompetent which does not tend to prove any issue involved in the case.

8. Amendments and jeofails—when denial of motion to amend not ground for reversal. It is within the discretion of the court to grant or deny leave to amend a plea during the trial of a cause. The denial of such motion is not ground for reversal in the absence of a showing as to why such application was not sooner made.

Assumpsit. Appeal from the Circuit Court of Pulton county; the Hon. Geokge W. Thompson, Judge, presiding.

Heard in this court at the May term, 1907.

Affirmed.

Opinion filed April 21, 1908.

Harry M. Waggoner and Marvin T. Robison, for appellant.

Lucien Gray, for appellee.

Mr. Presiding Justice Baume

delivered the opinion of the court.

In the spring of the year 1904, the Lewistown Oil •<& Gas Company, a corporation, was organized for the purpose of prospecting for oil and gas, in the vicinity of Lewistown, Illinois. All of the available money of the corporation was expended in drilling a well upon land belonging to appellant, James B. Depler, with the result that instead of producing a flow of oil or gas, as was anticipated, the well produced an abundant flow of water, which was claimed to have some medicinal properties. Thereafter in May or June, 1905, at a meeting of the stockholders of <said corporation held for the purpose of discussing and determining the advisability of raising money for the purpose of liquidating some indebtedness of the corporation, and to meet the expense of cleaning-up the grounds, capping and well, and advertising the premises as a pleasure and health resort, in anticipation of the organization of a corporation to utilize the water and to conduct a sanitarium and resort on said premises, appellee subscribed and paid for *528the purposes stated the sum of $10 in consideration, as is alleged and as the evidence tends to show, of the promise then expressly made by appellant, that the latter would give to each person so subscribing the sum of $10 one share of the capital stock of the par value of $100 in a corporation thereafter to be organized for the purpose named. In pursuance of the plan then contemplated, the Depler Mineral Springs Company was organized and incorporated in October, 1905, with an authorized capital stock of $100,000, divided into 100 shares of the par value of $100 each.

It is not necessary to an understanding of the issues involved in this case to set forth in detail the provisions of the preliminary agreement between the stockholders of the Lewistown Oil & Gas Company for the organization of the Depler Mineral Springs Company, or to charter provisons of said company, or the terms of the lease executed by appellant to said company of the premises on which the well was located. It is sufficient to say that a certain number of shares of the capital stock of the Depler Mineral Springs Company were issued to appellant in consideration for the lease by him of said premises, and for certain purposes, including the delivery by him to each of the several subscribers to the fund raised at the meeting of the stockholders of the Lewistown Oil & Gas Company in May or June, 1905, heretofore mentioned, the shares of the capital stock of the Depler Mineral Springs Company, to which they were entitled.

Appellant ¡having refused to deliver to appellee one share of the capital stock of the Depler Mineral Springs Company, appellee brought this suit in assumpsit against appellant to recover the value of said share of stock, and upon a trial in the Circuit Court of Fulton county recovered a verdict and judgment against appellant for $16, and this appeal followed.

It is urged that the court improperly permitted the witness J. G. Quisenberry to state his opinion as to the value of the share of stock in question. The witness *529had been the secretary of the corporation until July 10, 1906, and was familiar with the business of the corporation at that time. He testified that he had an opinion as to the value of the stock immediately prior to December 5, 1906, the time in question, and that in his opinion the stock was then worth from $15 to $20 per share. While the opinion of the witness was not conclusive as to the value of the share of stock in question it was competent to be considered by the jury in determining such value, and the court did not err in overruling appellant’s objection to the evidence. Butler v. Mehrling, 15 Ill. 488; O. & M. Ry. Co. v. Long, 52 Ill. App. 670.

It is next urged that the court improperly admitted in evidence the lease of the premises by appellant to the Depler Mineral Springs Company, and that the court improperly permitted the witness Quisenberry to testify to an alleged statement by appellant that the $10,000 of the capital stock of the corporation mentioned in the lease to be issued to appellant was to cover in part the $6,300 invested by the stockholders of the Lewistown Oil & Gas Company in boring the well on the premises. The lease was competent evidence as tending to show that appellant had received certain shares of the capital stock of the Depler Mineral Springs Company and the alleged statement by appellant to the witness Quisenberry was competent as tending to show the purpose for which appellant held such stock.

The liability of appellant here sought to be enforced does not arise out of any agreement or provision in the lease, and the parol statement alleged to have been made by appellant does not contradict or vary any of its terms or provisions.

On his direct examination appellant testified that he did not consider the shares of stock in the corporation as being worth anything. Upon his cross-examination appellant admitted that he had purchased five shares *530of Lake W. Sanborn for $312.50, and five shares from W. M. Simpson, and one share from H. N. Mnrphy, at the same price. It is urged that evidence of the purchase of stock by appellant from Sanborn and others and the price paid therefor was immaterial and incompetent. The evidence was adduced upon the cross-examination of appellant not as substantive proof of the value of the stock but as tending to contradict the statement of appellant on direct examination that the stock had no value. The record, does not sustain appellant’s contention that he was not permitted to state the reasons which induced him to purchase the shares of stock referred to, and to pay the price which he testified he paid therefor. This matter was fully developed on his re-direct examination.

The court properly sustained appellee’s objection to the question propounded to the witness Brown as to what, if anything, was said at a meeting of the stockholders of the Lewistown Oil & Gas Company relative to the cancellation of a certain lease. Appellee does not appear to have been present at the meeting referred to and no record of any action in that regard by the stockholders at such meeting was offered in evidence.

As tending to show a failure of consideration, appellant offered in evidence a lease of the land upon which the well was located, executed by himself to the Lewis-town Oil & Gas Company, and which he claimed had never been cancelled or surrendered by the lessee. If appellant made the promise to appellee alleged in the declaration the fact that the lease referred to was not cancelled or surrendered could not operate to release appellant from performance. The cancellation or surrender of the lease was not made a condition precedent to the performance by appellant of his promise, and appellee had no power or authority to cancel or surrender it. The lease was properly excluded as e"V Ldence.

The alleged mistake in the articles of incorporation *531of the Bepler Mineral Springs Company was wholly foreign to any issue involved in the case, and proof tending to show such mistake and the purported correction thereof by unofficial action of the parties was properly rejected.

During the course of the trial and some time after appellee had rested his case, counsel for appellant moved the court for leave to amend his plea so as to admit proof of failure of consideration. The motion was denied, and the action of the court in this regard is assigned as error. Assuming that the motion made in behalf of appellant contemplated leave to file an additional special plea setting up failure of consideration, no showing was made by appellant why such plea was not sooner filed, and in the absence of such showing, such motion having been made during the progress of the trial, it rested within the sound judicial discretion of the court to determine whether or not leave to file such additional plea should be granted. And the exercise of such discretion will not be reviewed unless manifestly abused. City of Chicago v. Cook, 204 Ill. 373; Byerly v. Wilson, 123 Ill. App. 662.

We are of opinion that the trial court exercised' its discretion properly in this instance. The instructions taken as a series state the law applicable to the case with substantial accuracy. The first instruction offered by appellant and refused by the court stated a mere abstract proposition of law which if given to the jury would have tended to mislead them, and the instruction was, therefore, properly refused. By appellant’s third refused instruction the existence and terms of the contract relied upon by appellee were made to depend upon the undisclosed understanding or intention of appellant, and not upon what was in fact said and done between the parties thereto.

The verdict of the jury is amply supported by the evidence, and the record being free from error prejudicial to appellant the judgment is affirmed.

Affirmed.