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Illinois Appellate Court Unpublished Opinions: first series (Volume Ill. App.v.281) online

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of Rule 15, by arguing that it must be shown that the leaving
or absenting himself from service was 'absolutely voluntary,*
that is, if we understand rightly, not induced through any
sickness from which deceased might be suffering. This
contention is met by the provision in xiile 15, that under such
ciroumstanoes an employ may afterwards give reasons s tis-
factory to the superintendent for leaving or absenting him-
self without notice***

The oonolusion of the court in that case was that, beoaxise the insured
bad definitely ceased his employment with the company before and at
the time of his death, no claim could be predicated upon his desth*

While the record of the company in the instant case, which
is not disputed, shows that Prince had left the employ of the Inter-
national Harvester Company, two witnesses, produced by the plaintiff,
testified that he had received from his foreman a two weeks* leave of
absence shortly before he left. Therefore, the questioB as to whether
he had left its employ at the time of his death, was a qvies'lion of
fact which the jury 8ho^Lld have been allowed to paes upon* We are of,
the opinion th5;t the court was in error in directing a verdict for
the plaintiff. Therefore, the judgment is reversed and the cause

remanded for a new trial.

RSYSRSSO AID H£kAHOED«

HSBEX., P.J* AMD WILSOS, J* OONCUH.



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37686

BSNJAMItf S. iiESIROV*

(Plaintiff) Appellant,

▼•

8IEBEL INSTITUTE OF T£OHliOLOaY«
IMO«, et al..




7

kPfHtd, FROM
/ CI»



CIRCUIT COURT

COOK OOUMTT.




231 I.A. 604^



(Oefendante) Appellees,

Opinion flQled Jtine 26, 1935

MR. JUSTICE HALI. OELlVs^iiW TK£ OPINION OF THE COITRT.

This Is an appeal from an order of the Circuit Court of
Oook County entered on June 8th, 1934, denying the petition of plain-
tiff for writ of mandamus oommanding defendant to adait petitioner in
person or toy attorney or agent to the principal office of the company
for the purpose of making an examination of the books and records of
account of the defendant company, and to allow petitioner, his attorney
or agent, to enter the principal office of the company at all reason-
able times from day to day for the purpose of completing the examina-
tion of the financial condition of the company.

The petition recites inter alia th^t on June 3rd, 1933,
petitioner became the owner of 113 shares of the common stock of
defendant company, the ownership of which was duly recorded in the
books and records of the company, and evidenced by the company cer-
tificate; thnt the petitioner, desiring to examine the books and
records of the company to determine the status of his iBTSstment, did
on March 2nd, 1934, request such an examination for that purpose, aai
appointed a certified public accountant as his agent to examine such
books and records, and that the defendant refused to permit petitioner
by his agent to sxamins the affairs of the corporation; that the
petitioner on April 3rd, If 34, again made a request of the president
of the company that he hare leare to examine the books of the corpor-
ation. Defendant and its officers filed nn answer to this petition.
In which they admit that petitioner is the owner of 112 shares of



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oooDBon atook of the oorporatlon, and state upon inforoiation and

belief 4 th^t petitioner did not desire to examine the books and

records of the defendant corporation to determine the status of his

investment, but on the oontrary, they state upon such information and

belief that petitioner's purpose in seeking to examine the books vas

improper, and w^s for purposes detriment 9I to the best interests of

the oorporstion*

"An Act to revise the law in relation to corporations for

pecuniary profits", approved J\me 13th, 1933, (Oahill's Illinois

Revised Statutes 1933, Chap* 32, 3ec« 45), provides that:

"iaeh corporation shall keep correct and complete books
and records of account ^nd shall also keep minutes of the
proceedings of its shareholders and bo?.rd of directors; and
shall keep at its registered office or principal place of
business in this State, or ^t the office of a transfer ar;ent
or registrar in this State, p record of its shareholders,
giving the names and addresses of ^11 shareholders and the
number and clsss of the shares held by e?ch. Any person who
hhall have been a shareholder of record for at least sis
months immediately preceding his demand or who shall be the
holder of record of at least five per cent of all the out-
standing shares of a corpor-^tion, shall have the right to
examine, in person, or by agent or attorney, at any reason-
able time or times, for any proper purpose, its books sind
records of »ocount, minutes and record of shareholders, and
to make extracts therefrom,"

This statute indicates that the purpose of the enactment of the

General Assembly is to permit any stockholder of a corporation, under

the conditions recited, to examine the books and reeerds, but only

for a proper purpose.

We are of the opinion that when defendant denied by its

answer, on information and belief, that plaintiff desired to maks

sueh examina,tion of the books of the corporation for a proper purpose,

that an issue of fact was thereby cre??ted, and that the burden was

oast upon the plaintiff to show that the purpose of such examination

was a proper one. The trial court seems to have taken this position,

and upon this question, the court heard the evidence of various

wit ns 8 SOS*



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z

Th« plaintiff, Benjamin 3. Mesirow, testified that he is
an attomey-at-law; th3t he is the holder of 113 shares of stook
of the defendant oonpany, which he h-^<X owned for over six months;
that he requested an examination of the hooks of the company through
an agant, armed with a written request to the officials of the
corporation; that these officials wotild not permit his agent to
examine the books and records; that plaintiff was adTised by his
agent that aooass and examination of the books was refused because
of the inability of the president of the corporation to be present
at such time, as such president was to le^ve the city for an extended
period, and that no examination would be permitted in his absence;
that the purpose of the plaintiff in requesting such an examination
was to ascertain the financial status of the corporation; that the
only time he had any contact with the officers was at their last
annual meeting, at which time he was not permitted to take down the
names of the sotckh<^ders during the roll call; that he stated to
the officers that he intended to make an examination of the books*
He further testified that he had a staterrient of the condition of
the company made about two years prior to the time of the trial,
and that it did not look as though the company was doing very well;
that at the annual meeting there was a rather hurried reading of
figures of the report of the preoeeding year, iriOiich he could not
remember; that he desired to ascertain what had become of the profits
of other companies who were affiliates of the defendant company,
as to whether or not these affiliates were paying any portion of the
expenses of the defendant corporation, whether there were any profits
diverted from the business, and whether the assets of the corporation
were used for others*

On cross-examination, the plaintiff testified in substance
that he bought the stock which he held from a Mrs, Stillman; that












«■'■■■"■



r 311;^ Imu;



4

•n« S* A. 91«toel sent Mrs* Stlllman to the witness; that E. A. 31ebel
is a ohenioAl engineer and devises foriaulas for la&nufaoturere of beer,
and supervises the labeling, bottling and aiarketing of beer; thet
the witness has freouently aoted as attorney for £• A. Siebel &
OcMipany, and has attended to many important matters for them; that
he advised with £• A. ^^lebel after he had been offered the stoolc;
that the witness had formerly advised Urs* Stillmam not to take the
sum of $1,600*00, whioh she said she had been offered for her stock;
that after i^rs. Stillman had offered to sell the stook to plaintiff,
he had an examination made of the books of defendant corporation;
that afterwards he paid her $1,600*00 for it; th t he held that amount
of money belonging to £• A. aiebel when he made the purchase; that
by a former audit whioh had been made of the books of the defendant
company, he found that the stock was worthless, but that not wi the t and*
lag, he advised Mrs. Stillman not to sell her stook for $1,600*00 to
the person formerly making that offer to her. '^his witness testified
further that £• A. ^iebel, during the year 1933, had paid him quite
a substantial sum of money amounting to approximately $3,500*00, but
that it was n^ given to him to porohase this stook, a^d that when he
bought the stook in 1933 he had no idMt as to its value*

It is shown that after Mrs. Stillman called upon plaintiff
with reference to the sale of this stook, he was actively engaged ia
investigating the affairs of this corporation; that he had had consid-
erable correspondence with the Secretary of State with regard to
defendant company; thj?t he charged Mrs* Stillman no fees for his work,
but that after "beer oamsbaok", he then voluntarily purchased the
stock* It is further shown that his client, £, A, siebel, ^ brother
of the defendant, is engaged in a business similar to th«.t of the
defendant corporation*



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6

Fred P« Selbel, Sr*, pr«8l(3ent of defendant ooapany, testi-
fied that in the year 1932, Urs. Stillman, whose husband h%d formerly
been employed by defendant, and who had acquired the stock in quee-
tion during such employment, oame to the witness and asked hia to
purehaee this stock; that she demanded $3, 000*00 for it; that he told
her he would give her |1, 000.00 down and A, 000,00 in three or four
months; that he heard nothing further from her oonoerning the stock
until he was notified by the plaintiff that plaintiff owned the stock;
that prior to that time in the year 193:?, he had received a notice
froa plaintiff that he, plaintiff, was the attorney for Mra» 3tillman,
and that thereafter, upon the request of plaintiff, an examination
was Bade by auditors of plaintiff of the books of defendant corpora-
tion; that the next thing he heard about the stock was when he was
requested to transfer it to the name of the plaintiff; that he he^^rd
nothing further about it until the year 1933*

It la our opinion that the plaintiff has not complied with
the requirsiaents of the statute by making a showing to the court
that his purpose in seeking an examination of the books of the defend-
ant corporation was for a proper purpose. On the contrary, after
considering all the testimony, including th^t of plaintiff, we conclude

that in acquiring this stock, plaintiff did so for the benefit of

£. A. seibel,
his client j/a competitor of defendant, fkerefore, the Judgment

of the Circuit Court of Cook Cotinty denying the writ of mandainu,

is affirmed*

Ainmo*

HKBKL, P.J. AHD WILSOH, J. OOHOUR.



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3T703

EOITH B£KJAMI>»

Plaintiff-Appellee,

▼•

LOUIS £• SMSRMAli A OOMPANY, a
oorporatlon.

Defendant- Appellant.




APPEAL FROM



OIAGUIT doURT

(




OOOK OOUKTY.

- ■■■• -1



281 I.A. 6'Ob



Opinion filed June 26, 1935
MR. JUSTICE HALL DELIVERED THE OPIiilON OF THE COURT.

This is an appeal by defendant froa a judgment entered on
May 20th, 1934, in the Circuit Court of Cook Covmty, for the sum
of 1862.60, in an action in trover brought against it by plaintiff.

The declaration filed in the cause on April 14th, 1934,
alleges , intey ali.q ^ that plaintiff was lawfully possessed of, as her
own property, a No. 7 Syerson-Kling punch of the ralue of ^,500.00,
which she, on March 3rd, 1931, oasiially lost out of her possession,
and that on the same day, it oame into the possesiion of the defend-
ant by finding, and that defendant, well knowing the goods and
ohattels to be the property of plaintiff, alghough often requested
to so do, has not delivered the same to the plaintiff, and that on
to-wit: March 3rd, 1931, oonverted and disposed of the property to
his own use. To the declaration, a plea of the general issue was
filed. The plaintiff was not called as a witness*

One Abraham Netchin, a witness for plaintiff, testified
that he bought the machine in question, in February, 1925. The record
shows that the property was sold to the plaintiff under a mortgage
foreclosure sale against the Netchin Steel Construction Company in
the yesr 1930 or 193l« How the Netchin Steel Construction Company
acquired title from Abraham Netchin, does not appear in the record.
Netchin further testified to the effect that in the latter part of
1930, or early in 1931, he had oonversations with a Mr. S^rman of



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3

defendant oompany, relative to thla Ryeraon-KLlng Punoh preaa; tliat

the property was then In the hands of the witness; that it was

necessary for his oompany whioh oooupled certain premises, to yaoate,

and that the witness told £merman that the aaohlne had to be sold.

This witness further testified to the effect that he held the maohine

for Edith Benjamin, and that Edith Benjamin authorised him to sell it;

that Emerman declined to buy the taaohine, but suggested that it be

sent out to his plant for the purpose of sale, and that he, iMtrBan,

would handle the transaction on a 10^ oomffliaslon basis; that the

machine was thereafter delivered to ^merman by Netchln, and that at

the time of the delivery, there was stenciled on the machine the

following: **£dlth Benjamin, Lessor, Olcero Manufacturing Company,

Lessee. •*

Over the objection of defendant's counsel, this witness

was allowed to testify that the plaintiff was the owner of the

machine at the time of the delivery. The machine was sold by laeramn

to the Inland Steel Company for ;?1,035»00. There eeems to be no

question but that the property was delivered to the defendant by

Metchin as agent for defendant, for the purpose of having it sold, and

that defendant did sell it. At the time of the sale, the record

indicates that defendant claimed that Netchin was indebted to the

defendant company in a considerable amount, and that a controversy

arose between defendant and Metchin as to whether or not the money de»

rived from the sale of this machine should be applied by defendant to

the paymomt of the account owed to it by letchin. witnesses for

defendant denied that when the machine was delivered to defendant,

plaintiff's name was on it, or that there was anything said or done

to indicate that plaintiff mis its owner. Presuming, however, that

the machine In question was the property of the plaintiff, and that



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turn Sx itijii {RBmaiin 9iii lo aboftci 9ti& ai atdi ecw -iiz^otci 9sii

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n«<irrrsjBSr x<^ Mos *?rw ©niilo » 9«lifosai

oa «cr ot eraaee •*'^»r;'?' .OO^SBJOji X»«*^ im&xsil ^tf.t et

YCT JflsfeiialoJb ^^-ysvi; .^ewf fiol*B»jtrp

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tot e»B»«i3tif .ffirloJ-dH x*' *<^ <>* j'*®*^ tm)0t>^!^ 9iii to Jfaatcxtq odiJ'

ocof) TO Wat gfiidttJttJ saw si»r5.' , ' :1ifatBlq

tadt tn^ ^JtltatfiIq, 9dt to xti .toJt*p»«rp ax tuxitlosm »Ai



s

defendant had notloe thereof, still, froa the evldenoe before ue,
we oan arrive at no other oonolueion, but that she authorized the
sale, that there was no conversion of the property in question,
th&t if she has any action against defendant » it is for the money
derived from the sale, and that she oannot maintain an action in
trover for its wrongful conversion. Therefore, the judgment is
reversed.

RE?SR8ID«

HIBEL, P.J, AMD WILSOH, J. 0OH0Ui=l.



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37713

AARON JaiiLlR^

(Plaintiff) Appellee,



KliZNO BROS. & CO. INC., a
Oorpor' tlon.



(Defendant) Appellant.




APPEAL FROM



SUPERIOR COURT




'^.



COOK OOUMTt.

2oi i.ii. 605

Opinion filed June 26, 1935
l£R. JUSTICE HALL OELIYEREO THE OPINION OF THE COURT.
This is an appeal by defendant corpor<ition fron a judgment
Against it for ^4,200.00, entered on April 14th, 1934. The action
is for an alleged balanoe of salary due from defendant to plaintiff
for the year beginning January let, 1937. The trial was by jury,
and it was upon the rerdiot of the jury that the judgment waa entered*

The amended declaration of plaintiff, upon which the
he ring waa had, recites generally that plaintiff was employed in
January, 1910, by defendant, Kllng Bros. & Oo«, a oo-partnership, and
afterwards from "^aroh 6th, 1911, by Klfcng Bros. & Oo., Inc., a
oorporation, successors to Kling Bros. & Co., upon a stated salary,
and that in addition to the salary, he was paid certain coamissions;
that his salary was fixed at #7,200.00 per year, plus oertain
commissions on sales, and that the employment on such basis continued
until January Ist, 1927; "that the defendant on the 1st day of
January, 1927, employed the plaintiff as buyer for the ys!?r 1937 at
a yearly salary of $7,200.00, and thnt plaintiff, in consideration of
suoh salary, entered into the aervices of the defendant on, to-wit:
the Ist day of January, 1927, and continued therein until the let
day of May, 1927, when the defendant wrongfully discharged the plaintiff
frea its employ, and that by reason of suoh wrongful disch^^rge,
defendant became liable to pay plaintiff the full amount of sidary
promised to be paid for the full period of one ye^r, and there is now
do* plaintiff from defendant a large sum of money, to~wlt: |4,200«00.''



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