own name 11,157 shares and 18,000 by virtue of proxies, a majority of the votes in favor of the proposition. The American Trust and Savings Bank accepted the trust, and the equipment company paid to that bank the cash deposit of $100,000, with interest, and delivered to it the $300,000 of bonds. Complainant and defendant informed the trustee that the defendant was fully authorized to do all that was necessary to be done in regard to the trust, and the defendant assumed to a large extent the management of the transaction of gathering in the stock. Substantially all of the stock was bought in and endorsed to the complainant, and was re-issued to him and stood in his name on the books of the corporation. The contract, and everything done under it, was in his name, and the defendant was not known as a principal in the transaction. There was a proposal to exchange stock after the time limit had expired, and the trustee refused to make the transfer on the authority of the defendant, but required him to furnish written authority from the complainant, which the complainant furnished by letter dated December 3, 1898. When the transaction was completed and the trust was closed, the defendant receipted to the trustee in the name of the complainant, by himself as agent, for the bonds remaining unused and a small balance of cash not used and the shares acquired through the trust. The transaction was completed and the rent was reduced by the complainant, as he had agreed. The parties had been close and intimate friends and had been associated in business in different ways for years, but they differed about this matter, and defendant claimed that he was jointly interested with the complainant in the contract through a collateral oral agreement between them that they were to share equally in the profits of the transaction. They finally came to an open rupture about another matter on June 20, 1900, when complainant wrote a letter to the defendant absolutely refusing to comply with his demands. After receiving that letter

the defendant took the certificates which were in his possession, endorsed in blank, and made a division, taking half of them for himself and dating the transfer back to January, 1900. He also made up and entered accounts in the books between the parties, running back to the time of the transaction and corresponding with his present claim.

The foregoing are undisputed facts, and they show that the transaction, on its face, was with the complainant; that the stock was transferred to him on the books of the corporation and the title was in him, and that in the transaction the defendent assumed to act as the agent of the complainant. When defendant set up in his answer that he was jointly interested with the complainant in the profits accruing under the contract with his own corporation; that in accepting the proposition on behalf of the corporation he was in reality acting for himself, jointly with the complainant, and that he was a joint owner of the stock under the alleged collateral oral agreement, the burden of proof was upon him to establish his claim by clear and satisfactory proof. The parties, in their testimony, directly contradicted each other as to the existence of the agreement set up in defendant's answer, and they were the only persons having any direct knowledge of the fact. It was admitted by the complainant that they had consulted with each other for the purpose of devising some means by which the rent could be reduced for the benefit of the equipment company, and also that after the transaction he had offered to the defendant to make a pot and divide the gains arising from the transaction, insisting, however, that there should be no division of the stock, which he must retain in his own name to enable him to perform his contract with reference to the rent. The proposition of the complainant, as he stated it, was, that the defendant might take bonds for his stock and turn it over, or account for the bonds which he had kept and retain the stock, or make a pot and divide all the gains flowing

from the deal. This proposition was never accepted by the defendant. The proposition as claimed by the complainant involved the gain, of every sort and description, to the parties under the contract, and defendant was greatly benefited, as a large stockholder in the equipment company, in the reduction of the rent, which amounted to a large sum of money for that corporation. The defendant had retained a large amount of the unused bonds received from the trustee, which, however, are not involved in this litigation. Complainant testified that he made no agreement whatever with the defendant under which he became a party to the contract or interested in the deal, but that he explained to defendant that he could not be so interested; that he was acting for the corporation, and any attempt to acquire an interest on the other side of the contract would operate to make the transaction a fraud. The defendant testified that before the contract was made there was an agreement between him and the complainant to divide the profits of the transaction equally. Whether we would enforce such a contract as defendant alleges was made, or not, we do not think that the defendant furnished clear and satisfactory evidence of its existence. Such a contract is one which the law does not approve, and one which would be set aside at the instance of stockholders. The defendant is compelled to claim that the contract was really made with himself, as a partner of the complainant; that he was obtaining a private advantage not shared by the other stockholders, and that he was really acting on both sides of the transaction when the proposition was accepted by his vote. There is certainly no presumption of such conduct on his part unless it is clearly proved.

It is insisted, however, that the complainant is contradicted by his own letters and by admissions that the defendant was jointly interested in the contract. After the transaction was completed the complainant wrote to the defendant that whenever it suited their conveni

ence they could get together and divide what was left, and it is contended that the offer to make a pot, giving to the defendant a share of the assets of the brake-beam company, could mean nothing except dividing the stock, because it is only stockholders who are entitled to the assets of a corporation upon settlement of its affairs. Whatever may have been meant by an offer to divide what was left, it did not mean a division of the shares of stock which the complainant insisted upon retaining. Furthermore, the proposition was not accepted by the defendant, and it is not the proposition nor agreement set up in his answer. If the defendant could claim anything by virtue of the subsequent proposition, it would only be by proving an acceptance of the proposition as made. There was testimony of witnesses, in a general way, that complainant said he and defendant were carrying the deal through; that they were both interested in it; that he could not carry it through without the defendant's aid; that when the deal was closed he and the defendant would own the stock and be the brake-beam company, and that the defendant was a great big man and great business man, and other like expressions. The fact was, that the two were carrying the deal through; that they were both interested in it, one as the contractor and the other as a large stockholder in the equipment company; that there would be a great benefit to defendant as a stockholder of the equipment company; that he was active in getting in the stock, and that if it was all gathered in by complainant except defendant's shares, they would be the company, in effect. There was no evidence of any definite statement or admission that there was such a contract or interest as claimed by the defendant. The parties were intimate friends, and the complainant said that it had always been his doctrine that they should divide every dollar they made as a result of any transaction, and he also indulged in many extravagant expressions of personal regard for the defendant;

but all such statements and expressions were clearly insufficient to establish an agreement that the defendant was to have one-half of the shares of stock of the brakebeam company.

We do not think that the contract alleged by defendant was proved, and we agree in the conclusion reached by the Appellate Court.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

ANTOINETTE GAGE

v.

GEORGE W. SPRINGER et al.

Opinion filed June 23, 1904—Rehearing denied October 15, 1904.

1. OFFICERS-special injury is essential to create liability to individual. Failure of a public officer to perform a public duty is a wrong to an individual only when the individual can show that in the public duty was involved a duty to himself as an individual the nonperformance of which has occasioned him a special injury.

2. SAME board of local improvements owes a special duty to owners of property assessed. In paving a street by special assessment the board of local improvements, in addition to its duty to the public of providing a paved street for travel, owes to the owners of property assessed the special duty of enforcing compliance with the ordinance and contract.

3. SAME-right of action against members of board of local improvements. Where members of the board of local improvements, in furtherance of a conspiracy with the contractor, substitute and accept an improvement different from and inferior to the one specified in the ordinance and contract, the conspirators are personally liable to an owner of assessed property for damages sustained by reason of the substitution.

4. SAME-what does not bar right of action for special damage. The right of action by an owner of property specially assessed for an improvement against members of the improvement board and the contractor for constructing and accepting an inferior improvement is not barred by the fact that she might have enforced compliance with the ordinance by mandamus or interposed objections on application for sale.

Gage v. Springer, 112 Ill. App. 103, reversed.