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HARVARD  LAW  LIBRARY 


( 


1 


REPORTS  OF  CASES 


DECIDED  IN  THE 


APPELLATE  COUETS 


OP  THE 


STATE  OF  ILLINOIS 


AT    THE    MARCH   TERM,  1897,  OF    THE    FIRST    DISTRICT;    THE   MAY    AND 
DECEMBER  TERMS,   1896,  OF   THE  SECOND  DISTRKTT,  AND 
THE   FEBRUARY  TERM,  1897,  OF    THE 
FOURTH    DISTRICT. 


VOL.  LXX 


SKPOBTBD  BT 

MARTIN   L.  NEWELL 

OOUHSXLOB  ▲?  LAW 


CHICAGO 

CALLAGHAN  &  COMPANY 

1897 


Entered  according  to  act  of  Congress,  in  the  year  1897, 

BT  CAIiLAGHAN  a  Ck)MPANT, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


(JajL'^^/z^-  ^^/^S^ 


stereotyped  and  Printed 

by  the 

Chicago  Legal  News  Company. 


APPELUTE  COURTS  OF  ILLINOIS 


These  Coiirts  are  held  by  Judges  of  the  Gircait  Courts  assigned  by  the 
Supreme  Court  for  a  term  of  three  years.  One  Clerk  is  elected  in  each 
district. 


Mabtin  L.  Newell,  Reporter,  Springfield,  niinoia. 


FIRST  DISTRICT. 

Composed  of  the  coiuity  of  Cook. 

Couix  sits  at  Chicago  on  the  first  Tuesdays  of  March  and  October. 

Clebk— Thomas  N.  Jamieson,  Ashland  Block,  Chicago. 

JUSTICES. 

Francis  Adams,   Ashland  Block,  Chicago,  Illinois, 
Nathaniel  C.  Sears,  **  "  "  " 

Thomas  G.  Windes,    "  "  "  " 

SECOND  DISTRICT. 

Composed  of  the  Northern  Grand  Division  of  the  Supreme  Court, 

except  Cook  county. 
Court  sits  at  Ottawa,  LaSalle  county,  on  the  third  Tuesday  in  May, 

and  the  first  Tuesday  in  December. 
Clerk— Columbus  C.  Duffy,  Ottawa,  niinois. 

JUSTICES. 

John  D.  Crabtree,  Dixon,  Illinois. 
DoRRANCE  Dibell,  Joliet,         ** 
Francis  M.  Wright,  Urbana,    '* 

THIRD  DISTRICT. 

Composed  of  the  Central  Grand  Division  of  the  Supreme  Court, 
Court  sitB  at  Springfield,  Sangamon  county,  on  the  third  Tuesdays 

in  May  and  November. 
Clerk — W.  C.  Hippard,  Sprmgfield,  Illinois. 

JUSTICES. 

Oliver  A.  Harker,  Carbondale,  Illinois. 
Benjamin  R.  Burroughs,  Edwardsville,  Illinois. 
John  J.  Glenn,  Monmouth,  Ulinois. 

• 

FOURTH  DISTRICT. 

Composed  of  the  Southern  Grand  Division  of  the  Supreme  Court 
Court  sits  at  Mount  Vernon,  Jefferson  county,  on  tne  fourth  Tues- 
days in  February  and  August. 
Cl£RK — Frank  W.  Havill,  Mount  Vernon,  Illinois. 

justices. 


James  A.  Creighton,  Springfield,  Illinois. 
Nicholas  E.  Worthington,  Peoria,  ** 
Hiram  Bigelow,  Galva,  '* 

(8) 


Judges  op  the  Circuit  Courts. 


CIRCUIT  COURTS. 


Exclusive  of  Cook  county,  the  State  of  Illinois  is  divided  into  Seven- 
teen Judicial  Circuits,  as  follows : 

First  Circuit. — The  counties  of  Alexander,  Pulaski,  Massac,  Pope, 
Johnson,  Union,  Jackson,  Williamson  and  Saline. 

JUDGES. 

Joseph   P.  Robartb,   Cairo,    Illinois. 
Oliver  A.  Ha.rjeu:r,  Carbondale,  '' 
Alonzo  K.  Vickers,  Vienna,        " 

Second  Circuit — ^The  counties  of  Hardin,  Gallatin,  White,  Hamilton, 
Franklin,  Wabash,  Edwards,  Wayne,  Jefferson,  Richland,  Lawrence  and 
Crawford. 

JUDGES. 

Edmund  D.  Youngblood,  Mount  Vernon,  IllinoipL 
Prince  A.  Pearcb,  Carmi, 
Enoch  E.  Newun,  Robinson, 

Third  Circuit, — The  counties  of  Randolph,  Monroe,  St.  Clair,  Madifon, 
Bond,  Washington  and  Perry. 

JUDGES. 

Benjamin  R.  Burroughs,  Edwardsville,  Illinois. 
Martin  W.  Schaeffer,  Belleville,  " 

WiLUAM  Hartzell,  Chester,  '* 

Fourth  Circuit. — The  counties  of  Clinton,  Marion,  Clay,  Fayette,  Ef- 
fingham, Jasper,  Montgomery,  Shelby  and  Christian. 

JUDGES. 

William  M.  Farmer,  Vandalia,  Illinois. 
Truman  E.  Ames,  Shelby  ville, 
Samuel  L,  Dwight,  Oentralia, 

Fifth  Circuit. —The  counties  of  Vermilion,  Edgar,  Clark,  Cumber- 
land and  Coles. 

JUDGES. 

Henry  Van   Sellar,    Paris,    Illinois. 
Ferdinand  Bookwalter.  Danville,  ** 
Frank  K.  Dunn,  Charleston,  '* 

Sixth  Circuit, — ^The  counties  of  Champaign,  Douglas,  Moultrie,  Ma- 
con, DeWitt  and  Piatt. 

JUDGES. 

Francis   M.  Wright,  Urbana,  Illinois. 
Edward  P.  Vail,  Decatur. 
WiLUAM  G^  Cochran,  Sullivan, 

Seventh  Circuit— The  counties  of  Sangamon,  Macoupin,  Morgan, 
Scott,  Green  and  Jersey. 

JUDGES. 

James  A.  Creighton,  Springfield,  Illinois. 
Robert  B.  Shirley,  Carlinville, 
Owen  P.  Thompson,  Jacksonville, 

Eighth  Circuit — ^The  counties  of  Adams,  Schuyler,  Mason,  Cass, 
Brown,  Pike,  Calhoun  and  Menard. 

JUDGES. 

John   C.  Broady,   Quincy,  Illinois. 
Harry  Higbee,  Pittsfield,  ** 

Thomas  N.  Mehan,  Mason  City,  '* 


(4 


Judges  of  the  Circuit  Courts, 


Ninth  Circuit — ^The  counties  of  Knox,  Warren,  Henderson,  Hancock » 
McDonough  and  Fulton. 

JUDGES. 

John   J.   Glenn,  Monmouth,  Illinois. 
George  W.  Thompson,  Galesburg,  " 
John  A.  Gray,  Canton, 


<< 


Tenth  Circuit, — The  counties  of  Peoria,  Marshall,  Putnam,  Stark  and 
TazewelL 

JUDGES. 

,  Leslie  D.  Puterbaugh.  Peoria,  Illinois. 

Thomas  M.  Shaw,  Lacon,  " 

Nicholas  E.  Worthington,  Peoria,** 

Eleventh  Circuit. — The  counties  of  McLean,  Livingston,  Logan,  Ford 
and  Woodford- 

judges. 

Colostin  D.  Myers,  Bloomington,  Illinois. 
George  W.  Patton,  Pontiac,  ** 

John  H.  Mopfett,  Paxton, 


t( 


Twelfth  Circuit—The  counties  of  Will,  Kankakee  and  Iroquois. 

JUDGES. 

DoRRANCB   Dibell,  Joliet,  Illinois. 
Robert  W.  Hilscher,  Watseka,** 
John  Small,  Kankakee,  ** 

Thirteenth  Circuit, — The  counties  of  Bureau,  LaSalle  and  Grundy. 

judges. 

Charles  Blanchard,  Ottawa,  Illinois. 
Harvey  M.  Trimble,  Princeton.    ** 
Samuel  C.  Stough,  Morris, 


(I 


Fatirteenth  Circuit.  —The  counties  of  Rock  Island,  Mercer,  Whiteside 
and  Henry. 

judges. 

Hiram  Bigelow,  Galva,  Illinois. 
William  H.  Gest,  Rock  Island,  Illinois. 
Frank  D.  Ramsey,  Morrison, 


ti 


Fifteenth  Circuit — The  counties  of  Jo  Daviess,  Stephenson,  Carroll, 
Ogle  and  Lee. 

JUDGES. 

John  D.  Crabtree,  Dixon,  Illinois. 
James  Shaw,  Mount  Carroll, 
James  S.  Baume,  Galena. 


Sixteenth   Circuit. -^The  counties  of   Kane,    DuPage,  DeKalb  and 
KendalL 

judges. 

Henry  B.  Willis,  Elgin,  Illinois. 
Charles  A.  Bishop,  Sycamore,  Illinois. 
George  W.  Brown,  Wheaton, 


i( 


Seventeenth  Circuit. — The  counties  of  Winnebago,  Boone,  McHenry 

and  Lake. 

judges. 

John  C.  Garver,  Rockford,  Illinois. 
Charles  E.  Fuller,  Belvidere,  Illinois. 
Charles  H.  Donnelly,  Woodstock,  Illinois. 


6  Courts  of  Cook  County. 


COURTS  OF  COOK  COUNTY. 


The  State  constitution  recognizes  Cook  county  as  one  judicial  circuit, 
and  establishes  the  Circuit  and  Superior  Courts  of  said  county.  The 
Criminal  Court  of  Cook  County  is  also  established  with  jurisdiction  of  a 
Circuit  Court  in  criminal  cases  only.  The  judges  of  the  Circuit  and 
Superior  Courts  are  judges,  ex-offlcio,  of  the  Criminal  Court 


CIRCUIT  COURT. 
Clerk — John  A.  C'k)ok,  County  Building,  (i!hicago. 

JUDQES. 

Edward  F.  Dunne,  John  Gibbons, 

Murray  F.  Tuley,  Richard  W.  Clifford, 

Richard  S.  Tuthill,  Thomas  G.  Windes, 

Francis  Adams,  Edmund  W.  Burke, 

Arba  N.  Waterman,  Charles  G.  Neely, 

Elbridqr  Hanecy,  Frank  Baker, 

Oliver  H.  Horton,  Abner  Smith. 

SUPERIOR  COURT. 
Clerk— Stephen  D.  Griffin,  County  Building,  Chicago. 

judges. 

Henry  M.  Shepard,  Arthur  H.  Chetlain, 

Theodore  Brentano,  Henry  V.  Freeman, 

Philip  Stein,  John  Barton  Payne, 

William  G.  Ewino,  Nathaniel  C.  Sears, 

Jonas  Hutchinson,  Farlin  Q.  Ball, 

James  Gogqin,  Joseph  E.  Gary. 


TABLE  OF  OASES. 


Abbott  V.  Stone  et  al 671 

Ackermann  atB.  Gibson 899 

Adamick  ats.  Hattenhauer 609 

Adams  ats.  Squires  et  al 503 

AUis  Ck>.  ats.  Schumacher  et  al.,  assignees 556 

American  Screw  Co.  ats.  McCune,  Assignee 681 

American  Trust  &  Savings  Bank  ats.  Greenebaum 407 

American  Trust  &  Savings  Bank  v.  Pack,  Woods  &  Co.,  use,  etc. .  177 

Anderson  ats.  North  Chicago  St.  R.  R.  Co 836 

Andrews  V.  Donnerstag  et  al 236 

Appleraan  et  aL  ats.  Shaffner  et  al 684 

Ashline,  Adm.  ats.  Illinois  C.  R.  R.  Co 618 

Atlas  Sewer  Pipe  Co.  v.  Stickney  et  al 176 

Aurand  ats.  Huntington 28 

Avery  Adm.  ats.  Wright  et  al 507 


Baldwin  v.  Economy  Furnace  Co 49 

Ballance  v.  City  of  Peoria 546 

Barrett  ats.  Wheeler  &  Wilson  Mfg.  Co 222 

Barrow  v.  Sligh 8i9 

Belly  Adm.  et  al.  ats.  Smith 490 

Bernstein  v.  People,  etc 175 

Bernstein  v.  2jolotkoff 869 

Beyhmer  v.  Odel 459 

Blakeslee  ats.  Hudlun 664 

Blaul  ats.  Chicago  &  A.  R  R.  Co 518 

Blomstrom  ats.  Dux  et  al 62 

Boeker  ats.  West  Chicago  St.  R.  R.  Co 67 

Bendy  ats.  Hazle  et  al 185 

Boston  National  Bank  ats.  Wheeler  Chemical  Works  et  al 854 

Botham  ats.  Redfem 258 

Bradley,  Adm.  ats.  Washington  Ice  Co 818 

Bradley  Manufacturing  Co.  v.  Raynor,  Receiver 689 

Brady  v.  Loring,  use,  etc 191 

Branen  ats.  Sell  et  al 471 

(7) 


8  Appellate  Coubts  of  Illinois, 

Brennan  et  al  v.  Kinsley 645 

Brettschneider  v.  The  Fair 48 

Buffalo  BiU'8  Wild  West  Co.  ats.  GUbert 826 

Burke  v.  Dunning m 215 

Burke  v.  Hindman 496 

Burrell,  Adm'x,  ats.  Chicago  City  Ry.  Co 60 

o 

Caldwell  et  al.  v.  Dvorak 647 

Calland  et  al.  v.  Trapet 228 

Caiman  v.  Stuekart 310 

Calumet  Electric  St.  Ry.  Co.  v.  Christenson 84 

Calumet  Electric  St.  Ry.  v.  Grosse 881 

Calumet  Electric  St.  Ry.  Co.  Lynholm 371 

Calumet  Electric  St.  Ry.  Co.  ats.  South  Chicago  City  Ry.  Co 254 

Carolus  ats.  Over 513 

Carter  ats.  Wood 217 

Catlin  ats.  Chicago  City  Ry.  Co 97 

Catton  V.  Dexter : 586 

Central  School  Supply  House  v.  Donovan  et  al 208 

Chamberlin  et  al.  ats.  Clarke 262 

Chandler  v.  Smith 658 

Chapman  ats.  Elder 288 

Chase  v.  Chase 572 

Chase,  Recorder,  etc.,  ats.  People,  etc.,  ex  rel.,  etc 42 

Chicago  &  A.  R.  R.  Co.  v.  Blaul 518 

Chicago  &  A.  R.  R.  Co.  v.  Clausen 550 

Chicago  &  A.  R.  R.  Co.  v.  Glenny 510 

Chicago  &  A.  R.  R.  Co.  v.  Redmond 119 

Chicago  &  A.  R.  R.  Co.  v.  Robbins 195 

Chicago  &  A.  R.  R.  Co.  v.  Swan 831 

Chicago  City  Ry.  Co.  v.  Burrell,  Adm'x 60 

Chicago  City  Ry.  Co.  v.  Catlin 97 

Chicago  City  Ry.  Co.  v.  McMeen 220 

Chicago  Dredging  and  Dock  Co.  ats.  Claney 158 

Chicago  &  Eastern  Illinois  R  R,  Co.  v.  Driscoll,  Adm'x 91 

Chicago  G.  W.  Ry.  Co.  v.  Kenyon,  Adm 567 

Chicago  G.  W.  Ry.  Co.  v.  Mitchell 188 

Chicago  &  N.  W.  Ry.  Co.  v.  Kane 676 

Chicago  Opera  House  Co.,  use.  etc.,  v.  Paquin 596 

Chicago  R.I.  &  P.  Ry.  Co.  v.  Ohlsson 487 

Chicago  Trust  &  Savings  Bank  et  al.  ats.  Langhenry 200 

Christenson  ats.  Calumet  Electric  St.  Ry.  Co , 84 

Christian  v.  Tyler  &  Hippach 227 

Cicero  &  Proviso  St.  Ry.  Co.  ats.  Richter 196 

Citizens  National  Bank  of  Franklin  ats.  Dickinson 405 

City  of  Chicago  et  al.  ats.  Kinnare,  Adm 106 

City  of  Chicago  et  al.  ats.  Kotz 284 


Table  of  Cases. 


City  of  Evanston  v.  Meyers 205 

City  of  Evanston  v.  O'Leary 124 

City  of  Keithsburg  v.  Simpson 467 

City  of  Peoria  ats.  Ballance 546 

Claney  et  al.  v.  Chicago  Dredging  &  Dock  Co 158 

Clarke  v.  Chamberlin  et  al 262 

Clark  V.  Parker  et  al 233 

Clausen  ats.  Chicago  &  A.  R.  R.  Co 550 

Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Hall , 429 

Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v,  Jenkins 415 

Commercial  National  Bank  et  al.  v.  Stoddard 79 

Cohen  ats.  Moore 160 

Collins  ats.  Hough 661 

Congress  Construction  Co.  v.  Gutrich 183 

Conlan  v.  Mead  et  al 318 

Connor  ats.  Siegel,  Cooper  &  Co 116 

Crete  Farmers*  Mutual  Township  Insurance  Co.  v.  Miller 599 

Crone  v.  Crone 294 

Crosby,  Adm'z,  ats.  Union  Insurance  Co 129 

D 

Darrow  ats.  People's  Casualty  Claim  Adjustment  Co 22 

Davenport  v.  Piano  Implement  Co 161 

Davies  ats.  Hopper  et  al 682 

Davis  V.  Gibson 273 

Delaney  v.  Delaney 130 

Dexter  ats.  Catton 586 

Denny  ats.  German  Insurance  Co 437 

Dickinson  v.  Citizens  National  Bank  of  Franklin 405 

Dixon  et  ^.  ats.  Harper  et  al 186 

Dobson  V.  More,  Assignee,  etc 89 

Donnerstag  et  al.  ats.  Andrews 236 

Donovan  et  al.  ats.  Central  School  Supply  House 208 

Dom  V.  Gteuder 411 

Dovenmuehle,  Ex.,  v.  Eilenberger 180 

Driscoll,  Adm'x,  ats.  Chicago  &  Eastern  Illinois  R.  R.  Co 91 

Dreyer  v.  Kadish  et  al 76 

Dunn  V.  O^Mara 609 

Dunning  ats.  Burke 215 

Durbin  V.  Durbin 439 

Dux  et  aL  V.  Blomstrom 62 

Dvorak  ata.  Caldwell  et  al 547 

E 

Economy  Furnace  Co.  ats.  Baldwin 49 

Edelstein  ats.  High  Court  of  the  Independent  Order  of  Foresters  95 

ESdson  V.  Pennsylvania  Co 654 

Eilenberger  ata.  Dovenmuehle,  Ex 180 


10  Appellate  Courts  op  Illinois, 

Elder  v.  Chapman 288 

Elgin,  J.  &  E.  Ry.  Co.  v.  Reese 463 

Elite  News,  use,  etc.,  ats.  Upton 108 

Ensminger  et  al.  ▼.  Horn  et  al 605 

Evans  v.  Pierce 457 

Ewen  V.  Wilbor 153 

F 

Fair  ats.  Brettschneider 48 

Falkenau  v.  Rowland,  Adm'x 20 

Famsworth  ats.  Star  Brewery 150 

Feyreisen  v.  Sanchez 105 

Firat  National  Bank  ats.  Warman  et  al 181 

Fisli  Furniture  Co.  ats.  Pease 138 

Fort  Chartres  D.  &  L.  Dist.  v.  Smalkand 449 

Foster  v.  Osborne 82 

Fox  et  al.  v.  Oriel  Cabinet  Co 822 

Frake  ats.  Lane 808 

Franklin  v.  HUlsdale  Land  &  Cattle  Co.  et  nl 297 

Franklin  v.  Krum  et  al 649 

G 

Gaither  ats.  Mahon 484 

Garibaldi  ats.  North  Chicago  Hebrew  Congregation 83 

German  Insurance  Co.  v.  Denny 437 

Geuder  ats.  Dom 411 

Gibson  v.  Ackerman 899 

Gibson  ats.  Davis 273 

Gilbert  v.  Buffalo  BilPs  Wild  West  Co 326 

Gilbert  ats.  Second  National  Bank ^ . . . .  251 

Gilliam  v.  Merchants*  National  Bank 592 

Glenny  ats.  Chicago  &  A.  R.  R.  Co 510 

Grand  Prairie  Seminary  ats.  Morgan  et  al 575 

Greenebaum  v.  American  Trust  &  Savings  Bank 407 

Griffith  Bros.  v.  Hall 500 

Gross  V.  Schroeder 625 

Grosse  ats.  Calumet  Electric  St  Ry.  Co 381 

Gutrich  ats.  Congress  Ck>nstruction  Co 183 

H 

Hales  &  Curtis  Malting  Co.  ats.  Standard  Brewery 868 

Hall  ate.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co 429 

Hall  ats.  Griffith  Bros, 500 

Hampton  ate.  Kenyon 80 

Hansen  et  al.  v.  United  States  Brewing  Co 265 

Harding  et  al.  v,  Kuessnor 855 

Harms  v.  Stier 213 

Harper  et  al.  t.  Dixon  et  al 136 


Table  op  Cases.  11 


Hartford  Deposit  Co.  v.  Sollitt 166 

Hartford  Fire  Insurance  Ck>.  v.  McKenzie 615 

Hattenhauer  v.  Adamick 602 

Hawkes  v.  Taylor 265 

Hazle  et  aL  v.  Bondy 185 

Heitmeier  ats.  Lambe 455 

Henning&  Sons  ▼.  Williams 199 

Hetzner  ats.  McCarthy 480 

High  Court  of  the  Independent  Order  of  Foresters  v.  Edelstein 95 

High  Court  of  the  Independent  Order  of  Foresters  v.  Schweitzer . .  189 

Hillsdale  Land  &  Cattle  Co.  et  al.  ats.  Franklin 297 

Hinchliff  et  al.  v.  Budnick 146 

Hindman  ats.  Burke 496 

Hlnebaugh  ats.  Milligan 587 

Honsinger  ats.  North  Chicago  St.  R.  R.;Co 101 

Hopper  et  al.  v.  Davies 682 

Horn  et  aL  ats.  Ensminger  et  al 605 

Hough  V.  Collins 661 

Howard  v.Tedford 660 

Hudlunv.  Blakeslee 664 

Humiston,  Keeling  &  Co.  v.  Wheeler 849 

Huntington  v.  Aurand 28 

I 

Illinois  C.  R  R.  Co.  v.  Ashline,  Adm 613 

Illinois  C.  R.  R  Co.  v.  McCowan 845 

Isham  ats.  Orcutt 1 02 

J 

Jackson  et  al.  ▼.  Village  of  Mt.  Morris  et  al 618 

Jenkins  ats.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co 415 

Jennings,  use,  etc.,  ats.  Westchester  Fire  Insurance  Co 589 

Jobusch  ats.  Mann 440 

Johnson  ats.  Lake  St.  Elevated  R.  R.  Co 418 

Johnson  ats.  People,  etc.,  ex  rel 684 

K 

Kadish  et  al.  ats.  Dreyer 76 

Kane  ats.  Chicago  &  N.  W.  Ry.  Co 676 

Kelley  v.  Leith  et  al 85 

Kenyon  v.  Hampton 80 

Kenyon,  Adm.,  ats.  Chicago  G.  W.  Ry.  Co 667 

Badder  ats.  Reed  et  al 498 

E[ingman  &  Co.  v.  Meyer  Bros 476 

Kinnare,  Adm.,  v.  Michigan  Central  R.  R.  Co 878 

Einnare,  Adm.,  v.  City  of  Chicago  et  al 106 

Kinsley  ats.  Brennan  et  al 645 


12  Appellate  Courts  of  Illinois. 

Kintz  V.  Starkey 53 

Knefel  v.  Swartz 871 

Kotz  V.  City  of  Chicago  et  al 284 

Krum  et  al.  ats.  Franklin 649 

Kueesner  ats.  Harding  et  al 355 

L 

Lake Shore&M.  S.  Ry.  Co.  v.  Ryan 45 

Lake  St  Elevated  R.  R.  Co.  v.  Johnson 413 

Lambe  v.  Heitmeier 455 

Lane  v.  Frake 303 

Langhenry  v.  Chicago  Trust  &  Savings  Bank  et  al 200 

Langworthy,  receiver,  ats.  Mallen  et  al 376 

Laster  ats.  McCormick  Harvesting  Machine  Company 425 

LeFevere  v.  Watson  et  al ^ 646 

Leith  et  al.  ats.  Kelly 35 

Lewinsohn  v.  Stevens  et  al 807 

Lindgren-Mahan  Chemical  Fire  Engine  Co.  v.  Revere  Rubber  Co. 

et  al 379 

Loring,  use,  etc.,  ats.  Brady 191 

Lovece  ats.  Monahan 69 

Lynholm  ats.  Calumet  Electric  St.  Ry.  Co 371 

M 

Maclin  ats.  Perry  County  Coal  Mining  Co 444 

Maher  ats.  McElheme 110 

Mahon  v.  Gaither 434 

Malcolm  v.  Shanklin 367 

Mallen  et  al.  v.  Langworthy,  Receiver 876 

Mailers  v.  Whittier  Machine  Co 17 

Mann  v.  Jobusch 440 

Manning  ats.  West  Chicago  St.  Ry.  Co 239 

Mathews  ats.  Wells  et  al 504 

Matson,  use,  etc.,  v.  Ripley  et  al 86 

Matthie  ats.  Otto 54 

Mayo  ats.  Travelers'  Insurance  Co 627 

McCarthy  v.  Hetzner 480 

McCormick  Harvesting  Machine  Company  v.  Laster 425 

McCowan  ats.  Illinois  Central  R.  R.  Co 345 

McCune,  assignee,  v.  American  Screw  Co 631 

McElheme  v.  Maher 110 

McKenna  v.  McKenna 340 

McKenzie  ats.  Hartfo(rd  Fire  Insurance  Co 615 

McMeen  ats.  Chicago  City  Ry.  Co 220 

Mead  et  al.  ats.  Conlan 818 

Meguiar,  Yanecy  &  Co.  v.  Rainey 447 

Merchant's  Loan  &  Trust  Co.  ats.  Moore 210 

Merchants'  National  Bank  ats.  Gilliam 592 


Table  of  Cases.  13 


Merchants'  National  Bank  ats.  Tarrant  &  Co 595 

Metzger  Linseed  Oil  Co.  ats.  Wheeler,  Assignee 522 

Meyer  Bros.  ats.  Kingman  &  Co 476 

Meyers  ats.  City  of  Evanston 205 

Michigan  Central  R.  R.  Co.  ats.  Kinnare,  Adm 873 

Miller  ats.  Crete  Farmers'  Mutual  Township  Insurance  Co 599 

Milligan  v.  Hinehaugh 587 

Mills  et  al.  ats.  Shepard 72 

MitcheU  ats.  Chicago  Great  Western  Ry.  Co 188 

Monahan  v.  Lovece 69 

Moore  v.  Cohen 160 

Moore  v.  Merchants'  Loan  &  Trust  Co 210 

More,  assignee,  etc.,  ats.  Dobson 89 

Morgan  et  al.  t.  Grand  Prairie  Seminary 575 

Murray  et  al.  ats.  Ribordy 527 

National  Bank  of  Illinois  ats.  Northwestern  Iron  and  Metal  Co. . . .  245 

National  Wall  Paper  Co.  ats.  Wiley  &  Drake 543 

Naugle  et  al.  ats.  Suburban  (]k>n8truction  Company  et  al 384 

Nilson  ats.  West  Chicago  St.  R.  R.  Co 171 

North  Chicago  Hebrew  Congregation  v.  Garibaldi 83 

North  Chicago  St.  R.  R.  Co.  v.  Anderson 836 

North  Chicago  St.  R.  R.  Co.  v.  Honsinger 101 

North  Chicago  St.  R  R.  Co.  v.  Shreve 666 

North  Packing  &  Provision  Co.  v.  Western  Union  Telegraph  Co. . .  275 

Northern  Pacific  Express  Co.  ats.  Traders'  Insurance  Co 148 

Northern  Trust  Co.,  Ex.  v.  Palmer,  Ex 93 

Northwestern  Iron  &  Metal  Co.  v.  National  Bank  of  Illinois 245 

Norton  Brothers  v.  Sczpurak 686 

Nudelman  ats.  Standard  Brewery 856 

o 

Odel  ats.  Bcyhmer 459 

OhJsson  ats.  Chicago,  R.  I.  &  P.  Ry.  Co 487 

Olieary  ats.  City  of  Evanston 124 

O'Mara  ats.  Dunn 609 

Orcutt  V.  Isham 102 

Oriel  Cabinet  Co.  ats.  Fox  et  al 822 

Osborne  ats.  Foster 82 

Otto  V.  Matthie 54 

Over  V.  Carolus 618 

p 

Pack,  Woods  &  Co.,  use,  etc.,  ats.  American  Trust  &  Savings 

Bank 177 

Palmer,  Ex.,  ats.  Northern  Trust  Co.,  Ex 93 

Paquin  ats.  Chicago  Opera  House  Co.,  use,  etc 596 

Parker  et  al.  ats.  Clark 233 


L. 


14  Appellate  Courts  of  Illinois, 

Parks  V.  Rector  et  al 445 

Pease  v.  Fish  Fumitore  Co 138 

Pennsylvania  Co.  ate.  Edson 654 

Perry  County  Coal  Mining  Co.  v.  Maclin 444 

Peterson  v.  Randall 484 

Philadelphia  &  Reading  C.  &  L  Co.  ate.  Ruddy 320 

Pierce  ats.  Evans 457 

People,  etc.,  ats.  Bernstein 175 

People,  etc.,  ex rel.,  etc.,  v.  Chase,  Recorder,  etc 42 

People,  etc.,  ex  rel.,  etc.,  v.  Johnson 634 

People,  etc.,  ex  rel.,  etc.,  v.  Welshet  al.,  Trustees 641 

People's  Casualty  Claim  Adjustment  Co.  v.  Darrow 22 

Peoria  Grape  Sugar  Co.  v.  Tumey  et  al 589 

Pick  So  Co.  v.  Slimmer 358 

Pittsburg  Bridge  Co.  v.  Walker 55 

Piano  Implement  Co.  ats  Davenport 161 

R 

Rainey  ats.  Meguiar,  Yanecy  &  Co 447 

Randall  ats.  Peterson 484 

Ranstead  ats.  West  Chicago  St.  R.  R.  Co Ill 

Raynor,  Receiver,  ats.  Bradley  Manufacturing  Co 639 

Rector  et  al.  ats.  Parks 445 

Redden  &  Echols  v.  Slimpert 460 

Redfem  v.  Botham 253 

Redmond  ats.  Chicago  &  A.  R.  R.  Co 119 

Reed  et  al.  v.  Kidder 498 

Reese  ats.  Elgin  J.  &  E.  Ry.  Co 468 

Rehkopf  ats.  Thomson 169 

Revere  Rubber  Co.  et  al.  ats.   Lindgren-Mahan  Chemical  Fire  En- 
gine Co 879 

Ribordy  v.  Murray  et  al 527 

Richter  v.  Cicero  &  Proviso  St.  Ry.  Co 196 

Ripley  et  al.  ats.  Matson,  use,  etc 86 

Robbins  ats.  Chicago  &  A,  R.  R.  Co 195 

Rowland,  Adm'x.  ats.  Falkenau 20 

Rosenheim  ats.  Tosetti  Brewing  Co '. 198 

Ruddy  V.  Philadelphia  &  Reading  C.  &  I.  Co 320 

Rudnick  ats,  Hinchliff  et  al 148 

Ryan  ats.  Lake  Shore  &  M.  S.  Ry.  Co 45 

s 

Sanchez  ats.  Feyreisen 105 

Schnadt  ats.  Scott 25 

Schroeder  ats.  Gross 625 

Schumacher  et  al.,  Assignees,  v.  Allis  Co 656 

Scott  V.  Schnadt 25 

Scott  ats.  Williams , 51 


Table  of  Cases.  15 

Sczpurak  ats.  Norton  Brothers 686 

Second  National  Bank  v.  Gilbert 351 

Sell  et  aL  v.  Branen 471 

Shaffner  et  al.  v.  Appleman  et  ai 684 

Shanklin  ats.  Malcolm 867 

Shepard  v.  Mills  et  al 72 

Shreve  ats.  North  Chicago  St  R.  R.  Co 666 

Siegel,  Cooper  &  Co.  v.  Connor , 116 

Simpson  ats.  City  of  Keithsburg 467 

Slighats.  Barrow 819 

Slimmer  ats.  Pick  &  Co 358 

Slimpert  ats.  Redden&;  Echols .' 460 

Smalkandats.  Fort Chartres,  D.  &L.  Dist 449 

Smith  V.  Bell,  Adm.,  et  al 490 

Smith  atB.  Chandler 658 

Sollitt  ats.  Hartford  Deposit  Co 166 

South  Chicago  City  By.  Ca  v.  Calumet  Electric  St.  Ry.  Co 254 

South  Chicago  City  Ry.  Co.  v.  Walters 271 

Squires  et  al.  t.  Adams 502 

Standard  Brewery  v.  Hales  &  Curtis  Malting  Co 868 

Standard  Brewery  v.  Nudelman 856 

Star  Brewery  v.  Famsworth 150 

Starkey  ats.  Kintz 53 

Stevens  et  al.  ats.  Lewinsohn 807 

Stier  ats.  Harms 213 

Stickney  et  al.  ats.  Atlas  Sewer  Pipe  Co 176 

Stoddard  ats.  Commercial  National  Bank 79 

Stone  et  al.  ats.  Abbott 671 

Stuckart  ats.  Caiman, 810 

Suburban  Construction  Company  et  al.  v.  Naugle  et  al 884 

Swan  ats.  Chicago*  A.  R.  R.  Co 381 

Swanberg  v.  Treadwell 474 

Swartz  ats.  Knefel \ 871 

Schweitzer  ats.  High  Court  of  the  Independent  Order  of  Foresters.  184 

T 

Tarrant  Sp  Co.  v.  Merchants*  National  Bank 595 

Taylor  ats.  Hawkes 255 

Tedford  ats.  Howard 660 

Thomson  v.  Rehkopf 169 

Tosetti  Brewing  Co.  v.  Rosenheim 193 

Traders'  Insurance  Co.  v.  Northern  Pacific  Express  Co 143 

Trapet  ats.  Calland  et  al 228 

Travelers'  Insurance  Co.  v.  Mayo 627 

Treadwell  ats.  Swanberg. 474 

Tumey  et  al.  ats.  Peoria  Grape  Sugar  Co 589 

l^ler  &  Hippach  ats.  Christian 227 


16  Appellate  Couets  of  Illinois. 

U 

Union  Insurance  Co.  v.  Crosby,  Adm'z 129 

United  States  Brewing  Co.  ats.  Hansen  et  al 265 

Upton  V.  Elite  News,  use,  etc 108 

V 

Vehon  v.  Vehon 40 

Village  of  Mt.  Morris  et  al.  ats.  Jackson  et  al 618 

w 

Walker  ats.  Pittsburg  Bridge  Co 65 

Walters  ats.  South  Chicago  City  Ry.  Co 271 

Warman  et  aL  v.  First  National  Bank 181 

Washington  Ice  Co.  v.  Bradley,  Adm 318 

Watson  et  al.  ats.  LeFevere 646 

Wells  et  al.  v.  Mathews 504 

Welsh  et  al.,  trustees,  ats.  People,  etc.,  ex  rel 641 

West  Chicago  St.  R.  R.  Co.  v.  Boeker 67 

West  Chicago  St.  Ry.  Co.  v.  Manning 289 

West  Chicago  St.  R.  R.  Co.  v.  Nilson 171 

West  Chicago  St.  R.  R.  Co.  v.  Ranstead Ill 

Westchester  Fire  Insurance  Co.  v.  Jennings,  use,  etc ' 589 

Western  Union  Telegraph  Co.  ats.  North  Packing  &  Provision  Co.  275 

Wheeler  ats.  Humiston,  Keeling  &  Co 849 

Wheeler,  Assignee,  v.  Metzger  Linseed  Oil  Co 522 

Wheeler  Chemical  Works  et  al.  v.  Boston  National  Bank 854 

Wheeler  &  Wilson  Mfg.  Co.  v.  Barrett 222 

Whittier  Machine  Co.  ats.  Mailers 17 

Wilbor  ats.  Ewen 158 

Wiley  &  Drake  v.  National  Wall  Paper  Co 548 

Williams  ats.  Henning  &  Sons 199 

Williams  v.  Scott 51 

Wood  V.  Carter 217 

Wright  et  al.  v.  Avery,  Adm 507 

z 

Zolotkofit  ats.  Bernstein 869 


CASES 


IM  THB 


First  District — March  Term,  1897. 


John  B.  Mailers  r.  Whittier  Machine  Company. 

1.  Lis  Pendens — Former  Suit  Dismissed  Without  Paying  Costs.— 
There  is  no  rule  of  law  requiring  a  form  »r  suit  to  be  considered  as  pen  1- 
ing  after  it  has  been  dismissed  until  tiie  defendant's  costs  have  been 
paid,  or  compelling  a  plaintiff  to  pay  the  co^ts  of  a  first  action  before  lie 
is  suffered  to  proceed  with  a  second  upon  the  same  ground. 

Assnmpsit,  on  two  promissory  notes.— Appeal  from  the  Superior  Court 
of  Cook  County:  the  Hon.  James  Gogoin,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  April  15, 
1807. 

Chas.  B.  Stafford,  attorney  for  appellant,  contended  that 
for  the  purposes  of  a  plea  of  Ns  pendens  a  suit  should  be 
considered  pending  in  cases  of  non-suit  until  the  plaintiff 
had  made  good  defendant's  costs.  White  v.  Smith,  4  Hill 
(K.  Y.)  166;  S.  C,  7  Hill,  520. 

IIawley  &  Prouty,  attorneys  for  appellee. 

Upon  the  dismissal  of  a  suit  for  want  of  jurisdiction,  it  is 
proper  for  the  court  to  give  judo^ment  for  costs  against  the 
defendant.  LeMoyne  v.  Harding,  1U2  111.  78;  Bangs  v. 
Brown,  110  111.  96. 


APPELLATE  COORTS  OF  ILLINOIS,  a^ 


18  Appellate  Courts  op  Illinois. 

Vol.  70.]  Mallei-s  v.  Whittier  Machine  Co. 

Such  a  judgment  is  final  and  disposes  of  the  case,  but  it 
does  not  bar  another  suit  for  the  same  causes  of  action  in 
another  court  of  competent  jurisdiction.  1  Freeman  on 
Judgments  (4th  Ed.),  Sec.  17. 

Mr,  Peesidino  Justice  SnBPA.Rr)  delivered  the  opinion 
OF  THE  Court. 

This  appeal  is  from  a  judgment  of  $7,204,  recovered 
against  appellant  in  an  action  of  assumpsit  brought  by  ap- 
pellee as  endorsee  of  two  promissory  notes  for  $3,000  each, 
made  by  appellant. 

To  the  action,  the  appellant  filed  his  verified  plea  of  a 
former  suit  pending  between  the  same  parties,  for  the  same 
causes  of  action,  in  the  Circuit  Court  of  the  United  States 
for  the  Northern  District  of  Illinois,  Northern  Division, 
which  plea  concluded  by  praying  judgment  of  the  writ  and 
that  the  same  might  be  quashed,  and  was  therefore  a  plea 
in  abatement  of  the  suit.    No  other  plea  was  interposed. 

Appellant,  in  his  brief,  states  the  issue,  as  follows : 

^^  The  issue  raised  in  this  c:use  is  whether  or  not  a  plaintiff 
who  suffers  an  enforced  non-suit  can,  without  reimbursing 
the  defendant  for  court  costs  expended,  compel  the  de- 
fendant to  again  contest  upon  the  self-same  claim  in  regard 
to  which  the  non-suit  was  rendered.  The  facts  in  this  case, 
as  shown  by  the  abstract,  are,  in  brief,  these :  Plaintiff 
company  sued  the  defendant  upon  two  promissory  notes  in 
the  United  States  Circuit  Court,  Northern  District  ot  Illi- 
nois, Northern  Division^  Defendant  appeared  and  regu- 
larly pleaded  a  number  of  defenses.  At  the  time  of  the 
trial,  the  suit  was  dismissed  on  motion  of  defendant  for 
-want  of  jurisdiction,  and  defendant's  costs  to  the  amount  of 
$13.11  were  taxed  against  the  plaintiff;  plaintiff  has  never 
paid  these  costs.  And  utterly  indifferent  to  the  expense 
incurred  by  the  defendant  without  reimbursement,  plaintiff 
instituted  suit  in  the  Superior  Court  of  Cook  County,  upon 
the  self-same  issues  involved  in  the  previous  suit.  The 
parties  are  the  same  and  the  subject-matter  of  the  suit  is 
the  same« 


First  District— March  Term,  1897.         19 

Mailers  v.  Whittier  Machine  Co. 

The  plaintiff  is  a  corporation  non-resident  in  Illinois,  and 
without  any  property  or  business  representative,  so  far  as 
is  ascertainable." 

Appellant  concedes  that  no  Illinois  authority  in  support 
of  his  contention  can  be  found,  but  relies  on  the  reason  and 
justice  of  his  proposition,  and  upon  White  v.  Smith,  4  Hill, 
166,  and  the  opinion  of  Senator  Lott  in  the  same  case,  7 
Hill,  520. 

An  examination  of  the  New  York  cases  referred  to,  and 
some  others,  indicates  the  prevalence  in  that  State  at  one 
time  of  a  practice  concerning  voluntary  discontinuances  of 
suits,  and  the  effect  thereof,  never  known  in  this  State,  and 
not  elsewhere  pursued  so  far  as  we  know,  and  we  will  not 
stop  to  point  out  the  inapplicability  of  those  decisions  to 
this  case. 

We  have  been  able  to  find  no  authority  to  sustain  appel- 
lant's position,  that  a  former  suit  remains  pending  after  it 
has  been  dismissed  until  the  defendant's  costs  have  been 
paid. 

In  Tidd's  Practice,  p.  638,  some  instances  are  given  in 
which  a  stay  of  proceedings  in  a  subsequent  suit  will  be 
granted  until  the  costs  of  a  prior  one  are  paid,  but  it  is  there 
said  that  there  is  "  no  general  rule  by  w^hich  a  plaintiff  is 
compelled  to  pay  the  costs  of  a  first  action  before  he  is  suf- 
fered to  proceed  with  the  second,"  and  it  is  not  mentioned  as 
ever  having  been  held  that  a  plea  in  abatement  would  be 
good  to  a  second  action,  either  in  the  same  or  in  any  other 
court,  because  of  the  costs  in  the  first  action  remaining  un- 
paid. 

There  may  be  such  a  semblance  of  justice  in  appellant's 
position  as  would  prompt  the  legislature  to  provide  for  such 
cases,  but  courts  are  not  at  liberty  to  make  laws.  No  other 
claimed  error  is  argued. 

The  judgment  of  the  Superior  Court  will  be  affirmed. 
This  disposition  of  the  case  renders  it  unnecessary  to  men- 
tion appellee's  motion  to  strike  out  the  bill  of  exceptions. 

Appellee  asks  for  damages  under  the  statute  permitting 
such  in  case  an  appeal  be  prosecuted  for  delay  merely,  but 
we  do  not  feel  that  in  this  case  damages  should  be  awarded. 


20         ;   Appellate  Courts  of  Ilijnois. 


Vol.  70.]  Falkenau  v.  Rowland. 


70  ~    20 

^^^    '^^^  Tictor  Falkenau  and  Lonis  Falkenau  ?•  Mary  Rowland, 

Administratrix,  etc. 

1.  Damaobs— In  Case  of  Death  by  Negligence—When  only  Nominal 
— Only  nominal  damages  can  be  recovered  for  the  death  of  a  brother, 
where  there  is  no  evidence  that  at  the  time  of  his  death  eitlier  of  his 
brothers  or  sisters  had  any  pecuniary  interest  in  his  life. 

2.  Sama — Death  from  Negligence,— In  an  action  for  damag:es  result- 
ing from  the  death  of  a  kinsman  by  the  negligence  of  the  defendant, 
the  actual  pecuniary  loss  is  the  sole  measure  of  the  recovery,  and  there 
is  no  warrant  for  giving  more  than  the  total  loss,  in  order  that  one  en- 
titled to  share  may  get  enough. 

Trespass  on  the  Case. — Death  fix)m  negligent  act.  Appeal  from  the 
Circuit  CJourt  of  Cook  County;  the  Hon.  Francis  Adams,  Judge,  presid- 
ing. Heard  in  this  court  at  the  March  term,  1897.  Affirmed  if  remitti- 
tur be  entered,  otherwise  reversed  and  remanded.  Opinion  filed  April 
15, 1897. 

Edward  S.  Curtis  and  Wm.  M.  Johnson,  attorneys  for 
appellants,  contended  that  in  suits  by  the  next  of  kin  for 
causing  the  death  of  a  relative,  the  pecuniary  loss  is  the  sole 
ground  of  recovery,  the  satisfaction  of  that  loss  the  sole 
object  to  be  attained  by  a  judgment  and  this  is  to  be  ascer- 
tained from  the  evidence.  L.  S.  &  M.  S.  R.  R.  Co.  v.  Sund- 
erland, 2  Brad.  307;  Andrews  v.  Bodecker,  17  Brad.  213;  C. 
E.  &  L.  S.  Ry.  Co.  v.  Adamick,  33  111.  App.  412;  C,  M.  & 
St.  P.  Ry.  Co.  V.  Wilson,  35  111.  App.  346;  Armour  et  al.  v. 
Czischki.  69  111.  App.  17;  City  v.  Major,  18  111.  360;  Chicago 
&  R.  I.  R.  R.  Co.  V.  Morris,  26  111.  4u3;  Chicago  &  Alton  R. 
R.  Co.  V.  Shannon,  43  111.  346;  Chi.  &  K  W.  v.  Swett,  45 
111.  204-5;  Conant  v.  Griffin,  48  111.  412;  I.  C.  R.  R.  Co.  v. 
Welden,  52  111.  295;  I.  C.  R.  R.  Co.  v.  Baches,  55  111.  388; 
City  of  Chicago  v.  Scholten,  75  111.  471;  Quincy  Coal  Co.  v. 
Hood,  77  111.  71;  C,  B.  &  Q.  R.  R.  Co.  v.  Harwood,  80  111. 
88;  C.  &  N.  W.  R.  R.  Co.  v.  Moranda,  93  111.  304;  Holton 
v.  Daly,  106  111.  138;  N.  C.  S.  R.  R.  Co.  v.  Brodie,  15G 
111.  320. 

Wing,  Chadbourne  &  Leach,  attorneys  for  appellee. 


First  District — ^March  Term,  1897.         21 

Falkenau  v.  Rowland. 

A  jury  may  assess  sach  damages  as  will  be  a  just  and  fair 
compensation  for  the  pecuniary  loss  suffered  by  the  next  of 
kin  from  the  death  of  a  deceased  person  killed  through  the 
negligence  of  a  defendant,  and  in  doing  so,  they  may  take 
into  consideration  every  reasonable  expectation  the  survivors 
may  have  had  of  pecuniary  benefit  or  advantage  from  the 
continuance  of  his  life.  Andrews  v.  Boedecker,  17  111. 
App.  218. 

Mbl  Jdstiob  Gaby  delivered  the  opinion  of  the  Court. 

The  appellee  sued  as  administratrix  of  Thomas  Morrison, 
the  man  killed  in  the  accident  which  was  the  subject  of 
investigation  in  Falkenau  v.  Abrahamson,  66  111.  App.  352, 
as  is  there  mentioned. 

We  will  not  go  over  the  facts.  The  deceased  left  a 
mother  in  Ireland,  who  was  in  the  neighborhood  of  sixty 
years  of  age,  and  five  brothers  and  sisters,  part  of  them 
there,  the  others  here. 

There  is  no  evidence  that  at  the  time  of  his  death  either 
of  the  brothers  or  sisters  had  any  pecuniary  interest  in  his 
life,  though  at  times  theretofore  some  of  them  had  received 
from  him  pecuniary  aid.  Had  there  been  no  mother  living 
only  noririnal  damages  would  have  been  permissible.  North 
Chicago  St.  E.  R.  v.  Brodie,  156  111.  317. 

The  evidence  must  be  read  with  liberal  construction  in 
her  favor  to  warrant  the  conclusion  that  his  continuance  in 
life  was — in  money,  and  to  that  only  does  the  statute  extend 
— of  value  to  her  to  the  amount  of  $50  per  annum.  The 
judgment  is  for  $5,000. 

Now  we  have  this  problem :  The  statute  requires  the 
damages  to  be  distributed  as  if  there  had  been  money  left 
by  the  deceased  dying  intestate.  Five-sevenths  of  the  dam- 
as^es  must  go  to  persons  who  have  no  right  to  anything. 
In  order  that  the  one  meritorious  recipient  of  damages,  by 
the  two-sevenths  which  the  law  will  give  her,  may  get  her 
real  and  actual  damages,  others  not  entitled  to  anything 
must  be  given  two  dollars  and  a  half  for  each  dollar  that  she 
gets.    Any  such  construction  of  the  statute  leads  to  absurd 


22  Appellate  Courts  of  Illinois. 

Vol.  70.]  People's  Claim  Adjustment  (Jo.  v.  Darrow. 

consequences,  because  it  does  not  provide  that  the  damages 
shall  be  confined  to  compensating  those  who  lose  by  the 
death,  as  does  the  original  English  statute  and  the  statutes 
of  many  of  the  States.    2  Thomp.  is^egl.  1275,  et  seq. 

There  is  no  warrant  in  the  statute  for  giving  more  than 
the  total  loss  in  order  that  one  entitled  to  share  may  get 
enough. 

"We  will  adopt  Armour  v.  Czischki,  59  111.  App.  17,  as  a 
precedent  for  this  case.  If  the  appellee  within  ten  days 
remit  the  excess  over  $1,500,  we  will  affirm  the  judgment 
for  that  sum  only,  reversing  it  as  to  the  excess.  Otherwise 
reverse  the  judgment  and  remand  the  cause;  in  either  event 
at  the  cost  of  the  appellee. 


"70      221 

172*  ea 

7?  ml     People's  Casualty  Claim  Adjustment  Co.  t.  C.  S.  Darrow. 

70    w 
80    170 

—  1.    Plbading — Legal  Services   Covered   by  the  Common  Counts. — 

Where  the  abstract  states  that  the  declaration  had  in  it  the  common 
count  **  for  the  price  and  value  of  work,  and  material  for  the  same  pro- 
vided,** this  court  will  assume,  in  the  absence  of  any  more  specific  state- 
ment, that  the  declaration  was  sufficient  as  a  pleading  to  authorize  the 
recovery  of  money  due  for  services  as  a  lawyer. 

2.  Contracts— Where  the  Minds  of  the  Parties  did  not  Meet  as  to 
Pnceof  Sendees,  their  Value  may  be  Proved, — Where  the  evidence  shows 
such  a  misunderstanding  between  the  parties  to  a  contract,  as  to  the 
price  to  be  paid  for  services,  that  the  jury  may  properly  find  that  the 
minds  of  the  parties  never  met  upon  the  question  of  price,  evidence  of 
the  value  of  the  services  is  admissible. 

8.  Practice— WTien  Objections  to  Testimony  Musi  be  Specific.— -When 
the  ground  of  an  objection  is  of  such  a  character  that  the  objection  may 
be  obviated,  such  ground  must  be  stated  specifically,  and  in  time  to 
afford  opportunity  to  obviate  it,  otherwise  the  objection  will  not  be  con- 
sidered on  appeal. 

4.  Verdicts—  When  Not  Part  of  the  Record,  —A  verdict  which  jurors 
are  alleged  to  have  written  and  handed  in  is  not  part  of  the  recoixi 
unless  embraced  in  the  biU  of  exceptions. 

5.  '^KiMA— Restriction  of  Arguments,— The  fact  that  counsel  for 
appellant  was  only  allowed  seven  minutes  to  argue  this  case  before  the 
jury,  held  not  to  be  an  unreasonable  restriction. 

6.  Evidence— JVoo/  of  Value  of  Services  to  Corroborate  Statement  as 


FrRST  District — March  Tkrm,  1897.         23 

People's  Claim  Adjustment  Co.  v.  Darrow. 

to  Contract  Price  Thereof.  ^Where  there  is  a  conflict  of  testimony  as  to 
the  amount  agreed  to  be  paid  for  certain  services,  the  value  of  such 
sendc^i  may  be  shown,  and  may  be  considered  bv  the  jury  in  determin- 
ing the  credibility  of  the  testimony. 

Assnmpsit,  for  attorney's  fees.  Appeal  from  the  Circuit  Court  of 
Cook  county;  the  Hon.  Thomas  G.  Windes,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Aflirmed.  Opinion  filed  April  15, 
1897. 

F.  W.  Becker,  attorney  for  appellant. 
William  C.  Snow,  attorney  for  appellee. 

Mr.  Justice  Gaey  delivered  the  opinion  of  the  Court. 

The  ap]3ellee  sued  the  a])pellant  to  recover  for  services  as 
an  attorney. 

That  the  services  were  rendered  at  the  request  of  the  ap- 
pellant, and  were  satisfactory,  was  undisputed. 

The  abstract  states  that  the  declaration  had  in  it  the  com- 
mon count  "  for  the  price  and  value  of  work  and  material 
for  the  same  provided,"  which  we  assume,  in  the  absence  of 
any  more  specitic  statement,  was  sufficient  as  a  pleading 
upon  which  to  recover  money  due  for  services  as  a  lawyer. 
Neagle  v.  Herbert,  64  111.  Apj>.  619. 

The  president  of  the  appellant  and  the  appellee  both 
testified  that  the  services  were  rendered  under  an  express 
contract,  but  differed  as  to  its  terms;  the  effect  of  which 
testimony,  if  both  testified  honestly,  and  neither  had  for- 
gotten, was  to  prove  that  there  was  no  express  contract 
because  the  parties  did  not  understand  ea-ch  other.  Then 
evidence  of  the  reasonable  compensation  to  the  appellee 
was  in  order.     Kirk  v.  Wolf  Mfg.  Co.,  118  111.  567. 

Hypothetical  questions  were  put  to  other  lawyers  as  to 
the  value  of  the  services  of  the  appellee,  embracing  one  item 
of  service  which  he  had  not  rendered;  but  the  objection  of 
the  appellant  to  such  questions  was  specifically  upon  an- 
other ground,  with  the  vague  general  statement  that  the 
question  was  "  based  upon  an  assumption  of  facts  that  have 
not  been  shown  to  exist."     This  is  too  general. 


24  Appellate  Couuts  of  Illinois. 

Vol.  70.]         People's  Claim  Adjustment  Co.  v.  Darrow. 

JIad  the  objectionable  item  been  pointed  out  it  would 
doubtless  have  been  dropped  out  of  the  question.  But 
vague  and  general  as  was  the  objection  in  that  particular,  it 
is  clear  that  the  objector  did  not  have  that  item  in  mind,  for 
in  repeating  his  objection  on  the  examination  of  the  second 
lawyer  he  confined  it  to  the  other  ground.  It  is  too  late 
now  to  object.     Schroeder  v.  Walsh,  10  111.  App.  36. 

There  is  a  technical  fault  in  one  instruction  in  omitting, 
as  a  condition  of  the  liability  of  the  appellant,  that  the  ser- 
vices were  rendered  at  its  request,  but  as  this  was  a  fact 
both  sides  proved,  the  omission  was  without  harm. 

Another  instruction  is  wholly  wrong,  but  did  no  harm. 
It  is  as  follows : 

"  The  jury  are  instructed  that  if  the  evidence  regarding 
the  contract  is  so  conflicting  or  uncertain  that  they  are 
unable  to  arrive  at  the  exact  terms  of  the  contract  between 
the  plaintiff  and  defendant,  then  they  are  entitled  to  con- 
sider the  value  of  the  services  of  the  plaintiff,  as  shown  by 
the  witnesses  in  this  case,  and  to  use  this  testimony  as 
bearing  upon  the  reasonableness  of  the  statements  of  the 
plaintiff  and  defendant,  for  the  purpose  of  arriving  at  the 
true  contract  between  the  plaintiff  and  defendant." 

If  the  jury  could  not  ''arrive  at  the  exact  terms  of  the 
contract"  how  could  they  arrive  at  the  "true  contract?" 

The  instruction  means  nothing,  and  could  not  have  mis- 
led. If  it  was  intended  and  understood  as  saying  that  in 
the  conflict  of  testimony,  the  value  might  be  considered  in 
determining  the  credibility  of  the  testimony,  it  is  common 
sense,  and  not  shown  not  to  be  law\  Carter  v.  Carter,  37 
111.  App.  219;  152  111.  434. 

An  objection  now  made,  based  upon  the  verdict  which 
the  jurors  are  supposed  to  have  written  and  handed  in,  is 
not  before  us.  That  paper  is  no  part  of  the  record — not 
being  in  the  bill  of  exceptions.  Lambert  v.  Borden,  10  111. 
App.  648. 

What  the  jury  wrote  was  supererogatory.  Sec.  57,  Ch. 
110,  R.  S.,  Practice. 

There  remains  the  objection  that  before  the  argument 


First  Disthict — March  Term,  1897.         25 

Scott  V.  Schnadt. 

began  the  court  announced  that  counsel  on  each  side  would 
be  limited  to  seven  minutes  for  argument,  and  stopped  the 
counsel  of  appellant  at  the  end  of  that  time.  By  exception, 
as  well  as  by  the  motion  for  a  new  trial,  the  question  is 
before  us  whether  that  was  reasonable. 

I  think  not,  but  am  in  the  minority.  It  is  a  great  em- 
barrassment to  the  ordinary  lawyer  to  be  warned  before- 
hand that  he  must  be  so  brief,  and  the  time  fixed  is  really 
not  sufficient  to  make  any  argument. 

There  is  great  difficulty  in  applying  the  rule  of  Foster  v. 
Magill,  119  111.  75. 

The  judgment  is  affirmed. 


Warren  L.  Scott  v.  Frederick  L.  Schnadt. 

1.  CJOURTS — Power  to  Extend  Time  to  File  Bill  of  Exceptions.— Th^ 
time  for  filing  a  biU  of  exceptioDs  may  be  extended  at  a  term  subsequent 
to  that  at  which  the  judgment  or  decree  was  entered,  without  notice  to 
the  opposite  party,  where  the  time  for  filing  has  not  expired  when  the 
order  of  extension  is  made. 

8.  Damages— -Fai'Zure  to  Deliver  Stock— Value  of  Stock  Must  he 
Proved, — A  person  agreeing  to  do  certain  work  for  a  specified  number 
of  shares  of  the  stock  of  a  corporation  is  entitled  to  only  such  damage 
as  he  has  suffered  from  a  failure  to  deliver  the  stock,  and  in  ^a  suit  on 
the  contract  he  must  prove  the  value  of  the  stock. 

3.  Parol  Evidence — To  Explain  Incomplete  Contract,— "Where  a 
written  agreement  provided  that  one  of  the  parties  was  to  render  certain 
Bpecified  services,  and  "  other  services,"  but  did  not  indicate  what  the 
•*  other  services"  were  to  be,  parol  evidence  is  admissible  to  show  what 
other  services  were  to  be  rendered. 

Assnmpsit,  for  services.  Error  to  the  Superior  Court  of  Cook  County; 
the  Hon.  John  Barton  Payne,  Judge,  presiding.  Heard  in  this  court 
at  the  March  term,  1897.  Reversed  and  remanded.  Opinion  filed  April 
15, 1897. 

Burton  &  Reiohmann,  attorneys  for  plaintiff  in  error. 
Albert  N.  Eastman,  attorney  for  defendant  in  error. 


70      85 
70    128 

70     25 

91    808 


26  Appellate  Courts  of  Illinois. 

Vol.  70.]  Scott  v.  Schnadt. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

We  deem  it  right,  in  view  of  the  recent  decision  of  the 
Supreme  Court  in  Railway  Passenger  and  Freight  Conduct- 
ors' Mutual  Benefit  Association  v.  Leonard,  166  111.  154, 
that  the  opinion  of  this  court,  filed  March  15,  1897,  be  re- 
called and  the  case  reconsidered;  this  being  done  upon  the 
motion  of  this  court. 

The  Supreme  Court  in  the  case  referred  to  have,  for  the 
first  time,  considered  and  passed  upon  the  question  of  the 
power  of  a  trial  court  to  extend  the  time  for  the  filing  of  a 
bill  of  exceptions,  without  notice,  at  a  term  subsequent  to 
that  in  which  final  judgment  was  entered,  and  hold  that 
such  extension  may  under  such  circumstances  be  made  at 
any  time  during  the  term  to  which  the  time  for  filing  has 
been  extended. 

In  that  case  a  final  decree  was  rendered  at  the  February 
term  of  the  Superior  Court  of  Cook  County;  at  that  term 
twenty  days  were  given  in  which  to  file  a  certificate  of  evi- 
dence; by  subsequent  orders  the  time  for  such  filing  was 
extended  to  the  April  term  of  the  court;  and  on  April  1 8th 
an  order  was  made  extending  the  time  five  days  from  said 
date;  this  order  was  made  without  notice.  The  certificate 
was  signed  April  23d,  and  filed  April  24th,  being  at  the 
April  term.     The  court  say  : 

"  The  time  fixed  was  a  day  of  the  April  term  of  court, 
and  the^court  did  not  lose  jurisdiction  of  the  matter  until 
the  end  of  that  term.  The  court  had  the  power  at  any  time 
during  the  term  to  make  a  further  extension  of  time,  or  to 
order  that  the  certificate  be  filed  nunc  pro  tunc.  And  while 
no  such  order  was  made,  the  certificate  was  filed  during  the 
term  while  the  court  retained  jurisdiction  of  the  matter,  and 
its  filing  operated  as  an  amendment  of  the  decree  in  accord- 
ance with  the  order  of  the  court  while  it  had  power  to  so 
amend  it." 

Under  this  holding  it  is  apparent  that  the  bill  of  excep- 
tions in  the  case  at  bar  was  filed  in  apt  time. 

Appellant  and  appellee  entered  into  the  following  con- 
tract: 


First  District — March  Term,  1897.         27 

Scott  y.  Schnadt. 

*'  This  agreement,  made  and  entered  into  this  11th  day  of 
November,  A.  D.  1891,  between  Warren  L.  Scott,  of  the 
city  of  Norwich,  State  of  New  York,  and  Frederick  L. 
Schnadt,  of  the  city  of  Chicago,  county  of  Cook,  and  State 
of  Illinois,  witnesseth : 

That  the  said  Frederick  L.  Schnadt,  party  of  the  second 
part,  has  rendered  services  to  the  said  party  of  the  first  part 
in  and  about  the  incorporating  of  the  Chicago  Paragon 
Plaster  Company,  a  corporation  of  the  State  of  Illinois,  and 
has  agreed  to  render  other  services  to  said  party  of  the  first 
part  in  and  about  said  organization. 

Now,  therefore,  in  consideration  of  the  said  services  so 
rendered  by  said  party  of  the  second  part  to  said  party  of 
the  first  part,  said  Warren  L.  Scott,  party  of  the  first  part, 
hereby  agrees  to  transfer  to  said  Frederick  L.  Schnadt,  as 
soon  as  said  organization  is  completed  and  the  said  Scott 
has  had  issued  to  him  the  stock  in  said  company  for  which 
he  has  subscribed — two  hundred  and  fifty  (250)  shares  of  the 
capital  stock  of  said  Chicago  Paragon  Plaster  Company — 
which  shall  be  in  payment  of  the  services  so  rendered  by 
said  second  party  to  said  party  of  the  first  part.  In  witness 
whereof  the  parties  hereto  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

W.  L.  Scorr,     [Seal] 
F.  L.  Schnadt  [Seal]." 

Previous  and  subsequent  to  the  making  of  such  contract 
appellee  endeavored  to  obtain  subscriptions  to  the  stock  of 
said  Plaster  company — obtaining  subscriptions  amounting 
to  about  $1,800.  No  stock  of  said  company  was  ever  issued. 
Appellant  refused  to  issue  the  same,  his  reason  being  that 
it  would  be  useless  to  do  so  unless  $30,000  in  money  was 
riiised  with  which  to  carry  on  the  business  of  said  company; 
and  appellant  claimed  that  the  agreement  with  appellee  was 
that  he  was  to  raise  that  sum  for  the  company  by  a  sale  of 
its  stock,  and  for  such  service  was  to  have  the  250  shares  of 
stock  mentioned  in  the  contract. 

The  trial  court  during  the  progress  of  the  trial  virtually 
denied  appellant  an  opportunity  to  present  his  defense. 


'28  Appellate  Courts  op  Illinois. 

Vol.  70.]  Huntington  v.  Aurand. 

.  Appellee,  if  entitled  to  recover,  is  entitled  to  only  such 
damages  as  he  has  suffered  from  a  failure  to  give  to  him 
250  shares  of  the  stock  of  the  company.  What  such  damage 
is  the  record  does  not  show. 

As  the  agreement  does  not  set  forth  what  the  *'  other  serv- 
ices "  mentioned  in  the  agreement  were  to  be,  parol  evidence 
is  admissible  to  show  what  other  services  appellee  was  to 
render. 

The  judgment  of  this  court  heretofore  entered  will  be  set 
aside,  and  the  judgment  of  the  Superior  Court  reversed  and 
the  cause  remanded. 


Henry  B.  Huntington  v.  Eva  Aurand. 

1 .  Practice — Docketing  Causes.  — Where  judgment  has  been  obtained 
on  an  appeal  bond  it  is  not  material  whether  the  cause  be  redocketed 
before  or  after  further  breaches  are  assigned. 

2.  Same —Leave  of  Court  to  File  Assignment  of  Breaches  of  an  Appeal 
Bond. — Leave  of  court  need  not  be  obtained  to  file  an  assignment  of 
breaches  of  an  appeal  bond  after  judgment  thereon.  Such  an  assign- 
ment stands  for  and  virtually  is  a  declaration. 

3.  Evidence — When  Objections  Must  be  Specific.— The  rule  is  uni- 
form that  objections  to  evidence  that  may  be  cured  at  the  trial,  must 
be  specifically  pointed  out,  and  an  objection  '*  to  the  introduction  of  said 
draft  of  decree  "  will  not  be  sustained  on  appeal  where  the  only  ground 
of  objection  is  that  the  draft  is  secondary  evidence,  and  tliat  the  original 
decree  should  have  been  produced. 

4.  Bonds — What  Breaches  of.  May  Form  the  Basis  of  a  Recovery. — 
Any  breach  of  the  condition  of  a  penal  bond,  for  which  damages  have 
not  already  been  assessed,  forms  the  proper  subject-matter  for  a  new 
assignment  and  assessment,  even  though  such  breach  may  have  occurred 
prior  to  a  former  assessment 

Action,  to  assess  damages  for  breaches  of  an  appeal  bond.  Appeal 
from  the  Circuit  Court  of  Cook  County;  the  lion.  Francis  Adams,  Jud^e, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Affirmed. 
Opinion  filed  April  16,  1897. 

Frank  Scales  and  E.  Fkankenstein,  attornej^s  for  appel- 
lant. 


First  District — Makch  Term,  1897.         29 

Huntington  v.  Aurand. 

F.  S.  MuupHEY,  attorney  for  appellee. 

Mk.  Pbksiding  Justice  Shepard  delivered  the  opinion 
OF  the  Court. 

This  is  a  proceeding  to  assess  damages  upon  an  assign- 
ment of  breaches  of  the  covenants  of  an  appeal  bond  under 
Sec.  21  of  the  Practice  Act. 

The  fiicts  in  the  case,  as  stated  in  appellant's  brief,  are : 

"Ambrose  J.  Aurand  appealed  to  this  court  from  a  decree 
entered  in  the  Circuit  Court  of  Cook  County  in  favor  of 
appellee  here,  granting  her  separate  maintenance  and  an 
allowance  of  $50  a  month  alimony.  This  court,  upon  hear- 
inof,  partially  affirmed  the  decree  of  the  Circuit  Court,  but 
reduced  the  alimony  to  $30  per  month. 

Upon  appeal  to  the  Supreme  Court  the  case  was  there 
affirmed,  and  after  the  case  was  redocketed  in  the  Circuit 
Court  a  decree  was  entered  therein  in  conformity  with  the 
oi>inions  of  the  Appellate  and  Supreme  Courts. 

Appellee  then  brought  action  against  appellant  upon  his 
bond  for  $1,000,  given  on  the  appeal  from  this  court  to  the 
Supreme  Court,  and  recovered  judgment  for  alimony  due 
for  the  months  of  January,  February,  March  and  April, 
1806,  amounting  to  $120  and  interest;  also  for  solicitor's  fees* 
amounting  to  $200.  This  casq  was  appiealed  to  the  Appel- 
late Court,  and  at  the  October  term,  1806,  partially  affirmed, 
being  reversed  as  to  the  $200  solicitor's  fees. 

After  the  remanding  of  his  last  case  appellee  caused  to 
be  filed  an  assignment  of  breaches  of  covenant,  under  Sec. 
21  of  the  Practice  Act,  to  assess  her  further  damages.  The 
case  was  tried  without  formal  pleading  being  asked  or 
required,  a  jury  being  waived." 

The  assignment  of  breaches  was  as  follows,  omitting  the 

title : 

"And  for  a  further  assignment  of  breaches  of  the  cove- 
nant and  conditions  of  the  bond  in  the  declaration  herein 
mentioned,  and  by  leave  of  court  first  had  and  obtained,  the 
said  ]>laintiff,  Eva  Aurand,  saj^s  that  the  final  order  and 
decree  of  the  Circuit  Court  of  said  countv  in  the  said  case 


30  Appellate  Courts  of  Illinois. 

Vol.  70.]  Huntington  v.  Aurand. 

of  Eva  Aurand  (plaintiff  herein)  and  the  said  defendant 
Ambrose  J.  Aurand  has  remained  in  full  force  and  effect 
from  May  16,  1894,  up  to  the  present  time,  unmodified  or  dis- 
charged in  any  way,  whereby  and  by  the  terms  of  said  decree 
the  said  defendant  Ambrose  J.  Aurand  was  ordered  and 
decreed  to  pay  to  the  plaintiff  $30  at  the  end  of  each  month, 
commencing  on  the  16th  day  of  May,  1894,  until  the  further 
order  of  said  court,  for  the  support  of  plaintiff,  and  thereby 
the  said  defendant  Ambrose  J.  Aurand  became  and  was 
liable  to  pay  to  plaintiff  other  installments  of  $30  per  month 
for  her  said  support  on  said  bond,  which  became  due  and 
payable  on  the  16th  day  of  every  succeeding  month,  to  wit : 
$30  on  the  16th  day  of  June,  1894,  and  on  the  16th  day  of 
every  succeeding  month  until  the  further  order  of  court, 
with  lawful  interest  on  all  deferred  payments  of  said  install- 
ments. 

Plaintiff  avers  that  there  is  now  due  and  unpaid  under 
the  said  decree  and  bond  sued  on  the  following  sums  and 
installments,  to-wit,  $30  for  the  month  ending  November 
16,  1895,  and  $30  on  and  for  the  month  ending  Decem- 
ber 16,  1895,  arid  $30  for  the  month  ending  May  16,  1896, 
and  $30  for  the  month  ending  June  16,  1896,  and  $30  for 
the  month  ending  July  16,  1896,  and  $30  for  the  month 
ending  August  16,  1896,  and  $30  for  the  month  ending  Sep- 
tember, 1896,  and  $30  for  the  month  ending  October  16, 
1896,  and  $30  for  the  month  ending  November  16,  1896, 
and  $30  for  the  month  ending  December  16,  1896,  and  $30 
for  the  month  ending  January  16,  1897,  and  also  $50  inter- 
est on  said  deferred  installments  as  aforesaid,  all  which  said 
suras  became  and  were  due  on  January  16,  1897,  together 
with  costs  in  the  original  suit  of  Aurand  v.  Aurand. 

Avers  that  defendant  Ambrose  J.  Aurand  and  Henry  E. 
Huntington  have  refused  and  neglected  to  pay  same,  though 
often  requested,  to  the  damage  of  plaintiff  of  $500,"  etc. 

It  is  urged  that  this  further  assignment  of  breaches  was 
filed  before  the  cause  was  redocketed  in  the  Circuit  Court 
after  this  court  had,  upon  appeal,  partially  affirmed  the 
judgment  recovered  against  appellant  in  the  original  action 


FiKST  District — Mahch  Term,  1897.         31. 

Huntington  v.  Aiirand. 

in  debt  brought  upon  the  appeal  bond  signed  by  him  in  the 
case  of  Aurand  v.  Aurand — which  is  the  same  bond  under 
which  these  further  breaches  were  assigned.  The  mandate 
of  this  court  affirming  said  judgment  was  filed  in  the  court 
below  January  6,  1897,  and  it  does  not  seem  to  be  material 
whether  that  cause  was  redocketed  before  or  after  further 
breaches  were  assigned. 

The  cause  was  redocketed  January  22,  1897.  The  assign- 
nient  of  these  additional  breaches  was  filed  January  15, 
1897,  and  on  the  same  day  notice  was  given  that  they  had 
been  filed,  and  that  on  January  27,  1897,  which  was  more 
than  ten  days  ahead,  the  court  would  be  moved  for  an  in- 
quisition of  damages  on  such  breaches.  That  was  all  the 
notice  that  the  statute  seems  to  contemplate.  Sec.  21  of  the 
Practice  Act. 

It  is  also  urged  that  no  leave  of  court  was  obtained  to  file 
the  assignment  of  breaches. 

Leave  of  court  need  not  be  first  obtained  to  file  an  assign- 
ment of  breaches,  any  more  than  it  need  be  in  order  to  file 
a  declaration,  which  an  assignment  of  breaches  stands  for, 
and  virtually  is. 

It  is  next  urged  that  errors  were  committed  in  the  admis- 
sion of  evidence,  and  such  alleged  errors  are  based  upon  the 
admission  of  the  original  draft  of  the  decree  in  Aurand  v. 
Aurand,  in  which  case  the  appeal  bond  signed  by  the  ap- 
pellant was  given,  and  in  the  admission  of  a  certified  copy 
of  that  bond. 

The  draft  of  a  decree  ordered  to  be  entered  in  a  cause  is 
not  the  best  evidence  of  the  decree  that  has  been  entered, 
and  if  there  had  been  a  proper  objection  and  exception  in- 
terposed, we  should  have  been  obliged  to  hold  that  the  error 
•was  well  assigned.  The  objection  made  was,  merely,  "  to 
the  introduction  of  said  draft  of  decree,"  without  specifying 
any  reason  therefor.  To  have  been  a  good  objection  it 
should  have  stated  the  grounds  therefor,  so  that  it  could 
then  and  there  have  been  obviated  by  the  introduction  of 
the  better  evidence,  or  a  proper  foundation  laid  for  its  in- 
troduction as  secondary  evidence.    The  rule  is  uniform  that 


32  Appellate  Courts  op  Illinois. 

w 

Vol.  70.]  Huntington  v.  Aurand. 

objections  that  may  be  cured  at  the  trial  must  be  specifically 
pointed  out  on  the  trial.  The  other  alleged  error,  in  ad- 
mitting a  certified  copy  of  the  appeal  bond,  is  subject  to 
the  same  remarks,  and  also  to  the  further  remark  that  it 
was  immaterial  evidence  and  did  no  harm.  The  judgment 
in  the  original  action  brought  upon  that  bond,  and  which 
was  affirmed  upon  appeal  to  this  court,  established  the  bond 
and  appellant's  liability  upon  it.  The  proceeding  was  for 
further  breaches  of  it  merely. 

It  is  next  urged  in  appellant's  brief  that  it  was  error  to 
give  judgment  for  the  installments  of  alimony  due  for  the 
months  of  November  and  December,  1895,  such  installments 
being  due  at  the  time  the  original  action  was  brought,  in 
May,  1896,  against  appellant  upon  the  bond  executed  by 
him,  in  which  action  judgment  was  obtained  for  the  install- 
ments due  for  the  months  of  January,  February,  March  and 
April,  1896,  for  the  reason  that  alimony  for  those  months 
of  November  and  December  was  then  due  and  should  have 
been  included  in  that  action,  and  could  not  be  included  in 
this  proceeding. 

Whether  the  premises  stated  in  appellant's  brief  in  that 
regard  are  borne  out  by  the  record  of  the  judgment  in  the 
action  said  to  have  been  begun  in  May,  1896,  we  have  no 
means  of  verifying,  that  judgment  not  being  in  this  record. 
In  this  suit  the  breaches  assigned  are  for  defaults  made  in 
the  payment  of  installments  due  on  the  16th  days  of  those 
months  of  November  and  December,  1895,  and  also  on  the 
16th  days  of  each  of  the  months  of  May,  1896,  to  January, 
1897,  inclusive,  and  we  have  no  kno\Vledge,  derivable  from 
this  record,  concerning  what  has  happened  with  the  install- 
ments due  for  other  months. 

It  would  seem,  however,  that  the  decisions  of  the  Supreme 
Court  in  People  v.  Compher,  14  111.  447,  and  McDole  v. 
McDole,  106  111.  452,  settle  the  question  against  the  conten- 
tion of  appellant,  upon  the  facts  being  as  stated  by  him. 

The  next  point  made  by  a])pellant  is  that  the  judgment  is 
excessive,  and,  with  previous  payments,  more  than  exhausts 
the  penalty  of  his  bond. 


First  Disteict — March  Term,  1897.         33 

N.  Chicago  Hebrew  CoDgregation  v.  Garibaldi. 

The  penaltj^  of  his  bond  is  $1,000.  The  only  payment 
claimed  to  have  been  made  by  appellant  is  $123.50,  said  to 
be  in  satisfaction  of  a  former  judgment  against  him  upon 
the  bond. 

The  only  evidence  of  any  other  payments  having  been 
made  under  the  original  decree  awarding  the  alimony,  was 
that  Aurand,  the  defendant  in  that  decree,  had  paid  $668.30 
for  alimony  from  the  entry  of  the  decree  up  to  November, 
1895. 

It  seems  to  be  plain  that  appellant  has  no  valid  defense 
to  the  judgment,  and  it  will  be  affirmed. 


North   Chicago  Hebrew  Congregation  v.  John  6. 

Garibaldi. 

1.  Taxes— statutes  Oranting  Exemptions  Construed  Strictly, — Stat- 
ute's exempting  property  from  taxation  are  strictly  construed;  every 
presumption  is  in  favor  of  the  liability  to  taxation. 

2.  Same — Effect  of  Judgment  for,  in  Suit  for  Breach  of  Warranty^ 
Duty  to  Appeal. — A  conveyed  certain  property  to  B  by  deed  of  general 
warranty.  Later  a  judgment  was  rendered  against  the  property,  for 
taxes  becoming  a  lien  prior  to  the  execution  of  tlie  deed.  B  paid  the 
taxes  and  sued  A  for  the  amount.  Held,  that  the  judgment  of  the 
Ck>unty  Court,  in  the  absence  of  a  shewing  to  the  contrary,  established 
that  the  premises  in  question  were  lawfully  assessed  and  burdened  with 
such  taxes  and  that  B  was  not  bound  to  appeal  from  the  judgment 
therefor. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Frank  Baker,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
AprU  15,  1897. 

David  Eiohbebg,  attorney  for  appellant. 

Young,  Makebl  &  Bradley,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

Prior  to  June  8,  1891,  appellant  owned  and  used,  exclu- 
sively for  church  purposes,  certain  premises  in  Chicago. 

V0L.LXX3 


34  Appellate  Courts  op  Illinois. 

Vol.  70.]      N.  Chicago  Hebrew  Ck>ngregation  v.  Garibaldi. 

Upon  that  date  it  sold  and  conveyed  the  same  to  appellee, 
giving  him  a  deed  with  full  covenants  of  warranty. 

No  further  transactions  relating  to  said  matter  occurred 
until  on  July  5,  1892;  F.  W.  Young,  attorney  for  appellee, 
wrote  David  Eichberg,  attorney  for  appellant,  a  letter  refer- 
ring to  said  deed,  and  stating  that  the  property  bad  been 
taxed  for  the  year  1 891.  A  short  time  thereafter,  Mr.  Young 
and  Mr.  Eichberg  met,  and,  after  a  conversation,  the  former 
agreed  to  file  objections  to  the  application  of  the  county 
treasurer  of  Cook  county  for  judgment  against  said  prem- 
ises for  the  taxes  of  1891.  There  was  a  misunderstanding 
as  to  who  should  attend  to  the  objections  on  the  hearing. 
Mr.  Young  states  Mr.  Eichberg  agreed  to  do  so,  while  Mr. 
Eichberg  denies  that  he  so  agree<l,  and  says  ho  only  agreed 
to  furnish  the  evidence  at  such  time. 

On  July  12,  1892,  appellee's  attorney  filed  his  objections 
in  the  County  Court.  Later,  there  followed  some  corre- 
spondence between  Mr.  Young  and  Mr.  Eichberg  relating  to 
the  objections  filed  and  the  payment  of  taxes.  On  July 
14,  1892,  the  objections  of  appellee  so  filed  were  overruled 
by  the  County  Court,  and  judgment  entered,  and  at  such 
time  neither  Mr.  Young  nor  Mr.  Eichberg  was  present. 
Appellee  paid  the  sum  of  $174.02  in  full  for  such  taxes  of 
1891,  on  August  2,  1892,  before  the  sale  thereof,  which  sum 
has  never  been  paid  to  said  appellee,  the  appellant  denying 
all  liability  therefor. 

Upon  the  hearing  the  court  found  for  appellee,  and  ren- 
dered judgment  thereon.  From  this  judgment  an  appeal  is 
taken  to  this  court. 

Section  2  of  the  revenue  act  of  this  State  provides  that 
"all  church  property  actually  and  exclusively  used  for 
public  worship  when  the  land  (to  be  of  reasonable  size  for 
the  location  of  the  church  building)  is  owned  by  the  congre- 
gation," to  the  extent  herein  limited,  shall  be  exempt  from 
taxation.  It  is  further  provided  in  siiid  act  that  the  lien 
for  taxes  attaches  to  "  all  property'  in  this  State  subject  to 
taxation  under  this  act,"  so  far  as  transfers  are  concerned, 
on  the  first  day  of  May  of  each  year.    Paragraphs  58  and  59. 

It  does  not  appear  whether  the  premises,  lot  one  in  the 


First  District — March  Term,  1897.         35 

Kelley  v.  Leith. 

subdivision  of  block  eight,  etc.,  were  of  reasonable  size  for 
the  location  of  the  church  building,  and  therefore  it  was 
not  shown  that  the  premises  were  exempt  from  taxation. 

Statutes  excepting  property  from  taxation  are  strictly 
construed:  every  presumption  is  in  favor  of  the  liability  to 
taxation.     25  Am.  &  Eng.  Ency.  of  Law,  157. 

The  taxes  for  the  year  189 1  became  a  lien  and  charge 
upon  the  premises  upon  the  1st  day  of  May  of  that  year. 
Sees.  59  and  253  of  Revenue  Act;  Alny  v.  Hunt,  48  111.  45. 

The  judgment  of  the  County  Court,  in  the  absence  of  any 
showing  to  the  contrary,  established  for  the  purposes  of 
this  case  that  the  premises  in  question  were  lawfully 
assessed  and  burdened  with  the  taxes  in  question  on  the  first 
day  of  May,  1892.    Warren  v.  Cook,  116  111.  204. 

It  is  true  that  appellee  could  have  appealed  from  this 
judgment,  but  he  was  not  bound  to  do  so;  nor  is  there  any- 
thing showing  that  such  appeal  could  have  been  prosecuted 
with  effect.  So  far  as  is  shown  there  was  before  the  County 
Court  no  evidence  that  the  premises  were  exempt  from  tax- 
ation. Appellant  was  notified  by  appellee  of  the  proceed- 
ing in  the  County  Court,  and  that  it  was  expected  that  it 
would  attend  to  the  matter  when  it  came  up  for  hearing. 
This  it  neglected  to  do. 

Appellee  properly  paid  the  taxes  to  prevent  a  sale  of  the 
property,  and  was  entitled  to  recover  upon  the  covenants  of 
warranty  made  to  him. 

The  judgment  of  the  Circuit  Court  is  afSrmed. 


David  Eelley  v.  Alex.  B.  Leith  et  aL 

1.  "Voluntary  Assionments— Paywiewf  of  ClaimB  as  Inducement  to 
Consent  to  Discontinuance. — An  insolvent  may  arrange  to  giveBecurity 
upon  his  assets  after  a  discontinuance  of  assignment  proceedings,  for 
the  purpose  of  obtaining  money  with  which  to  pay  all  uncontested 
claims  immediately  and  in  full,  and  a  discontinuance  should  not  be 
refused  on  account  of  the  fact  that  creditors  were  told  of  the  existence 
Qf  such  an  arrangement,  as  an  inducement  to  them  to  sign  consents  to  a 
discontinuance,  and  the  further  fact  that  payment  of  contested  claims 
was  to  be  delayed  until  judgments  had  been  obtained. 


70      35 
1708  311 


36  Appellate  Courts  of  Illinois. 

Vol.  70.]  Kelley  v.  Leith. 

2.  Appellate  Coukt  Practice— JYZii?^  New  Bonds,- -A  motion  to 
dismiss  an  appeal  on  account  of  the  insufficiency  of  the  bond  may  be 
overruled,  and  an  appellant  permitted  to  file  a  new  bond. 

Assignment  Proceeding's.  —  Appeal  from  the  County  Court  of  Cook 
County;  the  Hon.  Orbin  N.  Carter,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.  Affirmed.  Mr.  Justice  Gary  dissent- 
ing.   Opinion  filed  April  15, 1897. 

Statement  of  the  Case. 

On  July  27,  1896,  the  appellees,  Leith,  Hampton  and 
Adams,  constituting  a  copartnership  trading  under  the  name 
and  style  of  the  "  Fulton  Machine  Works,"  made  their  deed 
of  general  assignment  as  such  partners,  to  one  Robie  as 
assignee  for  the  benefit  of  the  creditors  of  such  partnership. 
The  assignee  proceeded  to  administer  the  estate,  and  con- 
tinued to  do  so  until  the  28th  day  of  November,  1896,  when 
an  order  was  entered  upon  the  petition  of  the  insolvents* 
discontinuing  the  proceedings  and  directing  the  assignee  to 
return  the  assigned  property  to  them. 

The  assignee  had  duly  given  notice  to  creditors  to  file 
claims  against  the  insolvents,  and  a  large  number  of  claims 
were  so  filed,  including  one  by  the  appellant  in  this  case, 
for  the  sum  of  $6,243.32.  At  the  hearing  of  the  motion  for 
a  discontinuance  of  the  proceedings,  it  appeared  that  a  ma- 
jority in  number  and  amount  of  the  creditors,  whose  claims 
had  been  filed  with  the  assignee,  consented  to  such  discon- 
tinuance. The  motion  for  a  discontinuance  was  opposed  by 
the  appellant,  upon  the  ground  that  the  consents  of  the  con- 
senting creditors  had  been  procured  by  an  unlawful  arrange- 
ment between  them  and  the  insolvents. 

In  support  of  such  contention,  Mr.  Ashcraft,  attorney  for 
the  insolvents,  was  examined  as  a  witness,  and  from  his 
testimony  it  appeared  that  on  November  21,  1896,  he  ad- 
dressed to  each  of  the  creditors  (except  three,  whose  claims 
were  contested  by  the  insolvents,  although  no  exception  to 
their  allowance  had  been  filed,)  a  letter,  in  which  he  state<l 
that  he  had  arranged  to  raise  funds  to  settle  all  uncontested 
claims  against  the  insolvents,  and  in  which  he  requested  the 
person  addressed  to  execute  an  assignment  of  his  claim  and 


First  District — March  Term,  1897.  37 

Keliey  v.  Leith. 

place  same  in  the  hands  of  F.  £.  Brovirn,  assistant  cashier  of 
the  First  National  Bank,  and  also  to  sign  a  petition  for  a 
discontinuance  of  the  insolvency  proceedings,  and  to  place 
same  in  the  hands  of  Brown,  with  instructions  to  deliver 
such  assignment  and  consents  to  him  (Ashcraft)  upon  pay- 
ment of  the  amount  due  such  creditor. 

With  this  letter  was  enclosed  to  each  creditor  a  blank 
form  of  consent  to  the  discontinuance  of  said  proceeding, 
and  a  blank  form  of  assignment,  by  which  the  claim  of  such 
creditor  was  assigned  to  Robert  C.  Eobinson,  an  attorney  in 
the  office  and  employ  of  Mr.  Ashcraft.  Before  sending  out 
these  letters,  Mr.  Ashcraft  had  made  arrangements  with  one 
Herbst  to  loan  the  insolvents  a  sum  of  money  sufficient  to 
pay  off  all  the  debts  except  those  contested;  but,  as  he  states 
he  has  been  unable  to  find  any  one  who  was  willing  to  ad- 
vance money  to  pay  off  all  the  claims,  including  the  con- 
tested ones. 

The  arrangement  between  the  insolvents  and  Mr,  Ilerbst 
was  that  business  was  to  be  resumed;  that  the  receipt  and 
payment  of  all  moneys  arising  out  of  the  business  was  to  be 
conducted  through  Herbst;  that  he  (Herbst)  was  to  have  a 
chattel  mortgage  for  $75,000  upon  the  property  of  the  in- 
solvents to  secure  the  money  thus  advanced,  that  sum  being 
necessary  in  order  to  pay  all  the  creditors  in  full  and  leave 
a  working  capital  of  $12,000.  That  out  of  the  money  so 
advanced  all  of  the  claims  against  said  insolvents,  whether 
they  had  been  filed  with  the  assignee  or  not,  were  to  be  paid 
in  full,  except  the  contested  claims,  including  that  of  the 
appellant.  Herbst  was  to  participate  in  the  management 
of  the  business  for  six  months,  for  which  he  was  to  have  a 
salary  of  $2,000  a  month  ($12,000)  in  addition  to  interest  at 
the  rate  of  seven  per  cent  per  annum  upon  the  amount  of 
money  to  be  loaned  by  him  to  the  insolvents,  which  sum  of 
$12,000  was  to  be  included  in  the  chattel  mortgage,  if  de- 
sired by  him.  That  the  contested  claims  amount  to  from 
$7,000  to  $8,000;  that  it  is  the  intention  and  plan  of  the  in- 
solvents to  pay  in  full  all  of  the  contested  claims  for  which 
judgment  shall  be  obtained. 

In  pursuance  of  this  "arrangement  the  creditors  who  con- 


38  Appellate  Courts  op  Illinois. 

Vol.  70.]  Kelley  v.  Leiih. 

sented  to  the  discontinuance  of  the  proceedings  signed  such 
written  consents  and  assignments  of  their  claims  and  placed 
them  in  the  hands  of  Mr.  Brown*  as  requested,  and  the  con- 
sents were  delivered  by  Mr.  Brown  to  the  insolvents,  or  their 
representative,  and  at  the  same  time,  checks  for  the  amount 
of  the  claims  thus  represented  were  delivered  to  Mr.  Brown, 
upon  an  understanding  that  they  would  not  be  presented 
until  the  order  of  discontinuance  was  entered.  The  County 
Court  overruled  appellant's  objection  to  the  entry  of  the 
order  and  entered  an  order  discontinuing  the  proceedings 
and  directing  the  assignee  to  restore  the  assigned  property 
to  the  insolvents.    From  this  order  this  appeal  is  taken. 

Defbees,  Bbaob  &  RiTTEK,  attomcys  for  appellant. 

F.  M.  Cox,  attorney  for  appellees. 


\ 


Mr.  Justice  Waterman  delivered  the  opinion  op  the 
Court. 

The  inventory  of  the  assignee  filed  in  the 
County  Court,  shows   assets  estimated   to  be 

worth $163,155.02 

and  liabilities  amounting  to 58,793.84 

Seventy-nine  claims  were  filed  within  three 
months  after  notice  given,  amounting  in  all  to. .     64,752.87 
of  which  appellant's  claim  is 6,243.32 

Leaving  the  proven  uncontested  claims $  58,509.55 

being  several  hundred  dollars  less  than  the  statement  made 
in  the  inventory  of  the  assignee. 

It  is  urged  that  the  order  of  discontinuance  in  this  case 
was  held  to  be,  under  such  circumstances,  improper  in 
Howe  V.  Warren,  154  111.  227;  Terhune  v.  Kean,  155  111.  506; 
Am.  Exch.  Bank  v.  Walker,  60  111.  App.  510;  Same  v.  Same, 
164  111.  135;  Stoddard  v.  Gilbert,  Sheriff,  62  111.  App.  70,  is 
also  referred  to. 

The  language  used  in  the  cases  mentioned  is  to  be  under- 
stood with  reference  to  the  causes,  respectively,  in  which  it 
was  uttered. 

In  the  present  case  it  is  undisputed  that  the  intention  has 


First  District — March  Term,  1897.  39 

Kelley  v.  Leith. 

been  and  is  to  pay  all  cred  1101*8  in  full,  those  whose  claims 
are  uncontested  at  once,  those  disputed,  as  soon  as  judgment 
is  obtained  thereon. 

There  is  no  pretense  that  the  contest  of  the  disputed 
claims  is  not  in  good  faith  and  with  an  honest  and  just 
purpose.  \ 

If,  as  is  contended,  the  insolvents  can  not  arrange  to  give 
security,  after  the  discontinuance,  upon  any  portion  of  their 
assets,  for  the  purpose  of  obtaining  money  with  which  to 
pay  immediately  all  just  claims  in  full,  but  must,  in  order 
to  obtain  a  discontinuance  under  such  arrangement,  also 
pay  at  once  all,  possibl}',  unjust  claims,  it  is  evident  that 
for  practicable  purposes  the  section  of  the  statute  providing 
for  a  discontinuance  has  no  existence. 

From  beginning  to  end  of  this  assignment  there  has  been 
in  the  conduct  of  the  insolvents  nothing  that  smacked  of 
dishonesty  or  unfairness.  Compelled,  by  an  unfortunate' 
mistake  of  a  et^ediior^  to  make  an  assignment,  they  have 
arranged  to  pay  without  delay  all  undisputed  claims;  leav- 
ing themselves  in  a  condition  where  there  is  every  reasona> 
ble  prospect  that  they  will  pay  every  just  claim,  and  yet 
preserve  their  business. 

If  the  law,  under  these  circumstances,  dooms  them  to  a 
loss  of  all  they  have,  without  benefiting  anybody,  it  is 
unfortunate. 

We  do  not  think  that  the  Supreme  Court  has  held  unlaw- 
ful a  discontinuance  procured  in  the  manner  the  one  under 
consideration  was  obtained. 

A  motion  to  dismiss  the  appeal  because  a  proper  bond 
was  not  filed  has  been  overruled  and  appellant  permitted  to 
file  a  new  bond.  Such  action  of  this  court  is  in  accord- 
ance with  Hammond  et  al.  v.  The  People,  164  111.  455. 

The  order  of  the  County  Court  is  affirmed, 

Mr.  Justice  Gary. 

I  can  not  concur.  I  read  what  the  Supreme  Court  has 
said  as  forbidding  a  discontinuance  in  pursuance  of  arrantje- 
ments  by  which  the  assets  are  trammeled  after  they  are 
returned  to  the  insolvents. 


40  Appellate  Coukts  op  Illinois. 

Vol.  70.]  Vehon  v.  Vehon. 


70      40 

■^-?®^  Morris  H.  Vehon  v.  Joseph  Vehoii. 

1.  Consideration— D.^t  of  a  Third  Person.-^ A  note  for  the  amount 
of  a  debt  owing  by  the  father  of  tlie  payer,  which  the  payer  is  under  no 
obligation,  legal  or  moral,  to  pay,  and  upon  which  the  giving  of  tlie 
note  has  no  legal  effect,  there  being  no  release  of  the  father  or  extension 
of  credit  to  him,  is  without  consideration  and  voidable. 

2.  Same— Fear  of  Trouble,— Feur  of  trouble  with  the  payee  of  a  note 
where  there  is  no  evidence  to  show  that  such  payee  had  any  right  to 
make  trouble,  can  not  be  moulded  into  a  consideration  for  such  note. 

Assnmpsit,  on  a  promissory  note.  Appeal  from  the  Superior  Court 
of  Cook  County;  the  Hon.  Arthur  H.  Cubtlain,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Reversed.  Opinion  filed 
April  15, 1897. 

M.  Salomon,  attorney  for  appellant. 

What  is  known  in  law  as  a  good  consideration,  such  as 
gratitude,  moral  obligation,  love,  etc.,  will  not  support  an 
executory  contract,  as  a  note.  Such  consideration  will  gen- 
erally support  an  executed  contract.  To  maintain  an  exec- 
utory contract,  such  as  the  note  in  this  case,  there  must 
be  a  valuable  consideration  involved  in  the  transaction. 
Hamor  v.  Moore's  Adm'r,  8  Ohio  St.  24:1;  Kirkpatrick  v. 
Taylor,  43  111.  207;  Williams  v.  Forbes,  114  111.  1G9;  Kirsch- 
ner  v.  Spranger,  4  Pa.  Dist.  144. 

The  mere  debt  of  another  for  which  a  note  is  given 
would  not  be  a  consideration,  because  there  is  not  valuable 
consideration  to  such  a  transaction.  To  make  a  considera- 
tion in  such  a  case  there  must  be  not  onlv  an  absolute 
release  of  the  original  debtor,  but  there  must  be  outside 
circumstances  showing  the  release  by  the  creditor  of  a  valu- 
able right  and  the  accrument  to  the  maker  of  the  note  of 
an  advantage  or  gain  that  he  had  not  before.  Wilson  v. 
Tucker;  64  Ind.  41;  Leverone  v.  Hildrath,  80  Cal.  139; 
Security  Bank  v.  Bell,  32  Minn.  409. 

D.  V.  Samuels  and  W.  I.  Culvee,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 
This  is  an  action  by  the  appellee  against  the  appellant 
upon  a  promissory  note,  commenced  by  attachment. 


FiEST  DrsTHicT— March  Term,  1897.         41 

Vehon  v.  Vehon. 

The  defense  is  that  the  note  was  without  consideration, 
upon  which  subject  the  evidence  most  favorable  to  the 
appellee  is  that  the  father  of  the  appellant  was  indebted  to 
the  appellee,  his  brother;  was  in  business  in  Iowa,  and  the 
appellant  wished  to  move  his  father  and  mother  and  the 
goods  to  Galesburg,  Illinois. 

There  is,  at  the  most,  a  suggestion  in  the  testimony  that 
the  appellant  feared  that  the  appellee  would  make  some 
trouble  about  such  removal,  and  so  with  no  communication 
between  the  brothers,  or  between  the  appellant  and  his 
father  upon  the  subject,  the  appellant  gave  his  note  to  the 
appellee  for  the  amount  of  such  indebtedness. 

There  is  no  hint  of  any  release  of  the  father  of  the  appel- 
lant, or  any  promise  to  him  of  extension  of  credit  or  for- 
bearance by  the  ap{)ellee. 

The  transaction  is  simply  that  ^the  appellant  gave  his 
note  for  the  amount  of  a  debt  owing  by  his  father;  a  debt 
which  the  appellant  was  under  no  obligation,  legal  or  moral, 
to  pa}'',  and  upon  which  debt  the  giving  of  his  note  had  no 
legal  effect. 

There  was,  therefore,  no  consideration  for  the  note  sued 
upon.  Tiedeman  Com.  Pap.,  Sec.  170;  2  Randolph  Com. 
Pap.,  Sec.  466. 

Fear  of  trouble  with  the  appellee  as  to  the  goods  which 
the  appellant  wished  to  bring  to  Illinois,  with  nothing  to 
show  that  the  appellee,  had  any  right  to  make  trouble,  can 
not  be  moulded  into  a  consideration.  Heaps  v.  Dunham, 
95  111.  583. 

An  agreement  to  forbear  or  give  time  to  the  father  of  the 
appellant  can  not  be  implied  from  the  fact  that  the  liote 
was  payable  one  year  after  date,  when  the  case  shows  clearly 
that  no  agreement  with  him,  nor  any  agreement  taking  him 
into  account,  was  made. 

The  case  is  merely  that  the  appellee  persuaded  the  appel- 
lant to  give  his  note  for  the  debt  his  father  owed. 

There  being  no  cause  of  action,  we  need  not  consider  the 
attachment. 

The  judgment  is  reversed  without  remanding  the  cause. 


42  Appellate  Courts  op  Illinois. 

Vol.  70.]  People  v.  Chase. 


People^  etc.,  ex  rel.  Chicago  General  Railway  Company 
T.  Samael  B.  Chase^  Recorder^  etc* 

1.  Recx)rdeb*s  Fees— -Por  Recordinq  Pto/«.-^Where  the  land  com- 
prised within  a  plat  is  divided  into  separate  pieces  by  lines  and  figures 
thereon,  each  piece  may  properly  be  counted  as  a  parcel  or  tract  in  fig- 
uring the  fee  to  be  paid  for  recording  such  plat. 

2.  Mandamus — Skovnng  Required, — ^The  right  to  a  writ  of  manda- 
mus must  be  clear  to  warrant  a  court  in  granting  this  extraordinary 
remedy. 

Mandamns,  to  compel  the  recording  of  a  plat.  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the  Hon.  Farun  Q.Ball,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Aflirmed.  Opinion  filed 
AprU  15,  1897. 

Statement  of  the  Case. 

Relator  is  a  corporation  organized  under  the  laws  of  the 
State  of  Illinois  for  the  purpose  of  operating  street  rail- 
way lines  in  the  city  of  Chicago  in  Cook  county,  and  as 
such  laid  its  tracks  in  West  Twentv-second  street  and 
across  the  right  of  way  of  the  Chicago,  Burlington  &  Quincy 
Railroad  Company,  thence  across  or  on  certain  lots  and 
into  and  along  said  West  Twenty-second  street  again.  As 
required  by  Section  9,  Chapter  109,  Revised  Statutes,  it 
caused  a  plat  or  map  thereof  showing  the  width,  courses 
and  extent  thereof,  and  made  thereon  such  reference  to 
known  and  established  corners  or  monuments  that  the  loca- 
tion thereof  might  be  ascertained,  and  took  such  plat  to  the 
recorder  of  deeds  of  Cook  county,  and  tendered  it  to  him  to  be 
recorded  in  his  office.  The  recorder,  making  no  objection 
to  the  plat,  offered  to  record  the  same  upon  the  payment  by 
the  relator  of  the  sum  of  $5.05,  and  refused  to  record  it  with- 
out the  payment  of  that  sum,  whereupon  relator  tendered 
$1.39  in  full  payment  of  recorder's  fees,  which  tender  was 
rejected. 

Relator  then  filed  its  petition  for  a  writ  of  mandamus  to 
compel  the  recorder  to  receive  and  record  the  plat. 

The  following  is  a  true  copy  of  the  plat  in  question : 


FiEisT  DiBTEicrr — March  Term,  1897. 


i 


I 


44  Appellate  Courts  of  Illinois. 

Vol.  70.]  People  v.  Chase. 

Jesse  B.  Barton,  attorney  for  appellant. 

Frank  L.  Shepard,  Assistant  County  Attorney,  attorney 
for  appellee;  Robert  S.  Iles,  County  Attorney,  of  counsel. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

Section  2  of  an  act  in  force  March  2,  1874,  as  to  fees  in 
counties  of  the  third  class,  is  as  follows: 

"fees  of  recorder  of  deeds. 

For  recording  any  deed  or  other  instrument  in  writing, 
for  every  one  hundred  words,  eight  cents,  and  twenty-jSve 
cents  for  the  certificate  of  the  recorder  of  the  time  of  filing 
the  deed  or  instrument  for  record,  and  the  book  and  page 
of  the  record. 

For  recording  m^ps  or  plats  of  additions,  subdivisions,  or 
otherwise,  for  each  tract,  parcel  or  lot  contained  therein, 
eight  cents,  and  twenty-five  cents  for  the  certificate  of  the 
time  of  filing  the  same  for  record,  and  the  book  and  page 
of  the  record  thereof." 

We  have  been  favored  with  an  argument  by  counsel  for 
appellant  in  which  it  is  contended  that  the  only  fee  prop- 
erly chargeable  in  connection  with  recording  this  plat  is 
twenty-five  cents. 

The  question  presented  to  us  is  whether  the  Superior 
Court  should  have  issued  a  writ  of  mandamus  upon  the 
showing  that  the  recorder  had,  upon  tender  of  $1.39,  refused 
to  record  the  plat. 

From  an  examination  of  the  plat,  we  do  not  think  it  is 
clear  that  the  fee  fixed  by  law  for  recording  this  plat  is  not 
more  than  $1.39.  The  plat  contains  several  hundred 
words,  for  recording  which  a  fee  of  eight  cents  per  hundred 
is  prescribed. 

A  parcel  is  a  portion  of  anything  taken  separately,  a  frag- 
ment of  a  whole — in  law,  a  part,  a  portion,  a  piece. 

A  tract,  as  applied  to  land,  is  an  area,  or  a  region  of  land 
or  water  of  indefinite  extent.    Webster's  JJictionarj\ 

The  terms  "  tract''  and  "  parcel"  may  properly  be  applied 


First  District — March  Term,  1897,  45 


L.  8.  &  M.  S.  Ry.  Co.  v.  Ryan. 


to  a  qaarter  section,  a  half  section  or  a  section  of  land. 
Martin  v.  Cole,  38  Iowa,  141. 

A  part  of  an  estate  may  ba  desoribad  as  a  parcel.  1  Co- 
myn's  Dig.,  Abatement  (H.  51),  Grant  (E.  10). 

The  land  comprised  within  the  plat  is  by  lines  and  fig- 
ures thereon  divided  into  separate  tracts,  each  of  which  may 
properly  be  termed  a  parcel  or  tra^t.  The  number  of  these 
is  such  that  it  is  not  clear  that  $1.39  is  the  entire  fee 
allowed  by  law  for  recording  the  instrument  in  question. 

The  right  to  a  writ  of  mandamus  must  be  clear  to  war- 
rant a  court  in  granting  this  extraordinary  remedy.  High 
on  Extraordinary  Remedies,  Sec.  10. 

The  recorder  does  not  refuse  to  record  the  plat;  he  merely 
insists  upon  a  larger  fee  than  the  petitioner  thinks  is  lawful. 
It  does  not  appear  that  the  petitioner  is  unable  to  pay  this 
fee,  or  will  be  put  to  serious  inconvenience  in  doing  so.  If 
the  recorder  exact  an  illegal  fee^  the  remedy  of  the  peti- 
tioner, if  he  pay  the  same,  is  clear.  Sections  213  and  214, 
Chapter  38,  Revised  Statutes. 

The  judgment  of  the  Superior  Court  is  affirmed. 


Lake  Shore  &  M.  8.  Ay.  Co.  j.  Patrick  A.  Ryan. 

1.  LiMirA-Tioss — Additional  Counts  Stating  the  Same  Cause  of 
Action, — Where  additional  counts  are  for  the  same  jnjury  as  that  stated 
in  the  declaration  as  originally  filed,  only  varying  the  story  as  to  the 
manner  in  which  the  acts  complained  of  were  performed,  a  demurrer  to 
a  plea  of  the  statute  of  limitations  is  properly  sustained  if  tlie  original 
declaration  was  filed  in  time. 

2.  Master  and  Servant— Du^j^  of  Set^ant  to  look  for  Defects  in 
Machinery. — A  brakeman  is  not  required  to  look  after  dark  for  defects 
in  a  car  which  he  has  reason  to  foeheve  has  passed  inspection  by  the 
company  on  the  day  it  is  used. 

8.  Instructions— ite/M«aZ  to  State  a  Proposition  Ttcice  not  Error, 
—The  refusal  to  give  an  instruction,  the  whole  legal  effect  of  which  was 
in  another  that  was  given,  can  not  be  complained  of  as  error. 

Trespass  on  the  Gase^  for  personal  injuries.  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the  Hon.  James  Qoogin,  Judge,  presiding. 
Heard  in  this  court  at  the  Marcli  term,  1897.  Afiirmed.  Opinion  filed 
April  15,  1897. 


46  Appellate  Courts  of  Illinois. 

Vol.  70  ]  L.  S  &  M.  S.  Ry.  O).  v.  Ryan. 

Wm.  McFadon,  attorney  for  appellant. 
James  C.  McShane,  attorney  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellee  was  a  brakeman,  employed  by  the  appellant, 
and  November  25,  1892,  at  about  7:15  p.  m.  attempted  to 
go  down  from  the  top  of  a  freight  car  of  a  train  that  was 
being  backed  by  an  engine.  The  car  was  next  to  the  engine, 
and  he  had  gone  upon  it  from  the  engine  some  fifteen  min- 
utes before. 

In  attempting  to  go  down,  for  the  purpose  of  uncoupling 
the  engine  when  the  train  should  be  stopped,  as  it  was 
about  to  be,  he  fell  by  reason,  as  he  alleges,  of  a  "  hand 
hold "  being  so  bent  down  that  he  could  not  take  hold  of 
it.  This  "  hand  hold  "  was,  as  we  understand,  the  continua- 
tion of  a  ladder  down  the  end  of  the  car,  and  was  the  upper 
rung  of  that  ladder.  It  should  have  stood  on  the  top  of  the 
car,  a  little  way  from  the  end,  with  a  space  of  about  two  and 
one-half  inches  between  the  five-eighth  inch  bar  of  iron  and 
the  top  of  the  car,  so  that  as  a  rung  of  the  ladder  it  could 
easily  have  been  grasped;  but  in  fact  it  was  so  bent  down 
that  it  could  not  be  grasped.  He  had  been  with  the  train 
with  that  car  in  it  for  more  than  an  hour,  and  when  he 
went  from  the  engine  upon  the  car,  that  rung  was  within 
reach  of  his  hand. 

The  appellant  contends  that  both  by  general  law  and  spe- 
cial contract,  the  appellee  was  bound  to  take  notice  of  the 
condition  of  that  rung  before  attempting  to  use  it.  By  his 
contract  of  employment  he  engaged  that  hd  would  for  his 
own  safety,  examine  the  things  in  connection  with  whicli 
he  worked  befora  using  them,  so  as  to  ascertain  so  far  as  he 
reasonably  could,  their  "condition  and  soundness." 

The  company  had  inspectors  who  should  have  discovered 
the  defect.  As  to  the  appellee  we  will  take  notice  that 
there  is  little  light  after  six  o'clock  p.  m.  in  the  last  week  of 
November.  In  going  upon  the  car  the  appellee  had  no  oc- 
casion to  touch  the  rung.  Did  either  the  law  or  his  con- 
tract require  him  to  look  after  dark  for  defects  in  a  car 


First  District — March  Term.   1897.         47 

L.  S.  &  M.  S.  Ry.  Co.  v.  Ryan. 

Avhich  he  bad  reason  to  believe,  and,  as  we  understand  was 
the  fact,  had  passed  inspection  by  the  appellant  the  same 
day  ?  That  the  defect  could  have  originated  after  the  in- 
spection, there  is  no  reason  to  suspect. 

The  case  then  comes  to  this :  A  rung  placed  upon  the 
top  of  the  car  for  the  use  of  brakeman  was  so  bent  down 
that  the  appellee  could  not  get  hold  of  it;  had  it  been  in 
condition  the  appellee  would  not  have  been  hurt;  it  had 
been  passed  as  in  good  condition  that  day  by  the  appellant; 
.the  appellee  was  after  dark  put  by  the  appellant  in  thq  place 
where  he  would,  in  the  ordinary  course  of  events,  need  to 
use  the  rung  in  the  dark.  Under  such  circumstances  we 
may  not  say  that  the  jury  was  wrong  in  finding  that  the 
appellee  was  injured  through  the  negligence  of  the  appel- 
lant without  fault  on  his  part,  either  as  to  care  for  his  own 
safety  or  observance  of  his  contract. 

The  original  declaration  was  filed  May  16, 1893,  and  June 
7,  1896,  additional  counts  were  tiled,  to  which  the  appellant 
pleaded  the  statute  of  limitations.  To  these  pleas  the  court 
rightly  sustained  demurrers.  All  the  counts  were  for  the 
same  injury,  only  varying  the  story  as  to  the  manner  of  the 
negligence  of  the  appellant.  Liebold  v.  Green,  No.  6899 
this  term,  citing  Illinois  Steel  Co.  v.  Eylenfeldt,  62  111.  App. 
552, 165  111.  186,  and  Ellison  v.  Georgia  E.  R.,  87  Ga.  692; 
C,  St.  P.  &  K.  C.  Ry.  V.  Ryan,  62  111.  App.  264, 165  111.  88. 

Complaint  is  made  of  the  refusal  of  one  instruction,  the 
whole  legal  effect  of  which  was  in  another  that  was  given. 
In  this  was  no  error.  .  A.,  T.  &  S.  F.  R.  R.  v.  Feehan,  149 
111.  203,  cited  among  a  multitude  of  cases  in  4  Kinney's  Di- 
g^t,  4331-2. 

The  appellee  was  earning  an  average  of  $90  per  month; 
was  thirty-two  years  old,  and  is  incapacitated  for  his  former 
avocation  or  other  heavy  manual  labor.  We  may  not  say 
that  the  damages,  $6,000,  are  excessive.  Even  his  pecuniary 
loss  exceeds  the  damages. 

There  is  much  minor  criticism  of  the  proceedings,  and 
subdivision  of  the  argument  for  the  appellant;  of  which  it 
is  enough  to  say  that  on  the  whole  case  there  is  no  reason 
why  the  judgment  should  be  reversed,  and  it  is  affirmed. 


48  Appellate  Courts  op  Illinois, 

Vol.  70.1     •  Brettschneider  v.  The  Fair. 


Ferdinand  Brettschneider  y.  The  Fair. 

1.  Bill  op  Exceptions— W7M?n  Regarded  as  Jncowipfe/e.— Where 
many  papers  which  are  not  m  a  bill  of  exceptions  were  offered  in  evi- 
dence and  seen  by  the  court  trying  the  case  without  a  jury,  and  it  is 
clear  that  the  judge  regarded  them  as  part  of  the  proofs*  though  there 
be  no  formal  statement  that  they  were  received  in  evidence,  the  bill  of 
exceptions  will  be  treated  as  incomplete. 

2.  Judgments — Presumed  to  be  Right, — A  judgment  is  presumed  to 
be  right  until  it  is  shown  to  be  wrong,  and  where,  from  what  is  before 
it,  a  court  of  appeal  can  not  say  that  a  judgment  appealed  from  is  wrong, 
it  must  be  affirmed. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Abnub  Smith,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
March  29,  1897.  Rehearing  denied.  Opinion  on  petition  for  rehearing 
filed  April  15,  1897. 

Pedbick  &  Dawson,  attorneys  for  appellant* 
Masterson  &  Haft,  attorneys  for  appellee. 

Mb.  Justice  Gaby  delivered  the  opinion  op  the  Coukt. 

November  14,  1896,  judgment  was  entered  for  the  appel- 
lee, defendant  below,  and  leave  given  to  the  appellant  to  file 
a  bill  of  exceptions  within  sixty  days. 

January  12,  1897,  an  order  was  entered  thus:  "On 
motion  of  defendant's  attorney  it  is  ordered  that  the  time 
for  the  defendant  to  file  the  bill  of  exceptions  herein  be  and 
the  same  is  hereby  extended  twenty  days." 

That  is  nonsense,  as  the  defendant  wanted  no  bill  of 
exceptions,  but  it  does  not  follow  that  we  are  to  read  the 
order  with  the  word  plaintiff  substituted  for  the  word 
defendant.  The  order  does  not  intimate  that  the  plaintiff 
did  come,  though  the  case  shows  that  he  only  had  any  cause 
to  come. 

But  further  than  this,  if  the  word  plaintiff  were  substi^ 
tuted,  then  the  order  would  appear  to  be  one  entered  after 


First  District — March  Term,  1897.  49 

Baldwin  v.  Economy  Furniture  Co. 

the  term  at  which  the  judgment  was  entered  had  expired — 
without  notice  to  the  adverse  party — and  therefore  void. 

The  motion  of  the  appellee  to  strike  out  the  bill  of  excep- 
tions which  was  filed  February  1,  1897,  is  sustained;  and 
with  less  regret  because  it  does  not  contain  all  the  evidence 
put  in  on  the  trial,  and  the  merits  seem  to  be  with  the  appel- 
lee ori  what  evidence  is  in. 

The  judgment  is  affirmed. 


Albert  H.  Baldwin  y.  Economy  Furniture  Co. 

1.  Appearance — WTien  Deemed  to  be  Generah — Where  a  party  ap- 
p3ars  for  purposes  other  than  to  show  that  he  is  not  properly  before  the 
court,  he  is  deemed  to  have  entered  a  general  appearance  for  all  pur- 
poses. 

2.  HxiSE— Effect  of  Writing  Co^isenting  to  Action, — Any  writing  filed 
in  the  papers  in  a  cause  not  going  to  tne  jurisdiction  of  the  court, 
which  asks  or  consents  to  action  by  the  court  in  the  cause,  must  be 
treated  as  a  sufficient  appearance  for  all  purposes. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Cjurtof  Cook  County;  the  Hon.  Richard  S.  Tuthill,  Judge,  presiding. 
H^ard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opiniou  filed 
April  15, 1897. 

Frederick  S.  Baker,  attornej'  for  appellant. 
Kg  appearance  for  appellee. 

Mr.  Presiding  Jcstiob  Shepard  delivered  the  opinion 
OF  THE  Court. 

The  appellant  was  sued  by  the  appellee  before  a  justice  of 
the  peace,  and  from  a  judgment  there  recovered  against  him 
appealed  to  the  Circuit  Court  by  filing  his  appeal  bond  and 
a  transcript  of  the  justice's  judgment  in  the  oifice  of  the 
clerk  of  that  court,  but  no  summons  to  the  appellee  was  ever 
issued,  and  no  appearance  by  the  appellee,  except  as  herein- 
after mentioned,  was  entered. 


50  Appellate  Courts  of  Illinois. 

Vol.  70.]  Baldwin  v.  Economy  Furniture  Co. 

Afterward,  on  November  6,  1896,  the  case  was  called  for 
trial,  and  the  appellant  being  unprepared,  a  jury  having 
heard  evidence  offered  by  appellee,  returned  a  verdict  for 
$150.15  against  the  appellant. 

The  appellant  moved  for  a  new  trial,  and  also  in  arrest  of 
judo^raent,  insisting,  as  grounds  therefor,  that  no  appeal  sum- 
mons had  been  served  or  issued,  and  no  appearance  entered, 
and  no  appearance  fee  paid  by  appellee;  but  his  motions 
were  overruled,  and  judgment  was  entered  on  the  verdict. 

In  support  of  his  motion  for  a  new  trial,  an  affidavit  of 
appellant's  attorney  was  read,  stating  the  above  recited  facts, 
except  that  he  did  not  state  that  no  appearance  fee  had  been 
paid  by  the  appellee;  and  in  opposition  thereto  appellee  read 
a  stipulation  which  was  filed  in  said  Circuit  Court  and  cause 
on  April  30,  1896,  as  follows,  omitting  venue  and  title  of 
cause : 

"  It  is  stipulated  that  the  above  cause  may  be  reinstated 
and  placed  for  trial. 

E.  A.  Sherburne,  plaintiff's  attorney. 
J.  C.  Hendricks,  defendant's  attorney." 

We  are  not  informed  w^hat  the  occasion  was  for  such 
stipulation,  but  it  is  perhaps  not  an  erroneous  conjecture 
that  the  case  had  been  dismissed  on  some  general  call  of  the 
docket  without,  as  yet,  any  record  thereof  having  been 
made,  and  that  the  stipulation  was  a  convenience  adopted 
by  the  attorneys  to  avoid  the  necessity  of  a  motion  to  va- 
cate, or  prevent  the  entry  of,  such  an  order  of  dismissal. 

However  that  may  be,  we  regard  such  a  stipulation,  when 
ma<le  and  filed  in  the  court  and  cause,  as  a  sufficient  entry 
of  appearance  by  the  appellee. 

Where  a  party  appears  for  purposes  other  than  to  show 
he  is  not  properly  before  the  court,  he  is  deemed  to  have 
entered  a  general  appearance  for  all  purposes.  Abbott  v. 
Sample,  25  111.  107. 

The  statute  only  requires  that  the  appearance  of  appellee 
may  be  entered  in  writing  and  filed  among  the  papers  in 
the  cause.  It  does  not  specify  anything  as  to  form  of  such 
writing.  Sec.  68  of  the  act  of  1872,  concerning  Justices. 
See  also  Bessoy  v.  Ruliland,  33  111.  App.  73. 


First  District — March  Term,  1897.         61 

Williams  v.  Scott. 

There  may  be  a  possible  question  whether  that  section 
was  repealed  or  not  by  the  later  revision  of  1895.  Sec.  2 
Starr  &  Curtis  (2d  Ed.)  An  n  otated  Stat.,  Sec.177,  Ch.  79;  and 
Hurd's  R.  S.  (Ed.  1895),  Sso.  17S,  Ch.  79,  but  we  think  not. 

Anyhow,  the  case  was  in  the  Circuit  Court  properly,  and 
such  a  stipulation  must  be  given  the  effect  of  a  submission 
by  appellee  to  its  jurisdiction.  It  clearly  would  not  be  al- 
lowed to  appellee  to  thereafter  deny  that  it  had  appeared  in 
the  cause  in  that  court. 

Any  writing  filed  in  the  papers  in  the  cause  by  the  ap- 
pellee, not  going  to  the  jurisdiction  of  the  court  in  the 
cause  which  asks  or  consents  to  action  by  the  court  in  the 
cause,  must  be  treated  as  a  sufficient  appearance  by  him  for 
all  purposes. 

This  stipulation  was  filed  more  than  five  months  before 
the  term  at  which  the  cause  was  called  for  trial;  the  cause 
was  at  issue,  and  appellee  was  properly  in  court,  and  it  was 
not  error  for  the  court  to  hear  the  cause  and  render  the 
judgment  that  is  appealed  from. 

If  it  were  material  that  appellee's  appearance  fee  should 
have  been  paid  on  or  before  ten  days  previous  to  the  term 
at  which  the  cause  was  heard,  there  is  nothing  in  the  record, 
except  the  statement  in  appellant's  motion  for  a  new  trial, 
that  it  was  not  so  paid. 

The  pa^e  entitled  "Clerk's  Law  Eegister"  in  bill  of 
exceptions,  is  in  no  manner  referred  to,  or  in  any  way 
explained,  and  amounts  to  nothing  from  which  even  an  infer- 
ence may  be  drawn,  one  way  or  the  other,  as  to  any  fact  in 
the  case.     The  judgment  is  affirmed. 


L.  B.  Williams  t.  Charles  H.  Scott. 

1.  Errors— JVo^  Affecting  the  Result  Need  not  he  Considered, — Errors 
in  the  admission  or  rejection  of  evidence,  which  could  have  had  no  affect 
upon  the  result,  need  not  be  considered  by  a  court  of  appeal. 

2.  Master  and  Servant—  Wrongful  Discharge—  Continued  Readiness 
to  Perform  not  Necessary, — It  is  the  duty  of  a  servant  discharged 
wrongfully,  to  earn  what  he  can  after  his  discharge,  and  the  words, 


52  Appellate  CouRxa  of  Illtnofs. 

Vol.  70.]  Williams  v.  Scott 

**  and  from  thence  until  the  expiration  of  the  period  of  his  employment." 
in  an  averment  of  readiness  to  perform,  are  surplusage  and  need  not  be 
proved. 

Assnmpsit,  for  a  wrongful  discharge.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  Farlin  Q.  Ball,  Judge,  pre8i<ling. 
Heard  in  this  court  at  the  March  term,  1897.  Atiirmed.  Opinion  lileJ 
April  15.  1897. 

Slusser  &  Johnson,  attorneys  for  appellant. 
Johnson,  Herring  &  Brooke,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellant  was  the  proprietor  of  the  Park  Gate  Hotel 
during  the  World's  Fair  season  of  1893,  and  eno^aged  the 
appellee  as  steward  at  $200  per  month  a  little  liefore  May  1, 
1893.  At  the  end  of  June,  1893,  the  appellant  discharged 
the  appellee.  So  far  there  is  no  dispute  on  the  facts.  The 
case  of  the  appellee  is  that  he  was  engaged  for  a  term — the 
World's  Fair  season — to  end  November  1,  1893,  while  the 
appellant  insists  that  the  engagement  was  only  for  a  month 
on  trial  at  $200.  As  the  appellee  worked  two  months,  the 
month  on  trial  seems  to  cut  but  little  figure  in  the  contro- 
versy. On  trial  implies  that  something  was  depending  upon 
the  result  of  the  trial. 

The  preponderance  of  the  evidence  is  with  the  appellee  as 
to  the  terms  of  the  engagement. 

That  there  was  any  cause  given  to  the  appellee  for  the 
discharge  is  not  proved,  and  it  is  clear  that  it  was  against 
his  will,  while  he  was  ready,  able  and  willing  to  continue  in 
the  service.  He  vainly  endeavored  to  find  employment  dur- 
ino*  the  next  four  months. 

He  sued,  and  has  recovered  $500. 

Errors,  if  any  there  be,  in  the.  admission  or  rejection  of 
evidence  which  could  have  had  no  etfect  upon  the  result, 
need  not  be  considered. 

It  was  his  duty  to  make  efforts  to  earn  what  he  could 
after  his  discharge,  and  such  efforts  do  not  defeat  his  action, 
though  his  declaration  does  aver  *'  that  at  the  time  of  his 


First  District — March  Term,  1897.         53 

Kintz  v.  Starkey. 

discharge  and  from  thence  until  the  expiration  of  the  period 
of  his  employment  he  was  ready,  able  and  willing,"  etc. 
The  words  "  and  from  thence  until  the  expiration  of  the 
period  of  his  employment "  are  surplusage,  which  need  not 
be  proved.     1  Greenl.  Ev.,  Sec.  51. 

The  appellee  might  have  sued  the  day  he  was  discharged, 
and  the  trial  not  coming  on  until  the  term  of  service  had 
ended  he  would  have  been  entitled  to  recover  his  whole 
S:ilary,  less  what  he  could  have  earned.  Mount  Hope  Cem. 
Asa'n  V.  Weidenmann,  131)  111.  67. 

In  such  an  action  continued  readiness  could  not  have  been 
averred,  which  proves  that  such  an  averment  was  needless. 

The  judgment  is  affirmed. 


8.  T.  Kintz  v.  H.  Starkey. 

1.  Practice — Right  to  Address  the  Jury  Absolute. — ^The  right  of  a 
pirtj  litigant  to  address  the  jury  by  his  counsel  is  absolute.  Lanau  v. 
Hibbard,  Spencer,  Bartlett  &  Co.,  63  IlL  App.  54,  approved  and  fol- 
lowed. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Superior 
Court  of  Cook  Ck)unty;  the  Hon.  William  G.  Ewino,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Reversed  and  remanded. 
Opinion  filed  April  15,  1897. 

Philip  Koehler  and  Henby  A.  Wilder,  attorneys  for  ap- 
pellant. 

Argument  of  counsel  is  a  matter  of  right.  The  argument 
of  a  cause  is  as  much  part  of  the  trial  as  the  hearing  of  the 
evidence.  A  party  to  a  civil  suit  has  a  right  to  be  heard 
either  by  himself  or  by  counsel,  not  only  in  the  testimony 
but  also  in  the  argument  of  his  case.  No  matter  how  weak 
or  inconclusive  the  case  may  be,  if  it  is  enough  to  present 
a  disputed  question  of  fact  the  counsel  of  the  party  has  a 
right  to  present  his  client's  case  to  the  jury.  Douglass  v. 
Hill,  29  Kas.  527;  Nedig  v.  Cole,  13  Neb.;  Mayo  v.  Wright, 


54  Appellate  Courts  of  Illinois. 

^  '  l—^MBB  ■■  1^  ■■■■■.  ,.  ,  I,  _,  .       _  .     ,  ,      ,  ,.  ,  .         m^,^^m^-»^^^^^^^-^^^^^^ 

Vol.  70.]  Otto  v.  Matthie. 

63  Mich.  32;  Thompson  v.  People,  144  III.  378;  Merideths 
V.  People,  84  III.  479;  Cartwright  v.  Clopton,  25  Mich.  285. 

Archibald  Cattell,  attorney  for  appellee. 

Mb.  Justice  Gaby  delivered  the  opinion  of  the  Ccurt. 

Except  in  the  names  of  the  parties,  and  the  court  whence 
this  appeal  comes,  this  case  is  like  Lanau  v.  Hibbard,  63 
111.  App.  54,  and  to  preserve  the  parallel  the  judgment  is 
reversed  and  the  cause  remanded. 


Edward  Otto  y.  H.  Matthie. 

1.  Husband  and  Wipe — Family  Expenses. — Diamond  ear-rings,  a 
watch  given  to  a  daughter  of  the  wife  by  a  former  marriage  and  not  a 
member  of  the  family  of  the  husband,  and  a  chain  given  to  the  lover  of 
a  servant,  can  not  be  considered  as  family  expenses  and  chargeable 
against  a  husband  without  his  consent. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  Philip  Stein,  Judge  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Keversed.  Opinion  filed 
April  15,  1897. 

Arnold  Tripp,  attorney  for  appellant. 
No  appearance  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellee  was  a  jeweler,  and  in  a  little  more  than  two 
years,  with  no  acquaintance  with  the  apj^ellant,  who  was  a 
physician  and  druggist,  the  appellee  sold  to,  and  repaired 
goods  in  his  line  for  the  wife  of  the  appellant,  without  his 
knowledge,  to  the  amount  of  $114.75.  At  the  time  of  the 
trial  $40.75  remained  unpaid,  she  having  paid  the  residue. 

Among  the  items  were  diamond  ear  rings,  $58,  of  the  des- 
tination of  which  there  is  no  account;  a  watch,  $10,  to  a 
daughter  of  the  wife  by  a  former  marriage  and  not  a  mem- 
ber of  the  family  of  the  appellant;  a  gentleman's  chain,  $6, 


First  District — March  Term,  1897.         65 

PittsbuTK  Bridge  Co.  v.  Walker. 

a  present  to  the  lover  of  the  cook.  As  none  of  these  articles 
can  be  considered  as  being  in  a  family  expense  account,  and 
their  combined  price  much  exceeds  the  unpaid  balance  of 
the  account,  the  finding  of  the  court,  trying  the  case  with- 
out a  jury,  should  have  been  in  favor  of  the  defendant — the 
appellant. 

There  is  no  appearance  here  by  the  appellee. 

On  the  authority  of  Galfield  v.  Scott,  40  111.  App.  380.  and 
Harding  v.  Hyraan,  54  111.  App.  434;  S.  C,  with  title 
reversed,  162  III.  357,  the  judgment  is  reversed  without 
remanding. 


Pittsburg  Bridge  Company  t.  Jolin  Walker. 

1.  Questions  op  Fact— -  W/?o  Are  Felloio-Servan U— Negligence.— Who 
are  fellow-servants  and  whether  or  not  a  defendant  was  guilty  of  negli- 
gence are  questions  for  the  jury,  and  their  determination  of  them  should 
not  be  disturbed  upon  such  evidence  as  is  contained  in  the  record  in  this 
case. 

Trespass'  on  the  Case,  for  personal  injuries.  Appeat  from  the 
Superior  Court  of  Cook  County;  the  Hon.  Nathaniel  C.  Sears.  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Affirmed. 
Opmion  filed  April  15,  1897. 

John  A.  Post  and  John  B.  Brady,  attorneys  for  appellant. 

Frank  Scales,  attorney  for  appellee;  A.  Stubblefield,  of 
counsel. 

Mr.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  the  Court. 

In  an  action  brought  by  the  appellee  to  recover  damages 
for  a  personal  injury  sustained  by  him  while  in  the  service 
of  appellant,  through  the  alleged  negligence  of  the  servants 
of  the  appellant,  a  verdict  for  $3,000  was  returned  in  appel- 
lee's favor.    From  that  verdict  appellee  remitted  §1,000  and 


70      65 
170s  550 


56  Appellate  Coukts  of  Illinois. 

Vol.  70.]  Pittsburg  Bridge  Co.  v.  Walker. 

■■ 

the  judgment  for  S2,000  entered  against  appellant  is  now 
appealed  from. 

Although  assigned  as  error  that  the  damages  are  excess- 
ive, all  claim  on  that  account  is  abandoned  upon  the  argu- 
ment. 

The  questions  of  whether  appellee  was  injured  through 
the  fault  of  a  fellow-servant,  and  whether  the  risk  was  not 
one  that  he  assumed,  are  the  most  important  ones  in  the 
case. 

The  appellant  was  engaged  in  constructing  an  iron  struct- 
ure known  as  the  Halsted  street  bridge,  in  Chicago,  and 
appellee  had  worked  at  and  about  the  bridge  as  a  common 
laborer  for  the  appellant  some  three  or  four  months,  under 
a  foreman  or  different  foremen.  The  general  superintend- 
ent was  a  Mr.  Lyons,  who  told  appellee  to  do  whatever  he 
was.  told  to  do  by  a  Mr.  Farnsworth,  who  is  sometimes 
spoken  of  as  assistant  superintendent  or  foreman;  again  as 
foreman  in  charge  of  the  structural  iron  work,  at  times,  and 
who  himself  testified  in  behalf  of  the  appellant,  that  on  the 
day  of  the  injury  he  was  a  *'  common  workman  the  same  as 
anybody  else." 

A  Mr.  Clark  was  the  yard  boss  in  charge  of  the  yards 
where  the  bridge  material  was  taken  off  railroad  cars,  sorted, 
and  loaded  upon  a  scow  in  the  river  for  transportation  to 
the  site  of  the  bridge. 

Appellee  was  transferred  to  such  yards,  from  work  upon 
and  about  the  bridge,  about  a  month  before  the  accident, 
and  was  there  at  work  in  what  is  spoken  of  as  "  Mr.  Clark's 
gang"  when  he  became  hurt. 

On  the  day  in  question  Mr.  Farnsworth  went  to  the 
yards  to  get  eight  struts  or  sway  braces  that  he  said  he 
wanted  to  go  up  between  the  towers  of  the  bridge,  and  the 
work  of  getting  them  out  began  at  once.  Such  pieces 
weighed  from  ten  to  fifteen  hundred  pounds  apiece,  and 
were  from  twenty  to  twenty-six  feet  long.  They  were 
handled  by  being  loaded  upon  a  handcar  by  means  of  a  der- 
rick, and  then  run  down  a  hundred  or  hundred  and  fifty 
feet  to  near  the  scow  where  they  were  again  lifted  by  an- 


First  District — March  Term,  1897.         57 

Pittsburg  Bridge  Co.  v.  Walker. 

'II.  » 

Other  derrick  and  swung  around  upon  the  scow.  In  doing 
this  work  Farnsworth  assisted  on  that  day,  although  he 
had  never  done  so  before.  There  was  evidence  that  he  was 
in  haste  to  get  the  struts. 

Because  of  some  girders  that  were  lying  across  the  hand- 
car track,  the  car,  loaded  with  four  struts,  could  not  at  that 
time  be  got  nearer  than  twelve  or  fourteen  feet  from  the 
derrick.  Farnsworth  hitched  the  derrick  tackles  to  one  of 
the  struts,  near  the  center,  and  the  derrick  being  so  far 
from  the  car  the  strut  when  lifted  was  dragged  as  well  as 
raised,  and  one  end  caught  and  became  wedged  in  the  girders 
that  lay  across  the  track,  and  was  held  down  while  the  other 
end  was  in  the  air,  a  few  feet  high.  Farnsworth  then  took 
hold  of  the  end  that  was  in  the  air,  and  appellee  and  Clark 
took  hold  of  and  tried  to  lift  the  other  end  loose.  Beins: 
unable  at  first  to  loosen  it,  appellee,  either  by  order  of 
Farnsworth  or  of  his  own  volition,  stepped  over  the  strut 
and  lifted  upon  it  from  that  side.  The  strut  becoming 
loosened  by  the  efforts  of  Clark  and  the  appellee,  it  sud- 
denly swung  away  from  both  Farnsworth's  and  their  holds 
— the  tackle  having  been  kept  taut  and  ''on  a  very  tight 
strain" —  and  appellant  w^as  struck  and  thrown  or  knocked 
over,  and  received  the  broken  leg  and  other  injuries  of 
which  he  complained. 

It  does  not  appear  that  appellee  had  ever  had  any  experi- 
ence of  handling  such  heavy  material  by  a  tackle  operated 
on  such  a  slant,  although  he  knew  all  about  the  ordinary 
wav  of  movino:  struts.  Farnsworth  testified  that  "  the 
tackles  were  leaded  in  maybe  forty-five  degrees."  Both 
Farnsworth  and  Clark  were,  as  appellee  believed,  his  supe- 
riors in  authority,  and  were  both  men  of  many  years'  experi- 
ence in  the  work  of  handling  heavy  iron  work.  Although 
Farnsworth  testified  that  he  was,  on  that  day,  nothing  but 
a  common  laborer,  still,  in  all  the  three  months  that  appel- 
lee worked  at  the  bridge,  Farnsworth  was  his  foreman,  and 
it  is  not  claimed  that  appellee  had  any  notice  or  informa- 
tion whatever  of  his  reduction  from  such  rank.  Clark  \vas 
appellee's  boss  at  the  yard  when  the  accident  happened,  and 


68  Appellate  Courts  of  Illinois. 

Vol.  :0.]  Pittsburg  Bridge  Ck).  v.  Walker. 

appellee  had  a  right  to  be  warned  of  dangers  that  he  did 
not  know  of,  but  of  which  both  Clark  and  Farnsworth  must 
have  known. 

There  is  no  word  of  evidence  that  he  was  warned  bv 
either  of  them,  but  there  is  evidence  that  Farnsworth  en- 
couraged him,  and  even  commanded  him  to  step  over  the 
wedged  strut  and  to  give  another  lift  at  it  until  he,  Farns- 
worth, might  see  whether  he  and  Clark  could  not  lift  it 
loose. 

Furthermore,  Farnsworth  had  hold  of  the  other  end  of 
the  strut  for  the  purpose,  as  he  testified,  of  holding  it  so 
that  appellee  and  Clark  might  get  the  other  end  clear. 
With  no  warning  or  explanation,  appellee  had  a  right  to 
rely  upon  Farnsworth  to  hold  and  steady  the  iron  so  that  he 
should  not  be  injured.  The  fact  that  Farnsworth  was 
unable  to  hold  and  steady  it  does  not  excuse  appellant,  if 
Farnsworth  were  in  truth  a  vice-principal. 

Upon  the  question  of  whether  Farnsworth  was  a  fellow- 
servant  with  appellee,  we  are  satisfied  the  jury  came  to  the 
correct  conclusion  that  he  was  not. 

As  already  stated,  he  had  been,  on  all  prior  occasions  in 
the  course  of  the  work,  appellee's  superior,  and  there  was 
no  claim  of  notice  to  appellee,  or  knowledge  by  him  of  any 
change  in  such  relationship,  and  it  is  clear  that  appellee 
still  believed  him  to  be  his  superior.  It  is  contended  that 
Clark  was  the  foreman  over  appellee,  and  not  Farnsworth. 
Undoubtedly  such  was  the  fact  in  the  absence  of  Farns- 
worth. But  there  was  evidence  that  tended  to  show  that 
Clark  was  subject  to  the  orders  of  Farnsworth.  Clark  tes- 
tified guardedly  upon  that  subject.  He  denied  that  Farns- 
worth gave  him  orders,  but  admitted  that  Farnsworth  came 
to  him  and  said,  "  Jim,  I  want  to  get  them  struts  or  sway 
braces  that  go  up  between  the  towers,"  and  that  he,  Clark, 
at  once  went  and  picked  them  out,  and  the  work  of  moving 
them  immediately  began,  and  the  load  of  four  struts  was 
put  upon  the  hand-car,  and  run  up  to  where  it  was  to  be 
transferred  to  the  scow.  Then,  while  Clark  was  awav  at 
the  other  end  of  the  yard  picking  out  the  four  remaining 


First  District — March  Term,  1897.         59 

-  J  iii.i,  ■  ■ 

Pittsburg  Bridge  Co.  v.  Walker. 

Struts  for  another  load,  Farnsworth  fastened  the  tackles  to 
the  strut  that  was  to  be  put  aboard  the  scow,  and  the  work 
proceeded  under  Farns worth's  directions,  until  the  strut 
caught  on  the  girder,  which  occurred  before  Clark  came 
back.  Ray,  the  laborer  who  drove  the  horse  at  the  derrick 
that  did  the  hoisting,  took  his  signals  from  Farnsworth. 

Farnsworth  himself  testified  that  when  in  the  course  of 
the  bridge  building  he  wanted  material  he  would  go  down 
and  have  it  got  out.  He  said  :  "  I  would  order  Clark  to 
load  it  on  the  car  or  bring  it  up  there." 

There  can  be  no  question,  we  think,  but  that  Farnsworth 
had  authority  to  direct  Clark  to  get  out  the  material,  and 
that,  fro  n  his  general  exercise  of  authority  in  the  entire 
business,  the  appellee  had  the  right  to  rely  upon  his  pres- 
ence at  any  part  of  the  work  as  being  that  of  a  vice-principal. 

From  such  evidence  as  we  have  stated,  read  in  connection 
with  the  testimony  of  the  appellee  as  to  the  express  orders 
given  to  him  by  Farnsworth,  and  of  Farnsworth's  direction 
to  him  not  to  use  a  guy  line,  there  ready  for  use,  which 
a])pellee  was  about  to  attach  to  the  strut  to  keep  it  from 
swinging  around,  we  have  suflBcient  evidence  to  sustain  the 
verdict. 

Who  are  fellow-servants,  and  whether  or  not  the  appel- 
lant was  guilty  of  negligence,  were  questions  for  the  jury, 
whose  determination  of  them  should  not  be  disturbed  unless 
upon  evidenc3  that  this  record  does  not  contain. 

Appellant  contends  that  because  one  count  of  the  decla- 
ration avers  that  appellee  was  familiar  with  the  work  being 
done,  he  could  not  rely  upon  the  superior  knowledge  of 
Farnsworth  in  the  method  of  doing  it.  That  contention  is 
fairly  met  by  the  further  averment  in  the  same  count,  that 
Farnsworth  directed  him  as  to  the  manner  of  removal,  and 
refused  to  use  a  guy  or  tag  line,  but  endeavored  to  hold  the 
strut  with  his  hands,  whereby,  etc. 

AVe  can  not  stop  to  discuss  other  points  made  by  the  ajv 
pellant.  None  of  them  are,  in  our  opinion,  of  sufficient 
weight  to  justify  a  reversal  of  the  judgment,  and  it  will 
therefore  be  affirmed. 


60  Appellate  Courts  of  Illinois. 

Vol.  70.]  Chicago  City  Ry.  Co.  v.  Burrell. 


Chicago  City  Ball  way  Company  y.  Bena   Burrell^ 

Administratrix. 

1.  Neglioence — Not  Shown  by  the  Evidence. — The  court  holds  that 
in  this  case  the  deceased  either  failed  to  exercise  ordinary  care  or 
tliat  his  fall  was  occasioned  by  causes  which  the  evidence  did  not  dis- 
close, and  that  negligence  upon  the  part  of  the  appellant  was  not 
shown. 

Trespass  on  the  Case. — Death  from  negligent  act.  Appeal  from 
tlie  Circuit  Court  of  Cook  County;  the  Hon.  Thomas  G.  Windes,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Reversed  and 
judgment  in  this  court.    Opinion  filed  April  16,  1897. 

Statement  of  the  Case. 

On  October  4, 1891,  Louis  Burrell  was  a  waiter  in  the 
cafe  of  the  Palmer  House  of  this  city.  On  the  evening  of 
that  dav,  about  7:30  o'clock  p.  m.,  he  left  the  cafe,  where 
he  had  been  working  all  day,  and  took  passage  on  a  car  of 
the  defendant  at  State  and  Adams  streets,  going  in  a  south- 
erly direction  on  State  street.  Burrell  lived  at  that  time 
at  2702  Dearborn  street,  Dearborn  beinff  the  first  street 
west  of  State  street,  and  his  home  being  a  couple  of  doors 
south  of  Twenty-seventh  and  Dearborn  streets,  and  he  was 
proceeding  upon  his  way  homeward  from  his  work. 

He  seated  himself  on  the  east  side  of  the  grip-car  in  the 
second  seat  from  the  rear,  at  a  point  slightly  behind  and  to 
the  left  of  the  gripman  of  that  car.  As  his  car  approached 
Twenty-seventh  street  he  arose  from  his  seat,  passed  to- 
ward the  back  of  the  grip,  probably  to  get  around  the  rear 
end  of  the  grip,  and  get  oS  on  the  west  side  of  the  grip  at 
the  south  line  of  Twenty-seventh  street,  in  order  to  proceed 
to  his  home. 

The  grip-car  started  to  slacken  up  as  it  approached  the 
north  line  of  Twenty-seventh  street,  probably  for  the  pur- 
pose of  allowing  Burrell  to  alight. 

As  Burrell  was  thus  going  around  the  rear  end  of  the 
grip,  in  some  manner  not  shown  by  the  proof,  he  fell  from 


First  District — March  Terji,  1897.  61 

Chicago  City  Ry.  Co.  v.  Burrell. 

^^- —  ■ 

the  south  bound  car.  He  fell  upon  his  baxjk  on  the  west 
rail  of  the  east  or  north  bound  track  of  State  street.  He 
moved  after  he  fell,  and  then  laid  still  with  his  head  toward 
the  southeast.  Ho  moved  his  hand  in  some  manner  after 
he  fell,  but  did  not  arise  immediately,  being  apparently 
stunned  by  the  fall.  The  south-bound  car  stopped  at  the 
usual  place  to  permit  passengers  to  alight. 

At  the  time  he  fell,  a  north-bound  grip  train  was  approach- 
ing Twenty -seventh  street.  It  was  going  at  the  rate  of  ten 
miles  an  hour,  being  the  usual  speed  of  a  grip  train,  and 
when  Burrell  fell  was  at  a  distance  variously  estimated  at 
from  fifteen  to  one  hundred  feet  from  the  point  where  he  fell. 
Burrell  fell  at  a  point  from  ten  to  twenty  feet  south  of  the 
south  line  of  Twenty-seventh  street. 

The  gripman  in  charge  of  this  train  did  not  see  Burrell 
until  he  struck  the  tracks  in  front  of  the. north-bound  car. 
The  south-bound  car  stopped  almost  immediately  after  Bur- 
rell fell.  Some  persons  on  the  north-bound  car  screamed, 
and  the  gripman,  seeing  Burrell,  applied  his  brakes  auvl 
released  the  cable,  and  finally  brouo^ht  the  north-bound 
train  to  a  stop  as  soon  as  possible. 

Before  this  had  transpired,  however,  the  grip-car  had 
struck  Burrell  as  he  lay  at  the  point  from  ten  to  twenty  feet 
south  of  the  south  line  of  Twenty-seventh  street;,  and  dragged 
him  from  where  he  lay  almost  to  the  north  line  of  Twenty- 
seventh  street,  a  distance  estimated  at  from  thirty  to  fifty 
feet.  On  the  northeast  corner  of  Twenty-seventh  and  State 
streets  was  a  lamp  post.  The  grip  was  lifted  up,  Burrell 
was  taken  from  underneath,  and  he  was  carried  to  this  lamp 
post,  and  set  up  against  it.  He  was  still  conscious,  was  able 
to  tell  his  name  and  where  he  lived.  His  clothes  were 
bloody,  and  he  was  covered  with  mud  and  dirt.  He  had 
been  caught  under  the  fender  of  the  car  and  drai^ged  along 
the  track.  He  was  tak^n  home  in  the  patrol  wagon,  an.l 
died  from  his  mjuries  the  following  morning. 

D ARROW,  Thomas  &  Thompson,  attorneys  for  appellant. 

J.  Warren  Pease,  attorney  for  appellee;  W.  S.  Elliott, 
Jr.,  of  counsel. 


"70      62l 
175»  4S5 


02  Appellate  Courts  of  Illinois. 

Vol.  70.]  Dux  v.  Blomstrom. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

There  was  no  neo^ligence  on  the  part  of  the  managers  of 
the  south-bound  train  upon  which  the  deceased  was  a  pas- 
senger, and  from  which  he  fell.  Nor  did  it  appear  that  the 
gripraan  upon  the  north-bound  train  was  negligent.  He 
testified  that  he  did  not  see  the  deceased  until  he  struck  the 
tracks  in  front  of  the  car;  that  he  then  made  every  effort 
to  stop  his  train,  there  is  no  dispute. 

Whether  the  gripman  upon  the  north-bound  train  saw  the 
deceased  as  soon  as  he  fell  is  immaterial.  There  is  no  evi- 
dence that  this  gripman  was  in  any  respect  negligent,  inat- 
tentive or  heedless.  He  had  no  reason  to  expect  that  the 
deceased  was  about  to  fall  or  jump  in  front  of  the  train; 
and  while  the  deceased  was  at  no  time  a  trespasser,  yet  his 
sudden  appearance  upon  the  track  created  the  duty  only  of 
using  such  care  as  was  possible  from  such  moment. 

The  deceased  either  failed  to  exercise  ordinary  care,  or 
his  fall  was  occassioned  by  causes  which  the  evidence  does 
not  disclose.  However  this  may  be,  negligence  upon  the  part 
of  appellant  was  not  shown. 

The  jury  should,  as  was  requested,  have  been  instructed 
to  find  for  the  defendant. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  a 
judgment  for  the  defendant  will  be  here  entered  upon  a  find- 
ing of  facts. 

Ee versed,  and  judgment  for  defendant  here. 


Joseph  Dux  et  al.  v.  Carl  John  Blomstrom. 

1.  Mistakes  of  Law— Jfoney  Paid  Under,  Can  Not  he  Recovered, — 
The  fact  that  parties  were  mistaken  as  to  the  law,  and  that  the  apparent 
lien  of  an  assessment  was  held  to  be  invalid,  and  was  never  enforced, 
does  not  give  a  vendor  the  right  to  recover  from  his  vendee  money  with- 
held from  the  contract  price  on  account  of  such  assessment  in  the 
absence  of  an  agreement  covering  the  subject. 


First  District — March  Term,  1897.         63 

Dux  V.  Blomstrom. 

Bill,  to  enforce  a  vendor's  lien.  Appeal  from  the  Superior  Court  of 
Cook  County;  the  Hon.  Henry  V.  Freeman,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Reversed  and  bill  dismissed. 
Opinion  filed  April  15,  1897. 

Ross  &  Todd,  attorneys  for  appellants. 
Kerb  &  Barr,  attorneys  for  appellee. 

Mb.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  was  a  bill  in  equity  filed  by  the  appellee  to  enforce 
a  vendor's  lien  against  certain  real  estate  sold  and  conveyed 
by  the  appellee  to  the  appellants. 

The  contract  of  purchase  and  sale  between  the  parties 
bore  date  on  July  20,  1892,  and  contained  a  provision  as 
follows:  "It  is  further  mutually  agreed  by  the  parties 
hereto  that  said  parties  of  the  second  part  (appellants)  shall 
pay  one-half  of  the  general  taxes  levied  and  assessed  upon 
said  premises  for  the  year  1892;  all  other  and  prior  taxes 
and  assessments  to  be  paid  and  discharged  by  said  party  of 
the  first  part "  (appellee). 

The  contract  price  was  $6,800. 

Whether  it  was  known  and  considered  as  an  element  that 
entered  into  the  contract  price,  by  both  o/  by  either  one  of 
the  parties  at  the  time,  or  before  the  contract  was  made, 
that  an  assessment  against  the  premises  had  been  levied  by 
the  Board  of  West  Chicago  Park  Commissioners  for  the 
improvement  of  Washington  Boulevard,  upon  which  street 
the  premises  fronted,  was  a  matter  of  considerable  dispute 
between  the  parties  in  testifying,  but  it  is  certain  that  when 
the  abstract  of  title  was  furnished  it  was  made  to  appear 
that  there  existed  such  an  unpaid  assessment,  amounting  to 
about  $2,800. 

The  bill  alleged  that  such  assessment  and  improvement 
were  not  in  contemplation  of  the  parties  at  the  time  of  mak- 
ing the  contract.  However  that  may  be,  it  was  alleged  by 
the  bill,  and  is  not  materially  denied,  that  when  the  abstract 
had  been  examined  the  appellants  demanded  that  appellee 


64  Appellate  Courts  of  Illinoij', 

Vol.  70.]  Dux  v.  Blomstrom. 

should  pay  such  assessment,  as,  by  the  terms  of  his  contract, 
he  was  bound  to  do,  and  that  appellee,  believing  the  assess- 
ment to  be  a  valid  charge  against  the  premises,  agreed  to 
allow  a  part  of  it,  to  the  amount  of  $2,083,  to  be  retained 
by  appellants  out  of  said  contract  price,  and  a  due  convey- 
ance of  thie  premises  was  then  made  by  warrantj'^  deed, 
dated,  acknowledged  and  recorded  July  29,  1892,  subject  to 
said  assessment,  which  was  to  be  paid  by  the  grantees,  the 
appellants. 

The  bill  further  alleged  that  in  June,  1895,  the  said  Park 
Board  set  aside  the  assessment  with  reference  to- said  prem- 
ises, and  that  the  said  assessment  thereby  ceased  to  be  a 
lien  against  the  premises,  and  that  the  retention  by  appel- 
lants of  said  $2,083,  under  the  circumstances,  amounted  to 
a  payment  of  that  amount  by  appellee  to  appellants  upon  a 
mistake  of  fact  with  regard  to  said  assessment,  and  that 
appellee  is  entitled  to  have  the  same  paid  back  to  him;  that 
the  $2,083  so  allowed  constitutes  a  part  of  the  purchase 
money  which  has  not  been  paid  to  the  appellee,  and  that  bo 
is  entitled  to  a  vendor's  lien  upon  the  premises  therefor. 

There  is  no  dispute  but  that  the  assessment  in  question 
had  been  levied  and  confirmed  before  the  abstract  of  title 
was  furnished  by  appellee  for  examination,  nor  but  that 
the  judgment  of  confirmation  thereof  was  reversed  by  the 
Supreme  Court,  and  that  in  June,  1895,  its  further  collection 
was  abandoned,  and  thereby  the  premises  were  relieved 
from  the  lien  of  the  assessment. 

The  appellants  insist  that  the  matter  of  boulevarding  the 
street  and  the  assessment  therefor  was  talked  of  and  con- 
sidered by  the  parties  at  the  time  the  contract  was  made, 
and  that  appellee  represented  he  had  paid  the  assessment, 
and  that  such  matters  constituted  inducements  to  them  to 
buy  the  property. 

We  underst-and  the  appellee  to  deny  in  his  testimony  that 
any  such  elements  entered  into  the  contract.  But  it  plainly 
appears  that  he  did,  by  his  contract,  as  executed,  agree  to 
sell  and  convey  the  premises  free  from  all  such  assessments, 
and  that  afterward  when  the  abstract  of  title  had  been 


First  Distbict — March  Term,  1897.         65 

Dux  V.  Blomstrom. 

examined  and  such  assessment  was  shown  to  have  been  con- 
firmed, the  appellants  refused  to  close  up  the  contract  unless 
he  discharged  the  assessment  or  adjusted  it,  and  that  there- 
upon appellee  agreed  to  allow  three-quarters  of  the  amount 
of  the  assessment  to  be  taken  out  of  the  contract  price,  and 
to  make  the  deed  subject  to  the  assessment. 

The  warranty  deed  then  given  by  the  appellee  to  the 
appellants  recited :  "  This  deed  is  given  subject  to  all  taxes 
and  assessments  levied,  charged  or  assessed  upon  said 
premises  after  the  year  1891,  and  subject  to  all  assessments 
for  improvements  not  yet  made,  the  payment  of  all  such 
taxes  and  assessments  being  assumecl  by  the  grantees  herein 
as  part  of  the  consideration  of  this  deed." 

When  the  deed  was  made  there  was  no  mistake  of  fact 
concerning  the  assessment.  It  had  been  confirmed  bv  the 
court  and  was  an  apparently  valid  lien  against  the  premises, 
and  its  amount  was  known  to  all  parties. 

We  do  not  apprehend  that  the  fact  that  the  parties  'vvere 
mistaken  as  to  the  law,  and  that  two  or  three  years  later  the 
assessment  was  held  to  be  invalid,  could  give  appellee  a  right 
to  the  relief  he  asked. 

The  fact  that  the  apparent  lien  of  the  assessment  was 
never  enforced,  and  became  incapable  of  enforcement,  did 
not  give  the  appellee  a  right  to  obtain  back  from  appellants 
the  money  withheld  from  the  contract  price  in  the  absence 
of  any  agreement  covering  the  subject. 

Supposing  that,  instead  of  it  having  been  an  assessment 
lien,  it  had  been  the  lien  of  anordinarj?^  judgment  for  whicli 
the  api:)ellee  was  not  pp.rsonally  liable.  Would  it  be  con- 
tended in  such  case,  and  with  no  agreement  concerning  it, 
that  if  the  judgment  lien  should  not  be  enforced  and  should 
subsequently  become  barred  by  the  statute,  or  if  the  grant- 
ees in  the  deed  should  compromise  Jind  settle  the  judgment 
for  less  than  its  face,  the  grantees  would  become  liable  to 
the  grantor  for  all  they  had  been  benefited  by  such  a  bar- 
ring or  compromise  over  what  had  been  deducted  from  the 
price  of  the  land  ? 

Here  the  appellee  was  not  psrsonally  liable  for  the  assess-^ 

YokLXZ     6 


66  Appellate  Courts  of  Illinois. 

M  ■■■■    ■  ■   ■  ■■  I  -  -  -  -f-T 

Vol.  70.]  Dux  v.  Blomstrom. 

ment,  and  it  could  make  no  difference  to  him  whether  appel- 
lants paid  it  or  not.  He  conveyed  the  land  absolutely  to 
the  apjjellants,  subject  to  the  assessment,  giving  to  them  in 
effect  an  agreed  part  of  the  amount  of  the  assessment 
because  of  it.  They  did  not  agree  with  him  to  pay  the 
assessment.  Even  if  the  clause  in  the  deed  reciting  that 
the  conveyance  was  made  subject  to  the  assessment,  and 
that  appellants  had  "assumed"  to  pay  the  same  as  piirt  of 
the  consideration  of  the  conveyance,  might  be  held  to  obli- 
gate appellants,  either  at  law  or  in  equity,  to  pay  the  assess- 
ment to  whoever  could  claim  its  payment  from  appellee, 
yet  as  appellee  was  not,  when  he  owned  tHe  property,  or  at 
any  other  time,  under  any  personal  obligation,  either  legally 
or  morally,  to  pay  the  assessment  to  anybody,  and  never 
has  paid  it,  he  has  no  standing  to  claim  anything  because 
appellants  di<l  not  pay  it. 

If  appellants  had  agreed  with  .appellee,  expressly  or 
impliedly,  to  pay  back  to  him  whatever  they  might  save 
from  the  assessment,  a  different  question  would  exist,  but 
there  was  no  such  agreement  ever  made.  Nor  is  there, 
under  the  facts,  any  room  to  assume  that  the  money  was 
deducted  for  the  express  purpose  of  paying  the  assessment 
for  appellee,  whereby  a  trust  relationship  arose.  It  was 
simply  a  deduction  of  so  much  money  because  of  the  appar- 
ent lien  upon  the  land,  which  appellants  were  at  liberty 
to  discharge  or  not. 

Appellants  have  paid  everything  they  ever  agreed  to  pay 
to  or  for  appellee,  and  we  are  unable  to  see  from  a  careful 
consideration  of  the  evidence  and  the  law  applicable  to  it, 
anv  more  reason  to  require  appellants  to  account  to  appel- 
lee in  the  respect  demanded,  than  for  any  other  profit  or 
advantage  they  may  have  made  out  of  the  transaction. 

The  decree  of  the  Superior  Court  was  without  justifica- 
tion. The  bill  ought  to  have  been  dismissed  for  want  of 
equity,  and  such  is  the  order  that  will  be  entered  here. 

Decree  reversed  and  bill  dismissed  lor  want  of  equity. 


First  District — March  Term,  1897.         67 

•—^—'^     I  111  ^— — p— — ^ 

West  Chicago  Street  R.  R.  Co.  v.  Boeker. 


West  Chicago  Street  Railroad  Company  t.  Norma  Boeker. 

1.  Verdictb— Jlftt«f  be  Sustained  by  the  Evidence. — ^The  court  dis- 
ctisses  the  evidence,  and  holds  that  it  does  not  sustain  the  verdict,  and 
that  the  judgment  must  be  reversed. 

2.  Neqlioence — Shoioing  Necessary,  in  Suit  Based  on. — With  the 
abrogation  of  the  doctrine  of  comparative  negligence,  the  old  law  is 
reinstated,  and  a  party  seeking  to  recover  damages  for  negligence  must 
show  that  his  own  negligence  did  not  concur  with  that  of  the  other 
party  in  producing  the  injury. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the 
Superior  Court  of  Cook  County;  the  Hon.  Henrt  V.  Freeman,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Reversed  with 
finding  of  facts.  Opinion  filed  April  15,  1897.  Rehearing  denied. 
Opinion  filed  May  6,  1897. 

Alexander  Sullivan,  attorney  for  appellant;  Edward  J. 
McArdle,  of  counsel. 

James  B.  McCbacken  and  Albert  M.  Cboss,  attorneys  for 
appellee. 

Mr.  Justice  Gary  deliverfd  the  opinion  of  the  Court. 

The  appellee  sued  the  appellant  for  personal  injury  re- 
ceived by  reason  of  a  collision  between  a  cable  car  of  the 
appellant  and  a  phaeton  drawn  by  two  ponies  which  she 
was  driving  on  Sunday  evening,  October  16,  1892. 

The  hour  is  not  deflnitel)^  fixed  by  the  evidence,  but  it  is 
pretty  certain  that  it  was  after  sunset  and  getting  dark. 
The  headlight  on  the  car  was  lighted.  She  was  driving 
south  on  California  avenue  when  she  saw  the  car  going  east 
on  Madison  street.  Those  streets  cross  at  right  angles.  On 
Madison  street  was  a  double-track  railway,  and  the  car  was 
on  the  south  track.  When  the  car  was  about  one  hundred 
and  fifty  feet  west  of  her  line  of  travel,  she  stopped  with 
the  heads  of  her  ponies  at  the  north  rail  of  the  north  track. 

The  gripman  of  the  cable  car  stopped  the  car  at  the  same 
time,  because  he  heard  the  rattle  of  the  phaeton  approach- 


68  Appellate  Courts  of  Illinois. 

Vol.  70.]  West  Chicago  Street  R.  R.  Ck).  v.  Boeker. 

ing.  Then  each  seeing  that  the  other  had  stopped,  both 
started  again,  and  the  car  caught  the  hind  wheel  of  the 
phaeton,  causing  the  injury  complained  of. 

It  is  only  because  the  appellant  is  a  railroad  that  it  can 
be  pretended  that  the  collision  was  without  contributory 
neofligence  on  her  part  which  bars  a  recovery.  L.  S.  &  M. 
S.  Ky.  V.  Hessions,  150  111.  546;  K.  C.  S.  K.  R.  v.  Eldridge, 
151  111.  542. 

She  testified  that  when  she  saw  that  the  car  had  slackened 
up  she  started  the  ponies  up — "  just  let  the  lines  go  and 
kind  of  started  them — spoke  to  them  and  started  to  cross-" — 
"  was  watching  the  horses,  and  didn't  look  at  the  car;  paid 
no  attention  as  to  how  it  was  coming,  what  rate  of  speed  it 
was  coming,  or  how  near  to  me  it  had  arrived." 

Her  cousin,  a  young  man  riding  with  her,  testified : 
"When  our  horses'  heads  were  north  of  the  north  track  I 
had  the  opportunity  to  look  both  ways  and  see  what  was 
going  on,  and  did  so;  yet  I  told  my  cousin  to  drive  ahead. 
I  thought  I  could  make  it,  because  I  saw  the  car  slack  up 
when  I  told  the  young  lady  to  drive  across  there;  I  knew 
that  was  a  new  team  and  was  afraid  of  them;  was  afraid 
they  might  get  scared  at  the  car,  but  they  did  not,  and  I 
told  her  to  go  across,  because  I  thought  there  was  sufficient 
time  to  get  over." 

The  distance  each  had  to  travel  demonstrates  that  the  car 
must  have  started  before  the  phaeton  did.  The  occupants 
of  the  phaeton  could  see  the  movement  of  the  car,  for  it  was 
lighted. 

The  phaeton  could  be  but  dimly  seen  in  the  obscurity. 

The  judgment  is  reversed  and  the  cause  is  not  remanded. 

A  finding  of  facts  will  be  made  and  entered. 

Reversed  and  finding  of  facts  made  and  entered. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

ON  PETITION  for  REHEARING. 

It  is  hard  that  a  young  woman  who  has  sustained  severe 
injury  by  a  force  controlled  by  a  corporation  should  alone 
suffer,  even  though  she  negligently  went  in  the  way  of  that 


First  District — March  Term,  1897.         69 

Monahan  v.  Lovece. 

I ■     M^^M   mm  ^Mf    I  ■         I         I  ■   ■  lMj  I        ■   ■   !■         _  ■  I' 

force.  While  the  doctrine  of  comparative  negligence  was  in 
force  in  this  State,  some  color  of  a  justification  of  such  a 
verdict  as  was  here  rendered  could  be  presented;  but  with 
the  abrogation  of  that  doctrine — as  shown  by  the  cases  cited 
in  the  original  opinion — the  old  law  is  reinstated,  that  a 
party  seeking  to  recover  damages  for  negligence,  must  show 
that  his  (or  her)  own  negligence,  has  not  concurred  with 
that  of  the  other  party  in  producing  the  injury.  Aurora 
Branch  K.  R.  v.  Grimes,  13  111.  585. 

There  is  no  evidence  that  the  injury  to  the  appellee  was 
willfully  or  wantonly  inflicted;  it  was  simply  the  result  of  the 
appellee  and  the  gripman  each  assuming  that  the  other 
would  wait  at  the  crossing;  and  had  the  appellee  exercised 
ordinary  care,  she  would  have  seen,  before  she  started,  that 
the  gripman  had  not  waited,  but  had  already  started. 

The  original  brief  of  the  appellee  says  that  at  the  time 
both  stopped  the  gripman  could  not  see  the  appellee.  As 
to  the  presumed  degree  of  light  at  6  p.  m.,  October  16th,  it 
must  be  remembered  that  Chicago  time,  since  railway  time 
has  been  adopted,  is  nearly  ten  minutes  slow,  and  6  p.  m. 
was  more  than  fifty  minutes  after  sunset. 

The  petition  is  denied. 

This  disposition  of  this  case  is  no  bar  to  another  suit. 
Chicago  F.  &  B.  Co.  v.  Rose,  No.  6836,  filed  March  8, 1897. 

Whatever  the  inference  from  Borg  v.  C,  R.  I,  &  P.  Ry., 
1 62  111.  348,  the  question  of  a  bar  to  another  suit  was  not  in 
that  case,  and  the  statute  and  uniform  law  of  centuries  are 
of  higher  authority  than  an  inference. 


James  P.  Monaliaii  t.  Michael  Lovece  and  Kittle  Lovece. 

1.  Consideration — Non-Performance  of  Agreement  as  Failure  of. — 
The  non-performance  of  an  agreement  forming  the  consideration  of  a 
note  is  not  a  failure  of  consideration  unless  the  agreement  be  rescinded. 

Bill  to  Cancel  Notes. — ^Appeal  from  the  Superior  Court  of  Cook 
County;  the  Hon.  Farun  Q.  Ball,  Judge,  presiding.  I{eard  in  this 
court  at  the  March  term,  1897.  Reversed  and  remanded,  with  direc- 
tions.   Opinion  filed  April  15,  1897. 


70  Appellate  Courts  of  Illinois. 

Vol.  70.  J  Monahan  v.  Loveoe. 

Statement  op  the  Case. 

This  was  a  bill  filed  by  the  appellees  to  cancel  certain 
notes  aggregating  $450,  on  the  ground  that  the  considera- 
tion thereof  had  failed.  The  appellant  herein,  defendant 
below,  answered  the  bill  and  filed  his  cross-bill  to  foreclose 
a  chattel  mortgage  securing  the  notes.  The  court  entered 
a  decree  ordering  that  the  notes  be  surrendered  for  cancel- 
lation. 

Masterson  &  Haft,  attorneys  for  appellant 

No  appearance  for  appellee. 

Mb.  Justice  Waterman  delivered  the  opinion  op  the 
Court. 

It  appears  from  the  complainant's  bill  that  they  pur- 
chased from  appellant  the  furniture,  fixtures,  contents  and 
good  will  of  a  saloon  at  507  South  Clark  street,  Chicago. 
That  they  gave  thecefur  three  vacant  lots  in  Indiana,  at  a 
valuation  of  three  hundred  dollars,  and  promissory  notes  of 
the  complainants  for  the  sum  of  $1,200,  making  in  all 
$1,500,  securing  the  same  by  a  chattel  mortgage  on  the 
contents  of  said  saloon. 

That  the  appellant,  when  said  notes  and  mortgage  were 
executed,  verbally  agreed  that  he  would  go  out  of  the  saloon 
business  in  the  neighborhood  of  507  South  Clark  street,  and 
would  at  no  time  engage  in  business  anywhere  in  that 
vicinity;  that  he  was  going  to  move  to  New  York,  and  thjjt 
if  he  should  at  any  time  return  to  Chicago  and  there  enter 
into  the  saloon  business,  he  would  pay  the  complainants  for 
the  said  saloon,  furniture,  fixtures,  etc.,  three  times  the 
amount  the  complainants  had  paid  him. 

That  the  leading  consideration  for  the  purchase  of  said 
saloon  was  this  promise  by  appellant;  that  in  violation 
thereof  he  has  returned  to  Chicago  and  has  gone  into  the 
saloon  business  at  515  South  Clark  street,  and  therebv  so 
injured  the  business  of  complainants  that  the  receipts  of 
their  said  saloon  have  dwindled  from  twenty  to  five  dollars 


FrRsT  District — March  Term,  1897.  71 

-   ■ —  -■-_-■ 

Monahan  v.  Lovece. 


per  day.  That  the  furniture,  fixtures  and  contents  of  said 
saloon  purchased  by  complainants  were  not  worth,  when 
bought  as  aforesaid,  over  $500,  and  are  not  now  of  a 
greater  value  than  that  sum.  That  the  complainants  have 
})aid  all  of  said  notes  except  certain  ones  amounting  to 
$450,  the  consideration  of  which,  complainants  allege,  has 
by  reason  of  appellant's  said  violation  of  his  promise, 
wholly  failed.  Complainants  therefore  ask  that  said  notes 
be  canceled;  but  do  not  otFer  to  rescind  the  contract  of 
sale. 

Conceding  that  the  evidence  sustains  the  allegations  of 
the  complainants'  bill  as  to  a  promise  by  appellant  not  to 
engage  in  the  saloon  business  in  the  vicinity  of  South  Clark 
street,  are  the  complainants  entitled  to  a  decree  for  the 
cancellation  of  the  unpaid  notes?  There  is  neither  allega- 
tion nor  evidence  that  the  entire  consideration  of  these,  or 
any  particular  notes,  was  a  promise  by  appellant  not  to 
engage  in  the  saloon  business  on  South  Clark  street. 

The  sale  of  the  saloon  property,  business  and  good  will, 
was  a  consideration  for  each  of  the  notes. 

There  has  clearly  not  been,  as  alleged,  a  total  failure  of 
consideration  of  the  unpaid  notes.  Nor  has  there  been  a 
partial  failure. 

The  bill  alleges  that  a  part  of  the  consideration  for  the 
notes  was  the  verbal  promise  by  appellant  not  to  engage  in 
the  saloon  business  in  the  vicinity  of  South  Clark  street, 
and  that  if  he  should  do  so,  that  he  would  pay  to  the  com- 
plainants for  the  said  saloon  sold  to  them  three  times  what 
they  had  paid  to  him  therefor. 

The  promise  is  alleged  to  have  been  a  consideration;  not 
the  fulfillment  thereof;  and,  as  alleged,  the  sum  to  be  paid 
by  appellant,  if  he  violated  this  undertaking,  was  fixed. 

The  promises  to  pay  the  notes,  made  by  the  complain- 
ants and  the  promise  made  by  appellant,  are  independent 
agreements. 

Jf  complainants  do  not  pay  the  notes  appellant  can  not 
for  that  reason  rescind  the  sale  of  the  saloon. 

Complaints  have  received  and  are  yet  in  possession  of  the 


7: 


Appellate  Courts  of  Illtxois. 


Vol.  70.] 


Shepard  v.  Mills. 


contents  of  the  saloon,  and  have  not  offered  to  surrender 
anythintr  received  by  them. 

The  promises  of  each  bsing  independent,  mutual  agree- 
ments, appellant  has  his  remedy  on  the  contract  running  to 
him,  and  complainants  on  the  promise  running  to  them* 
Clough  V.  Baker,  48  N.  H.  254,  is  much  like  the  present 
case. 

The  non-performance  of  an  agreement  forming  the  con- 
sideration of  a  note  is  not  a  failure  of  consideration  unless 
the  agreement  be  rescinded.  2  Randolph  on  Commc'l 
Paper,  Sec.  553;  Jones  v.  Council  Bluffs  Bank,  31  111.  313- 
319;  Rhodius  v.  Welz,  87  Ind.  1;  Simpson  Centenary  Col- 
lege V.  Bryan,  50  la.  293;  Morrison  v.  Jewell,  34  Maine, 
146,  Moggridge  v.  Jones,  14  East,  486;  Wilson  v.  Dean,  74 
N.  Y.  531. 

The  decree  of  the  Superior  Court  is  reversed,  and  the 
cause  remanded,  with  directions  to  the  Superior  Court  to 
dismiss  appellees'  bill  for  want  of  equity,  and  to  enter  a 
decree  in  accordance  with  the  prayer  of  the  cross-bill  illed 
by  appellant.    Reversed  and  remanded  with  directions. 


70      72 
173a  223 


70      72 
85    452 


70 
104 


72 

n76l 


Joseph  A.  Shepard  v.  John  W.  Mills,  Joseph  C.  Berry 

and  Thomas  Berry. 


1.  Common  Coxjsts— When  Recovery  May  Be  Had  Under,— Where, 
under  a  spacial  contract,  nothing  remains  to  be  done  but  to  pay  what  is 
due  under  the  agreement,  a  reco\rery  can  be  had  under  the  common 
covints. 

2.  CoNTRVCTS — Waiver  of  Conditions  of.— A  condition  in  a  contract 
of  sale  as  to  the  passing  of  title,  being  for  the  benefit  of  the  vendor,  can 
be  waived  by  him. 

3.  Same — Slight  Defects  in  the  Performance  o/.— Slight  defects  in 
work,  caused  by  inadvertence  or  unintentional  omissions,  are  not  neces- 
sarily in  the  way  of  recovery  of  the  contract  price,  less  the  amount  by 
way  of  damages  requisite  to  indemnify  the  owner  for  tha  exponse  of 
conforming  the  work  to  that  for  which  he  contracted. 

4.  Same  -Slight  Defects  in  the  Performance  of— The  Rule  Applied.^ 
Under  a  contract  to  pub  in  a  heating  apparatus  with  certain  stubs,  etc., 


First  District — March  Term,  1897.         73 

Shepard  v.  Mills. 

if  there  has  beec  no  willful  departure  from  the  terms  of  the  contract,  or 
omission  in  essential  points,  and  the  laborer  has  honestly  and  faithfully 
performed  the  contract  in  ail  its  material  and  substantial  particulars,  he 
will  not  be  held  to  have  forfeited  his  right  to  renumeration  by  reason  of 
mere  technical,  inadvertent  or  unimportant  omissions  or  defects.  The 
law  imposes  no  such  liability  and  enforces  no  such  penalty. 

5.  Pleas — May  Be  Read  to  the  Jury, — While  what  is  stated  in  one 
unverified  plea  is  not  evidence  in  refutation  or  support  of  another  plea, 
nevertheless,  it  is  proper  to  read  pleas  to  the  jury  for  the  purpose  of 
informing  them  what  the  issues  are  which  they  are  to  try. 

Assompsit,  for  work  and  material  used  in  constructing  a  heating 
apparatus.  Appeal  from  the  Superior  Court  of  Cook  County;  the  Hon. 
Philip  Stein,  Judge,  presiding.  Heard  in  this  court  at  the  March 
term,  1897.    Affirmed.     Opinion  filed  April  15,  1897. 

F.  W.  Becker,  attorneys  for  appellant. 

Carl  R.  Latham  and  Robert  N.  Holt,  attornej^s  for 
appellees. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

This  was  an  action  of  assumpsit  brought  to  recover  an 
amount  claimed  to  be  due  for  putting  a  heating  apparatus 
in  the  premises  of  appellant.  There  was  a  finding  and  judg- 
ment for  the  plaintiff. 

Where,  under  a  special  contract,  nothing  remains  to  be 
done  but  to  pay  what  is  due  under  the  agreement,  a  recovery 
can  be  had  under  the  common  counts.  Mayer  v.  Mitchell, 
59  111.  App.  26;  Gottschalk  v.  Smith,  54  III.  App.  341;  1 
Chitty's  PI.  350,  note  f. 

Whether  the  contract  under  consideration  had  been  per- 
formed  by  appellees,  as  well  as  whether  title  to  the  appa- 
ratus had  passed,  were  questions  which,  so  far  as  they 
depended  upon  facts,  have  been  found  against  the  conten- 
tion of  appellant. 

That  the  condition  as  to  the  passing  of  title,  beinor  for  the 
benefit  of  appellees,  the  vendors,  could  be  waived  by  appel- 
lees is  apparent. 

The  court,  at  the  instance  of  the  plaintiff,  gave  the  fol- 
lowino:  instruction : 


74  Appellate  Courts  of  Illinois. 

Vol.  70.]  Shepard  v.  Mills. 

''  3.  The  court  instructs  the  jury  that  if  they  believe 
from  the  evidence  that  the  plaintiffs  erected  and  put  in  the 
defendant's  store  building  a  heating  apparatus  in  accordance 
with  the  terras  of  the  contract  offered  in  evidence,  and  per- 
formed their  side  of  said  contract  in  all  substantial  respects, 
and  that  said  apparatus  heated  the  rooms  and  apartments 
to  be  heated  to  the  required  degree  of  temperature,  the 
defendant  then  became  liable  to  pay  the  amount  specified 
in  said  contract  to  be  paid  for  said  plant,  less  whatever 
damages,  if  any,  the  evidence  may  show  the  defendant  to 
have  sustained  by  reason  of  any  breach  (if  the  evidence 
shows  such  breach)  of  the  guarantee  in  said  contract,  so 
far  as  such  damages,  if  any,  are  claimed  and  alleged  in 
defendant's  plea  of  set-off." 

It  is  urged  that  this  instruction  is  erroneous  in  that  it 
allowed  a  recovery  if  the  plaintiffs  had  performed  "  their 
side  of  the  contract  in  all  substantial  respects."  In  Estep 
V.  Fen  ton,  66  111.  467;  Taylor  v.  Beck,  13  111.  376,  and  Keeler 
V.  Herr,  1 57  111.  57,  such  instructions  were  held  to  have  been 
improperly  given. 

It  is  manifest  that  upon  a  promise  to  pay  one  thousand 
dollars,  or  sell  one  thousand  bushels  of  com  or  "my  bay 
horse  Jim,"  or  "all  the  sheep  on  my  farm,"  there  must  be 
an  exact  fulfillment,  because  the  contract  is  such  an  one 
that  it  is  easy  not  only  to  exactly  fulfill,  but  easy  to  ascer- 
tain whether  there  has  been  such  performance. 

In  a  contract  to  build  a  house  according  to  plans  and 
specifications,  or  to  put  in  a  heating  apparatus  with  certain 
stubs,  radiators,  coils,  pipes,  plates,  valves,  heaters,  cocks, 
tanks,  tools,  etc.,  guaranteed  with  certain  care  and  use  to 
heat  a  certain  space,  if  there  has  been  no  willful  departure 
from  the  terms  of  the  contract,  or  omission  in  essential 
points,  and  the  laborer  has  honestly  and  faithfully  performed 
the  contract  in  all  its  material  and  substantial  particulars,  he 
will  not  be  held  to  have  forfeited  his  right  to  remuneration 
by  reason  of  mere  technical,  inadvertent  or  unimportant 
omissions  or  defects.  The  law  imposes  no  such  liability 
and  enforces  no  such  penalty.  Glacius  v.  Black,  50  N.  Y. 
145;  Crouch  v.  Gutman,  134  Id.  45. 


First  Distbict — March  Tbrm,  1897.         75 

Shepard  v.  Hills. 

Slight  defects,  caused  by  inadvertence  or  unintentional 
omissions  are  not  necessarily  in  the  way  of  recovery  of  the 
contract  price,  less  the  amount,  by  way  of  damages,  requi- 
site to  indemnify  the  owner  for  the  expense  of  conforming 
the  work  to  that  for  which  he  contracted.  Linch  v.  Paris 
Lumber  Co.,  80  Tex.  23;  Flaherty  v.  Minor,  123  K.  Y.  382; 
Gallagher  v.  Sharpless,  134  Pa.  St.  134;  Moore  v.  Carter, 
146;  Id.  492;  Leeds  v.  Little,  42  Minn.  414;  ^tna  Iron 
Works  v.  Kossuth  Co.,  79  la.  40;  Keoler  v.  Kerr,  157 
111.  57. 

It  is  true,  as  urged  by  the  defendant,  that  what  is  stated 
in  one  unverified  plea  is  not  evidence  in  refutation  or  sup- 
port of  another  plea;  nevertheless,  it  is  not  improper  to 
read  pleas  to  the  jury  for  the  purpose  of  informing  them 
what  the  issues  are  which  they  are  to  try. 

We  do  not  think  that  the  statements  by  appellant,  con- 
tained in  letters  to  appellee  as  to  taking  out  the  plant, 
amounted  to  a  refusal  to  accept  the  apparatus.  Each  was 
conditioned  upon  a  performance  of  the  agreement  to  heat  or 
to  put  in  additional  radiation.  Appellees  expressed  them- 
selves as  able  and  ready  to  fulfill  their  undertaking,  gave 
attention  to  the  matter,  and  have  been  found  by  the  jury  to 
have  performed  their  contract. 

We  find  no  reversible  error  in  giving  or  refusing  instruc- 
tions. 

The  judgment  of  the  Superior  Court  is  aflBrmed. 

Mb.  Presidino  Justice  Shepard. 

I  concur,  upon  the  ground  that  there  was  sufficient  evi- 
dence in  the  case  to  justify  the  finding  that  appellant 
accepted  the  heating  apparatus,  and  he  should  have  shown, 
if  he  could,  what  damages,  if  any,  he  suffered  from  a  breach 
of  the  appellees'  contract  of  warranty.  Of  such  damages 
I  find  no  sufficient  proof  to  make  them  capable  of  measure- 
ment. 


76 


Appellate  Courts  of  Illinois. 


Vol.  70.] 


Dreyer  v.  Kadish. 


70        76 
100    1552 


Eiward  8.  Dreyer  ^.  Helen  L.  Eadish  et  aL,  Adm'x^  etc. 


1.  Guaranty — Consideration  for,  Must  be  Shown, — In  a  suit  against 
a  guarantor  of  a  promissory  note  where  it  appears  that  at  the  time  the 
plaintiff  acquii-ed  the  note  the  guarantor  was  in  no  manner  liable  upon 
it,  the  burden  is  upon  the  plaintiff  to  show  a  consideration  for  a  subse- 
quant  guaranty. 

2.  Verdicts — Contrary  to  the  Evidence, — ^The  court  reviews  the  evi- 
d  mce  in  this  case  and  holds  that  there  is  no  evidence  to  .how  a  consid- 
eration for  the  guaranty  sued  on,  and  that  the  verdict  and  judgment  are 
manifestly  contrary  to  the  evidence. 

Assumpsit,  on  a  guaranty  of  a  promissory  note.  Appeal  from  the 
Saperior  Ck>urt  of  Cook  Ck)unty;  the  Hon.  Jonas  Hutchinson,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Reversed  and 
r  jmanded.     Opinion  filed  March  29,  1897. 

Lackneb  &  BuTz,  attorneys  for  appellant. 
George  B.  Merrick,  attorney  for  appellees. 


Mr.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

Judgment  for  $14,255.53  was  recovered  by  the  defend- 
ants in  error  against  the  plaintiff  in  error,  in  a  suit  brought 
by  the  former  against  the  latter  upon  his  alleged  guaranty 
of  a  promissory  note  for  $10,000,  made  by  the  Chicago 
Garbage  Reduction  Company,  dated  April  1,  1890,  payable 
in  one  year  to  the  order  of  Albert  D.  Langworthy. 

The  note  was  one  of  a  series  of  like  instruments,  except 
in  amounts,  aggregating  $16,000,  by  the  same  maker  to 
the  same  payee,  all  secured  by  a  chattel  mortgage  upon 
the  plant  of  the  maker,  and  seem  to  have  been  made  by  the 
corporation  maker  for  the  purpose  of  raising  money  from 
its  stockholders  to  enable  it  to  continue  in  business,  and  to 
pay  its  debts  for  about  the  same  amount  then  held  against 
it  by  the  firm  of  E.  S.  Dreyer  &  Company,  of  which  plaint- 
iEF  in  error  was  a  member.  Leopold  Kadish,  the  intestate 
of  defendants  in  error,  and  the  plaintiflf  in  error  were  among 


First  District — Makch  Term,  1897.         77 


Dreyer  v.  Kadish. 


its  stockholders,  and  the  note  in  question  represented  the 
relative  share  of  the  notes  that  Xadish  had  said  he  would 
take. 

The  payee  of  the  notes  was  not  personally  interested  in 
any  of  the  transactions,  but  was  a  clerk  for  £.  S.  Dreyer 
&  Comjmny,  and  was  a  mere  instrument  to  hold  and  dis- 
tribute the  notes  among  the  stockholders  who  were  to  pay 
for  them,  and  the  notes  were  indorsed  by  him  without 
recourse.  Above  his  indorsement  on  the  back  of  the  note  in 
suit,  was  indorsed  the  name  of  the  plaintiff  in  error,  but 
Avhen  it  was  put  there  and  for  what  purpose,  and  if  not  put 
there  until  after  Kadish  had  received  and  become  the 
ower  of  it,  whether  for  a  consideration  or  not,  are  the 
questions  in  the  case. 

The  declaration  alleged  the  making  of  the  note  in  the 
lifetime  of  Eadish,.and  "that  Langworthy,  the  payee,  after- 
ward, and  before  the  payment  of  any  part  of  the  note,  and 
before  it  became  due,  indorsed  the  said  note  without  re- 
course to  Leopold  P.  Kadish  or  order,  and  delivered  the 
same  to  him;  that  before  the  delivery  of  the  note  to  Ka- 
dish, in  consideration  that  he  would  accept  and  receive  the 
same  of  the  Chicago  Garbage  R3  Juction  Company,  and  for 
a  valuable  consideration  to  him  paid  by  Kadish,  the  defend- 
ant, by  his  indorsement  in  writing  upon  the  said  note, 
guaranteed  the  payment  thereof  according  to  the  tenor 
and  eflFect  of  the  note,  if  the  Chicago  Garbage  Reduction 
Company  should  not  pay  the  same;  that  Kadish,  relyinor 
upon  the  indorsement,  accepted  the  note,  and  although  the 
note  has  long  since  been  due,  the  said  company  has  not  paid 
same  or  any  part  thereof;  by  means  whereof  the  defendant 
became  liable  to  pay  to  the  plaintiff  the  sum  of  money  in 
the  note  specified." 

The  only  plea  was  the  general  issue. 

It  was  clearly  proved,  that  Kadish  paid  for  the  note,  and 
that  it  was  delivered  to  him,  indorsed  by  the  payee,  before 
it  was  indorsed  by  the  plaintiff  in  error,  and  the  declara- 
tion, as  quoted,  probably  admits  a  part  of  such  facts. 

There  was  no  attempt  to  contradict  the  testimony  of  Mr. 


78  Appellate  (Courts  of  Illinois. 


Vol.  70.]  Dreyer  v.  Kadish. 


Berger,  a  member  of  the  firm  of  E.  S.  Dreyer  &  Company, 
that  at  the  time,  April  4,  1893,  when  he  delivered  the  note, 
already  indorsed  by  the  payee,  to  Kadish,  the  latter  paid 
$10,000  for  the  note,  and  that  Mr.  Dreyer's  name  was  not 
then  indorsed  on  the  note.  A  week  or  two  afterward  he 
again  saw  the  note  in  Radish's  hands,  and  Mr.  Dreyer's  name 
was  not  then  upon  it.  Langworthy,  the  payee,  testified 
that  Dreyer's  name  was  not  on  the  note  when  he  in- 
dorsed it. 

Prussing,  the  president  of  the  corporation,  whose  note  it 
was,  testified  that  on  April  4,  the  day  on  which  Mr.  Berger 
delivered  the  note  to  Kadish,  he  saw  the  note  in  Kadish's 
hands  and  that  Dreyer's  name  was  not  on  it,  although 
Langworthy's  was.  And  to  such  testimony  there  was  no 
contradiction. 

It  being  thus  clearly  proved  that  at  the  time  Kadish  ac- 
quired the  note  Dreyer  was  in  no  manner  liable  upon  it,  it 
devolved  upon  defendants  in  error  to  show  that  for  his  sub- 
sequent guaranty  a  consideration  was  paid.  This  was  not 
done.  We  have  examined  the  record  with  the  greatest 
care  to  discover,  if  we  might,  some  evidence  of  such  a  con- 
sideration, but  without  success. 

Although  it  might  be  that  a  previous  agreement  with 
Kadish  by  Dreyer,  to  guarantee  the  note  if  Kadish  would 

m 

loan  the  money  to  the  corporation,  would  support  a  guar- 
anty made  after  Kadish  had  acquired  the  note,  the  evidence 
does  not  sustain  that  there  was  any  such  agreement. 

A  witness  of  the  highest  respectability,  who  is  one  of 
the  defendants  in  error,  testified  to  acknowledgments  made 
by  Dreyer  of  his  liability  as  guarantor  of  the  note,  and  of 
his  assurances  that  he  would  pay  the  note  when  due,  but 
such  evidence  was  not  at  all  inconsistent  with  the  fact  that 
his  guaranty  was  made  without  consideration,  nor  did  it 
imply  that  there  was  any  previous  agreement  for  his 
guaranty. 

Dreyer  may  have  supposed  he  was  liable  to  pay  the  note, 
and  when,  at  least,  some  of  such  assurances  concerning  his 
liability  were  made,  may  have  believed  that  the  money  to 


First  District— March  Term,  1897.        79 

Cominercial  Nat.  Bank  v.  Stoddard. 


pay  the  note  would  be  realized  upon  a  sale  of  the  mort- 
gaged plant,  .but  he  was  not  thereby  estopped  from  making 
all  lawful  defenses  when  sued  upon  his  guaranty. 

Although  it  is  contended  that  it  was  the  province  of  the 
jury  to  settle  the  question,  when  Dreyer's  name  was  put 
upon  the  note,  we  are  not  at  liberty  to  sustain  a  judgment 
which  is  so  manifestly  against  the  evidence  as  in  this  case. 

The  judgment  was  wrong,  and  must  be  reversed,  and  the 
cause  remanded. 


Commercial  National  Bank  et  aL  t.  Horace  H.  Stoddard. 

1.  Courts— PMi«r  o/,  Over  Their  Own  Process, — ^If  it  be  shown  that  it 
is  inequitable  to  allow  the  enforcement  of  an  execution  upon  a  particular 
levy,  the  court  from  which  the  execution  issued  may  quash  the  levy. 
Courts  wiU  recaU  their  process  and  quash  the  same  when  it  is  shown 
that  it  would  be  Ulegal  or  inequitable  to  permit  its  further  use,  and  to 
allow  it  to  be  enforced. 

2.  Equity — Neglect  to  Pursue  Remedy  at  Law,^\i  a  party  neglects 
to  pursue  his  remedy  at  law,  he  can  not  come  into  equity  for  relief. 

Bill  for  an  Injnnetion.— Appeal  from  the  Superior  Court  of  Cook 
County;  the  Hon.  Henry  V.  Freeman,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.  Reversed  and  remanded,  with  direc- 
tions.   Opinion  filed  May  6,  1807. 

Sleeper,  McCoedic  &  Barbour,  attorneys  for  appellants. 
W.  JJ".  Gemmill  atid  J.  "VV.  Merriam,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  op  the  Court. 

The  history  of  events  of  which  the  sequel  is  this  bill  in 
chancery,  on  which  March  19,  1897,  the  Superior  Court  en- 
tered an  interlocutory  order  for  an  injunction  restraining 
the  appellant  from  prosecuting  an  action  upon  a  replevin 
bond  given  by  the  appellee,  may  be  found  narrated  in  Stod- 
dard v.  GilbeVt,  62  111.  App.  70,  affirmed  in  163  111.  131, 
and  reference  is  made  to  that  history  to  economize  labor. 


80  Appellate  Courts  of  Illinois. 

Vol.  70.]  Kenyon  v.  Hampton. 

After  the  defeat  there  shown,  and  suit  commenced  upon 
the  bond,  the  appellee  filed  this  bill,  setting,  out  many  cir- 
cumstances to  show  what  a  hardship  it  will  be  to  him  to  be 
bound  by  the  terms  of  his  bond,  and  likewise  circumstances 
from  which  he  deduces  the  conclusion  that  it  was  inequi- 
table for  the  appellant  to  enforce  the  execution,  from  the 
levy  upon  which  the  appellee  replevied. 

If  that  conclusion  be  correct,  the  appellee,  instead  of  his 
replevin,  might  have  successfully  applied  to  the  court  from 
which  the  execution  issued,  to  quash  the  levy,  for  "  Courts 
will  recall  their  process  and  quash  the  same,  when  it  is  shown 
that  it  would  be  illegal  or  inequitable  to  permit  its  further 
use,  and  to  allow  it  to  be  enforced."    Sandburg  v.  Papineau, 

81  111.  446. 

And  if  the  party  neglected  his  remedy  at  law,  he  may  not 

come  into  equity  for  relief.  Chittenden  v.  Rogers,  42  111. 
95;  Harding  v.  Hawkins,  141  111.  572. 

We  are  not  called  upon  to  say  whether  there  ever  was 
any  reason,  legal  or  equitable,  for  quashing,  or  restraining 
the  use  of  the  execution,  nor  whether,  if  there  was,  it  can 
be  made  available  in  defense  of  the  suit  on  the  bond,  but 
only  to  say  that  there  is  no  ground  for  enjoining  the  prose- 
cution of  that  suit. 

The  order  granting  the.  injunjption  is  reversed  and  the 
cause  remanded,  with  directions  to  dissolve  the  injunction. 


Dexter  E.  Kenyon  v.  Roxanna  Hampton. 

1.  Burden  OF  Proof— Ii  Upon  Plaintiff.— A  plaintiflF  must  make  out 
his  or  her  case  by  a  preponderance  of  the  evidence,  and  in  this  case  the 
court  holds  that  there  was  a  clear  failure  in  that  regard  and  that  the 
judgment  in  plaintifTs  favor  must  be  reversed. 

Assniiipslt,  for  a  wrongful  discharge.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Richard  S.  Tcthill,  Judge,  presiding. 
Hbard  in  this  court  at  the  March  term,  1897.  Reversed  and  remanded. 
Opinion  filed  May  6,  1897. 


First  District — March  Term,  1897.         81 

■   _  .  I      !■   I    ■  I  I  n— 

Kenyon  v.  Hampton. 

Jesse  Holdom,  attorney  for  appellant. 
M.  L.  Thackabebbt,  attorney  for  appellee. 

Mr.  Pbesiding  Justice  Shepabd  delivebed  the  opinion 
OF  the  Coubt. 

This  was  an  action  brought  by  the  appellee  for  the  breach 
of  an  alleged  verbal  contract  of  employment  of  her  by  the 
appellant,  for  the  term  of  one  year  from  March  5, 1S94,  at  a 
weekly  salary  of  $25,  and  resulted  in  a  verdict  and  judg- 
ment for  $1,150  in  favor  of  the  appellee. 

The  alleged  breach  was  the  subject  of  a  special  count, 
and  consisted  in  a  discharge  of  the  appellee  at  the  end  of 
six  weeks  service,  without  cause. 

Besides  denying  the  contract  as  alleged,  by  a  plea  of  the 
general  issue,  the  appellant  pleaded  specially  that  the  dis- 
charge was  for  cause. 

There  was  no  dispute  as  to  the  rate  of  wages,  nor  but 
that  appellee  was  paid  in  full  for  the  time  she  worked. 
Whether  the  term  of  employment  was  for  a  full  year  or 
for  the  "  season  "  (which  lasted  until  about  the  first  of  July), 
if  appellee's  services  were  satisfactory,  and  as  to  whether 
her  discharge  was  justifiable,  were  the  contentions. 

Appellee's  testimony  furnished  the  only  support  to  her 
case  as  to  what  the  contract  was.  Her  testimony  was  ex- 
plicit and  unequivocal  that  she  was  hired  for  the  full  term 
of  one  year. 

Opposed  to  her  testimony  was  that  of  the  appellant,  who 
testified  with  equal  positiveness  that  the  hiring  was  for  the 
season  only,  and  not  for  that  long  ufiless  her  services 
proved  to  be  satisfactory;  and  his  testimony  was  supported 
by  that  of  Mr.  Otto  Young,  the  manager  of  The  Fair,  in  one 
of  the  departments  of  which  appellant  carried  on  his  busi- 
ness, who  testified  that  appellee  came  to  him  with  com- 
plaints against  appellant,  and  talked  about  suing  ap])ellant 
for  her  wages  up  to  July  1st,  and  told  him,  in  response  to 
his  inquiry  as  to  her  term  of  employment,  that  she  was 
employed  for  the  season  ending  about  the  middle  of  June 
or  first  of  July. 
vobLxxe 


82  Appellate  Courts  op  Illinois. 

Vol.  70.]  Foster  v.  Osborne. 

To  another  witness  appellee  stated  her  contract  with 
appellant  as  being  entirely  different  from  either  contention 
now  appearing.  If  it  be  said  that  there  were  proved  cir- 
cumstances in  the  case  that  tended  to  support  appellee's 
claim,  it  may  be  answered  that  there  were  as  many  other 
proved  circumstances  that  tended  quite  as  strongly  to  sup- 
port appellant's  version  of  the  contract. 

It  is  a  familiar  rule  that  a  plaintiff  must  make  out  his  or 
her  case  by  a  preponderance  of  the  evidence. 

In  this  case  there  was  a  clear  failure  by  the  appellee  in 
such  regard,  and  we  are  bound  to  hold  that  the  veniict  was 
so  manifestly  against  the  preponderance  of  the  evidence  as 
to  require  us  to  reverse  the  judgment.  Peaselee  v.  Glass, 
61  111.  94. 

The  appellee  does  not  claim  under  any  other  contract 
than  the  one  for  a  full  year,  as  set  forth  in  her  declaration, 
and  having  failed  to  sustain  the  existence  of  any  such  con- 
tract, she  had  no  right  to  any  recovery  for  its  breach,  no 
matter  whether  she  was  rightfully  or  wrongfully  dis- 
charged. Her  whole  claim  is  for  the  breach  of  a  contract 
that  she  failed  to  prove. 

The  judgment  is  reversed  and  the  cause  remanded* 


Nathaniel  C.  Foster  v.  Frank  Say  re  Osborne. 

1.  Consideration— ff Tien  Proof  of  Is  Not  Required,— A.  guaranty 
under  seal  expressed  on  its  face  that  it  was  made  for  value  received. 
Hdd^  that  no  extraneous  proof  of  a  consideration  Tvas  needed. 

2.  ViJ^AS>v^Gt-'Allegatio}iH  Not  Denusi  Considered  (w  Admitted, — In 
a  suit  on  a  guarautj  where  the  breach  aUeged  is  not  denied  by  the  pleas 
it  is  considered  as  admitted,  and  proof  of  such  breach  is  not  required. 

Covenant,  on  a  guaranty.  Appeal  from  the  Superior  Court  of  Cook 
County;  the  Hon.  Arthctr  H.  Chetlain,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  May  6, 
1897. 

S.  W.  McCaslin,  attorney  for  appellant. 


First  District — March  Term,  1897.        83 

Foster  ▼.  Osborne. 

BoBKBT  F.  Pettibonb,  attomej  for  appellee. 

Mr.  Pbesidinq  Justice  Shepabd  delivrrbd  the  opinion 
of  the  couet. 

There  was  much  pleading  in  this  case  although  the  issues 
were  simple. 

^  The  action  was  covenant  by  the  lessor  against  the  guar- 
antor of  a  lease. 

The  lease  was  by  appellee  to  Oharles  I.  and  Anna  C. 
Wickersham,  dated  February  1,  1891. 

Appellant's  guaranty  upon  the  back  of  the  lease  was  as 
follows : 

"  For  value  received,  I  hereby  guarantee  the  payment  of 
the  rent  and  the  performance  of  the  covenants  by  the  party 
of  the  second  part  in  the  within  lease,  covenanted  and 
agreed  in  manner  and  form  as  in  said  lease  provided. 

Witness  my  hand  and  seal  this  sixth  day  of  February,  A. 

D.  1891. 

N.  C.  Foster.     [Seal.]  " 

In  January,  1893,  the  lessees,  with  the  consent  of  the 
lessor,  assigned  the  lease  to  Mary  L.  Greene,  upon  the  con- 
dition, however,  that  the  Wickershams  should  remain 
liable,  etc.,  and  the  alleged  breach  of  covenant  was  non- 
payment of  rent  from  May  1,  1893,  to  April  30, 1894. 

The  evidence  furnishes  but  very  little  matter  for  contro- 
versy. Although  appellant  may  have  been  desirous,  at 
the  time  the  lease  was  assigned,  to  become  freed  from  his 
liability  as  guarantor,  it  was  not  done,  and  he  took  chattel 
mortgage  security  from  Mrs.  Greene  to  secure  him  that  she 
would  keep  him  safe. 

Any  claim  that,  as  a  matter  of  law,  appellant  was  guaran- 
tor only  for  Wickershams  is  satisfactorily  answered  in  Fam- 
ham  v.  Monroe,  35  111.  App.  114;  and  Dietz  v.  Schmidt,  27 
111.  App.  114.  No  one  of  the  pleas  that  were  left  to  go  to 
trial  upon  denied  the  alleged  breach,  and  the  breach  there- 
fore stood  as  admitted,  and  proof  of  the  breach  was  not 
required,  and  the  jury  was  properly  so  instructed. 

It  is  claimed  to  have  been  error  by  the  court  to  modify 


70      84 
ITOt  883 


84  Appellate  Courts  op  Illinois. 

Vol.  70.]      Calumet  Electric  Street  Ry.  Co.  v.  Christenson. 

an  instruction  asked  by  the  appellant  that  if  the  lease  and 
guaranty  were  executed  at  different  dates  and  as  independ- 
ent transactions^  and  that  appellsint  received  no  considera- 
tion for  the  guaranty,  he  should  be  found  not  guilty,  by 
adding  that,  as  a  matter  of  law,  a  consideration  passing  to 
the  principal  was  sufficient  to  support  the  guaranty  without 
any  other  consideration  passing  to  the  guarantor. 

It  will  be  observed  that  the  guaranty  expressed  on  its 
face  that  it  was  made  for  value  received,  and  that  it  was 
under  seal.  No  extraneous  proof  that  there  was  a  consid- 
eration paid  was  therefore  needed,  and  the  instruction  was 
not  wrong. 

We  need  not  comment  upon  the  objections  that  are  urged 
because  of  the  refusal  of  other  instructions  asked  by  appel- 
lant.   None  of  them  are  tenable. 

Nor  need  we  take  time  to  consider  the  arguments  con- 
cerning the  action  of  the  court  upon  appellant's  numerous 
pleas.  Of  the  seventeen  pleas  that  he  filed,  those  that  were 
left  for  him  to  go  to  trial  upon  presented  every  material 
defense  that  was  open  to  him,  and  a  full  consideration  of 
all  the  evidence  shows  very  satisfactorily  that  the  judgment 
was  right  and  ought  to  be  affirmed,  and  it  is  so  ordered. 
Affirmed. 


Calumet  Eleetrlc  Street  Railway  Company  v.  John  P. 

Christenson. 

1,  Negligence — Driving  on  Street  Car  Track, — The  court  can  not 
say,  under  the  circumstances  of  this  case,  that  it  was  negligence  to  drive 
a  wagon  on  the  street  car  track  in  the  same  direction  that  a  car  would 
travel. 

2.  Verdicts— On  Questions  of  Fact  Conclusive.'—The  finding  of  the 
jury  in  this  case  is  a  conclusion  on  a  question  of  fact  which  the  court 
may  not  set  aside. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the 
Circuit  Court  of  Cook  County;  the  Hon.  Richard  S.  Tdthill,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Aflirmed. 
Opinion  filed  May  6,  1897. 


First  District — March  Term,  1897.  85 

^■^— ^^— ^^  III  111.* 

Calumet  Electric  Street  Ry.  Co.  v.  Christenson. 

Mann,  Hayes  &  Miller,  attorneys  for  appellant;  Judson 
F.  Going,  of  counsel. 

B.  F.  Chase  and  F.  H.  Novak,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

November  8,  1893,  about  six  o'clock  p.  m.,  the  evening 
being  very  dark  and  foggy,  the  appellee  wa*  riding  in  a 
wagon  loaded  with  furniture,  the  wagon  going  in  the  track 
of  the  appellant  upon  a  street  of  Chicago,  so  far  from  the 
business  centre  that  of  any  other  city  it  would  be  in  the 
outskirt,  or  outside,  of  the  city. 

The  street  itself  was  of  that  character  that  a  wagon  so 
loaded,  traveling  in  the  dark,  must  go  in  the  car  track  to 
avoid  being  wrecked. 

A  car  of  the  appellant  running,  when  the  wagon  was  first 
seen  ten  feet  off  by  the  motorman,  at  a  speed  of  seven  miles 
an  hour,  ran  into  the  wagon  and  the  appellee  sustained  per- 
sonal injuries  for  which  in  this  suit  he  has  recovered 
$1,350. 

A  court  can  not  sav  that  it  was  neffli^ence  to  drive  the 
wagon  in  the  car  track,  in  the  same  direction  that  a  car 
would  travel,  though  the  night  was  dark. 

If  the  jury  found  that  the  driver  might  rightly  assume 
that  under  such  circumstances  the  car,  if  one  was  following, 
would  be  run  at  a  speed  so  slow  that  the  motorman  would 
be  able  to  stop  it,  and  would  stop  it,  before  striking  any- 
thing made  visible  to  him  by  the  headlight,  the  court  can 
not  say  that  the  jury  was  wrong  on  that  question  of  fact; 
that  is,  whether  such  assumption  was  negligence.  And  the 
finding  of  the  jury  that  not  having  the  car  so  under  con- 
trol was  negligence  by  the  appellant,  is  also  a  conclusion 
on  matter  of  fact  which  the  court  may  not  set  aside.  The 
criticism  upon  an  instruction  is  answered  by  the  remarks  of 
the  Supreme  Court  on  "  hypercriticism,"  in  L.  S.  &  M.  S. 
Ry.  V.  Johnsen,  135  111.  641;  commented  upon  in  Spring- 
field City.  Ry.  v.  Clark,  51  III.  App.  626. 

The  damages  do  not  seem  excessive.  The  judgment  is 
affirmed. 


86  Appellate  Courts  of  Illinois. 

Vol.  70.]  Matson  v.  Ripley. 


Canute  B.  Matson^  for  Use^  ete.^  t.  William  BIpley  et  al. 

1.  Ownership — A  Legal  Condusi&n  fromf  Facts  Shoum, — Ownership 
is  not  a  fact,  but  is  a  legal  conclusion  to  be  drawn  bj  the  court  from  facts 
to  be  found  by  the  jury,  and  a  jury  should  not  be  left  to  determine  what 
facts  are  necessary  to  constitute  ownership. 

2.  Questions  op  Law— S/iouW  Not  he  Submitted  to  the  Jury.— Where 
the  conclusion  is  one  of  law  from  facts  to  be  found,  the  jui*y  are  to  find 
the  facts  and  the  court  to  state  the  conclusion,  or  the  law,  and  to  submit 
mixed  questions  of  law  and  fact  to  the  jury  is  error. 

Debt,  on  a  replevin  bond.  Appeal  from  the  Circuit  Court  of  Cook 
County;  the  Hon.  Edmund  W.  Bubke,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Reversed  and  remanded.  Opin- 
ion filed  May  6,  1897. 

HoYNE,  FoLLANSBEE  &  O'CoNNOB,  attomeys  for  appel- 
lants. 

R.  L.  Tatham,  attorney  for  appellees. 

Mb.  Pbesidino  Justice  Shepabd  delivebed  the  opinion 
of  the  coubt. 

This  was  an  action  of  debt  instituted  by  the  appellant 
upon  a  replevin  bond  given  to  the  appellant,  as  sheriff,  etc., 
by  the  appellees,  and  a  recovery  of  only  nominal  damages 
being  had,  this  appeal  has  followed. 

One  of  the  appellees,  Durgin,  w^as  surety  on  the  bond, 
and  we  will  therefore  speak  only  of  Kipley  &  Son  as  being 
the  appellees. 

Biple}^  &  Son  were  lumber  dealers  in  Chicago,  and  bought 
of  Ilibbard  &  Company,  lumber  manufacturers  at  Mason- 
ville,  Michigan,  a  large  quantity  of  pine  and  cedar  logs,  etc., 
for  which  bills  of  sale  were  executed  and  delivered,  which 
recited  that  an  aggregate  of  $21,000  had  been  paid  as  part 
payment  by  Ripley  &  Son.  Such  bills  of  sale  were  dated 
in  the  months  of  March  and  April,  1889,  and  described  the 
property  as  lying  in  three  certain  rivers, ''  and  being  marked 
on  the  end  with  the  letter  H." 


FiKST  District — March  Term,  1897.         87 

- 

MatBon  V.  Ripley. 

We  presume,  although  we  do  not  find  it  to  be  so  ex- 
pressly stated,  that  the  logs  were  to  be  manufactured  into 
lumber  by  Hibbard  &  Company.  Whether  the  vessel  load 
of  lumber  that  was  the  subject  of  the  replevin  suit  was  cut 
from  such  logs,  was  one  of  the  principal  questions  in  the 
case. 

It  appears  that  during  the  season  more  or  less  lumber 
was  delivered  by  Hibbard  &  Company  to  vessels  sent  for  it 
by  Eipley  &  Son,  and  that  in  October  the  schooner  Dunham 
was  sent  by  Ripley  &  Son  for  another  load. 

The  water  at  Masonville  being  shallow,  the  lumber  was 
required  to  be  taken  out  from  Hibbard  &  Company's  docks 
to  the  schooner  by  a  scow. 

The  lumber  in  question  had  been  brought  out  on  a  scow 
that  lay  alongside  the  schooner,  and  some  ten  or  fifteen 
thousand  feet  of  it  loaded,  when  it  was  replevied  by  one 
Mason,  who  claimed  it  for  stum  page.  His  claim  was  settled 
by  Hibbard  &  Company,  and  the  replevin  writ  released,  and 
the  loading  proceeded. 

On  a  day  following,  when  all  the  lumber  was  either  on 
the  schooner  or  on  the  scow  alongside,  an  attachment  writ 
at  the  suit  of  Oliver,  one  of  the  parties  for  whose  use  the 
sheriff  has  sued  in  this  case,  against  Hibbard  &  Company, 
was  levied  upon  it. 

Oliver  was  not  to  be  easily  settled  with,  and  before  the 
schooner  was  permitted  to  proceed  with  her  load,  Hibbard 
&  Company  gave  to  him  a  bill  of  sale  of  all  the  lumber,  con- 
sisting of  100,000  feet,  for  an  expressed  consideration  of 
$900,  and  the  master  of  the  schooner  receipted  for  it  to 
him  for  delivery  to  Kellogg,  Ducey  &  McAuley,  of  Chicago, 
at  a  specified  rate  of  freight.  The  schooner  then  set  sail 
for  Chicago,  and  upon  arrival  here  the  lumber  was  replev- 
ied by  Ripley  &  Son,  as  being  their  property.  This  last 
replevin  suit  was,  a  year  afterward,  dismissed  on  the  motion 
of  Ripley  &  Son,  and  the  suit  at  bar  was  brought  by  the 
sheriff  for  the  use  of  Kellogg,  Ducey  &  McAuley  and  the 
said  Oliver,  upon  the  replevin  bond. 

Had  the  jury  been  properly  instructed  we  would  proceed 


88  Appellate  Courts  of  Illinois. 

Vol.  70.]  Matson  v.  Ripley. 

to  discuss  the  law  applicable  to  the  facts  we  have  stated, 
and  «ome  other  facts  in  the  case  that  were  material  to  the 
issue,  but  as  the  case  must  be  tried  over,  under  proper 
instructions  to  the  jury,  we  consider  that  we  should  refrain 
from  expressing  our  opinion  upon  the  facts  now  before  us, 
and  the  law  applicable  thereto. 

The  main  question  at  the  trial  was,  were  Ripley  &  Son 
entitled  to  the  possession  of  the  lumber  at  the  time  their 
replevin  suit  was  begun  i  That  was  a  mixed  question  of 
law  and  fact.  It  is  always  for  the  court  alone  to  declare 
what  the  law  is  as  applicable  to  the  facts  of  a  case,  which 
only  are  to  be  found  by  the  jury. 

At  the  instance  of  the  appellees  the  court  instructed  the 
jury  as  follows : 

"(2.)  The  jur}^  are  instructed  that  if  they  find  from  the 
evidence  that  at  the  time  of  the  commencement  of  the 
replevin  suit  referred  to  in  this  case,  to  wit,  October  21, 
1889,  William  R.  Ripley  and  Bradford  W.  Ripley,  two  of 
the  defendants  in  this  suit,  were  the  owners  of  the  lumber 
then  on  board  the  vessel  William  H.  Dunham,  and  replevied 
by  them  in  said  proceeding,  then  the  jury  should  find  for 
the  plaintiffs  in  this  case,  and  assess  the  plaintiffs'  damages 
at  the  sum  of  one  cent,  and  no  more,  said  plaintiffs  under 
such  circumstances  being  only  entitled  to  nominal  damages." 

Ownership  is  not  a  fact,  but  is  a  legal  conclusion  to  be 
drawn  by  the  court  from  facts  to  be  found  by  the  jury. 
The  jury  should  not  have  been  left  to  determine  what  facts 
were  necessary  to  constitute  ownership,  as  was  clearly  done 
by  the  instruction,  and  thus  leave  to  them  the  determina- 
tion of  a  question  of  law. 

''  Where  the  conclusion  is  one  of  law,  from  facts  to  be 
found,  the  jury  are  to  find  the  facts  and  the  court  to  state 
the  conclusion,  or  the  law,  and  to  submit  mixed  questions  of 
law  and  fact  to  the  jury  is  error."  Charles  v.  Lesher,  20 
111.  App.  36;  Mitchell  v.  Town  of  Fond  du  Lac,  61  111.  174. 

The  third  of  appellees'  instructions  points  out  three  differ- 
ent states  of  fact  by  which,  if  found,  the  ownership  and 
right  of  possession  would,  as  matter  of  law,  have  been  ac- 


First  DrsTRicT — March  Term,  1897.         89 

Dobson  V.  More. 

quired  to  the  lumber  by  appellees,  and  has  a  slight  tendency 
to  cure  the'  error  of  the  quoted  instruction,  but  we  are 
wholly  unable  to  say  that  either  state  of  fact  so  indicated 
was  found  by  the  jury.  It  is  quite  as  likely  that  the  jury 
drew  their  conclusion  of  ownership  from  a  set  of  facts  not 
material  to  the  issue,  as  the  instruction  permitted  them  to 
do.  We  can  not,  therefore,  regard  that  instruction  as  cur- 
ing the  vic3  of  the  quoted  one. 

There  are  defects,  although  perhaps  not  vital,  in  some 
other  of  appellees'  instructions,  but  they  may  easily  be  seen 
and  obviated  at  another  trial,  and  we  will  not  take  space  to 
comment  upon  them. 

With  considerable  regret  that  it  is  necessary  to  impose 
another  trjal  of  the  ca^e  upon  the  parties  for  an  error  that 
could  have  l>een  easily  avoided,  we  reverse  the  judgment 
and  remand  the  cause  for  the  error  pointed  out. 


John  Dobson  and  James  Dobson  v.  C.  E.  More^  Assignee, 

etc. 

1.  Executions — Levy  of,  on  Property  in  Hands  of  Fraudulent 
Orantee. — The  credit  )r  of  a  fraudulent  grantor  may  levy  upon  only  such 
property  of  the  frauialent  Kf ^ataa  as  hd  is  shown  to  have  received  from 
the  grantor. 

Petition,  in  assignment  proceedings.  Appeal  from  the  County  Coui*t 
of  Cook  County;  t'i3  Hon.  Orrin  N.  Carter,  Judge,  presiding.  Heard 
in  this  court  at  th^;  March  term,  1897.  Affirmed.  Opinion  filed  May  6, 
1897. 

L.  S.  Hoboes,  and  Dp:nt&  Whitman,  attorneys  for  appel- 
lants; L.  W.  Barringer,  of  counsel. 

BcLKLEY,  Gray  &  More,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 
The  appellee  is  the  assignee  of  the  Wilson  &  Bayless 


70      89 
I7l8  271 


90  Appellate  Courts  of  Illinois. 

■  -  —  — - 

Vol.  70.]  Dobson  v.  More. 

Coinpany,  a  corporation,  administering  the  assets  under 
the  direction  of  the  County  Court. 

The  company  was  incorporated  in  the  fall  of  1888 — the 
certificate  being  recorded  October  8,  I8S8. 

The  business  in  which  it  engaged  had,  before  the  incor- 
poration, been  conducted  by  George  Wilson,  Jr.,  and  Theo- 
dore P.  Bayless,  under  the  firm  name  of  Wilson  &  Bayless; 
and  it  may  be  conceded  that  the  purpose  in  incorpo- 
rating was  to  put  the  stock  in  trade  of  the  firm  into  the 
possession  of  the  corporation,  out  of  the  reach  of  the  cred- 
itors of  the  firm — to  hinder,  if  not  to  defraud  them. 

March  11, 1889,  the  appellants  took  judgment  against  the 
members  of  the  firm  upon  a  debt  which  existed  before  the 
incorporation,  and  levied  upon  goods  in  the  possession  of, 
and  claimed ,  by,  the  corporation.  By  arrangement,  the 
goods  were  surrendered  by  the  sheriff  to  the  assignee  with- 
out prejudice  to  any  rights  acquired  by  the  levy. 

Now  if  the  case  showed — what  we  have  sought  in  vain  to 
find,  that  the  identical  goods  levied  upon,  or  any  of  them, 
had  ever  been  the  property  of  the  firm — were  in  the  stock 
in  trade  transferred  by  the  firm  to  the  corporation — then 
the  question  of  fraud  in  that  transfer  could  be  raised.  But 
there  is  no  proof,  nor  presumption,  that  goods  in  the  pos- 
session of,  and  claimed  as  its  own  by  the  corporation  in 
March,  18^59,  came  to  its  possession  from  the  firm  in  October, 
1888,  and  it  is  not  the  law  that  the  creditor  of  a  fraudulent 
grantor  may  levy  upon  property  of  the  fraudulent  grantee 
which  he  did  not  get  from  that  grantor. 

What  is  herein  stated  as  to  the  judgment,  execution  and 
levy  is  taken  from  recitals  in  petitions,  answers,  and  orders 
in  the  County  Court  which  the  parties  tacitly  assume  to  be 
true. 

The  judgment,  execution  and  return  thereon  were  offered 
in  evidence  by  the  appellants,  but  rejected  by  the  court,  to 
which  the  appellants  excepted,  but  do  not  allude  to  in  their 
brief.  In  all  the  recitals  alluded  to,  and  in  all  the  evidence, 
no  one  article  is  specified  as  included  in  the  levy. 

From  the  testimony  of  Wilson  there  is  a  vague  inference 


FiBST  Djbtbict — March  Term,  1897. 


91 


C.  &  K  I.  R.  R  Co.  ▼.  Driscoll. 


that  carpets — without  more  words,  carpets — which  had  be- 
longed to  the  firm  were  levied  upon. 

A  judgment  may  not  be  reversed  upon  such  an  inference. 

The  judgment  is  affirmed. 


Chicago  &  Eastern  Illinois  B.  B.  Co.  v.  Clara  C.  Driseoll^ 

Adm'x^  etc. 

1.  Railroads— Care  Required  of^  As  to  Condition  and  Place  of 
Can. — A  raUroad  company  is  bound  to  exercise  reasonable  diligence  to 
see  that  its  can  are  in  such  condition  and  place  that  its  employes  shall 
not  be  exposed  to  unnecessary  danger  in  working  about  them. 

2.  Master  and  Servant-— Utg/i^  of  Servant  to  Presume  that  Master 
Has  Done  His  Duty, — A  servant  has  a  right  to  presume  that  his  master 
has  done  his  duty,  and  that  cars  about  which  he  (the  servant)  is  required 
to  work  are  in  such  condition  and  place  as  not  to  expose  him  to  unneces- 
sary danger. 

8.  SAME^Duty  to  Furnish  Safe  Machinery  Can  Not  Be  Delegated,-^ 
The  obligation  of  a  master  to  use  reasonable  diligence  to  have  the 
machinery,  appliances,  tools  and  premises,  with  and  on  which  his  serv- 
ants work,  in  a  safe  condition,  is  one  that  can  not  be  delegated. 

TresfMUU  on  the  Case,  for  personal  injuries.  Appeal  from  the  Cir- 
cuit Court  of  Cook  County;  the  Hon.  Frank  Baker,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  6,  1897. 

Albert  M.  Cross,  attorney  for  appellant;  W.  H.  Lyford 
and  J.  B.  Mann,  of  counsel. 


i 


70      91 
176s  SSO 


70 

91 

897 

669 

98 

59 

sl768 

830 

James  C.  McShanb,  attorney  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  op  the 

Court. 
This  was  an  action  to  recover  the  pecuniary  loss  pustained 

by  the  next  of  kin  of  John  Driscoll,  a  switchman,  who  was 

killed  in  the  yard  of  appellant  while  working  for  it. 

The  deceased   belonged   to  a  crew  of  men  engaged  in 

making  up  out-going  freight  trains  and  in  breaking  up 


92  AppIellate  Courts  of  Illinois, 

Vol.  70.]  C.  &  E.  I.  R.  R.  Co.  v.  Driscoll. 

incoming  trains,  placing  defective  cars  on  stub  tracks  and 
distributing  thera  to  different  points  in  the  yards. 

At  the  termination  of  one  of  three  stub  tracks  there  was 
not  a  butting-post.  The  night  of  the  accident  a  car  was 
standing  partially  on  this,  one  pair  of  wheels  having  run  off 
the  end  and  resting  on  the  ground.  How  this  car  came  to 
be  thus  partially  off  the  track  is  unknown. 

A  yard  master  gave  directions  to  pull  out  the  cars  stand- 
ing on  this  track;  the  deceased,  in  the  discharge  of  his  duty, 
was  at  this  time  engaged  in  setting  switches;  w^hen  the  car, 
partially  off  the  track,  was  pulled  along  it  ran  into  a  car  on 
an  adjoining  track,  and  the  deceased,  being  caught  between 
the  two,  was  thrown  down  and  killed. 

The  accident  happened  in  the  evening,  after  dark. 

•We  do  not  think  that  this  case  turns  upon  the  question  of 
whether  it  was  the  duty  of  appellant  to  have  placed  butting- 
posts  upon  the  stub  tracks. 

Appellant  is  chargeable  with  notice  of  the  condition  in 
which  its  cars  were  when  it  moved  them. 

Appellant  was  bound  to  exercise  reasonable  diligence  to 
see  that  its  cars  were  in  such  condition  and  place  that  its 
employes  would  not  be  exposed  to  unnecessary  danger  in 
working  about  them. 

The  deceased  had  a  right  to  presume  that  appellant  had 
performed  such  duty.  Wood  on  Master  and  Servant,  Sees. 
32f),  347,  348,  349,  434;  Illinois  Steel  Co.  v.  Schymanowski, 
J  62  III.  447;  Hines  Lumber  Co.  v.  Ligas,  opinion  filed  Janu- 
ary 21,  1897,  1st  Dist.  III.  App. 

A  little  attention  would  have  enabled  appellant  to  know 
that  a  car  it  moved  was  off  the  track,  and  this,  whether  it 
had  been  off  some  days  or  only  a  few  moments. 

The  deceased  was  not  bound  to  examine  as  to  the  condi- 
tion of  the  car  he  was  ordered  to  assist  in  moving,  and 
there  is  nothing  tending  to  show  that  he  knew  of  its  dan- 
gerous position. 

It  is  contended  that  the  order  to  pull  out  the  train  con- 
taining the  car  off  the  track,  was  given  by  a  fellow-servant 
of  the  deceased. 


First  District — March  Term,  1897.         93 

Northern  Trust  Co.  v.  Palmer. 

It  must  be  presumed  that  the  jury  found,  as  there  is  evi- 
dence to  show,  that  this  order  was  given  by  Blake,  a  yard 
master,  and  not  a  fellow-servant  of  the  deceased. 

However  this  may  be,  the  accident  would  not  have  hap- 
pened bad  not  a  car  been  off  the  track.  The  defective  and 
dangerous  condition  of  this  car,  which  appellant  undertook 
to  move,  resulted  in  the  death  of  the  intestate.  The  obliga- 
tion of  appellant  to  use  reasonable  diligence  to  have  the 
machinery,  appliances,  tools  and  premises  with  and  on  which 
its  servants  Avork,  in  a  safe  condition,  is  one  that  can  not  be 
delegated.  Wood  on  Master  and  Servant,  Sec.  453;  Hines 
Lumber  Co.  v.  Ligas,  1st  Dist.  Ill,  App.;  opinion  filed  Jan- 
uary 21,  1897. 

We  regard  the  declaration  as  sufficient  to  sustain  the  ver- 
dict, and  find  no  error  as  to  receiving  or  rejecting  evidence^ 
or  in  instructions  given  or  refused,  warranting  a  reversal  of 
the  judgment^of  the  court  below. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


The  Northern  Trast  Company^  Executor,  etc.,  v.  Will- 
iam U.  Palmer,  Executor,  etc. 

1.  ABA.TEMENT— I>eaf/i  of  all  the  Parties  to  a  5?«Y.— Under  Sees.  10, 
11,  12  and  18  of  Chapter  1,  R.  S.,  a  court  may  order  the  substitution  of 
the  personal  representatives  of  the  parties  to  a  suit  where  all  the  parties, 
both  plaintiff  and  defendant,  die  during  the  pendency  of  the  suit. 

2.  Torts— Liability  of  Landlord  for  Acts  of  an  Employe. — In  actions 
for  torts  there  are  no  accessories,  those  who  command  and  those  who 
do  are  equally  guilty,  and  a  landlord  under  an  obligation  not  to  disturb 
his  tenant,  can  not,  by  his  agents,  destroy  the  value  of  a  tenancy,  and 
if  he  does,  he  is  re8x>on8ible  for  the  injury  inflicted. 

Trespass  on  the  Case,  for  wrongfully  removing  the  wall  of  a  build- 
ing. Appeal  from  the  Circuit  Court  of  Cook  Coimty;  the  Hon.  Frank 
Baker,  Judge,  presiding.  Heard  in  this  court  at  the  March  term,  1897. 
Affirmed.    Opinion  filed  May  6,  1897. 

Jksse  Holdom,  attorney  for  appellant. 


I  70      83 

nru  383 


94  Appellate  Coukts  of  Illinois. 

Vol.  70.]  Northern  Trust  Co.  v.  Palmer. 

Bemt  &  Mann,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  op  the 
Court. 

Marie  M.  Fenton  began  an  action  of  trespass  on  the  case 
against  Cyrus  M.  Hawley,  upon  whom  process  was  served; 
thereafter  the  plaintiff  and  defendant  died;  thereupon  appel- 
lant was  appointed  executor  of  the  last  will  and  testament 
of  Cyrus  M.  Hawley,  and  appellee  was  made  executor  of 
Marie  M.  Fenton. 

Thereafter  the  death  of  Cyrus  M.  Hawley  and  Marie  M. 
Fenton  was  suggested,  and  by  order  of  court  appellant  and 
appellee  were  substituted  as  plaintiff  and  defendant. 

It  is  contended  that  all  the  parties  to  the  cause  having 
died,  the  suit  abated  and  could  not  be  revived. 

We  think  that  the  action  of  the  court  in  ordering  the 
substitution  was  within  the  intent  of  Sees.  10, 11, 12  and  13 
of  Chapter  1  of  the  R3vrised  Statutes. 

The  action  was  by  a  tenant  of  210  and  211  Wabash 
avenue,  against  his  landlord,  the  owner,  for  taking  down  a 
wall  of  said  building,  and  thereby  damaging  the  goods  of 
of  the  deceased,  Marie  M.  Fenton,  then  in  the  premises. 

It  appeared  in  evidence  that  Hawley,  the  landlord,  made 
a  contract  with  Simon  and  Philip  Florsheim  to  take  down 
the  south  wall  of  said  building,  which  contract  left  the 
contractors  at  liberty  to  pursue  such  method  as  they  saw 
fit,  subject  to  certain  stipulations  as  to  shoring  up,  not 
changing  the  front,  etc. 

Appellant  contends  that  the  Florsheims  were  indepen- 
dent contractors,  and  they  alone  are  responsible  for  the 
injury  done  to  the  tenant. 

In  actions  for  torts  there  are  no  accessories;  those  who 
command  and  those  who  do  are  equally  guilty.  Hawley 
was  under  an  obligation  not  to  disturb  his  tenant  in  her 
possession  and  use;  he  could  not  by  his  agents,  the  Flors- 
heims, destroy  the  value  of  her  tenancy,  tear  down  the 
walls  of  the  building  he  had  rented  to  her,  and  not  himself 
be  responsible  for  the  injury  she  suffered.     Bishop  on  Non- 


First  Distkict — March  Tebm,  1897. 


95 


High  Court  Ind.  Order  of  Foresters  v.  Edelstein. 

-f 

Contract  Law,  Sec.  604;  Cooley  on  Torts,  547;  Village  of 
JeflFerson  v.  Chapman,  27  111.  App.  43;  City  of  Joliet  v. 
Harwood,  86  111.  110;  Sherman  &  Eedfield  on  Negligence, 
Sec.  176. 

The.  case  is  not  of  an  injury  to  one  with  whom  Hawley 
sustained  no  contractual  relations,  as  was  Chicago  City  Ey. 
Co.  V.  Ilennessy,  16  111.  App.  153. 

Hawley  procured  the  doing  of  damage  to  his  tenant; 
employed  the  Florsheims  to  do  that  ^yhich  necessarily  dam- 
aged her.  The  injury  to  her  was  not  the  result  of  negli- 
gence on  the  part  of  the  contractors,  but  a  necessary 
consequence  ofiheiracts,  and  such  as  Hawley  employed 
them  to  do. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


70      95 


High  Court  of  ^the  Independent  Order  of  Foresters  of 
the  State  of  IlHnois  v.  Hannah  Edelstein. 

1.  Benefit  Societtbs — <7o<xf  Standing  of  Members — Hoio  Shoum — 
Presumptions  as  to. — The  iewuinK  of  a  certificate  of  membership  by  a 
rautaal  benefit  society  is  evidence  of  the  holder's  good  standing  in  the 
order  when  it  issued,  and  such  good  standing  will  be  presumed  to  con- 
tinue, unless  there  is  proof  that  it  no  longer  exists.  The  burden  of  prov- 
ing Io68  of  good  standing  rests  upon  the  society. 

2.  Same — Forfeiture  of  Memberstiip. — A  provision  in  the  constitution 
of  a  benefit  society,  that  members  "  shall  be  dropped  from  membership 
in  the  order  '*  for  failure  to  pay  assessments  is  not  self -executing,  but 
requires,  in  order  to  terminate  the  membership,  the  affirmative  action  of 
the  corporation  to  ascertain  and  declare  the  forfeiture. 

8.  Same — Loss  of  0(»od  Standing  In — How  Shown. — The  fact  that  a 
member  of  a  benefit  society,  is  not  in  good  standing  in  the  order  can  only 
be  shown  by  the  records,  minutes  or  proceedings  of  the  order  itself. 
Such  a  society  being  a  corporate  body,  its  attitude  toward  a  member  can 
only  be  shown  through  its  action  as  such  corporation. 


Assampsit,  on  a  benefit  certificate.  Appeal  from  the  Superior  Court 
of  Cook  County;  the  Hon.  James  Goggin,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  May  6, 
1897. 


96  Appellate  Courts  of  Illinois. 

Vol.  70.]    High  Court  Ind.  Order  of  Foresters  v.  Edelstein. 

Seymour  Stedman,  attorney  for  appellant;  Charles  H. 
SoELKE,  of  counsel. 

Moses,  Eosenthal  &  Kennedy,  attorneys  for  appellee. 

Mr.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

One  Israel  Edelstein  was  a  member  of  a  subordinate  court 
of  the  appellant  order,  and  an  endowment  certificate  for 
one  thousand  dollars  was  issued  to  him  by  appellant  on 
April  21,  1889,  payable  to  the  appellee,  his  mother,  and  he 
died  May  12,  1893. 

The  defense  to  the  suit  that  was  begun  on  the  certificate 
was  that  the  deceased  was  not  a  member  in  good  standing 
in  the  order  at  the  time  of  his  death,  owing,  primarily,  to 
his  neglect  to  pay  certain  assessments. 

The  fact  of  the  issuance  of  the  certificate  to  him  was  evi- 
dence of  his  good  standing  at  that  time,  and  it  will  be  pre- 
sumed to  have  continued  until  the  contrary  be  shown,  and 
the  burden  of  showing  that  contrary  was  upon  the  order. 
Independent  Order  v.  Zak,  136  111.  185;  N.  W.  Traveling 
Men's  Assoc,  v.  Schauss,  148  111.  304. 

Section  7,  Article  XVI,  of  the  Constitution  of  the  Order 
provides,  amongst  other  things,  as  follows  : 

"  Immediately  upon  the  receifit  of  notice  of  assessment, 
the  financial  secretary  of  each  subordinate  court  shall  send 
a  notice  to  each  member,  and  if  any  member  fails  to  pay  the 
amount  of  said  assessment  within  thirty  da^'^s  from  tlie  date 
of  the  notice,  he  shall  be  dropped  from  membership  in  the 
order." 

Assuming  that  the  requisite  notice  to  Edelstein  was  given 
and  received,  and  that  he  failed  to  pay  the  assessments  for 
the  three  or  four  months  preceding  that  in  which  his  death 
occurred,  he  did  not  thereby,  ipso  faotOj  cease  to  be  a  mem- 
ber in  good  standing. 

The  provision  above  quoted,  that  he  should  in  such  case 
"be  dropped  from  membership,"  was  not  self-executincr. 
There  yet  remained  something  to  be  done  to  determine  his 


First  Distbict — March  Term,  1897. 


97 


Chicago  City  Ry.  Co.  v.  Catlin. 


standing,  and  in  such  respect  there  is  a  difference  between 
this  case  and  that  of  Hansen  v.  Sup.  Lodge,  40  111.  App. 
216,  wherein  the  provision  there  being  considered  was  held 
to  be  self-executing.     Same  Case,  140  111.  301. 

The  provision  here,  is  like  that  in  Northwestern  Travel- 
ing Men's  Association  v.  Schauss,  51  111.  App.  78,  where  we 
held,  distinguishing  it  from  the  Hansen  case,  that  the  provis- 
ion was  not  self-executing,  but  required,  in  order  to  terminate 
the  membership,  the  affirmative  action  of  the  corporate  body- 
to  ascertain  and  declare  the  forfeiture.  And  in  so  holding 
we  were  sustained  by  the  Supreme  Court  in  the  same  case, 
reported  in  148  111.  304. 

Was  such  affirmative  action  by  the  order  ever  taken  in 
this  case  i  If  it  were,  it  must  be  proved  by  the  records  or 
proceedings  of  the  order  itself.  Ind.  Order,  etc.,  v.  Zak, 
supra. 

Some  attempt  to  prove  action  taken  by  the  order  in  the 
case  of  the  deceased  was  made,  but  the  book  that  the  witness 
purported  to  read  from  was  not  shown  to  be,  or  to  contain, 
any  part  of  the  records  of  the  order,  nor  did  it  appear  in 
any  way  that  the  minutes  were  those  of  a  quorum  of  any 
body  of  members,  officers  or  other  persons. 

So  far  as  this  record  shows,  the  deceased  was  never 
"dropped"  from  membership  or  his  membership  in  any 
way  terminated.  *' 

The  judgment  of  the  Superior  Court  is  therefore  af- 
firmed. 


Chicago  City  Railway  Co  v.  Catlierine  Catlin. 
Same  v.  William  E.  Catlin. 


\' 


90 


70 
113 


91 


97 
^890 


1.  Carriers — The  Rule  as  to  Presumption  of  Liability  for  Injury  to 
Passengers  Stated, — If  an  injury  to  a  passenger  is  caused  by  apparatus 
wholly  under  the  control  of  a  carrier  and  furnished  and  applied  by  it,  a 
presumption  of  negligence  on  its  part  is  raised,  but  it  is  only  when  the 
injury  occurs  from  the  abuse  of  agencies  within  the  carrier's  power  that 

TOL.  LXX  7 


98  Appellate  Couets  of  Illinois. 

Vol.  70.]  Chicago  City  Ry.  Co.  v.  Catlin. 

it  can  be  inferred,  from  the  mere  fact  of  the  injury,  to  have  acted  neg- 
ligently. 

2.  Instructions— ^IccuroKjy  Required  in  Close  Cases, — In  closely  con- 
tested cases,  especially  where,  on  the  record,  the  verdict  seems  to  be 
against  the  preponderance  of  the  evidence,  the  instructions  on  beltalf  of 
the  successful  party  must  be  accurate. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  Farun  Q.  Ball,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Beversed  and  remanded. 
Opmion  med  May  6,  1807. 

William  J.  Hykes  and  Samuel  S.  Page,  attorneys  for 
appellant. 

Malcolm  Dale  Owen  and  Seth  F.  Ckews,  attorneys  for 
appellees. 

Mb.  Presiding  Justice  Shepabd  deliveeedthe  opinion  of 
THE  Court. 

For  injuries  to  the  appellee  in  the  first  above  entitled 
cause,  suffered,  as  she  alleged,  by  being  thrown  from  a  car 
of  the  appellant  in  which  she  was  being  carried  as  a  pas- 
senger, she  brought  suit  and  recovered;  and  the  appellee  in 
the  second  above  entitled  cause,  husband  of  the  first  men- 
tioned appellee,  brought  suit  for  the  alleged  loss  of  society 
and  assistance  suffered  by  him  because  of  the  injuries 
alleged  to  have  been  sustained  by  her  in  the  same  accident, 
and  also  recovered,  and  from  such  judgments  these  appeals 
are  prosecuted. 

Both  cases  were,  by  stipulation  of  parties,  tried  at  the 
same  time  before  the  same  judge  and  jury,  on  the  same  evi- 
dence, and  on  the  same  instructions,  but  as  separate  cases, 
each  having  a  separate  verdict,  motion  for  new  trial  and 
•  judgment,  and  come  here  by  separate  appeals  but  upon  one 
record. 

The  judgment  in  favor  of  Catherine  was  for  $10,000  and 
that  in  favor  of  William  was  for  $3,000. 

We  need  not  review  the  evidence. 

The  appellees'  claim,  as  stated  in  the  declarations,  is  that 


First  District — March  Term,  1897.         99 

Chicago  City  Ry.  Co.  v.  Catlin. 

the  car  in  which  Catherine  was  riding  had  stopped  for  her 
to  alight,  and  while  she  was  in  the  act  of  alighting,  suddenly 
started  up  and  threw  and  injured  her. 

The  appellant's  claim  is  that  while  the  car  was  slowing 
up  for  the  purpose  of  stopping  to  permit  Catherine  to  alight, 
and  before  it  had  stopped,  she  hastily  and  negligently 
stepped  off  into  a  wet  and  slippery  place,  and  was  over- 
thrown by  her  own  carelessness. 

The  first  instruction,  given  at  the  request  of  appellees, 
was  as  follows : 

"  1.  The  court  instructs  the  jury :  That  if  you  believe 
from  the  evidence,  that  the  plaintiff  received  the  injury 
complained  of  while  riding  on  the  cars  of  the  defendant, 
and  that  at  the  time  of  such  injury,  the  plaintiff  was  in  the 
exercise  of  reasonable  care  and  caution  to  prevent  such  in- 
jury, then  the  pi'esumption  is,  that  the  accident  or  injury 
occurred  through  the  fault  or  neglect  of  the  defendant's 
servants,  and  the  onus  is  on  the  defendant  company  to  show 
by  a  preponderance  of  the  evidence  that  it  was  not  negli- 
gent in  the  operation  of  its  said  cars  at  the  time  of  said 
injury." 

An  instruction  better  calculated  to  mislead  an  honest, 
impartial  jury,  anxious  to  do  their  duty,  and  believing  it  to 
be  their  duty  to  obey  the  law  as  the  court  might  declare  it 
to  be,  could  hardly  have  been  given. 

It  was  the  appellant's  position  that  she,  appellee,  did 
receive  the  injury  "  while  riding,"  t.  ^.,  while  the  cars  were 
in  motion. 

Literally  she  received  the  injury  after  she  was  on  the 
ground,  and  it  is  perhaps  too  strict  to  say  that  the  word 
"  riding  "  could  not  be  applied  to  being  on  the  car  after  it 
stopped. 

Omitting  criticism  upon  the  use  of  the  word  "reason- 
able "  instead  of  ordinary  (111.  Cent.  E.  E.  v.  Noble,  142 
111.  578),  then  the  instruction,  in  effect,  told  the  jury  that  if 
the  act  of  stepping  from  the  car  while  it  was  in  motion 
was  not  inconsistent  with  the  exercise  of  reasonable  care 
and  caution — which,  as  probably  most  of  the  jurors  were  in 


100  Appellate  Courts  op  Illinois. 

Vol.  70.]  Chicago  City  Ry.  Co.  v.  Catlin. 

the  possession  of  ordinary  physical  activity,  they  might 
easily  have  believed — "  then-  the  presumption  is  that  the 
accident  or  injury  occurred  through  the  fault  or  neglect  of 
the  defendant's  servants." 

That  clause  being  followed  by  the  "onus,"  of  which  there 
is  no  presumption  that  the  jury  knew  the  meaning,  is  not 
thereby  relieved  of  its  vicious  feature. 

The  fault  is  much  the  same  as  in  City  of  Chicago  v. 
Morse,  33  111.  App.  61. 

Although  courts  have  not  always  guarded  the  language 
in  which  the  doctrine  of  presumptions  against  passenger 
carriers  has  been  expressed,  yet  the  meaning  has  always 
been  clear  that  the  doctrine  is  as  stated  in  N.  Y.  C.  &  St. 
L.  R. R.  V.  Blumenthal,  160 III. 40  :  "If  the  injury  to  a  pas- 
senger is  caused  by  apparatus  wholly  under  the  control  of 
the  carrier  and  furnished  and  applied  by  it,  a  presumption 
of  negligence  on  its  part  is  raised,"  quoted  from  page  48  of 
that  case. 

"  It  is  only  when  the  injury  occurred  from  the  abuse  of 
agencies  within  the  defendant's  power  that  he  can  be  in- 
ferred, from  the  mere  fact  of  the  injury,  to  have  acted  negli- 
gently." 

Wharton  Negl.,  Sec.  661,  referred  to  with  approval  in 

North  Chi.  St.  Ry.  v.  Cotton,i40  111.  486;  Chicago  City  Ry. 

Co.  V.  Rood,  163  111.  477. 
In  all  the  cases  in  which  general  language  is  used,  the 

special  facts  of  the  cases — as  in  G.  &  O.  N.  R.  R.  v.  Yar- 

wood,  15  111.  468 — supplied  the  qualifying  words. 

In  closely  contested  cases — especially  where  on  the  record 
the  verdict  seems  to  be  against  the  preponderance  of  the 
evidence — the  instruction  on  behalf  of  the  successful  party 
must  be  accurate.     Craig  v.  Miller,  133  111.  300. 

The  judgments  are  reversed  and  the  causes  remanded. 


First  District — March  Term,  1897.       101 

North  Chicago  St.  R  R  Co.  v.  Honsinger. 


North  Chicago  Street  Railroad  Company  t.  Ennlce  Hon- 
singer. 

1.  Verdicts — On  Conflicting  Evidence. — ^The  evidence  in  this  case  is 
conflicting,  and  the  jury  having  resolved  the  doubt  in  favor  of  appellee 
their  verdict  must  stand. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  Henry  V.  Freeman,  Judge,  presid- 
ing. Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion 
filed  May  6,  18i>7. 

Statement  of  the  Case. 

This  was  an  action  by  Eunice  Honsinger  to  recover  dam- 
ages for  personal  injuries  alleged  to  have  been  received 
through  the  negligence  of  the  North  Chicago  Street  Rail- 
road Company. 

The  plaintiff  was  a  passenger  on  the  North  Clark  street 
car  of  the  defendant,  north-bound,  and  when  the  car  arrived 
at  or  near  the  intersection  of  Clark  and  Center  streets  it 
came  to  a  sudden  stop,  whereby  the  plaintiff  was  thrown 
against  the  dash-board  of  the  car  and  received  injuries.    "^ 

The  defendant  admitted  a  technical  liability,  but  no 
damages. 

On  the  trial  the  jury  found  the  defendant  guilty  and  as- 
sessed the  plaintiff^s  damages  at  $4,000;  and  judgment  hav- 
ing been  entered  on  the  verdict  the  defendant  brings  the 
record  to  this  court  for  review. 


70    101 
175s  318 


70       101 
112      807 


Egbert  Jamieson  and  John  A.  Eose,  attorneys  for  ap- 
pellant. 

Dent  &  Whitman,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

In  this  case  it  appeared  that  the  plaintiff,  eleven  years 
previous  to  the  accident,  had  suffered  a  miscarriage.  She 
had  not  consciously  suffered  therefrom. 


J02  Appellate  Courts  of  Illinois. 

Vol.  70.]  Orcutt  t.  Isham. 

Various  medical  experts  testified  in  the  present  case  that 
pains  and  troubles  from  which  she  now  complains  are  the 
result  of  that  miscarriage,  and  especially  of  a  lacerated  con- 
dition of  the  cervix  of  the  womb,  which  laceration  they 
attribute  to  the  miscarriage  and  not  to  the  accident. 

Other  experts  attributed  all  the  pains  appellee  now  en- 
dures to  the  accident. 

The  jury,  quite  naturally,  resolved  the  doubt  in  favor  of 
the  sufferer  and  against  the  corporation. 

In  view  of  instructions  numbers  six  and  seven,  given  at 
the  instance  of  the  defendant,  we  do  not  think  that  the  jury 
were  misled  by  instruction  number  two,  given  at  the  re- 
quest of  the  plaintiff. 

If  the  present  state  of  appellee  is  attributable  to  the  acci- 
dent, the  damages  awarded  are  not  excessive. 

The  judgment  of  the  Superior  Court  is  aifirmed. 


Emma  E.  Orcatt  v.  Sarah  M.  Isham. 

1.  Landlord  and  Tenant — Waiver  of  Ground  of  Complaint  by 
Tenant — Estoppel, — A  tenant  remaining  in  possession  and  paying  rent 
not  only  for  months  during  which  a  cause  of  complaint  existed,  but  for 
several  months  afterward,  is  estopped  from  setting  up  such  cause  of 
complaint  in  justification  of  an  abandonment  of  the  premises. 

2.  Same — Tenant  Liable  for  All  Bent  Agreed  On — Exceptions, — ^A 
tenant  having  entered  is  liable  for  aU  the  rent  as  agreed,  notwithstand- 
ing he  has  ceased  to  occupy,  unless  something  has  happened  to  put  an 
end  to  the  tenancy. 

8.  Same— iVb  Belief  Against  Covenant  to  Pay  Bent  Unless,  etc—Jt 
is  a  general  rule  of  law  that  a  lessee  has  no  relief  against  an  express 
covenant  to  pay  rent  unless  he  has  protected  himself  by  an  express 
covenant  in  the  lease;  he  is  not  at  liberty  to  select  such  portions  of  the 
term  as  he  is  pleased  to  enjoy  and  repudiate  the  balance. 

4.  Practice— itemarA»  by  the  Court  During  Trial, — ^Though  part  of 
the  language  used  by  a  judge  at  a  trial  may  have  been  subject  to  criticism, 
the  remarks  should  not  cause  the  reversal  of  a  judgment  which  is  sub- 
stantially right  upon  the  whole  record. 

Transeript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Abner  Smith,  Judge,  presiding.    Heard 


FiEST  District — March  Term,  1897.       103 

Orcutt  V.  Isham. 

in  this  court  at  the  March  term,  1897.    Affirmed.    Opinion  filed  May  6, 
1897. 

H.  S.  &  F.  S.  Osborne  and  Egbert  F.  Pbttibone,  attor- 
neys for  appellant. 

CowEN  &  Houseman,  attorneys  for  appellee. 

Mr.  Presidino  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  appeal  is  from  a  judgment  for  $167.50  for  rent  due 
under  a  written  lease  of  a  flat  to  be  occupied  as  a  dwelling, 
'•  including  steam  heat  and  hot  water  at  all  times  as  may 
be  required  by  the  party  of  the  second  part." 

The  lease  was  for  a  term  beginning  February  15, 1894, 
and  ending  April  30,  1 895,  at  a  gross  rental  of  $725,  pay- 
able in  monthly  installments  of  $50  each. 

The  appellant  occupied  the  premises  from  February  15th 
until  the  end  of  June,  1894r,  when  she  sub-let  them  and 
went  to  the  country  for  July,  August  and  September. 
Returning  from  the  country  on  October  1st,  she  again  oc- 
cupied the  flat  until  October  15,  1894,  when  she  vacated  it 
and  refused  to  pay  any  more  rent. 

The  recovery  was  for  the  rent  at  the  stipulated  rate  for 
a  period  of  two  months  from  October  15th  to  December 
15th,  during  which  period  the  flat  remained  vacant,  and 
the  difference  of  $15  a  month  between  the  stipulated  rent 
and  the  price  for  which  the  flat  was  re-rented  for  the  re- 
maining four  and  one-half  months  of  the  term. 

Appellant's  principal  defense  was  a  breach  by  appellee 
of  her  agreement  and  duty  to  furnish  a  requisite  amount 
of  steam  heat  and  hot  water. 

All  the  evidence  upon  that  question  related  to  the 
winter  months  and  cold  weather  from  February  15, 1894, 
to  the  end  of  June,  1894,  during  all  of  which  time,  and 
three  and  a  half  months  longer,  the  appellant  paid  her  rent. 

There  is  no  evidence  that  there  was  an  insufficient  supply 
of  heat  or  water  during  the  months  of  July,  Aiigust  and 
September,  in  which  appellant's  sub-tenant  occupied   the 


104  Appellate  Courts  of  Illinois. 

Vol.  70.]  Orcutt  v.  Isham. 


flat,  nor  that  there  was  any  such  lack  during  the  first  half 
of  October,  1894,  in  which  appellant  resumed  and  continued 
her  occupancy. 

The  appellant  herself  testified  that  she  moved  out  be- 
cause she  was  *'  afraid  to  try  it  the  rest  of  the  winter."  In 
other  words,  she  moved  out  because  of  something  she 
feared  in  the  future,  and  not  because  of  what  existed  in  the 
present  or  had  existed  in  the  past.  All  complaints  that 
may  have  existed  in  the  past  were  waived  by  the  appellant 
by  paying  all  rent  for  the  months  in  which  occasion  for 
complaint  existed.  Remaining  in  possession  and  paying 
rent  not  only  for  such  months,  but  for  several  months  after- 
ward, the  appellant  is  estopped  from  setting  up  such  past 
cause  of  complaint  in  justification  of  her  present  abandon- 
ment of  the  premises,  and  she  showed  no  cause  of  complaint 
that  existed  when  she  moved  out.  Non  constat  but  that 
all  causes  of  complaint  had  been  remedied. 

A  lessee  is  not  at  liberty  to  select  out  such  portion  of 
the  term  as  she  is  pleased  to  enjoy  and  repudiate  the 
balance. 

As  this  court  said,  in  Smith  v.  McLean,  22  111.  App.  451 : 
"  It  is  the  general  rule  of  law  that  a  lessee  has  no  relief 
against  an  express  covenant  to  pay  rent  unless  he  has  pro- 
tected himself  by  a  stipulation  in  the  lease." 

So  where  a  term  has  commenced,  the  tenant  having 
entered,  he  is  liable  "to  all  the  rent  as , agreed,  notwith- 
standing he  has  ceased  to  occupy;  unless,  indeed,  something 
has  since  happened  to  put  an  end  to  the  term  or  tenancy,  as 
a  surrender  by  deed,  or  by  act  and  operation  of  law." 
Wood's  Landlord  and  Tenant,  959. 

All  questions  of  fact  were  passed  upon  by  the  jury,  and 
we  see  no  occasion  to  discuss  them  to  any  greater  extent 
than  we  have. 

Remarks  made  by  the  trial  judge  in  the  presence  of  the 
jury  are  complained  of  as  expressing  an  opinion  upon  the 
law  and  facts  of  the  case,  and  as  amounting  to  an  oral  in- 
struction to  the  jury. 

A  paft  of  the  language  that  was  used  is  subject  to  criti- 


First  District — March  Term,  1897.       105 

Feyreisen  v.  Sanchez. 

cism,  and  might  better  have  been  omitted,  but  it  was 
addressed  to  a  witness  on  the  stand  who  was  testifying 
very  indefinitely,  and  needed  to  be  reminded  that  general 
expressions  of  what  was  done  and  said  were  insufficient  to 
destroy  the  obligations  of  a  lease;  and,  even  though  par- 
taking of  error,  the  remarks  should  not  cause  the  reversal 
of  a  judgment  which  is  substantially  right  upon  the  whole 
record. 

There  was  no  material  error  in  the  admission  of  evidence, 
nor  in  the  giving  and  refusal  of  instructions,  and  the  judg- 
ment will  be  affirmed. 


P.  L.  Feyreisen  v.  Mary  Sanchez. 

1.  Leases — Beginning  of  Term,  Where  No  Time  is  Fixed — Oral  Con- 
tracts.— An  oral  agreement  for  a  lease  fixed  no  time  for  its  commence- 
ment, but  the  lessee  moved  in  and  paid  five  months  rent,  which  the  lessor 
accepted.  Held^  that  oral  contracts  ai'e  proved  not  only  by  what  the 
parties  say  but  by  what  they  do,  and  that  in  this  case  they  had  by  their 
acts  fixed  the  time  of  the  beginning  of  the  term. 

Bill  for  Specific  Performance.— Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  John  Gibbons.  Judge,  presiding.  Heard  in 
this  coort  at  the  March  term,  1897.  Reversed  and  remanded  with  direc- 
tions.   Opinion  filed  May  6,  1897. 

Albert  Martin,  attorney  for  appellant. 

Wheeler,  Austin  &  Lennards,  attorneys  for  appellee. 

Mb.  Justice  Gary  delivered  the  opinion  of  the  Court. 

This  is  a  bill  to  enforce  the  specific  performance  of  an 
a-jreement,  which  we  assume  was  by  parol,  for  a  lease  from 
the  appellee  to  the  appellant  of  certain  premises  for  one 
year  with  the  option  to  the  appellant  of  an  extension  for 
four  years  more.  It  is  not  necessary  to  state  the  fact  of 
part  performanco,  which  takes  the  case  out  of  the  operation 


106  Appellate  Courts  of  Illinois. 

Vol.  70.]  Kinnare  v.  City  of  Chicago. 

of  the  statute  of  frauds,  as  the  appellee  relies  in  the  brief 
filed  here  wholly  upon  the  one  feature  of  the  agreement 
that  in  it  no  time  was  specified  for  the  commencement  of 
the  lease.  But  the  appellant  moved  in,  and  has  paid  five 
months  rent,  which  the  appellee  has  accepted,  and  thus  by 
their  acts  the  parties  fixed  the  time  the  term  began.  Oral 
contracts  are  proved  not  only  by  what  the  parties  said,  but 
by  what  they  did,  and  as  by  words  the  parties  agreed  upon 
a  term  of  one  year,  with  an  option  of  four  more,  so  by 
their  acts  they  put  into  their  agreement  the  day  for  the 
beginning  of  the  term. 

The  bill  stated  all  the  facts,  and  on  demurrer  the  Court 
dismissed  it. 

The  decree  is  reversed  and  the  cause  remanded,  with 
directions  to  overrule  the  demurrer,  and  proceed  with  the 
cause  in  accordance  with  the  usage  and  practice  of  courts 
of  equity. 

ErCversed  and  remanded  with  directions. 


1  70    106 
I  70    365 

70    106 

171s  3S2       Frank  T.  Kinnare,  Adm'r,  etc.,  v.  City  of  Chicago  and 

Tlie  Board  of  Education  of  the  City  of  Chicago. 

1.  PLEADiNa— PTTwif  13  Surplusage  tn.— In  an  action  of  trespass  on 
the  case  an  allegation  that  the  defendant  had  *' promised  and  under- 
taken '*  is  mere  surplusage.  Such  an  action  does  not  lie  for  a  breach 
of  a  contract;  though  the  fact  that  the  wrong  done,  or  duty  neglected, 
does  constitute  a  breach  of  contract,  is  no  obstacle  to  the  action. 

3,  NEQLiaENCE— FaiVwre  to  Fence  Roof. — A  person  who.  knowing  its 
condition,  accepted  work  upon  the  roof  of  a  building,  can  not  recover 
against  his  employer  for  injuries  caused  by  a  fall  from  such  roof,  on 
the  ground  that  the  roof  was  not  fenced. 

8.  Pleadino — When  Ignorance  of  Existing  Conditions  ShxmM  he 
Pleaded, — A  servant  sued  his  master  for  injuries  caused  by  a  fall  from 
the  roof  of  a  building  alleging  negligence  in  failing  to  have  the  roof 
fenced.  Held,  that  if  the  servant  did  not  know  of  such  neglect  and 
desired  to  rely  upon  such  ignorance  on  his  part  his  want  of  knowledge 
should  have  been  averred. 

Trespass  on  the  Case.—Death  from  negligent  act.  Appeal  from  the 
Superior  Court  of  Cook  County;  the  Hon.  Wiluam  G.  Ewino,  Judge, 


First  Disteict — March  Term,  1897.       107 

Kinnare  v.  City  of  Chicago. 

presidiaR.    Heard  in  this  court  at  the  March  term,  1897.    Affirmed. 
Opinion  filed  May  6,  1897. 

James  Mahek,  attorney  for  appellants;  A.  W.  Browne, 
of  coansel. 

Donald  L.  Morrill,  attorney  for  appellee,  the  Board  of 
Education  of  the  City  of  Chicago. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

We  shall  omit  all  consideration  of  the  rights,  duties  and 
liabilities  of  the  appellees  peculiar  to  their  corporate  or 
quasi  corporate  character,  and  inquire  only  whether  the 
declaration  to  which  the  Superior  Court  sustained  a 
demurrer  and  entered  thereon  final  judgment  for  the  appel- 
lees, states  what  would  have  constituted  a  cause  of  action 
against  individuals. 

The  appellant  sues  in  case,  as  the  administrator  of  Mau- 
rice McDonnell,  and  so  much  of  the  declaration  as  need  be 
set  out  is  as  follows : 

"  For  that,  whereas,  the  defendants,  on  or  about  the  21st 
day  of  July,  A.  D.  1896,  at  the  city  of  Chicago,  in  the 
county  of  Cook,  were  engaged  in  erecting  and  roofing  a  cer- 
tain high  building  known  as  the  *  Deaf  Mute  School,'  and 
had  then  and  there  engaged  the  services  of  the  said  Maurice 
McDonnell  in  his  lifetime  to  work  on  and  about  the  roof- 
ing of  the  said  building,  and  had  then  and  there  promised 
and  undertaken  with  the  said  Maurice  McDonnell  that,  if  he 
would  work  upon  the  roof  and  roofing  of  said  building,  they 
would  provide  and  furnish  reasonably  adequate  safeguards, 
scaffolding  and  protective  appliances  around,  upon  and 
about  the  roof  of  said  building,  to  prevent  him  falling  from 
the  said  roof  whilst  he  was  working  thereupon,  and  in  the 
exercise  of  reasonable  care  about  his  own  safety,  and  rely- 
ing thereupon,  the  said  Maurice  McDonnell  then  and  there 
entered  upon  the  said  employment  and  roofing  work. 

Yet  the  plaintiff  avers  at  the  time  aforesaid,  at  the  place 
aforesaid^  and  whilst  the  said  Maurice  McDonnell  was  then 


108         Appellate  Courts  of  Illinois. 

Vol,  70.]  Upton  v.  The  Elite  News. 

and  there  rightfully  and  with  all  reasonable  care  and  dili- 
gence about  his  own  safety,  working  upon  the  roof  and  roof- 
ing of  said  building,  the  said  defendants  then  and  there 
carelessly,  negligently,  wrongfully  and  improperly  wholly 
neglected  and  failed  to  provide  and  furnish  any  reasonably 
adequate  safeguards  or  scaffolding  or  protective  appliances 
around,  upon  and  about  the  roof  of  said  building  to  prevent 
him  from  falling  or  being  precipitated  therefrom,  and  by 
means  thereof,  and  for  want  of  such  safeguards,  scaffolding 
and  protective  appliances,  the  said  Maurice  McDonnell  then 
and  there  unavoidably  on  his  part  fell  and  was  precipitated 
from  off  the  roof  of  said  high  building  down  to  and  upon 
the  ground  below,  and  was  thereby  then  and  there  killed." 

Now  what  is  there  alleged  of  "  promised  and  undertaken  " 
is  mere  surplusage.  An  action  on  the  case — not  assumpsit — 
does  not  lie  for  a  breach  of  contract;  though  the  fact  that 
the  wrong  done,  or  duty  neglected,  does  constitute  a  breach 
of  contract  is  no  obstacle  to  the  action.  Nevin  v.  Pullman 
P.  C.  Co.,  106  111.  222;  especially  what  is  on  page  236. 

Then  the  case  stated  amounts  to  this:  The  deceased 
worked  upon  a  roof,  and — as  he  knew — without  being  fenced 
in,  and  fell  off — I  say  "  as  he  knew,"  because  if  it  be  part 
of  the  case  that  he  did  not  know,  such  want  of  knowledge 
should  have  been  averred.  United  States  E.  S.  Co.  v.  Chad- 
Avick,  35  111.  App.  474;  2  Thomp.  Negl.  1050. 

That  is  no  case,  and  the  judgment  is  affirmed. 


Cassius  M.  Upton  v«  The  Elite  News^  for  Use,  etc. 

1.  Measure  of  Damages— Con-frac^  Calling  for  Part  Payment  in 
Merchandise. — A  agreed  to  render  certain  aery  ices  to  B,  payment  to  be 
made  one-half  in  books  handled  by  B  and  one-half  in  cash.  A  sued 
for  the  entire  amount  agreed  upon.  Heldy  that  he  was  only  entitled  to 
recover  one-half  of  the  amount  agreed  on,  as  the  evidence  failed  to 
show  that  he  had  selected  or  designated  the  books  he  would  take. 

Assumpsit,  on  the  common  counts.  Appeal  from  the  Circuit  Court 
of  Cook  County;  the  Hon.  Francis  Adams,  Judge,  presiding.    Heard  in 


First  District — March  Term,  1897.       109 

Upton  V.  The  Elite  News. 

this  court  at  the  March  term,  1897.     Affirmed  if  remittitur  be  entered, 
otherwise  reversed  and  remanded;    Opinion  filed  May  6,  1897. 

Seth  F.  Crews,  attorney  for  appellant. 

A  suit  is  a  legal  demand  for  money  only,  and  an  action 
will  not  lie  upon  a  contract  payable  in  anything  other  than 
money  until  after  a  special  demand  made;  and  the  plaintiff 
must  allege  and  prove  a  demand  before  suit  is  brought." 
Am.  &  Ency.  of  Law,  Vol.  5,  p.  528,  citing  Wyatt  v.  Bailey, 
1  Moor  (Iowa),  396;  Decker  v.  Burhap,  Id.  62. 

"  In  order  to  support  an  action  on  a  contract  to  be  per- 
formed by  delivery  of  property,  a  special  demand  must  be 
proved."  Bradley  v.  Farrington,  4  Ark.  532;  Martin  v. 
Chauvin,  7  Mo.  277. 

An  action  does  not  lie  for  the  value  of  wheat  which  is  to 
be  delivered  when  threshed,  until  demand  has  been  made 
for  the  wheat.    State  v.  Mooney,  65  Mo.  494. 

To  enable  a  party  to  recover  in  an  action  on  a  due-bill, 
payable  in  specific  property,  no  time  being  mentioned,  a 

demand  is  necessary;  otherwise  what  time  and  place  are 

specified.     Widnea  v.  Walsh,  3  Colo.  548,  citing  Lobdell  v. 

Hopkins,  5  Cowp.  516;  Vance  v.  Bloomer,  20  Wend.  196; 

Stewart  v.  Smith,  28  111.  397;  Bilderbank  v.  Burlingame,  27 

W.  337.  / 

Smith,  Shedd,  Underwood  &  Hall,  attorneys  for  appel- 
lee. 

Mr,  Justice  Gary  delivered  the  opinion  of  the  Court. 
The  appellee  sued  for  the  compensation  due  to  it  for  the 
perfopmance  by  it  of  a  contract,  as  follows : 

Office  of  the  Elite  News, 

317  Eookery  Bldg.,  Chicago. 

Chicago,  March  9,  1893. 
C.  M.  Upton,  Monon  Bldg.,  City. 

Dear  Sir  :  In  reference  to  the  matter  of  advertising  in 
the  'Elite,'  in  case  you  accept  our  offer  for  one  column  one 
year  for  seven  hundred  forty-eight  ($74:8)  dollars  net,  placed 


110  Appellate  Courts  op  Illinois. 

Vol.  70.]  McElheme  v.  Maher. 

next  reading  matter,  we  will  also  publish  three  illustrated 
articles  to  occupy,  not  more  than  a  full  page  each  and  in 
different  issues  of  the  paper,  without  charge,  payable  one- 
half  in  books  handled  by  C.  M.  Upton,  balance  in  monthly 

payments. 

ELii-E  News  Co., 

H.  A.  Pierce,  Manager. 
Accepted. 

C.  M.  Upton." 

We  will  not  repeat  the  evidence,  which  shows  that  the 
appellee  fully  performed,  except  as  to  "  illustrated  articles," 
from  which  it  was  excused  by  the  neglect  of  the  appellant 
to  furnish  copy,  but  by  which  the  appellee  saved  teA  dol- 
lars of  expense. 

The  appellee  has  recovered  seven  hundred  and  twenty- 
eight  dollars,  which  is  wrong,  because  the  appellee  never 
selected  or  designated  the  books  it  would  take,  and  the 
appellant  could  not  select  for  it.  Woods  v.  Dial,  12  111.  72. 
The  half  payable  in  money,  less  half  the  expense  saved,  the 
appellee  was  entitled  to  recover,  but  no  more. 

That  amount  is  $369,  to  which,  if  the  appellee  will,  within 
ten  days  after  this  opinion  is  filed,  remit,  the  judgment  will 
be  affirmed  for  that  sum;  otherwise  the  judgment  will  be 
reversed  and  the  cause  remanded. 

In  either  case,  the  appellant  recovers  his  costs  here. 


Mary  McElheme  v.  Michael  Maher. 

1.  Co^rnuLCTS— Requisites  of  a  Becovery  Upon. — A  entered  into  a 
contract  with  B  for  the  purchase  of  certain  real  estate,  and  made  a  pay- 
ment on  account.  In  an  action  to  recover  such  payment  there  was  no 
evidence  that  A  ever  offered  or  was  ready  to  perfoim  the  contract,  that 
he  ever  demanded  the  money  back,  or  that  he  ever  rescinded  or  offered 
to  rescind  the  contract.    Hddt  that  he  was  not  entitled  to  recover. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Frank  Baker,  Judge,  presiding. 
Heard  in  this  coiirt  at  the  March  term,  1897.  Reversed  and  remanded. 
Opinion  filed  May  6,  1897. 


First  Disteict — March  Term,  1897.       Ill 

West  Chicago  St.  B.  R.  Co.  v.  Ranstead. 

M.  V.  Gannon,  attorney  for  appellant. 
No  appearance  for  appellee. 

Mb.  Presiding  Justicb  Shepard  delivered  the  opinion 
OF  the  Court. 

A  written  contract  for  the  sale  by  appellant  to  appellee ' 
of  certain  real  estate  for  the  sum  of  $4,900  was  made  on 
October  21, 1890,  and  $75  as  part  payment  thereon  was 
made  by  appellee  at  the  same  time,  and  on  February  25, 
1891,  such  contract  was  filed  for  record  in  the  recorder's 
office  by  the  appellee. 

This  suit  to  recover  back  said  sum  of  $75  was  begun  by 
appellee  before  a  justice  of  the  peace,  where,  being  defeated, 
he  appealed  to  the  Circuit  Court,  and  there  recovered  the 
judgment  for  said  $75  which  is  appealed  from. 

The  judgment  is  wrong.  There  was  no  evidence  that 
appellee  ever  offered  or  was  ready  to  perform  the  contract 
upon  which  he  paid  the  money,  and  there  was  no  evidence 
that  he  ever  demanded  back  the  money,"  or  that  he  ever 
rescinded  or  oflfered  to  rescind  the  contract.  Upon  the 
other  hand,  the  filing  for  record  by  him  of  the  contract,  and 
making  no  oflfer  to  release  it  until  after  verdict,  evidenced 
an  intention,  on  his  part  to  treat  it  as  in  full  force. 

Under  such  circumstances,  appellee  was  not  entitled  to 
recover,  and  the  judgment  will  be  accordingly  reversed  and 
the  cause  remanded. 


West  Chicago  Street  Sallroad  Company  r.  William  H. 

Banstead. 

1.  Ordinary  Cars— -4.  Question  for  the  Jury.— Whether  a  person 
who  was  struck  by  a  street  car  was  ezercisinij:  ordinary  care  is  a  ques- 
tion for  the  jury,  and  in  considering  it,  they  may  take  into  considera- 
tion, the  usual  conduct  of  ordinarily  prudent  and  careful  persons  in 
threading  their  way  across  streets  thronged  by  the  multitudes  of  a  great 
city. 


112  Appellate  Courts  of  Illinois. 

Vol.  70.]  West  Chicago  St  R.  R.  Co.  v.  Ranstead. 

2.  Same— Drunfccn  Man  Entitled  to  the  Exercise  of,  for  His  Pro- 
tection.— A  drunken  man  is  as  much  entitled  to  the  exercise  of  ordinary 
care  for  his  safety  as  a  sober  one,  and  much  more  in  need  of  it. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the  Hon.  Arthur  H.  Chetlain,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1897.  Affirmed  if 
remittitur  be  entered,  otherwise  reversed  and  remanded.  Opinion  filed 
May  6,  1897. 

Alexander  Sullivan,  attorney  for  appellant;  E.  J.  Mc- 
Ardle,  of  counsel. 

In  the  highway  the  rights  of  the  pedestrian  and  public 
are  mutual,  concurrent  and  reciprocal,  but  in  the  tracks  the 
traveler's  right  is  subordinate,  the  cars  superior.  Booth, 
St.  Ry.  Law,  Sec.  303;  Chicago,  B.  &  Q.  R.  R.  Co.  v.  Lee, 
Adm'r,  87  111.  454;  Baker  v.  Eighth  Ave.  R.  E.  Co.,  69  N.  T. 
Sup.  Ct.  39  (62  Hun);  Carson  v.  Fed.  St.  Ry.  Co.,  35  Cent. 
L.  J.  145;  Child  v.  N.  0.  &  C.  R.  R.  Co.,  33  La.  Ann.  154; 
Donnelly  v.  B.  City  R.  E.  Co.,  109  N.  Y.  16;  Ehrisman  v. 
E.  H.  C.  P.  Ry.  Co.,  24  Atl.  R.  596;  Fleckenstein  v.  D.  D. 
E.  B.  ife  B.  R.  Co.,  105  N.  Y.  655;  Smith  v.  M.  C.  E.  E.  Co. 
87  Me.  339;  Thomas  v.  Citizens  P.  Ey.  Co.,  132  Pa.  St.  504; 
Warner  v.  People's  St.  Ey.  Co.,  141  Pa.  St.  615;  Wilbrand 
V.  Eighth  Ave.  E.  E.  Co.,  3  Bosw.  5  K  Y.  Sup.  314. 

A  person  taking  a  more  than  ordinarily  dangerous  course 
must  exercise  vigilance  proportioned  to  the  danger.  Beach, 
Contributory  Negligence,  Sec.  9,  p.  22;  Barker  v.  Savage, 
45  N.  Y.  191;  B.  &  O.  E.  E.  Co.  v.  Whitacre,  35  Ohio  St. 
627;  Chicago,  B.  &  Q.  E.  E.  Co.  v.  Olson,  12  111.  App.  245; 
Chicago  &  N.  W.  Ey.  Co.  v.  Eielly,  40  111.  App.  416;  Chi- 
cago, E.  L  &  P.  E.  E.  Co.  V.  Houston,  95  U.  S.  697;  Childs 
V.  N.  O.  City  E.  E.  Co.,  33  La.  Ann.  154;  Gumb  v.  23d  St. 
Ey.  Co.,  53  N.  Y.  Super.  Ct.  466;  Miller  v.  St.  P.  Ey.  Co., 
42  Minn.  454;  Mayor  of  N.  Y.  v.  Bailey,  2  Denio.  (K  Y.) 
433. 

Taking  place  of  danger  is  an  assumption  of  all  attending 
risks.  Illinois  C.  E.  E.  Co.  v.  Beard,  49  111.  App.  232;  Illi- 
nois C.  E.  E.  Co.  V.  Hall,  72  111.  222;  Simmons  v.  T.  H.  & 
I.  E.  E.  Co.,  110  111.  340;  Peoria  v.  Walker,  47  111.  App. 


FiKST  District — March  Term,  1897.       113 

West  Chicago  St.  R.  R.  Co.  v.  Ranstead. 

182;  Beach,  Contrib.  Neg.,  Sec.  12;  Halpin  v.  3d  Ave.  K. 
R.  Co.,  40  K  Y.  Super.  Ct.  175;  Johnson  v.  Canal  &  C.  Ry. 
Co.,  27  La  Ann.  53;  Mercier  v.  N.  O.  &  C.  R.  R.  Co.,  23 
La.  A^nn.  274;  Miller  v.  St.  P.  Ry.  Co.,  42  Minn.  454;  Morris 
V.  L.  S.  &  M.  S.  Ry.  Co.,  42  N.  E.  R.  579;  Rose  v.  Phila.  R. 
R.  Co.,  12  Atl.  R.  78;  Smith  v.  M.  C.  R.  R.  Co.,  87  Me. 
339;  Trousclair  v.  Pac.  C.  S.  Co.,  80  Cal.  521. 

The  gripman  had  a  right  to  assume  appellee  would  take 
precautions  commensurate  with  the  dangers  naturally  inci- 
dent to  the  situation,  or  created  by  his  own  conxiuct.  Bun- 
yan  v.  Citizen's  Ry.  Co.,  29  S.  W.  R.  842;  Everett  v.  Los  A. 
C.  E.  Ry.  Co.,  43  Pac.  R.  207;  GHazebrook  v.  W.  End  St. 
Ry.  Co.  (Mass.),  35  K  E.  R.  553;  Fenton  v.  2d  Ave.  Rd. 
Co.,  26  N.  E.  R.  967;  Moore  v.  P.,  W.  &  B.  R.  R.  Co.,  loS 
Pa.  St.  349;  Poole  v.  N.  Car.  &  C.  R.  Co.,  8  Jones  L.  (N. 
C.)  340;  Starry  v.  D.  &  S.  W.  R.  Co.,  51  la.  419. 

Collision  on  a  railroad  crossing  with  a  traveler  is  presump- 
tive evidence  of  his  negligence.  Smith  v.  M.  C.  R.  R.  Co., 
87  Me.  339;  Hooper  v.  B.  &  M.  R.  R.  Co.,  81  Me.  261. 

Case  &  Hooan  and  Munson  T.  Case,  attorneys  for  ap- 
pellee. 

A  street  railroad  company  has  not  the  exclusive  right  to 
the  use  of  the  public  streets,  but  only  to  the  use  of  them 
jointly  with  the  balance  of  the  public,  and  therefore  its 
servants  must  take  notice  of  the  number  of  travelers  liable 
to  be  on  the  streets  at  street  crossings,  and  must  exercise 
the  care  demanded  by  the  increased  danger  at  such  points. 
Chicago  City  Ry.  Co.  v.  Jennings,  157  111.  278;  Baltimore 
Traction  Co.  v.  Wallace,  77  Md.  435. 

In  the  State  of  Illinois  the  right  of  a  traveler  to  use  a 
street  is  not  stibordinate  to  the  right  of  a  railroad  company 
to  use  their  cars  thereon.  Chicago  West  Division  Ry,  Co. 
V.  Ingraham,  131  111.  661. 

The  gripman  had  no  right  to  assume  that  the  appellee 
would  take  unusual  precautions;  and  it  is  improper  for  any 
court  to  say,  as  a  matter  of  law,  that  the  gripman  might 
presume  anything.    Presumptions  have  nothing  to  do  with 

Vol.  LXX  • 


114  Apphllate  CouiiTs  OF  Illinois. 

Vol.  70.]  West  Chicago  St.  R.  R.  Co.  v.  Ransteaa. 

the  questions  involved.  Illinois  Central  E.  R.  Co.  v.  Slater, 
139  111.  199;  Chicago  &  A.  R.  E.  Co.  v.  Sanders,  154  111. 
538. 

A  collision  on  a  railroad  crossing  with  a  traveler  is  not 
presumptive  evidence  of  his  negligence.  Chicago,  St.  L. 
&  P.  E.  E.  Co.  V.  Hutchinson,  120  111.  593;  Lake  Shore  & 
M.  S.  Ev.  Co.  V.  Hessons,  150  111.  546. 

The  questions  of  negligence  of  the  appellant  and  care 
were  properly  submitted  to  the  jury.  Chicago  &  A.  E.  E. 
Co.  V.  Fisher,  38  111.  App.  40. 

Mtt.  Justice  Gary  delivered  the  opinion  of  the  Court. 

On  the  2^th  day  of  February,  1894,  the  appellee,  then  in 
his  fifty-fifth  year,  but  with,  so  far  as  appears,  mental  and 
physical  powers  unimpaired  by  age  or  disease,  left  the  hotel 
where  he  lodged  between  five  and  half  past  five  o'clock 
p.  M.  to  go  north  across  Madison  street,  for  his  supper.  His 
route  was  over  the  west  cross-walk  of  Dearborn  street. 

In  the  language  of  the  clerk  of  the  hotel,  "he"  (the 
appellee)  "  was  sober  enough  to  walk,  and  drunk  enough  tci 
be  a  little  noisy,"  which  description  of  his  happy  condition 
is  corroborated  by  the  testimony  of  the  proprietor  of  the 
hotel. 

When  he  reached  the  cross-walk,  a  street  car  of  the 
appellant  was  standing  on  the  track,  and  his  own  version 
of  the  accident,  copying  from  the  abstract,  is  as  follows: 

"  The  Madison  street  car,  with  reference  to  the  west  side- 
walk of  Dearborn  street,  was  standing  about  ten  feet  west 
on  Madison.  As  I  step]:)ed  over  the  first  rail,  the  car  struck 
me  and  throwed  me  under  the  car  and  rolled  me  there  about 
twenty  feet — ketched  me  as  I  was  stepping  over  the  first 
rail  and  was  just  going  on  the  track.  As  I  was  stepping 
over  the  first  rail,  the  south  rail,  with  this  foot  first  and 
was  going  with  the  other,  it  caught  me  in  the  hip  and 
throwed  me  against  another  gentleman  that  was  walking 
side  of  me." 

To  a  man  attentive  to  his  surroundings,  and  in  the  exer- 
cise of  ordinary  care,  no  such  accident  could  have  happened. 


First  Disthict-^March  Term,  1897.       115 

West  Chicago  St  R.  R.  Co.  v.  Ranstead. 

The  home  of  the  appellee  had  been  in  Chicago  nearly  all 
bis  life.  He  knew,  or  if  he  had  given  a  thought  to  the 
matter,  would  have  known,  that  the  car  was  stopped  only 
momentarily. 

Thus  far  I  have  written  my  own  opinion,  but  the  major- 
ity of  the  court  does  not  agree  to  the  conclusion  at  which  I 
arrive. 

In  the  opinion  of  my  colleagues,  the  question  of  care  by 
the  appellee  was  for  the  jury — that  in  considering  it,  they 
might  take  into  cotisideration  the  usual  conduct  of  ordina- 
rily prudent  and  careful  persons  in  threading  their  way 
through  the  crowds,  and  crossing  the  streets  thronged  by 
the  multitudes  of  the  great  bustling  city. 

Also,  that  other  testimony  presents  the  manner  of  the 
accident  more  favorably  to  the  appellee  than  does  his  own. 
A  policeman  stationed  at  the  crossing,  testified  that  the  car 
was  about  six  feet  west  of  the  crossing,  and  that  as  the 
appellee  '*  stepped  onto  the  track  the  car  shoots  forward, 
and  Kanstead  makes  a  plunge  to  get  off  the  track,  *  *  * 
and  the  car  struck  Kanstead  and  knocked  him  against 
another  man,"  and  Ranstead  fell  under  the  car. 

It  is  in  evidence  that  to  cross  Dearborn  street,  cars — thev 
are  cable  cars — have  to  make  the  crossing  by  the  momen- 
tum gained  before  reaching  the  cable  by  which  another  line 
of  cable  cars  is  run  upon  Dearborn  street,  at  a  right  angle 
to  the  Madison  line. 

What  influence  that  necessity  had  upon  the  care  required 
of  the  appellant  not  to  injure  pedestrians  at  the  crossing — 
or  rather,  whether  the  appellant  did  in  fact  exercise  such 
care— was  another  question  for  the  jury. 

Paraphrasing  the  language  in  Robinson  v.'Pioche,  5  Cal. 
^1»  a  drunken  man  is  a^  much  entitled  to  the  exercise  of 
such  care  as  a  sober  one,  and  much  more  in  need  of  it. 

We  all  agree  that  no  error  is  in  the  record,  if  upon  the 
^^idence  the  verdict  of  the  jury  was  justifiable. 

The  jury  awarded  ten  thousand  dollars.  After  a  remitti- 
^^r  of  one-fourth  of  the  verdict — probably  as  a  condition  of 
entering  judgment  for  the  appellee — the  court  entered  judg- 
ment for  the  other  three-fourths. 


70   iiel 

71s  572| 


116  Appellate  Courts  of  Illinois. 

-  I  .  ■  ,    Ml  I  • ^ 

Vol.  70.]  Siegel,  Cooper  &  Co.  v.  Connor. 

It  is  the  judgment  of  this  court  that  those  fractions 
should  be  exchanged,  and  that  if  within  ten  days  after  this 
opinion  is  filed,  the  appellee  enter  another  remmittitur  of 
five  thousand  dollars,  the  judgment  be  affirmed  for  twenty- 
five  hundred  dollars;  otherwise  that  the  judgment  be 
reversed  and  the  cause  remanded;  in  either  event  at  the  cost 
of  the  appellee. 


17l! 

lO    1161 

-??_iL^I  Siegel,  Cooper  &  Company  y,  Mary  A,  Connor. 

1.  False  Imprisonment— -4rre/^«  by  Private  Persona, — A  private 
person  has  no  right  to  arrest  another  on  mere  suspicion  that  he  has 
been  pcuilty  of  a  crime,  and  an  arrest  by  a  private  party  can  not  be  justi- 
fied unless  a  crime  has  been  committed  and  the  person  arrested  is  shown 
to  be  the  guilty  party. 

2.  Verdicts—  Upon  Conflicting  Evidence,— Whether  facts  alleged  as 
a  cause  of  action  or  defense  are  proved,  is  a  question  for  the  jury,  and 
where  the  evidence  is  conflicting  their  verdict  is  final. 

Trespass,  for  false  imprisonment.  Appeal  from  the  Superior  Court  of 
Ckx)k  County;  the  Hon.  Farljn  Q.  Ball,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  May  6, 
18»7. 

A.  BiNswANGER  and  S.  P.  Shope,  attorneys  for  appellant. 

Louis  Spahn  and  Marous  Kavanagh,  attorneys  for  ap- 
pellee. 

A  private  person,  in  order  to  justify  an  arrest  of  one 
accused  of  felony,  need  not  prove  that  the  felony  was  com- 
mitted be3^ond  reasonable  doubt.  A  mere  preponderance 
of  evidence  is  sufficient.    Lander  v.  Miles,  3  Ore.  35. 

If  an  innocent  person  is  arrested  upon  suspicion  by  a 
private  individual,  such  individual  is  excused  if  a  felony 
was  in  fact  committed,  and  there  was  reasonable  ground  to 
suspect  the  person  arrested.  Mulligan  v.  N.  Y.  &  E.  B. 
Ky.  Co.  129  N.  Y.  506. 

A  private  person  can  not  make  ^n  arrest,  unless  able  to 
show  conclusively,  as  justification,  that  a  criminal  offense 


First  District — March  Term,  1897.       117 

Siegel  Cooper  &  Co.  v.  Connor. 

has  been  committed  or  attempted  in  his  presence,  and  the 
person  arrested  is  shown  to  have  committed  or  attempted 
the  criminal  offense,  and  to  be  guilty.  1  S.  &  0.  Stat.,  Chap. 
33,  Par.  401,  845;  Kindred  v.  Stitt,  51  IlL  407. 

Regularly,  under  the  common  law,  neither  a  private  per- 
son nor  a  constable  can,  of  his  own  authority,  without 
warrant,  arrest  another  for  a  misdemeanor,  except  for  a 
breach  of  the  peace,  while  the  strife  is  going  on,  and  to  pre- 
vent its  continuance.  Hawkins,  in  "  Pleas  of  the  Crown," 
adds  to  the  right  as  against  actual  night  walkers,  and  actual 
cheats  with  dice,  to  prevent  them  from  escaping.  "  But," 
observes  Lord  Tenterden,  "  these  cases  in  Hawkins  are 
where  the  party  is  caught  in  the  act,  and  the  party  arrested 
is  guilty." 

Where  the  case  is  only  one  of  suspicion,  the  arrest  is  un- 
justifiable in  misdemeanor.     In  cases  of  misdemeanor  the 
parties  aggrieved  should  apply  to  a  justice  of  the  peace. for 
^  warrant,  and  not  take  the  law  into  their  own  hands. 
1  Addison  on  Torts,  Sec.  154. 

Soch  was  the  common  law,  and  our  statute  has,  in  actual 
*act,  made  very  little  change  in  it,  Newell  on  Malicious 
-Pi*osecution,  68. 

^arthermore,  the  only  purpose  for  which   private  indi- 

^^rfttals  may  arrest  persons  (and  as  just  shown,  they  may 

^ot  arrest  at  all  unless  the  arrested  person  is  guilty  of  or 

^^tempting  a  criminal  offense)  is  to  have  such  guilty  person 

6^1111  r^ed  by  the  proper  officer.    Newell  on  Malicious  Prose- 

c^tiau^    434,435. 

^■^^    Justice  Gary  delivered  the  opinion  of  the  Court. 

^*^^   ^appellee  was  shopping  in  the  mammoth  store  of  the 

PP^ll^^^t — bouo^ht  some  articles  for  which  she  paid.     She 

uaa  M^i^jj  jjQp  three  girls  of  eleven  to  thirteen  years  of  age, 

^^0  of    them  her  nieces. 

^^  tVie  store  was,  or  had  been  posted,  a  notice  of  a  reward 

oi  iWo  dollars  for  any  person  catching  a  thief — a  notice  of 

tue  dstxigerous  influence  of  which  the  appellant  probably 

^^^^^Q  convinced,  for  before  the  trial  of  this  cause  it  had 

^^  Withdrawn. 

-^  '*  saleslady  "  who  had  served  the  appellee  charged  her 


118  Appellate  Courts  of  Illinois. 

Vol.  70.]  Siegel,  Cooper  &  Co.  v.  Connor. 

with  stealing  two  handkerchiefs,  and,  as  a  result,  she  was 
taken  to  the  oflBce  of  the  manager,  who  exacted  from  her, 
and  was  paid,  five  dollars  for  the  two  handkerchiefs.  The 
selling  price  of  the  handkerchiefs  was  not  more  than  half  a 
dollar  each.  Thus  far  there  is  no  dispute.  Whether  she 
did  steal  the  handkerchiefs;  whether  she  acknowledged  or 
denied  that  she  did;  whether  she  paid  because  of  guilt,  or 
because  the  girls  with  her  were  crying,  are  matters  dis- 
puted. 

The  appellant  had  the  advantage  of  having  the  case  pre. 
sented  to  the  jury  by  the  instructions  as  one  in  which  mal- 
ice and  want  of  probable  cause,  on  the  part  of  the  appellant, 
were  necessary  elements  of  the  cause  of  action  by  the  ap- 
pellee. 

But  the  case  being  one  of  arrest  by  a  private  person  with- 
out process,  such  arrest  could  be  justified  only  by  proving 
the  actual  guilt  of  the  appellee.  Kindred  v.  Stitt,  51  111. 
401. 

Whether  such  proof  was  made  was,  upon  the  conflicting 
evidence,  a  question  for  the  jury,  and  the  verdict  is  final. 

That  the  jury  awarded  exorbitant  damages — $11,000 — 
may  be  conceded,  but  is  easily  accounted  for.  The  enor- 
mous extent  of  the  premises  occupied  by  the  appellant,  and 
of  the  business  which  it  conducted,  could  not  be  concealed 
from  a  Chicago  jury,  and  when  its  manager  exacted  from 
the  appellee  five  times  the  price  of  the  goods  which  she  was 
charged  with  stealing,  as  a  condition  of  liberty,  the  founda- 
tion for  smart  money  was  laid. . 

The  appellee  remitted  $8,500  of  the  amount  at  the  sug- 
gestion of  the  court,  and  judgment  was  entered  for  $2,500. 

We  will  not  take  time  or  space  to  review  eight  printed 
pages  of  the  instructions;  they  were  far  more  favorable  to 
the  appellant  than  the  law  will  justify. 

There  is  no  error,  unless  in  the  amount  of  damages. 

Shoplifting  is  a  frequent  crime,  to  which  every  possible 
check  should  be  encouraged,  but  such  checks  should  be  such 
as  not  to  offend  the  very  common  prejudice  in  favor  of  fair 
dealing.     Fair  v.  Himmel,  50  111.  App.  215. 

The  judgment  is  atfirmed. 


First  District — March  Term,  1897.       119 

C.  &  A.  R.  R.  Co.  v.  Redmond. 


Chicago  &  Alton   Railroad  Co.  y.  James  Redmond,  by 

his  Next  Friend. 

1.  Pt^eadino — Evidence  of  Negligence  Need  Not  Be  Stated, — It  is  not 
necessary  to  particularize  the  special  acts  of  carelessness  that  cause  a  a 
accident,  or,  in  other  words,  to  plead  the  evidence. 

2.  Neouoence— i?cZi an cc  Upon  a  Custom  of  a  Railroad  Company 
is  Not. — A  person  who  is  familiar  with  the  custom  of  a  railroad  com- 
pany to  close  gates  maintained  at  a  railroad  crossing  when  a  train  is 
about  to  pass,  and  with  the  location  and  surroundings,  has  a  right  to  rely 
upon  the  open  gates  as  a  notice  to  him  that  no  train  is  close  at  hand, 
and  as  an  invitation  to  him  to  make  the  crossing  in  safety,  so  far  as  an 
approaching  train  is  concerned. 

8.  Verdicts — When  Conchunve, — Whether  a  plaintiff  suing  for  per* 
aonal  injuries  caused  by  the  negligence  of  the  defendant  exercised  due 
care  for  his  own  safety  is  a  question  for  the  jury;  and  where  it  is  a 
question  upon  which  ordinarily  intelligent  men  may  reasonably  differ, 
and  there  is  evidence  enough  to  leave  the  question  one  of  considerable 
uncertainty,  a  court  of  appeal  has  no  right  to  override  the  finding  of 
the  jui-y. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Francis  Adams.  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  6,  1897. 

William  Brown,  General  Solicitor,  and  M.  J.  Scraffoed, 
Ass't  General  Solicitor,  attorneys  for  appellant;  T.  J.  Sco- 
FIELD,  of  counsel. 

The  first  count  alleges  generally  that  the  defendant,  by 
its  servants,  operated  said  train  of  cars  so  carelessly  and 
improperly  that  the  accident  occurred  \vhich  resulted  in  the 
injury  to  the  plaintiff.  It  would  seera  that  this  count  is 
insufficient,  in  failing  to  particularize  the  special  act  of  care- 
lessness which  caused  the  accident,  on  principle  and  under 
the  opinion  iu  Chicago,  B.  &  Q.  R.  E,  Co.  v.  Ilarwood,  90 
111.  425. 

It  is  the  plain  duty  of  every  one  who  attempts  to  pass 
over  a  railroad  crossing,  either  in  a  city  or  village,  to  observe 
the  usual  and  proper  precautions  of  looking  in  either  direc- 


70    119 
171 8  S47 


70  119 
pll3  «822 
114     «504 


120  Appellate  Courts  of  Illinois. 

Vol.  70.]  C.  &  A.  R.  R.  Co.  v.  Redmond. 

tion  and  watching  and  listening  for  signals  of  danger  before 
attempting  to  cross;  and  where  it  appears,  either  from 
direct  testimony  or  from  facts  and  circumstances  in  evi- 
dence,  that  a  party  is  injured  from  want  of  these  usual  and 
prudent  precautions,  the  law  can  afford  no  redress,  however 
fearful  the  injury.  Chicago,  B.  &  Q.  R.  E.  Co.  v.  Van  Patten, 
Adm'x,  etc.,  64  111.  510;  St.  Louis,  A.  &  T.  H.  R.  R.  Co.  v. 
Manly,  58  111.  300. 

In  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Hart,  87  111.  529,  our 
Supreme  Court  has  time  and  again  decided  that  it  was  the 
duty  of  every  person  about  to  cross  a  railroad  track  to 
approach  cautiously  and  endeavor  to  ascertain  if  there  is 
present  danger  in  crossing,  as  all  persons  are  bound  to  know 
that  such  an  undertaking  is  dangerous,  and  that  they  must 
takeall  proper  precaution  to  avoid  accident  in  so  doing,  other- 
wise they  could  not  recover  for  injury  thereby  received.  See 
Chicago  &  N.  W.  Ry.  Co.  v.  Sweeney,  52  111.  325;  Chicago, 
B.  &  Q.  R.  R.  Co.  v.Van  Patten,  64  III.  510;  Illinois  Central 
R.  R.  Co.  V.  Godfrey,  71  111.  500;  Illinois  Central  R.  R.  Co. 
V.  Hall,  72  111.  222;  Chicago,  B.  ife  Q.  R.  R.  Co.  v.  Damerell, 
81  111.  450;  Illinois  Central  R.  R.  Co.  v.  Hetherington,  83 
111,  510;  Lake  Shore  &  M.  S.  R,  R.  Co.  v.  Miller,  25  Mich. 
274;  Harlan  v.  St.  L.,  K.  &  N.  R.  R.  Co.,  64  Mo.  480;  Fletcher 
v.  The  Atlantic  &  Pacific  R.  R.  Co.,  64  Mo.  484;  Grorton  v. 
The  Erie  Ry,  Co.,  45  N.  Y.  662;  Wharton  on  Negligence, 
Sec.  384;  Chicago  &  N.  W,  Ry.  Co.  v.  Dunleavey,  129  111. 
132. 

WiNo,  Chadboubne  &  Leach,  attorneys  for  appellee. 

Mb.  Pbesiding  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

The  facts  in  the  case  are  simple,  and,  except  in  minor 
particulars,  are  not  in  dispute. 

The  appellee  was,  when  injured,  sixteen  years  old.  His 
home  was  in  a  little  village  named  Hastings,  a  mile  or  so 
south  of  the  village  of  Lemont,  and  on  the  Sunday  morning 
in  question  he  had  come  into  Lemont  to  attend  church. 


First  District — Makch  Tebm,  1897.       121 

^ _    _■  _  ■  _   _  _  I  n 

C.  &  A.  R.  R.  Co.  V.  Redmond. 

After  church  he  went  with  some  companions  to  or  near  the 
corner  of  Stephens  and  Canal  streets  in  Lemon t,  about  one 
hundred  feet  north  of  the  crossing  of  Stephens  street  by 
the  tracks  of  the  appellant.  While  standing  there  a  beer 
wagon  approached  on  Stephens  street  from  the  north, 
going  on  a  trot  toward  the  south  in  the  direction  of  Hast- 
ings. Some  of  the  boys  called  out  to  the  driver  if  he  were 
going  to  Hastings,  and  receiving  an  aiiirmative  answer,  but 
with  no  checking  of  the  speed  of  the  team,  the  appellee,  and 
at  least  one  other  boj%  started  to  get  aboard  the  wagon,  the 
speed  of  which  was  not  diminished  to  accommodate  them. 
The  other  boy  succeeded  in  getting  well  aboard  and  up  to 
the  driver's  seat.  The  wagon  was  rigged  with  stakes  and 
chains,  without  solid  sides  or  ends,  and  is  spoken  of  as  a 
*'*■  stake  beer  wagon."  Appellee  caught  hold  of  stakes  at 
the  tail  of  the  wagon,  and  had  got  so  far  aboard  as  to  be 
standing  upright  on  the  wagon  bottom  and  to  have  one  or 
both  his  legs  over  the  chain  that  extended  from  stake  to 
stake;  before  the  wagon  had  got  across  the  railroad  tracks, 
and  while  in  that  position  a  passenger  train  of  the  appel- 
lant coming  from  the  west,  and  variously  called  the  "  Hum- 
mer," the  "Flyer,"  and  the  "Limited,"  struck  the  hind 
part  of  the  wagon,  and  threw  appellee  a  distance  of  from 
sixty  to  seventy-tive  feet,  causing  him  the  very  serious 
injuries  for  which  he  recovered  the  judgment  of  $2,400  that 
is  appealed  from. 

The  declaration  contained  five  counts,  three  of  which 
charged  appellant  with  negligence  in  failing  to  conform  to 
the  provisions  of  certain  ordinances  of  the  village  of  Lemon  t, 
but  no  evidence  to  support  them  was  offered,  and  no  reli- 
ance upon  them  is  claimed  by  appellee. 

The  two  remaining  counts,  first  and  second,  alone,  are 
relied  upon  to  sustain  the  recovery.  The  first  count  charged 
the  appellant  with  negligence  generally  in  the  operation 
of  said  train,  and  averred  due  care  and  diligence  on  the  part 
of  appellee,  and  in  form  and  substance  was  clearly  within 
the  rule  stated  by  this  court  in  Chicago  City  Ry.  Co.  v. 
Jennings,  57  111.  App.  376,  affirmed  in  157  111.  274. 


122  Appellate  Courts  of  Illinois. 

Vol.  to.]  C.  &  A.  R.  R.  Co.  v.  Redmond. 

It  was  not  necessary  to  particularize  the  special  act  of 
carelessness  that  caused  the  accident,  or,  in  other  worth,  to 
plead  the  evidence.  The  negligence  averred  in  the  second 
count  lay  in  the  failure  to  ring  the  bell,  or  sound  the  whistle 
of  the  locomotive,  at  the  distance  of  eighty  rods  from  the 
crossing  of  the  highway. 

The  appellant  had  placed  and  maintained  gates  on  both 
sides  of  the  railroad  at  the  crossing,  which  the  evidence 
tended  to  show  was  at  times  a  busy  one,  but  on  the  day  in 
question  such  gates  were  not  being  operated  or  attended, 
and  were  in  a  position  to  indicate  to  anybody  needing  to^ 
pass  that  way  that  the  crossing  was  open  and  safe  against 
approaching  trains.  Appellant  also  kept  a  gateman  there 
who  operated  the  gates,  when  they  were  operated,  by  means 
of  a  coixi  or  wire,  but  be  was  at  the  time  of  the  accident 
about  one  hundred  and  fifty  feet  away  from  the  crossing. 

The  driver  of  the  wagon  testified  that  he  passed  over  the 
crossing  every  Sunday  morning,  and  had  before  that  time . 
been  stopped  there  by  the  gates  being  down  when  a  train 
Avould  be  approaching.  On  this  occasion,  it  is  conceded  the 
gates  were  up  and  unattended,  and  that  there  was  no  local 
indication  or  warning  that  the  train  was  coming. 

The  testimony  of  one  of  appellant's  witnesses,  who  was 
the  first  person  to  reach  appellee,  that  he  saw  the  flagman 
(gateman  ?)  leave  his  house  and  go  toward  the  crossing  before 
tbe  accident,  and  that  when  he,  the  witness,  got  to  the  cross- 
ing the  flagman  was  there,  tends  in  some  degree,  although 
perhaps  but  slightly,  to  show  that  the  gates  were  intended 
to  be  and  would  have  been  shut  before  the  train  arrived  if 
the  gateman  had  not  been  negligent  and  too  slow  in  his 
dutv. 

The  fact  that  it  was  on  Sundav  and  that  the  business  of 
the  town  was  not  active,  can  make  no  difference.  There 
was  evidence  that  the  gates  were  operated  on  Sundays  as  on 
other  days.  Negligence  or  no  negligence,  at  the  time  and 
under  all  the  circumstances,  was  the  question. 

It  is  argued,  however,  in  behalf  of  appellant,  that  although 
the  appellant  had  prior  to  that  morning  operated  the  gates 


First  District— March  Term,  1897,       123 

C.  &  A.  R.  R.  Co.  y.  Redmond. 

*^       ■     ^  I  ■  .^i^^—^^^— ^■^^l-^^— ^—^  ■■■■■■■  I  ■  ■  11  mm 

at  the  crossing,  it  was,  so  far  as  shown  by  this  record,  purely 
a  voluntary  and  gratuitous  act,  and  not  done  in  the  discharge 
of  any  duty  that  appellant  owed  to  the  appellee  tinder  any 
ordinance  or  law;  and  that  Appellee  had  no  right  to  presume 
that  such  operation  would  continue,  but  that  appellant  had 
a  perfect  right  to  suspend  operation  of  the  gates  at  any  time 
it  saw  fit. 

We  can  not  concede  that  although  the  gates  were  not 
maintained  by  requirement  of  ordinance  or  law,  but  were 
established  voluntarily  and  gratuitously  by  the  appellant, 
the  appellant  might  arbitrarily  without  any  attempt  at  notice 
to  the  public,  and  while  leaving  them  in  position  indicating 
their  purpose,   suddenly   suspend  their   operation  and  be 
exempt  from  negligence  because  of  them,  when  by  their 
long  use  it  had  come  to  be  known  and  understdod  by  the 
appellee  and  the  public  generally  that  the  gates,  by  their 
nianner  of  operation,  were  a  warning  and  safeguard  to  per- 
sons needing  to  go  over  the  crossing. 

The  gates  having  been  previously  operated  by  a  gateman, 
*'foT  some  years,"  as  one  witness  testified,  and  having  been 
^hGre  "for  a  couple  of  years  or  so,"  as  said  by  another  wit- 
ness, and  it  not  being  denied  that  the  gates  were  usuall}'- 
^P^t^aited  in  the  customary  way,  we  regard  it  as  being  no 
^OJT^^B  than  expressive  of  a  reasonable  legal  presumption  to 
^J^    -^hat  appellee,  whose  familiarity  with  the  custom,  loca- 
•^*^     and  surroundings  is  not  questioned,  had  a  right  to  rely 
F^*^^  *=:fc  the  open  gates  as  a  notice  to  him  that  no  train  was 
*^^^^  at  hand,  and  as  an  invitation  to  him  to  make  the 
^^^ing  in  safety,  so  far  as  an  approaching  train  was  con- 


1 


,      -*-  lae  negative  of  the  other  question,  of  whether  the  appel- 

^^"vas  exercising  due  care  and  diligence  for  his  own  safety, 

\^  Messed  with  much  force.     That  the  appellee  had  the 

'^•^^  to  go  over  the  crossing  upon  the  beer  wagon,  or  in 

^     other  reasonably  prudent  and  cautious  manner,  is  of 

^'^^  conceded.     But  it  is  said  that  he  owed  a  duty  to  look 

^»   and  that  if  he  had  done  so  he  would  have  seen  the 

^pToachins:  train  in  abundant  time  to  have  avoided  it.     It 


\ 


124  Appellate  Courts  op  Illinois. 

Vol.  70.]  City  of  Evanston  v.  O'Leary. 

certainly  was  his  duty  to  use  every  reasonable  precaution, 
s.uch  as  an  ordinarily  prudent  person  would  employ  before 
crossing  the  tracks  at  all,  and  that,  too,  whether  the  open 
gates  invited  him  to  come  on  or  not.  The  question  is,  what 
would  an  ordinarily  prudent  person  do  under  all  the  con- 
ditions and  circumstances  surrounding  the  appellee,  includ- 
ing the  circumstance  that  the  gates  were  open,  and  the  fur- 
ther circumstance,  testified  to  by  several  witnesses,  that  the 
sound  of  no  whistle  or  bell  was  heard  by  persons  near  to 
the  place  of  the  accident,  and  considering  also  the  speed  at 
which  the  train  was  moving  across  the  highway  ? 

One  of  the  effects  of  the  injury  received  by  the  appellee 
has  been  to  deprive  him  of  all  recollection  of  the  accident, 
and  we  are  deprived  of  any  testimony  by  him  as  to  what 
he  saw,  heard  or  did.  It  is  plain  enough,  from  the  testi- 
mony of  others,  what  he  did,  and  as  to  whether  his  conduct 
under  the  proved  circumstancies  amounted  to  due  care  for 
his  own  safety  became  a  question  of  fact  for  the  jury,  which 
they  were  better  able  to  determine  than  we  are,  and  it 
being  a  question  about  which  ordinarily  intelligent  men, 
having  a  duty  cast  upon  them,  might  reasonably  differ  upon, 
and  there  being  evidence  enough  to  leave  the  question  one 
of  considerable  uncertainty,  we  have  not  the  right  to  over- 
ride the  finding  of  the  tribunal  to  whom  the  law  has  en- 
trusted the  determination  of  such  matters.  C.  &  N.  W. 
Ey.  Co.  V.  Hansen,  No.  6844,  last  term. 

There  was  no  material  error  in  the  giving  or  refusing  of 
instructions. 

We  observe  no  necessity  for  the  discussion  of  anything 
else  in  the  record,  and  the  judgment  will  be  afiirmed. 


City  of  Evanston  r.  David  P.  O'Leary, 

1.  EmNENT  Domain — When  Proceedings  May  Be  Abandoned,— A 
city  may  abandon  condemnation  proceedingn  before  possefision  has  been 
taken,  but  after  it  has  taken  possession  of  the  land,  with  the  con- 
sent of  the  owner,  it  becomes  liable  to  pay  a  judgment  rendered  in  such 


First  District — March  Term,  1897.       125 

■ —        —  -^ 

City  of  Evanston  v.  O'Leary. 

proceedings,  and  an  action  of  assumpsit  may  properly  be  brought  for  the 
same. 

2.  Cities  and  Villages — Power  of  Council  to  Create  Liability. — 
Under  Section  13,  Art  8,  Chap.  24,  R.  S.,  the  affirmative  votes  of  seven 
members  of  a  city  coimcil  consisting  of  fourteen  members,  although 
they  be  a  majority  of  those  present,  are  not  sufficient  to  bind  the  city 
upon  any  proposition  that  creates  a  liability  against  the  city. 

8.  Samr— Application  of  Sec.  13,  Art.  3,  Chap.  j?4,  R.  Sf.— Where  up 
to  the  time  of  the  adoption  of  an  order  by  a  city  council  directing  pos- 
session to  be  taken  of  property  condenmed  for  public  use,  no  liability  to 
pay  the  compensation  existed  against  the  city,  and  where  all  the  acts  of 
possession  that  followed  the  order  were  done  in  pursuance  of  the  order 
and  under  no  other  right  or  authority — and  the  effect  of  such  acts  is  to 
create  a  liability  where  none  existed  before,  such  an  order  is  clearly 
within  the  spirit  of  Sec.  18,  Art.  8,  Chap.  24,  R.  S. 

4.  SAMSr—Acts  of  Officer  Under  Void  Order. — The  acts  of  an  officer 
of  a  city  in  taking  possession  of  property  condemned  for  use  as  a  street, 
where  the  officer  had  no  such  authority  b^  virtue  of  his  office,  and  acts 
only  by  virtue  of  an  order  of  the  city  council,  do  not  bind  the  city  unless 
the  order  was  a  lawful  one. 

Assampslt,  on  an  award  in  condemnation  proceedings.  Appeal  from 
the  Circuit  Court  of  Cook  County;  the  Hon.  Edward  F.  Dunne,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Reversed  and 
judgment  here.    Opinion  filed  May  6, 1807. 

George  S.  Baker,  attorney  for  appellant. 

To  hold  that  the  act  of  taking  possession  of  the  property 
of  appellee  condemned  for  municipal  purposes  is  not  an  act 
creating  liability  against  the  city,  is  to  reverse  all  of  the 
holdings  of  the  Supreme  Court  touching  this  subject.  That 
was  the  express  holding  of  the  Supreme  Court  and  of  this 
court  in  Chicago  v.  Barbian,  80  III.  482;  see  Chicago  &  N. 
W.  Ry.  Co.  V.  Chicago,  HS  111.  151;  and  City  of  Chicago  v. 
Hayward,  60  111.  App.  582. 

Ma.hsb  &  Gilbert,  attorneys  for  appellee;  John  Mayo 
Palmer,  of  counsel. 

The  mere  taking  possession  of  property  for  the  purpose 
of  a  street,  after  the  passage  of  a  valid  improvement  ordi- 
nance, is  clearly  such  a  matter  of  detail  and  is  of  such  purely 
administrative  character  that,  if  any  action  is  required  by 
the  counsel  to  authorize  it,  such  action  is  the  appropriate 


126  Appellate  Courts  of  Illinois, 

Vol.  70.]  City  of  Evanston  v.  O'Leary. 

subject  of  an  order  or  resolution  as  distinguished  from  an 
ordinance,  and  may,  therefore,  be  lawfully  taken  by  a 
majority  of  a  quorum.  Shaub  v.  City  of  Lancaster,  26  Alt. 
Kep.  1067;  Fairchild  v.  St.  Paul,  49  N.  W.  Rep.  325;  Eush- 
ville  Co.,  etc.,  v.  Eushville,  23  N.  E.  Rep.  72. 

Mr.  Presiding  Justice  Shepard  delitered  the  opinion 
OF  THE  Court. 

In  a  condemnation  proceeding  instituted  by  the  appellant 
for  opening,  widening  and  extending  a  street,  the  appellee 
was  awarded  $S,925  as  compensation  for  the  taking  and 
damaging  of  certain  premises  in  which  he  held  a  leasehold 
interest,  and  a  judgment  of  condemnation  was  duly  entered. 

After  the  award  and  judgment  were  had,  and  on  April 
80,  1695,  the  appellant  repealed  the  ordinance,  and  the  pro- 
ceedings in  condemnation  were  dismissed  and  all  orders 
therein  vacated  by  the  court  in  which  they  were  had. 

This  suit  in  assumpsit  was  begun  upon  such  judgment 
upon  the  theory  that  possession  of  the  condemned  property 
had  been  actually  taken  by  appellant,  and  the  appellee  hav- 
ing recovered,  this  appeal  comes. 

The  correctness  of  the  recovery  turns  upon  the  mixed 
question  of  law  and  fact,  whether  the  appellant,  with  the 
consent  of  the  appellee,  took  actual  possession  of  appellee's 
property  that  was  condemned. 

If  such  possession  were  taken  the  recovery  was  rightful. 
City  of  Chicago  v.  Shepard,  8  111.  App.  602;  Rice  v.  City  of 
Chicago,  57  111.  App.  558;  City  of  Chicago  v.  Hayward,  60 
111.  App.  5S2,  and  cases  therein  cited. 

The  facts  claimed  by  appellee  to  constitute  the  taking  of 
possession  by  the  appellant  are  alleged  in  the  declaration, 
as  follows : 

"  And  the  plaintiff  avers  that  on,  to  wit,  the  9th  day  of 
October,  1894,  the  said  defendant  duly  passed  a  resolution 
by  its  common  council  directing  its  commissioner  of  public 
works  to  immediately  take  actual  and  physical  possession  of 
all  the  plaintiff's  said  interest  in  said  above  described  real 
estate,  and   that  thereafter,  to-wit,  on   the   10th  day    of 


First  District — March  Term,  1897.       127 

City  of  Evanston  v.  O'Leary. 

October,  1894,  the  said  commissioner  of  public  works  took 
actual  and  physical  possession  of  the  plaintiff's  said  lease- 
hold estate,  under  and  by  virtue  of  said  resolution,  and  such 
condemnation  ordinance,  proceedings  and  judgment,  with 
the  consent  of  the  plaintiff,  for  the  purposes  set  forth  in  said 
ordinance,  petition  and  proceedings. 

And  the  plaintiff  avers  that  said  judgment,  by  reason  of 
said  defendant  taking  actual  and  physical  possession  of  the 
plaintiff's  interest  in  said  real  estate,  and  with  the  consent 
of  the  said  plaintiff,  became  absolute." 

The  city  council  of  appellant  consisted  of  fourteen  alder- 
men and  the  mayor,  and  the  resolution  referred  to  in  the 
declaration,  and  introduced  in  evidence,  received  seven  votes 
and  was  declared  adopted  by  the  mayor  jpro  tern. 

Section  13,  Art.3,  Chap.  24,  entitled  "  Cities,  Villages  and 
Towns,"  Rev.  Stat.,  111.,  provides: 

**  The  yeas  and  nays  shall  be  taken  upon  the  passao^e  of 
all  ordinances,  and  on  all  propositions  to  create  any  liability 
against  the  city,  *  *  *  and  the  concurrence  of  a  major- 
ity of  all  the  members  elected  in  the  citv  council  shall  be 
necessary  to  the  passage  of  any  such  ordinance  or.  propo- 
sition." 

Although  less  than  fourteen  aldermen  were  present  and 
voting,  the  quoted  section  of  the  statute  requires  the  con- 
currence of  a  majority  of  the  fourteen  "elected  "  members, 
and  in  our  opinion  no  resolution  adopted  by  a  less  number 
than  a  majority  of  fourteen,  which  seven  manifestly  was 
not,  could  bind  the  city  upon  any  proposition  that  created  a 
liability  against  the  city.  City  of  San  Francisco  v.  Hazen, 
5  CaL  169. 

We  do  not  mean  to  be  understood  that  there  can  be  no 
taking  of  possession  of  condemned  property  by  a  city,  such 
as  will  render  the  cit}'  liable  for  the  compensation  that  may 
have  been  awarded  in  condemnation  proceedings,  except  it 
he  done  by,  or  in  pursuance  of,  legislative  action  by  the 
city  counciL  But  where,  up  to  the  time  of  the  adoption  of 
an  order  by  the  council  directing  possession  to  be  taken,  no  ' 
liability  to  pay  the  compensation  existed  ao^ainst  the  city, 
and  where,  as  here,  all  the  acts  of  possession  that  followed 


128  Appellate  Courts  of  Illinois. 

Vol.  70.]  City  of  Evanston  v.  O'Leary. 

the  order  were  done  in  pursuance  of  the  order  and  under 
no  other  right  or  authority,  and  the  effect  of  such  acts 
would  be  to  create  a  liability  where  none  existed  before, 
then,  in  such  case  an  order  of  the  kind  relied  upon  he'*e  would 
be  clearly  within  the  spirit,  if  not  the  letter,  of  the  resvriotive 
clause  of  the  statute. 

The  commissioner  of  public  works,  who  went  upon  the 
premises  with  the  appellee,  went  there  in  pursuance  of  the 
authority  of  the  order  in  question,  and  his  conduct  consti- 
tutes everything,  beyond  the  order  itself,  which  is  claimed 
amounted  to  taking  possession.  He  had  no  authority  by 
virtue  of  his  oflBce  to  take  possession  of  the  premises,  and 
especially  none  where  if  by  so  doing  a  liability  of  the  kind 
claimed  by  this  suit  would  be  created.  City  of  Chicago  v. 
Shepard,  supra. 

And  acting  only  by  virtue  of  the  order  his  acts  would 
not  bind  the  city  unless  that  order  was  a  lawful  one. 

Up  to  the  time  of  the  purported  adoption  of  the  order  in 
question  there  was  nothing  but  a  conditional  judgment 
against  the  city,  from  which  the  city  could  become  entirely 
relieved  by  abandonment  of  the  proceedings  in  which  the 
judgment  was  rendered,  as  was  subsequently  done.  To 
change  that  condition  into  an  absolute  liabilitv  bv  the  city 
to  pay  the  amount  of  the  judgment  was  to  create  a  liabil- 
ity against  the  city,  to  do  which  required  the  concurring 
vote  of  more  of  the  aldermen  than  was  had  in  this  case. 

The  order  was  an  invalid  one  and  conferred  no  lawful 
power  upon  the  commissioner  of  public  works  to  take  pos- 
session of  the  propertj',  even  though  we  assume  that  what 
he  did  would  have  amounted  to  taking  possession  by  the 
city  had  he  been  lawfully  directed  to  do  what  was  done  by 
him.  A  motion  to  strike  out  the  bill  of  exceptions  was 
reserved  to  the  hearing,  and  upon  the  authority  of  Railway 
Passenger  and  Freight  Conductors  Mut.  Ben.  Ass'n  v.  Leon- 
ard, 166  111.  154,  followed  by  us  in  Scott  v.  Schnadt  (70  111. 
App.  25,  it  will  be  denied. 

Because  no  possession  was  taken  by  appellant,  the  judor. 
ment  of  the  Circuit  Court  will  be  reversed,  and  judgment 
for  the  appellant  will  be  entered  here. 


FiBST  District — March  Term,  1897.       129 

"  Union  Insurance  Co.  v.  Crosby. 


,-0    129 
ir26  335 


Union  Insurance  Co,  t.  Harjorie  H.  Crosby,  Adm'x.  etc.    7o~  139 

114    1449 

1.  Afpetxatb  Court  FRkcmcE—Insnfflcient  Bill  of  Exceptions.— 
Where  the  bill  of  exceptions  does  not  show  that  any  exception  was 

*  taken  to  either  the  finding  of  the  court,  the  overruling  of  the  motion 
for  a  new  trial,  or  the  judgment,  there  is  nothing  presented  upon  which 
the  Appellate  Court  can  act. 

2.  FRAcrriCE— Exceptions  Must  Be  Taken. — Although  a  cause  is  tried 
by  the  court  without  a  jury,  unless  an  exception  is  taken  to  the  finding, 
its  correctness  can  not  be  questioned  by  an  Appellate  Court. 

8.  8AMK—Exceptio}is  to  the  Owrruling  of  a  Motion  for  a  New  Trial.  — 
The  making  and  overruling  a  motion  for  a  new  trial  doeti  not  -  take  the 
place  of  exceptions  unless  the  overruling  of  such  motion  is  excepted  to. 

Assumpsit. --Appeal  from  the  Circuit  Court  of  Cook  County;  the 
Hon.  Edward  F.  Dunne,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term,  1897.    Affirmed.    Opinion  filed  May  6, 1897. 

IIamilton  &  Stevenson,  attorneys  for  appellant;  Hood 
Gilpin  and  Adelbebt  Hamilton,  of  counsel. 

W.  E.  HtTOHEs,  attorney  for  appellee;  D.  J.  ScHCYLEuand 
Thos.  L.  Humphbevillb,  of  counsel. 

Mb.  Justiob  Waterman  dbliyered  the  opinion  of  the 
Couet. 

This  was  an  action  of  assumpsit  in  which,  a  jury  having 
been  waived,  there  was  a  finding  and  judgment  by  the 
court  for  the  defendant. 

The  merits  of  the  case  seem  to  be  with  appellee. 

The  bill  of  exceptions  does  not  show  that  any  exception 
was  taken  to  either  the  finding  of  the  court,  the  overruling 
of  the  motion  for  a  new  trial,  or  the  judgment.  The  record 
therefore  presents  nothing  upon  which  we  can  act.  Ken- 
nedy, Adm'r,  V.  111.  Cent.  Ry.  Co.,  First  Dist.  111.  App.,  filed 
Feb.  9th,  1897;  St.  L.,  A,  &  T.  II.  R.  R.  Co.  v.  Dorsey,  ^^ 
III.  326:  Brown  V.  Clement,  68  111.  192;  Seibel  v.  Vau^han, 
69  111.  257;  Trustee  v.  Meisenheimer.  89  111.  151;  Grimes 
V.  Butts,  65  IlL  847. 

TokLXXt 


130  Appellate  Courts  of  Illinois. 


Vol.  70.]  Delaney  v.  Delaney. 


Although  a  cause  is  tried  by  the  court  without  a  jury, 
unless  an  exception  is  taken  to  the  finding,  its  correctness 
can  not  be  questioned  by  an  appellate  court.  Sherman  v. 
Skinner,  83  III.  584;  Duncan  v.  Chandler,  5  III.  App.  499. 

Nor  does  the  making  and  overruling  of  a  motion  for  new 
trial  take  the  place  of  exceptions  unless  the  overruling  of 
such  motion  be  excepted  to.  Duncan  v.  Chandler,  sujpra; 
Brooks  V.  The  People,  11  111.  App.  422. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


m.  187  Mary  Delaney  t.  Daniel  Delaney. 

70      1301 
^3    «23l|       1.    Beneptt  Societies— CT^aw^c  of  Beneflciary.—Dimng  his  life  a 

member  of  a  mutual  benefit  society  may  change  his  beneficiary  in 
any  way  not  prohibited  by  general  law,  or  by  the  charter  or  by  laws  of 
the  society,  or  by  the  terms  of  the  certificate. 

2.  Sxv.E—When  Vested  Rights  Accrue. — In  mutual  benefit  societies 
the  contract  of  insurance  is  between  the  society  and  the  meml)er,  and 
the  beneficiary  acquires  no  vested  right  in  the  benefit  fund  which  is  to 
accrue  upon  the  death  of  the  member,  until  such  death  takes  place. 

8.  Same— Afode  of  Changing  the  Beneficiary.  — Where  the  mode  of 
changing  the  beneficiary  named  in  the  certificate  of  a  benefit  society  is 
specified  in  the  contract  or  certificate  such  mode  must  be  substantially 
pursued;  but  the  rule  has  its  qualifications. 

4.  Same— Change  of  Beneficiary— New  Confracf.— When  the  parties, 
the  society  and  the  member,  agree  that  a  transaction  between  them  is  to 
be  treated  as  a  surrender  of  the  existing  certificate,  and  a  new  one 
with  a  new  beneficiary  is  issued,  a  new  contract  is  made  and  the  old  one 
abandoned  and  suspended,  although  the  old  certificate  may  be  in  the 
possession  of  the  original  beneficiary  and  out  of  the  power  of  the  mem- 
ber to  surrender. 

Bill  of  Interpleader.— Appeal  from  the  Circuit  Court  of  Cook 
County;  the  Hon.  Murray  F.  Tuley,  Judge,  presidmg.  Heard  in  this 
court  at  the  March  term,  1897.    Afiirmed.    Opinion  filed  May  6, 1897. 

James  E.  White  and  B.  F.  Moseley,  attorney's  for  appel- 
lant; Ward  B.  Sawyer,  of  counsel. 

A  life  insurani»,e  policy  is  a  chose  in  action  and  can  be 
assigned  by  a  delivery  like  any  other  chose  in  action;  and  a 


First  District — March  Term,  1897.       131 

Delaney  v.  Delaney. 

delivery  of  the  policy  for  the  purpose  of  assignment  will 
operate  without  any  writing.  2  Parsons  on  Contracts  (8th 
Ed.),  597;  Palmer  v.  Merrill,  6  Cush.  (Mass.),  286;  2  May  on 
Ins.  (3d  Ed.),  Sec.  389,  395;  Cook  v.  Black,  1  Hare  (Ch.), 
390;  2  Schouler's  Personal  Property  (2d  Ed.),  Sec.  72; 
Niblack  on  Ben.  Soc.  and  Acc'd  Ins.  (2  Ed.),  Sec,  167  and 
note. 

Francis  T.  Colby,  attorney  for  appellee. 
The   rights  of  appellee  are  not  impaired  by  the  amend- 
atory statute  approved  June    22,  1893    (Laws    of     1893, 
117).     Kersten  v.  Voigt,  61  111.  App.  42;  164  111.  314. 

The  charter  providing  that  widows,  orphans,  heirs  and 
devisees  might  be  beneficiaries,  appellee  was  qualified  to  be 
a  beneficiary.  Martin  v.  Stubbings,  126  111.  388;  Bloom- 
ingtonMut.  Ben.  Ass'n  v.  Blue,  120  111.  121;  Laws  of  1871-2, 
296;  Laws  of  1S73-4,  74;  Rockhold  v.  Canton,  Mass.  Mut. 
Ben.  Soc.  129  111.440. 

Appellant  had  no  vested  interest  under  first  certificate;  it 
^ing  issued  by  a  mutual  benefit  society  the  contract  was 
^ith  the  member  and  not  with  the  beneficiary.     Martin  v. 
^^abbings,  126111.  388;  Sup.  Council  v.Franke,  34  111.  App. 
^^ly  137111.118;  Conyneetal.v.  Jones,  51  111.  App.  17;  Ben- 
son   V,  Brotherhood,  146  111.  570. 
"^^^fcere  the  contract  of  mutual  benefit  Insurance  does  not 
^k^    away  the  power  to  change  the  beneficiary,  the  mem- 
*^^     Ixas  the  right.     Benton  v.  Brotherhood,  146  111.  570; 
Jofa  rx^on  V.   Van   Epps,  110  111.  551;    Niblack   Ben.   Soc. 
VJ^O-:^    Ed.),  407,  Sec.  212;  Highland  v.  Highland,  109  111. 


e  delivery  of  the  certificate  to  the  beneficiary  named 
>^0rein  has  no  eflfect  whatever  upon  the  right  of  the  mem- 
ijer  to  change  the  designation,  as  provided  in  the  contract  of 
insurance,  and  this  though  the  possessor  of  the  certificate 
has  paid  the  assessments.  Masonic  Ass'n  v.  Bunch,  J  09 
Mo.  560;  Fisk  v.  Eq.  Aid  Union  (Pa.),  1 1  Atl.  Eep.  84; 
Brown  v.  Grand  Lodge,  80  Iowa,  287;  Hirschl  v.  Clark,  81 
Iowa,  200;  Isgrigg  v.  Schooley,  125  Ind.  94. 


132  Appellate  Courts  op  Illinois, 

Vol.  70.]  Delaney  v.  Delaney. 

— —  >  .1   - I ,  ■  ■      - 

Among  successive  equities  otherwise  equal,  and  Jilso  be- 
tween a  legal  title  or  superior  equitable  interest  earlier  in 
time  and  a  subsequent  equity,  the  holder  of  the  interest 
which  is  prior  in  time  and  would  be  prior  in  right  may  lose 
his  precedence  and  be  postponed  by  his  negligence.  No 
actual  fraudulent  intent  is  essential.  When  one  keeps  silent 
and  does  not  announce  his  title  to  an  innocent  person  who 
is  making  expenditures  or  advancing  money  upon  the  sup- 
posed security  of  the  property,  his  laches  constitute  an 
equitable  estoppel.  2  Pomeroy's  Eq,  Juris.  (2d  Ed.),  Sec. 
731,  and  cases  cited  in  note  1;  Reiss  v.  Hanchett,  141  111. 
419;  Eldridge  v.  Walker,  80  111.  270. 

Mr.  Phesidino  Jcsticb  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  was  a  bill  filed  by  the  High  Court  Independent 
Order  of  Foresters  to  require  the  appellant  and  appellee  to 
interplead  and  settle  between  themselves  their  respective 
claims  to  $1,000,  admitted  by  the  order  to  be  due  and  owing 
from  it  upon  an  endowment  certificate  payable  ujx)n  the 
death  of  Martin  Delaney,  a  member  of  said  order,  who  died 
October  25, 1893.  The  appellant  was  the  wife  of  the  mem- 
ber, Martin  Delaney,  and  the  appellee  was  his  remote 
relative. 

The  original  endowment  certificate  was  issued  November 
14,  1882,  and  was  made  payable  "  to  Mary  Delaney,  his 
wife."  Such  certificate  was  delivered  by  the  order  to  Mar- 
tin Delaney,  the  member,  and  by  him  delivered  to  the 
appellant,  his  wife,  about  the  time  it  was  issued,  and  it 
remained  continuously  in  her  possession  from  that  time 
until  the  bill  was  filed. 

January  6,  1887,  Martin  represented  to  the  order  that  he 
had  lost  such  certificate,  and  requested  that  a  new  one  be 
issued  to  him,  payable  to  the  Mercy  Hospital,  which  was 
done,  without  a  surrender  in  fact  of  the  original  certificate. 
Subsequently,  on  July  24,  1888,  Martin  sun^endered  to  the 
order  the  certificate  which  was  payable  to  the  Mercy  Hos- 
pital, and  requested  that  a  new  certificate  be  issued  payable 


i 


First  District— March  Term,  1897.       133 


Delaney  t.  Delaney. 


'*  to  Daniel  Delaney  (the  appellee),  his  cousin,"  which  was 
done. 

The  contest  is  between  the  appellant,  as  holder  of  and  as 
the  person  named  in  the  original  certificate,  and  the  appel- 
lee, as  holder  of  and  as  the  person  named  in  the  last  cer- 
tificate. 

There  was  evidence  that  the  original  certificate  was  taken 
out  and  delivered  by  Martin  to  his  wife  in  consideration  of 
her  past  support  of  him,  and  of  moneys  that  she  had  fur- 
nished or  loaned  to  him — ^some  $4:00  being  so  furnished  or 
loaned  before  their  marriage — ^and  that  she  paid  his  initia- 
tion fee  of  about  $7  when  he  took  out  the  certificate  for  her 
benefit,  and  that  she  agreed  with  him  to  pay  all  dues  and 
assessments  that  should  be  asked  of  her.  There  is  no  evi. 
dence  that  any  subsequent  dues  or  assessments  were  ever 
asked  from  her,  although  she  testified  that  she  "  kept  up  the 
dues  and  assessments  as  I  (she)  agreed  with  my  (her)  hus- 
band, and  paid  all  that  I  (she)  had  any  notice  of." 

From  the  time  the  last  certificate  payable  to  appellee  was 
issued,  he,  the  appellee,  paid  all  dues  and  assessments  until 
Martin's  death,  and  in  so  doing,  and  in  the  matter  of  Mar- 
tin's board  at  the  hospital  and  his  funeral  expenses,  appellee 
paid  out  from  $250  to  $300  for  Martin. 

When  Martin  procured  the  issuance  of  the  certificate 
payable  to  Merc3»^  Hospital,  he  furnished  to  the  order  his 
affidavit  that  the  original  certificate  had  been  "  either  lost, 
destroved  or  stolen."  Such  affidavit  was  not  true,  and  was 
probably  known  by  Martin  to  be  false,  for  there  is  evidence 
that  Martin  asked  his  wife  for  the  certificate,  and  that  she 
refused  to  give  it  up. 

The  appellant  testified  that  Martin  told  her  that  appellee 
had  asked  him  to  make  over  the  certificate  to  him,  and 
that  he  at  first  told  her  he  was  not  going  to  do  it,  but  sub- 
sequently told  her  he  had  done  so.  Her  only  reply  to  such 
information  was  by  way  of  asking  Martin  why  he  did  so, 
to  which  he  answered  that  he  was  drunk  and  did  not  know 
what  he  was  doing.  She  does  not  appear  to  have  ever 
claimed  any  further  right  under  the  certificate  until  after 
Martin's  death. 


134  Appellate  Courts  of  Illinois. 

Vol.  70.]  Delaney  v.  Delaney. 

Therb  was  no  evidence  that  the  order  ever  made  inquiry 
of  the  appellant  for  the  original  certificate,  or  gave  or 
attempted  to  give  her  any  notice  that  Martin  had  applied 
for  a  new  certificate  to  take  its  place,  or  that  such  new  one 
would  be  or  had  been  issued  payable  to  a  diflferent  person 
than  herself.  The  order  seems  to  have  acted  wholly  upon 
the  sworn  statement  of  Martin  that  the  original  certificate 
was  lost  or  destroyed  when  it  issued  the  new  one  payable 
to  the  hospital,  and  upon  the  actual  surrender  of  that  one 
Avhen  it  issued  the  last  one  payable  to  the  appellee.  The 
original  certificate,  after  reciting  that  it  was  issued  to 
Martin  upon  certain  stated  conditions,  contained  the  fol- 
lowing : 

"These  conditions  being  complied  with,  the  said  High 
Court  of  the  I.  O.  F.  of  Illinois,  hereby  promises  and  binds 
itself  to  pay  to  Mary  Delaney,  his  wife,  one  thousand  dol- 
lars upon  satisfactory  evidence  of  the  death  of  said  member 
and  upon  the  surrender  of  this  certificate,  provided  that 
said  member  is  in  good  standing  in  this  order  at  the  time  of 
his  death,  and  provided  also  that  this  certiticiite  shall  not 
have  been  surrendered  by  said  member  and  another  certif- 
icate issued  at  his  request  in  accordance  with  the  laws  of 
the  onier." 

And  each  of  the  subsequent  certificates  was  exactly  the 
same,  except  in  the  name  and  description  of  the  beneficiary. 

We  have  stated  sufficient  of  the  facts,  although  not  all 
of  them,  to  show  what  the  question  of  law  is  that  arises  in 
the  case,  viz. :  Was  the  original  certificate  annulled  and  the 
appellant  deprived  of  her  right  to  the  fund  by  what  was 
subsequently  done  without  her  knowledge  or  consent? 

In  mutual  benefit  societies  the  contract  of  insurance  is 
between  the  society  and  the  member,  and  the  beneficiary 
acquires  no  vested  right  in  the  benefit  fund  which  is  to  ac- 
crue upon  the  death  of  the  member,  until  the  death  takes 
place.     Niblack  on  Benefit  Societies  (2d  Ed.),  Sec.  212. 

And  it  would  seem,  therefore,  to  follow  that  during  his 
life  the  member  may  change  his  beneficiary  in  any  manner 
not  prohibited  by  general  law,  or  the  charter  or  by-laws  of 


First  District — March  Term,  1897.       135 

Delaney  v.  Delaney. 

the  society,  or  by  the  certificate  itself.  Voigt  v.  Kersten, 
164  111.  314.  Where,  however,  a  mode  of  changing  the  ben- 
eficiary be  specified  in  the  contract  or  certificate  it  should 
be  substantially  pursued.     Ibid.  Sec.  218. 

But  even  in  such  a  case  the  rule  has  its  qualifications. 
Ibid.  Sec.  219. 

In  this  case  there  does  not  appear  to  have  been  any 
express  provision  for  changing  the  beneficiary^;  at  least  we 
have  been  pointed  to  none.  Undoubtedly  the  order  would 
be  required  to  issue  a  new  certificate  payable  to  anew  bene- 
ficiary whenever  it  should  accept  a  surrender  of  the  former 
certificate,  but  not  otherwise.  What  shall  constitute  such 
a  surrender  and  acceptance  of  surrender  must,  in  the  absence 
of  express  provision,  be  left  to  the  parties  to  the  certificate — 
the  order  and  the  member — to  agree  upon.  The  beneficiary, 
having  no  vested  interest  in  the  certificate  until  after  death  of 
the  member,  is,  in  our  opinion,  without  legal  right  to  interfere. 
And  when  the  parlies  to  the  contract — the  order  and  the  mem- 
ber— agree  that  a  transaction  between  them  is  to  be  treated 
as  a  surrender  of  the  old  certificate,  and  a  new  certificate  is 
issued  with  a  new  beneficiarv,  a  new  contract  comes  into 
force  and  the  old  one  becomes  abandoned  and  superseded. 

It  does  not  seem  that  the  mere  manual  surrender  of  a  cer- 
tificate should  be  required  if  the  parties  elected  to  dispense 
with  it.  The  provision  of  the  contract  that  the  fund  would 
be  paid  to  the  beneficiary  named  upon  a  surrender  of  the 
certificate  (by  the  beneficiary)  provided  that  the  certificate 
should  not  have  been  sooner  surrendered  by  the  member, 
would  seem  to  contemplate  the  case  of  a  member  who  had 
delivered  his  certificate  to  the  beneficiary  and  could  not  con- 
trol its  manual  possession,  but  who  nevertheless  had  effected 
a  legal  surrender  of  it  and  obtained  another  certificate  in 
favor  of  a  different  beneficiary.  At  any  rate,  we  can  not 
conceive  any  principle  existing  in  the  theory  of  mutual 
benefit  insurances  that  will  give  to  the  holder  and  benefi- 
ciary of  a  former  certificate  the  power  of  preventing  the 
member  and  society  from  making  a  new  contract  naming  a 
different  beneficiary.    To  admit  such,  would  be  to  acknowl- 


70    136 
82    385 


136  Appellate  Couins  op  Illinois. 

Vol.  70.]  Harper  v.  Dixon. 

edge  the  existence  of  a  vested  interest  by  a  beneficiary  in 
the  contract  during  the  lifetime  of  the  member  and  from 
the  moment  of  the  making  of  the  contract,  which  we  under- 
stand no  authority  sustains. 

Nor  can  the  appellant  sustain  her  right  to  the  fund  upon 
any  principle  applicable  to  gifts  or  general  contracts.  But 
we  will  not  discuss  the  case  further,  except  to  add  that  it 
possesses  features  of  considerable  callateral  importance 
which  it  would  be  desirable  to  have  settled  by  the  Supreme 
Court. 

The  decree  of  the  Circuit  Court  is  affirmed. 


70    136 

79  6^,  John  E.  Harper  et  al.  v.  L.  B.  Dixon  et  al. 


1.  Pleading — Proper  Designation  of  Parties. — Upon  an  instrument 
for  the  payment  of  money  signed  by  persons  as  "  directors  of,"  etc.,  it  is 
proper  to  aUege  that  the  signers,  by  the  name  and  style  of  the  **  direct^ 
ors  of,"  etc.,  promised  to  pay,  etc.,  and  such  allegation  can  not  be  denied 
under  pleas  not  sworn  to. 

2.  Appellate  Court  Practice— ^bs^racf  Mttst  Show  Upon  What 
Floors  are  Based. — Alleged  errors  not  based  upon  anything  appearing 
in  the  abstract  of  the  record  wiU  not  be  considered  by  the  court 
Shively  v.  Hettinger,  67  111.  App.  278. 

Assnmpsit,  on  an  instrument  in  writing.  Appeal  from  the  Superior 
Court  of  (>x)k  County;  the  Hon.  William  G.  Ewing,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.     Opinion  filed  May  6, 1897. 

■ 

Soanlan  &  Masters  and  J.  E.  Kicketts,  attorneys  for 
appellants. 

W.  A.  Sheridan,  attorney  for  appellees. 

-Mr.  Justice  Gary  delivered  the  opinion  of  the  Coukt. 

The  abstract  does  not  show  who  were  plaintiffs  or  defend- 
ants in  the  Superior  Court,  nor  who  are  appellants  or  appel- 
lees here — for  or  against  whom  any  judgment  was  rendered, 
nor  what  kind  of  declaration  was  filed. 


First  District — March  Tekm,  1897.       137 

Harper  v.  Dixon. 

We  guess  that  a  suit  was  commenced  by  L.  B.  Dixon  and 
William  J.  Brooks  against  John  E.  Harper,  S.  A.  McWill- 
iams  and  Silas  T.  Yount,  upon  an  instrument  in  the  words 
and  figures  following: 

"  March  2S,  lSi)3,  the  directors  of  the  Clinical  College  of 
Medicine  &  Specialty  Hospital,  through  its  officers,  agree  to 
pay  to  Messrs.  Dixon  &  Brooks  for  their  services  on  the 
buildings  located  on  Wabash  avenue  and  Eda  street,  as  fol- 
lows: 1 1,000  in  thirty  days;  $1,000  in  sixty  days;  $1,000  in 
ninety  days;  $2,000  in  stock  at  par  when  roof  is  on;  $2,000 
in  stock  at  par  when  building  is  completed. 

Signed :        J.  E.  Harper, 

S.  A.  McWlLLIAMS,  M.  D., 

Sec'y  and  Director. 
Silas  T.  Yount." 

Which  said  instrument  was  indorsed  with  these  words : 
"We  agree  to  the  above  terms  in  full  of  all  demands. 

Signed :        Dixon  &  Brooks." 

A  proper  declaration  upon  that  instrument  would  allege 
that  the  signers  of  it,  "  by  the  name  and  style  of  the  direct- 
ors of  the  Clinical  College  of  Medicine  &  Specialty  Hos- 
pital," promised  to  pay  Dixon  &  I^rooks;  and  such  allegation 
could  not  be  denied  under  any  pleas  not  sworn  to.  D  wight 
V.  Newall,  15  111.  333;  Neteler  v.  Culies,  18  HI.  188;  Frank- 
land  V.  Johnson,  46  111.  App.  430. 

The  opinion  of  the  Supreme  Court  in  the  last  case,  as 
reported  in  147  111.  520,  seems  to  us  to  be  in  conflict  with 
its  earlier  judgments,  but  there  is  no  intimation  that  it  was 
intended  to  overrule  or  modify  them.  No  sworn  plea  is 
shown  by  the  abstract,  and  all  presumptions  being  in  favor 
of  the  correctness  of  the  judgment,  we  must  presume  that 
t^e  pleading?  were  such  that  no  issue  whether  the  appel- 
lants were  promisors  was  presented. 

There  seems  to  have  been  considerable  work  done  bv  the 
appellees  at  the  request  of  the  appellants,  in  making  sketches 
^^d  plans,  though  no  building  was  done.  It  is  not  probable, 
fj^m  the  evidence  shown  by  the  record,  that  in  such  request 
^•nything  was  said  about  corporate  or  individual  liabilit}'^, 


70    138 
170s  290 


138  Appellate  Courts  of  Illinois. 

Vol.  70.]  Pease  v.  L.  Fish  Furniture  Co. 

and  the  law  will  generally  imply  individual  liability  from  a 
request  when  nothing  is  said  as  to  who  will  pay. 

Upon  the  evidence  the  verdict  of  the  jury  for  the  appel- 
lees does  not  appear  unwarranted. 

The  abstract  does  not  show  that  the  appellants  excepted 
to  any  instruction  given,  or  requested  any  to  be  given;  nor 
that  any  motion  for  a  new  trial  is  mentioned  in  the  bill  of 
exceptions. 

Very  little  attention  is  paid  to  the  frequent  decisions  that 
courts  will  not  go  beyond  the  abstract  to  find  errors. 
Shively  v.  llcttinger,  67  111.  App.  278.  The  judgment  is 
affirmed. 


James  Pease  v.  The  L.  Fish  Furniture  Co. 

1.  Statutes — Orammaticdl  Accuracy  in  Construing. — In  construing 
statutes,  grammatical  accuracy  is  not  so  much  to  be  sought  for  as  tlie 
intent  and  purpose  of  the  enactment. 

2.  Chattel  Mortgages— For  Purchase  Money.— Section  84,  Chap- 
ter 95,  R.  S.,  entitled  "  Mortgages,"  providing  that  no  cliattel  mortgage 
executed  by  a  married  man  or  woman  on  household  goods  shall  he  valid 
unless  joined  in  by  the  husband  or  wife,  has  no  application  to  a  mort- 
gage given  to  secure  the  purchase  money  of  the  goods  upon  which  it  is 
given.    Paterson  v.  Higgins,  58  111.  App.  268,  followed. 

ReploTin. — Appeal  from  the  Superior  Court  of  Cook  County;  the  Hon. 
Arthur  H.  Chetlain,  Judge,  presiding.  Heard  in  this  coiui;  at  the 
March  term,  1897.    Affirmed.    Opmion  filed  May  6,  1897. 

[Note. — The  memorandum  mxide  by  the  justice  before  whom  the  mort- 
gage icas  acknowledged^  held  sufficient  by  the  court,  wa^  as  follows  : 

**  Chattel  Mortgage,  (  Mrs.  Abby  Pinkston 

Dated  Sept.  12,  1894.  i  to 

Consideration  $600.00.  (  L.  Fish. 

Ack'd  and  ent'd  Sept.  14,  1894. 

8  chamber  suits,  3  folding  beds,  1  dresser,  3  toilet  dresser,  8  matt.,  2 
cheffoniers,  3  springs,  1  center  table,  1  center  table,  1  6-foot  extension 
table,  2  center  tables,  10  pair  pillows,  1  pair  curtains,  10  comforters,  1 
Laurel  range,  pipe,  furniture  and  water  front.  No.  1408  Wabash  Av."] 

S.  W.  McCaslin,  attorney  for  appellant. 
HoFHEiMEE  &  Pflaum,  attomoys  for  appellee. 


First  District — March  Tkrm,  1897,       139 

High  Court  Ind.  Order  of  Foreeters  v.  Schweitzer. 

Mk.  Justice  Waterman  delivered  the  opinion  of  tub 
Court.  ' 

Appellee,  "  a  regular  dealer  on  the  so-called  installment 
plan,"  sold  to  a  married  woman  a  quantity  of  furniture, 
taking  as  security  therefor  a  chattel  mortgage  upon  the 
property^  so  sold;  the  mortgage  was  executed  by  the  pur- 
chaser alone,  her  husband  not  joining  therein,  which  mort- 
gage was  duly  acknowledged  and  recorded. 

Thereafter,  judgment  having  been  obtained  against  the 
purchaser,  a  levy  was  made  ui)on  the  mortgaged  property; 
thereupon  appellee  replevied  said  furniture. 

yfe  have  in  Patterson  v.  Iliggins,  58  III.  App.  268,  passed 
upon  the  question  here  presented.  To  the  ruling  in  that 
case  we  adhere. 

Appellant  urges  that  the  grammar  of  the  chattel  mort- 
6^e  statute  is  opposed  to  the  construction  we  have  put 
upon  that  act. 

Jn  construing  statutes,  grammatical  accuracy  is  not  so 

^acb  to  be  sought  for  as  the  intent  and  purpose  of  the 

©/lactment.    Endlich  on  Construction  of  Statutes,  Sec.  113. 

The  memorandum  made  by  the  justice  before  whom  the 

^^ortg-a^ge  was  acknowledged  was  sufficient.     Crescent  Coal 

toci    JVlining  Co.  v.  Kaymond,  57  111.  App.  197.    Affirmed. 


.  '.     *>«^stjrance — False  Statements  in  the  Application, — An  applicant 

/^'^^v^Tance,  as  to  his  employment  stated  that  he  was  "managing  a 

,      ^^^ait,  etc. ; "  on  the  trial  it  appeared  that  he  was  not  the  manager  of 

r^^^^urant  but  a  barkeeper  in  it    Held,  that  the  keeping  of  a  restau- 

^  Bo  commonly  connected  with  the  selling  of  liquors  and  the  keep- 

WOf    ^  ^^^^  ^j^^^  ^^  statement  **  managing  a  restaurant,  etc."  would 

coa  ^  ^  ^jj^  ordinaiy  mind  that  the  applicant  among  other  things  sold 

^^^"^  or  tended  bar. 

^  Words  and  Phrases— JE^  ccetera, — ^The  phrase  et  ccetera,  for  which 
^*  ^  an  abbreviation,  imports  other  purposes  of  a  like  chai*acter  to 
\\vQ*e  whieli  have  been  named. 


"70    1391 
nU  395! 


'Sli     Court  of  the  Independent  Order  of  Foresters  t.    ^^^^  ic 

Lillie  Schweitzer. 


140  Appellate  Courts  of  Illinois. 

Vol.  70.]    High  Court  Ind,  Order  of  Foresters  ▼.  Schweitzer. 

Assam  pslt,  on  a  policy  of  life  inRurance.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Edward  F.  Dunne,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  6,  1807. 

Statement  of  the  Case. 

This  is  an  appeal  from  the  Circuit  Court  of  Cook  County 
to  reverse  a  judgment  rendered  against  the  appellant  in 
favor  of  the  appellee  for  $3,000  and  costs,  in  an  action  of 
assumpsit  on  a  life  insurance  policy. 

On  the  18tli  dav  of  Januarv,  A.  D.  1892,  Charles 
Schweitzer,  the  husband  of  appellee,  made  application  for 
membership  in  Court  Sedgwick,  No.  17t>,  of  the  Independ- 
ent Order  of  Foresters,  of  the  State  of  Illinois,  and  became 
a  member  of  appellant,  and  was  insured  by  it  in  the  sum 
of  $1,000,  and  continued  in  said  relation  with  appellant 
until  the  1st  day  of  August,  A.  D.  1895,  when  he  surren- 
dered and  returned  to  appellant  the  endowment  certificate, 
and  directed  that  a  new  one  be  issued  to  him  payable  to 
appellee,  his  wife,  for  $3,000.  In  making  an  application 
for  an  increase  of  endowment  on  July  9,  1895,  he  signed  a 
written  application  for  an  increase  of  endowment,  in  which 
application  he  answered  certain  questions  propounded  by 
the  medical  examiner  making  such  examination,  as  fol- 
lows :  "  Q.  What  class  of  business  are  you  engaged  in  ? 
A.  Restaurant  manager.  Q.  State  fully  the  duties  of 
your  employment.  A.  Managing  a  restaurant,  etc."  At 
and  for  a  considerable  period  before  that  time,  he  was 
enofaged  in  a  saloon  and  restaurant  kept  by  one  Charles 
Holstrom,  at  93  E.  Washington  street,  Chicago.  He  had 
sole  control  and  charge  of  the  place,  in  the  absence  of  the 
proprietor;  he  bought  goods  for  the  restaurant  and  saloon, 
paid  bills,  hired  and  paid  help  and  "  tended"  bar  from  8 
A.  M.  to  8  p.  M.  six  days  in  the  week.  He  continued  in  such 
employment  up  to  the  lime  of  his  death. 

In  section  2  of  article  16  of  the  constitution  and  bv-laws 
of  the  high  and  subordinate  courts  of  appellant,  it  is  pro- 
vided that  saloon  keepers  and  bar  tenders,  together  with 
individuals  engaged  in  certain  other  occupations,  shall  be 


First  District — March  Term,  1897.       141 

High  Court  Ind.  Order  of  Foresters  v.  Schweitzer. 

eligible  for  membership  in  said  order,  in  what  is  known  as 
the  "Hazardous  Kisk  Class,"  and  there  is  also  provided  for 
members  insured  in  said  class  a  special  rate  of  assessment, 
differing  materially  from  the  rates  fixed  for  members  in- 
sured in  the  ordinary  risk  class. 

Schweitzer  continued  a  member  of  said  appellant,  and 
was  by  it  insured  for  $3,000  in  the  ordinary  risk  class,  and 
paid  therefor  the  amount  of  assessments  required  of  mem- 
bers belonging  to  said  class  until  the  13th  day  of  November, 
A.  D,  1896,  when  he  departed  this  life. 

Stedman  &  SoELKE,  attomcys  for  appellant. 

A  warranty  is  a  stipulation  inserted  in  writing  on  the 
face  of  the  policy  on  the  literal  truth  or  fulfillment  of  wliich 
the  validity  of  the  entire  contract  depends.  Ripley  v. 
^tna  F.  Ins.  Co.,  30  N.  Y.  157;  Angell  on  Insurance,  Sec. 
140;  Bacon  on  Benefit  Societies  and  Life  Insurance,  Vol.  1, 
Sec.  194. 

Where  the  policy  of  insurance  recites  that  the  statements 
made  in  the  application  were  warranted  to  be  true  and  the 
basis  of  the  contract,  such  statements  are  considered  as  war- 
ranties. Prov.  Sav.  L.  Asso.  Soc.  v.  Reutlinger,  25  S.  W. 
Rep.  835;  Continental  L.  Ins.  Co.  v.  Rogers,  119  111.  4S2; 
Thomas  V.  Fame  Ins.  Co.,  108  111.92;  Ripley  v.  iEtna  Insur- 
ance Co.,  30  N. Y.  136;  Foley  v.  Roy  Arc,  28  N.  Y.  Supp.  952. 

Where  the  application  is  expressly  declared  to  be  a  part 
of  the  policy  it  becomes  a  part  of  the  contract,  and  if  the 
statements  therein  made  by  the  applicant  are  warranted  to 
be  true,  their  falsity  will  bar  a  recovery  on  the  policy. 
Grand  Lodge  of  O.  U.  W.  v.  Jesse,  50  111.  App.  101;  Royal 
Tem.  of  Temperance  v.  Curd,  111  111.  284;  High  Court  I.  O. 
F.  V.  Zak,  136  111.  187;  Continental  L.  Ins.  Co.  v.  Rogers, 
119  111.  482;  Bacon  on  Ben.  Soc.  and  L.  Ins.,  Vol.  1,  Sec.  196, 
and  cases  cited;  Barteau  v.  Phoenix  Mutual  Life  Ins.  Co., 
67  N.  T.  595;  Ripley  v.  uEtna  Ins.  Co.,  30  K  Y.  136. 

And  such  statements  will  be  deemed  material,  whether  so 
in  fact  or  not,"  and  their  falsity  will  avoid  policy  however 
innocently  made,  notwithstanding  they  may  have  no  agency 


142  Appellate  Courts  of  Illinois. 

Vol.  70.]    High  Court  Ind.  Order  of  ForcBters  v.  Schweitzer. 

in  causing  the  loss  or  producing  the  death  of  the  insured. 
Thomas  v.  Fame  Ins.  Co.,  108  111.  92;  Con.  L.  Ins.  Co.  v. 
Rogers,  119  111.  482;  Ripley  v.  JEtna  L.  Ins.  Co.,  30  N.  Y. 
136;   Barteau  v.  Phoenix  L.  Ins.  Co.,  67  Id.  595. 

The  courts  have  no  other  alternative  than  to  srive  effect 
to  the  contract  of  the  parties.  12  Cush.  423;  59  Am.  Dec. 
192. 

Where  applicant  represented  his  occupation  to  be  that  of 
a  printer,  when  in  fact  he  was  tending  bar,  such  misrepre- 
sentation exonerates  the  insurer.  Holland  v.  Supreme 
Council  C.  O.  F.,  25  Atl.  Rep.  368;  Dwight  v.  Ger.  L.  Ins. 
Co.,  103  N.  Y.  341;  8  N.  E.  Rep.  654. 

Fitch  &  Duha,  attorneys  for  appellee. 

It  does  not  necessarily  follow  that  every  statement  con- 
tained in  an  insurance  policy  is  to  be  deemed  a  warranty, 
although  it  be  declared  to  be  such  in  terms.  Continental 
Life  Ins.  Co.  v.  Thoena,  26  III.  App.  495;  Continental  Life 
Ins.  Co.  V.  Rogers,  119  111.  474. 

Forfeitures  are  odious  to  the  law,  and  in  enforcing  them 
courts  should  neversearch  for  that  construction  of  language 
which  must  produce  a  forfeiture  when  it  will  bear  another 
reasonable  construction  ^vhich  will  not  produce  such  a 
result.     Hartford  Fire  Ins.  Co.  v.  Walsh,  54  111.  165. 

The  laws  and  rules  of  the  association  should  be  liberally 
construed  to  promote  its  benevolent  object.  Union  Mut. 
Ace.  Assn.  V.  Frohard,  134  111.  228;  Alexander  v.  Parker, 
42  111.  App.  455. 

Mr.  Justice  Waterma^n  delivered  the  opinion  of  the 
Court. 

It  is  urged  that  the  deceased  made  untruthful  answers 
upon  his  application  for  an  increase  of  his  insurance.  The 
answer  as  to  his  employment  was,  that  he  managed  a  res- 
taurant, etc.  The  keeping  of  a  restaurant  is  so  commonly 
connected  with  the  selling  of  liquors  and  the  keeping  of  a 
bar,  that  the  statement "  managing  a  restaurant,  etc.,"  Avould, 
to  the  ordinary  mind,  convey  the  idea  that  applicant,  among 
other  things, sold  liquors  or  "tended"  bar. 


First  District — March  Term,  1897.       143 

Traders  Ins.  Co.  v.  Northern  Pacific  Express  Co. 

The  phrase  et  ccetera,  for  which  etc.  is  an  ah^reviation, 
imports  other  purposes  of  a  like  character  to  those  which 
have  been  named.  Noscitur  a  sociis.  J  ames  Schouler,  peti- 
tioner, 134  Mass.  427;  Hayes  v.  Wilson,  105  Mass.  21;  Am. 
and  Eng.  Ency.  of  Law,  Vol.  7,  35;  Gray  v.  Central  Ry.  Co., 
11  Hun,  70. 

If  appellant  desired  a  more  definite  statement  it  should 
have  asked  for  it. 

There  was  neither  concealment  nor  misrepresentation. 

It  appears  that  before  the  endowment  certificate  had  been 
delivered,  the  attention  of  Court  Eureka  No.  8,  to  which 
the  insured  belonged,  was  called  to  his  application,  and  it 
was  then  stated  in  open  meeting  by  Mr.  Peters,  one  of  the 
members,  that  Charles  Schweitzer  was,  to  the  best  of  the 
knowledge  of  the  speaker,  not  the  manager  of  the  restau- 
rant, but  a  barkeeper;  that  he,  Peters,  "  took  dinner  there 
every  day." 

Such  evidence  was  admissible  as  bearing  upon  the  ques- 
tion of  whether  the  insured  had  by  his  application  deceived 
appellant,  and  that  its  action  in  issuing  the  certificate  and 
receiving  payment  therefor  had  been  based  upon  a  misun- 
derstanding. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


Traders   Insurance  Co.  v.  The  Northern  Pacific  Ex- 
press Co. 

1.  Insurance— '^on«frwc<io»  of  Policies  ^ Ambiguities.-— liisxxrKtiQQ 
policies  are  construed  against  the  party  by  whonot  they  are  issued.  If 
ambigious  the  doubt  will  be  resolved  against  the  insurer. 

2.  CJoNSTRDcnoN— 0/  Contracts. — All  contracts  are  to  be  construed 
80  as  to  effectuate  the  intent  of  the  parties. 

8.  Ck>NTRACTS — A  Contract  Construed. — ^When  an  insurance  company 
iBsaed  a  policy  insuring  an  express  company  against  loss  or  damage  by 
fire,  on  express  matter  and  accrued  charges  on  same,  only  while  con- 
tained in  cars  while  in  transit  upon  lines  owned,  leased  or  operated  by 


TO    143 
83    518 


144  Appellate  Courts  of  Illinois. 

Vol.  70.]    Traders  Las.  CJo.  v.  Northern  Pacific  Express  Co. 

the  Northern  Pacific  Railroad  Co.,  it  was  held,  that  the  policy  was 
intended  to  apply  to  future  events;  tliat  the  contract  of  insurance  was 
made  with  reference  to  losses  that  might  happen  subsequent  to  the 
time  it  was  entered  into,  and  covered  property  in  transit  in  cars  at 
any  time  within  the  period  of  its  duration. 

Assnmpsit^  on  a  policy  of  insurance.  App?al  from  the  Circuit  Court 
of  Cook  County;  the  Hon.  Abner  Smith,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Reversed  and  remanded.  Opinion 
filed  May  6,  1897. 

Statement  op  the  Case. 

Appellant  issued  to  appellee  a  policy  of  the  following 
import : 

"  The  Traders  Insurance  Company  of  Chicago,  III. 
No.  019,322.  $48,000. 

In  consideration  of  four  hundred  and  eighty  dollars  do 
insure  Northern  Pacific  Express  Co.  against  loss  or  damage 
bv  fire  to  the  amount  of  fortv-eiffht  thousand  dollars 
($48,000),  on  express  matter  and  accrued  charges  on  same, 
only  while  contained  in  cars  while  in  transit  upon  lines 
owned,  leased  or  operated  by  the  Northern  Pacific  Kailroad 
Co.,  loss  not  to  exceed  $4,800  in  anyone  car.  It.  being 
affreed  and  understood  that  this  insurance  covers  asrainst 
loss  by  fire  only  on  express  matter  of  every  description  and 
kind  owned  by  the  assured,  as  well  as  their  liability  as  com- 
mon carriers,  but  this  insurance  shall  not  apply  to  express 
matter  in  cars  while  the  same  are  in  any  building. 

To  attach  to  policy  No.  019,322,  Traders  Insurance  Co. 

Other  insurance  permitted. 

E.  J.  Smith,  Secretarv. 

Against  all  such  immediate  loss  or  damage  sustained  by 
assured  as  may  occur  by  fire  to  the  property  herein  state<l, 
not  exceeding  the  sum  insured,  nor  the  interest  of  assured 
therein,  except  as  hereinafter  provided,  from  the  twenty- 
fourth  day  of  March,  1893,  at  12  o'clock  noon,  to  the 
twenty-fourth  day  of  March,  1894,  at  12  o'clock  noon,  the 
said  loss  or  damage  to  be  estimated,  etc.,  *  *  *  and  to 
be  paid  sixty  days  after  the  written  notice  and  proofs,  etc. 


First  District — March  Term,  1897.       14«5 

Traders  Ins.  Co.  v.  Northern  Pacific  Express  Co. 

*  *    *    (various  provisions  in  regard  to  application  and 
survey,  other  insurance,  title,"  etc.,  etc.) 

The  declaration  filed  in  this  case  sets  forth  that  on  October 
15,  1893,  plaintiff  had  in  its  possession  certain  express  mat- 
ter owned  by  it,  and  certain  other  express  matter  and  other 
property  which  it  was  then  and  there  transporting  as  a 
common  carrier,  all  in  one  certain  car,  and  was  then  and 
there  entitled  to  certain  charges  for  the  transportation 
thereof,  and  while  said  property  was  contained  in  said  car 
while  said  car  and  said  property  were  in  transit  upon  a  line, 
to- wit,  a  line  of  railroad  which  at  the  date  of  the  execution 
of  said  policy  of  insurance  was  leased  and  operated  by  the 
Northern  Pacific  Railroad  Company,  and  while  said  car  was 
iiot  in  any  building;  and  on,  to- wit,  said  15th  day  of  October, 
1893,  said  property  was  then  and  there  destroyed  by  fire; 
that  at  the  time  of  making  said  policy,  and  from  thence  until 
the  happening  of  the  loss  and  damage  hereinbefore  men- 
tioned, it,  the  said  plaintiff,  had  an  interest  in  the  said 
property,  and  in  accrued  charges  thereon,  to  the  amount  of 
the  said  sum  so  by  the  defendant  insured  thereon  as  afore- 
^'d,  etc.    *    *    * 

Various  averments  concerning  notice,  proof  of  loss,  etc., 
^^d  usual  ending. 

To  this  appellant  filed  a  general  demurrer,  which  being 
J^erruled,  defendant  elected    to  stand   by  its  demurrer 
^er-ottpon  judgment  in  favor  of  plaintiff  was  entered,  and 
^^-Tiiages  were  assessed  at  $3,361.    From  which  judg- 
^Qt   t;tie  defendant  appealed. 

*-^^^*^feK,  JuDAH,  WiLLARD  &  WoLF,  attomeys  for  appellant. 

*  -*^,  Knapp,  attorney  for  appellee. 

*^^:ii  a  policy  is  fairly  susceptible  of  two  different  con- 
racit:.^^^^^^  that  one  will  be  adopted  which  is  most  favor- 

^^W^  the  insured. 

^-^^^  is  announced  as  the  seneral  rule  in  the  text-books; 
^WVA   ti^^  ]yeen  specifically  adopted  by  the  courts  of  many 
^X^^-^a.     1  Beach  on  Insurance,  549. 

TolLXX  10 


its 


146  Appellate  Courts  of  Illinois. 

Vol.  70.]     Traders  Ins.  Co.  v.  Northern  Pacific  Express  Co. 

"  The  sole  object  of  insurance  being  indemnity  against 
loss,  any  ambiguity  in  the  policy  will  be  resolved  against 
the  insurer  so  as  to  effectuate  that  purpose.  If  the  words 
employed  in  a  contract  of  insurance  themselves,  or  in  con- 
nection with  other  language  used  in  the  instrument,  or  in 
reference  to  the  subject-matter  to  which  they  relate,  are 
susceptible  of  the  interpretation  given  them  by  the  assured, 
although  in  fact  intended  otherwise  by  the  insurer,  the 
policy  will  be  construed  in  favor  of  the  assured."  May 
on  Insurance,  3d  Edition,  Sec.  175;  Thompson  v.  Phoenix 
Ins.  Co.,  136  U.  S.  287;  DeGraflf  v.  Queen  Ins.  Co.,  38 
Minn.  501;  Western  &  Atlantic  Pipe  Lines  v.  Home  Ins. 
Co.,  22  Atl.  665;  McKeesport  Machine  Co.  v.  Ben  Frank- 
lin Ins.  Co.,  173  Pa.  St.  53;  Niagara  Fire  Ins  Co.  v.  Scam- 
mon,  100  111.  644;  Healy  v.  Mut.  Accident  Association,  J  33 
111.  556;  Union  Mut.  Accident  Ass'n  v.  Frohard,  134  111. 
228;  Travelers  Ins.  Co.  v.  Dunlap,  160  111.  642;  Met.  Acci- 
dent Ass'n  V.  Froiland,  161  III.  30;  Getman  v.  Guardian 
Fire  Ins.  Co.,  46  111.  App.  489;  Fireman's  Fund  Ins.  Co.  v. 
Western  Kef.  Co.,  55  III.  App.  329. 

Mr.  Jcsticb  Waterman  delivered  the  opinion  of  the 
Court. 

Insurance  policies  are  construed  against  the  party  by 
whom  they  are  issued.  If  a  policy  be  ambiguous,  the  doubt 
will  be  resolved  against  the  insurer.  1  Beach  on  Insur- 
ance, 549;  May  on  Insurance,  3d  Ed.,  Sec.  175;  Getman  v. 
Guardian  Fire  Ins.  Co.,  46  111.  App.  489;  Fireman's  Fund 
Ins.  Co.  V.  Western  Refrigerator  Co.,  55  111.  App.  329. 

All  contracts  are  to  be  reasonably  construed  so  as  to  eflfec- 
tuate  the  intent  of  the  parties  thereto. 

Appellee  has  furnished  us  with  the  following  as  illustrat- 
ing the  ambiguity  it  finds  in  the  policy : 

"  The  Traders  Insurance  Company  *  *  *  do  insure 
the  Northern  Pacific  Express  Company  against  loss  or  dam- 
age by  fire  to  the  amount  of  forty-eight  thousand  dollars 
($48,000)  on  express  matter  and  accrued  charges  on  same 
only  I  while  contained  in  cars  |  while  in  transit  upon  lines 


FiPwST  District — March  Term,  1897.        147 

Traders  Ins.  Co.  v.  Northern  Pacific  Express  Co. 

[?hJi]  owned,  leased  or  operated  by  the  Northern  Pacific 
Railroad  Company."  As  to  which  appellee  says:  "An 
effort  is  made  above,  as  will  be  noted,  to  indicate  graphic- 
ally the  contentions  of  the  parties  in  this  case,  by  separat- 
ing certain  of  the  phrases  from  each  other  and  by  interpo- 
lating the  two  words  in  brackets. 

The  declaration  states  that  the  loss  occurred  while  the 
express  matter  was  on  a  line  of  railroad  "which,  at  the  date 
of  the  execution  of  the  policy,  was  leased  and  operated  by 
the  Northern  Pacific  Eailroad  Company.  It  does  not  state 
that  the  line  of  railroad  upon  which  the  loss  occurred  was 
*  owned,  leased  or  operated'  by  the  Northern  Pacific  Eail- 
road Company  at  the  time  of  the  loss.^^ 

We  regard  the  meaning  of  the  policy  to  be  clear,  and 
that  there  is  no  need  for  an  interpolation  of  either  "  now  " 
or  "  then." 

It  is  manifest  that  the  policy  under  consideration  was 
intended  to  apply  to  future  events.  The  contract  was  made 
with  reference  to  losses  that  might  happen  subsequent  to 
the  time  it  was  entered  into. 

It  was  to  cover  property  in  cars  in  transit,  etc.,  at  any 
time  from  the  24th  day  of  March,  at  noon,  1893,  to  the  24th 
day  of  March,  at  noon,  1894. 

It  was  not  confined  to  property  at  the  time  of  the  execution 
of  the  contract  (now)  in  cars,  or  limited  to  property  in  cars 
at  the  making  of  the  agreement  (now)  in  transit,  but  applied 
to  property  between  the  24th  day  of  March,  1893,  and  the 
24th  day  of  March,  1894,  in  transit. 

The  phraseology  of  the  policy  is  like  that  of  one  covering 
the  stock  of  a  merchant,  and  its  meaning  is  the  same. 

"One  thousand  dollars  on  stock  of  groceries  contained  in 
store  456  Randolph  street,  from  March  24,  1893,  to  March 
24, 1894,"  means  not  the  stock,  the  articles  (now)  contained, 
bat  any  stock  that  may  be  in  the  store  between  the  dates 
named. 

The  expressed  goods  covered  by  the  policy  under  con- 
sideration, like  the  goods  of  a  merchant,  are  continually 
changing.    The  policy  was  not  designed  as  an  indemnity 


148 


Appellate  Courts  of  Illinois. 


Vol.  70.] 


HinchliS  v.  Rudnick. 


against  loss  of  goods  in  transit  when  it  was  made,  but 
against  loss  during  the  described  year  that  might  happen  in 
cars  while  on  lines  owned,  leased  or  operated  by  appellant, 
not  while  in  cars  on  lines  that  were  at  the  time  of  the  exe- 
cution of  the  policy  owned,  leased  or  operated  by  appellant. 
Neither  the  date  of  the  policy  nor  the  time  at  which  it  was 
executed  is  set  forth  in  the  declaration;  while  therefrom  it 
does  appear  that  the  insurance  was  from  March  24, 1893,  to 
March  24,  1894,  "on  express  matter"  "only  while  con- 
tained in  cars  while  in  transit  upon  lines  owned,  leased  or 
operated  "  by  appellant. 

The  case  of  Eed  Wing  Mills  v.  Mercantile  Ins.  Co.,  19 
Fed.  Eep.  115,  is  analogous  to  the  present.  See.  also 
Farmers  Mut.  Fire  Ins.  Assn.  v.  Kryder,  31  N.  E.Eep.  851; 
Towne  v.  The  Fire  Assn.  of  Philadelphia,  27  111.  App.  433, 
and  Bradbury  v.  Fire  Ins.  Assn.  15  Atl.  Rep.  34. 

The  judgment  of  the  Circuit  Court  is  reversed  and  the 
cause  remanded. 


70       148 
104     *372 


George  Hinchliff  and  Edward  Harlan  y.  Joseph 

Rudnick. 

1.  TiSRADTSQ— Allegations  of  Duty,— An  allegation  that  a  certain 
line  of  conduct  was  a  duty  is  superfluous.  If  from  the  facts  stated,  the 
law  implies  a  duty,  the  charge  is  sufficient. 

2.  Same — Statement  of  Material  Averments, — In  general,  material 
averments  in  pleading  must  be  aUeged  with  certainty. 


Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Charles  G.  Neely,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Heversed  and  remanded. 
Opinion  filed  May  6,  1897. 

Edwin  F.  Abbott,  attorney  for  appellants. 


F.  M.  BuEWASH,   attorney  for  appellee;  J.  W.  Btam,  of 
counsel. 


First  District — March  Term,  1897.       149 

HinchliJS  y.  Rudnick. 

Mr.  Justiob  Waterman  deliyerbd  the  opinion  of  the 

CJOUBT. 

It  is  necessary  that  material  allegations  shall  be  unequiv- 
ocally made.  The  declaration  in  the  present  case  is  faulty 
because  it  is  uncertain. 

In  one  count,  the  allegation  as  to  negligence  and  its  con- 
sequence is  as  follows : 

"  The  defendants,  whilst  they  were  then  and  there  carry- 
ing on  said  work  as  aforesaid,  negligently,  wrongfully  and 
improperly  left  or  cut  away  certain  steep  banks  about  said 
excavation,  or  threw  out  and  piled  up  or  caused  to  be  thrown 
out  and  piled  up  the  earth  taken  from  said  excavation  into 
precipitous  banks  around  and  about  said  excavation  and 
allowed  the  same  so  to  remain,  and  suffered  and  permitted 
divers  looste  and  unsecured  materials,  to  wit,  iron  pipes,  to 
be  and  remain  thereon  or  thereabouts,  and  without  erect- 
ing or  placing  any  proper  safeguards  thereabouts  or  around 
said  excavation,  to  prevent  the  same  from  falling  or  being 
propelled  into  said  excavation  and  upon  divers,  the  persons 
rightfully  therein,  and  by  means  of  the  premises  one  of  the 
iron  pipes  as  aforesaid,  so  wrongfully  permitted  to  be  and 
remain  on  or  about  said  precipitous  banks,  then  and  there 
fell,  or  was  propelled  into  said  excavation,  so  unprotected 
and  unsecured  as  aforesaid,  upon  the  body  and  person  of 
said  plaintiff,  then  and  there  rightfully  being  in  the  said 
excavation." 

In  the  second  count  the  allegation  as  to  this  is : 

"  Yet  the  defendants  wholly  disregarded  their  duty  in 
the  premises  at  the  time  aforesaid,  and  whilst  the  plaintiff 
was  then  and  there  rightfully  being  in  said  deep  excavation, 
using  all  due  care  and  diligence  in  and  about  his  own  safety 
and  well  being,  wrongfully,  negligently,  carelessly  and  im- 
properly precipitated  or  rolled  or  allowed  to  be  precipitated 
or  rolled  or  to  fall  therein,  or  improperly  neglected  to  in- 
terpose proper  barrier^  to  prevent^rom  falling  or  rolling  or 
being  precipitated  therein,  a  certain  heavy  iron  pipe  then 
and  there,  which  struck  with  great  force  and  violence  upon 
the  person  of  the  plaintiff  then  and  there  rightfully  in  said 
deep  excavation," 


150  Appellate  Courts  of  Illinois, 

Vol.  70.]  Star  Brewery  v.  Fams worth. 

For  anything  that  appears  in  the  declaration,  the  iron 
pipe  was  maliciously  thrown  by  a  stranger  into  the  excava- 
tion, and  thus,  through  the  malicious  act  of  such  stranger, 
and  not  through  the  negligence  of  defendant,  was  the 
plaintiff  injured. 

"  Or  propelled  into  said  excavation,"  "  or  allowed  to  be 
precipitated,"  or  "neglected  to  interpose  proper  barriers  to 
prevent  being  precipitated,"  are  charges  each  consistent 
with  the  act  of  precipitation  being  that  of  a  malicious 
stranger,  for  which  defendants  were  not  responsible. 

An  allegation  that  a  certain  line  of  conduct  was  a  duty, 
is  superfluous. 

If  from  the  facts  stated  the  law  implies  a  duty,  that  is  a 
sufficient  charge.  West  Chicago  St.  Ky.  Co  v.  Coit,  50  111. 
App.  640;  Cribben  v.  Callaghan,  41  N.  E.  Rep.  178. 

In  general,  material  averments  in  pleading  must  be 
alleged  with  certainty.  Eule  VII,  Stephens  on  Pleading; 
1  Chitty  on  Pleading,  233,  9th  Am.  Ed. 

The  declaration  fails  to  state  with  certainty  a  cause  of 
action. 

The  judgment  of  the  Circuit  Court  is  therefore  reversed 
and  the  cause  remanded. 


70  iiiol  Star  Brewery  v.  A.  M.  Farnsworth. 

1738  247 1  "^ 

1.  Guaranty — Recovery  Sustained,— A  recovery  for  work  done  and 
materials  furnished,  on  the  following  order — 

"  OmcAOO,  July  20, 1894. 
A.  M.  Farnsworth,  Esq. : 

Dear  &m — When  you  get  house  and  barn  completed  for  Mr.  Buban 
send  bill  for  same  to  us.  Star  Brewery, 

P.  H.  Rice.  Pres't" 
—  is  sustained. 

Assnmpsit,  for  labor  and  materials.  Appeal  from  the  Superior  Court 
of  Cook  County,  the  Hon.  Arthur  H.  Chetlain,  Judge,  presiding. 
Heard  in  this  court  at  the  Mai'ch  term,  1897.  Affirmed.  Opinion  filed 
May  6,  1897. 


First  District — March  Term,  1897.       151 

Star  Brewery  v,  Famsworth. 

E.  S,  CuMMiNGSj  attorney  for  appellant. 

W.  iBviNa  OsBORNB,  attomey  for  appellee. 

Mr.  Justice  Gaby  delivered  the  opinion  of  the  Court. 

It  is  a  fair  inference  from  the  evidence  that  the  appellant 
contemplated  some  business  arrangements  with  a  Mr. 
Buban,  as  a  dealer  in  some  capacity  in  its  beer,  at  a  place 
not  far  from  Lemont  called  Gary,  and  that  as  a  preparation 
for  that  dealing,  Buban  needed  a  house  and  barn  to  be 
erected  at  Gary,  in  regard  to  which  he  had  had  some  talk, 
but  no  bargain,  with  the  appellee. 

July  20,  1894,  Buban  went  to  the  brewery  and  there  had 
a  private  conversation  with  the  president — none  of  which  is 
shown  in  the  case — ^and  at  the  end  of  the  conversation  the 
president  gave  to  Buban  a  note  as  follows : 

P.  JBL  Eice,  Brest,  and  Treas.  T.  J.  Kice,  Sec. 

The  Stab  Brewery, 
Office  and  Brewery,  1131  Fulton  St. 

CHioAao.  July  20,  1891. 

A.  M.  Farnsworth,  Esq. 

Dear  Sir  :  When  you  get  house  and  barn  completed 
for  Mr.  Buban  send  bill  for  same  to  us. 

Star  Brewery, 

P.  II.  EicK,  Brest." 

Buban  carried  it  to  the  appellee,  who,  without  further 
negotiations  with  anybody,  built  the  house  and  barn. 
That  done,  the  appellee  made  out  a  statement  which  Buban 
marked  O.  K.,  and  the  appellee  went  with  it  to  the  brew- 
ery, and  presented  it  to  the  president  to  get  his  money. 

The  statement  was  as  follows^  taken  from  appellant's 
brief: 


152  Appellate  Couets  of  Illinois. 

I 

Vol.  70.]  Star  Brewery  v.  Faxns worth. 

"  Statement. 

Lemont,  III.,  September  19,  1894. 

Mr.  G.  Baban,  Store  and  Barn  at  Gary. 

In  account  with 

A.  M.  Farnsworth, 

Dealer  in 

Lumber,  Hardware,  Lime  and  Coal. 

Excavating $  5Y  55 

Stone 72  60 

Lime 30  25 

Cement 16  00 

Brick  and  tile , 10  00 

Crushed  stone 6  50 

Mason  work 68  50 

Plastering 79  30 

Lumber 49S  57 

Sash,  doors,  glass,  etc 117  17 

Nails  and  hardware 42  16 

Carpenter  work 195  00 

Painting 61  00 

Papering 16  95 

Hauling 64  00 

Sand 39  00 


$1,354  55" 

The  president  was  surprised — said  he  did  not  expect  to 
to  pay  over  $300 — didn't  offer  to  pay,  but  said,  "  I  will  see 
that  you  donH  lose  that  money."  Payment  not  being  made, 
the  appellee  sued  and  recovered  the  amount. 

The  appellant  put  in  no  evidence,  but  has  filed  a  brief  of 
twenty  odd  pages  to  show  why,  upon  this  direct  order  in 
writing,  smd  prima  facie  evidence  of  an  account  stated,  the 
appellee  should  not  have  recovered. 

We  do  not  deem  it  our  duty  to  review  the  brief.  The 
right  to  recover  is  clear.  Cobb  v.  James  H.  Eice  Co.,  60 
111.  App.  523. 

The  judgment  is  affirmed. 


First  District — March  Term,  1897.       153 

Ewen  V.  WObor, 


John  M.  Ewen  v.  Albert  6.  Wilbor,  Jr. 

1.  Guarantor — Who  is  Prima  Facie — Nature  of  Liability  May  be 
Shoion, — The  name  of  a  party,  other  than  the  payee,  upon  the  back  of  a 
promissory  note  is  prima  fade  a  guaranty  of  which  the  void  nature 
may  be  shown  by  other  evidence,  even  parol. 

2.  Guaranty — Nature  of  the  Undertaking, — A  guaranty  is  not  an 
undertaking  that  the  guarantor  will  perform,  but  that  another  will,  the 
legal  consequence  of  which  is  that,  if  that  other  does  not  perform,  the 
guarantor  must  make  good  the  damage. 

3.  Samb—  Wfien  there  is  No  Liability. — There  is  no  liability  on  the 
part  of  the  guarantor  until  there  is  a  default  on  the  part  of  the  prin- 
cipaL 

4.  CoVTRAcrs —Existing  in  Different  Instruments, — Where  an  agree- 
ment exists  by  virtue  of  two  or  more  written  instruments  all  instruments 
in  pari  materia  are  to  be  read  together,  as  constituting  the  entire  con- 
tract 

5.  Demand — Must  ^  by  Parties  in  Interest.  — Where  a  promissory  note 
is  given  only  as  security  for  the  performance  of  an  agreement  to  return 
to  the  payee  a  deposit  upon  a  contingency  at  his  option,  if  demanded, 
but  if  not  demanded,  to  continue  as  such  deposit  until  demanded;  a 
demand  for  payment  of  the  note  by  a  notary  public,  is  not  a  sufficient 
demand  for  the  return  of  the  deposit  under  the  agreement. 

Assumpsit,  on  a  promissory  note.  Appeal  from  the  Circuit  Court  of 
Ck)ok  County;  the  Hon.  Frank  Baker,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.  Reversed  and  remanded.  Opinion 
filed  May  6,  1897. 

Henry  M.  Bacon  and  Henry  Schofield,  attorneys  for 
appellant. 

Charles  M.  Walker  and  Charles  M.  Sherman,  attor- 
neys for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellee  sned  the  appellant  upon  a  promissory  note, 
^hich,  as  introduced  in  evidence,  is  described  in  the  abstract 
thus : 

"11250.  Chicago,  7th  June,  1893.  On  demand,  after 
six  months  after  date,  I  promise  to  pay  to  the  order  of 


70    153 
81838626 


\ 


154  Appellate  Courts  op  Illinois. 

Vol.  70.]  Ewen  v.  Wilbor. 

Albert  G.  Wilbor,  Jr.,  twelve  hundred  and  fifty  and  00-100 
dollars,  at  my  office,  Chicago,  Ills.  Value  received.  Warren 
Ewen,  Jr."  "  On  the  back  of  the  note  arethe  indorsements 
in  the  order  named :  '  John  M.  Ewen,'  *  A,  G.  Wilbor,  Jr.' 
the  latter  being  below  the  former.  No  other  writing  ap- 
pears on  back  of  the  note.  Across  the  face  of  the  note  the 
following  words,  written  with  a  pen,  appear :  *  Protested 
for  non-payment  this  9th  day  of  December,  1893.  I.  W. 
Brown,  Notary  Public' " 

The  notary's  certificate  of  the  protest  showed  that  the 
presentment  for  payment  and  protest  were  made  at  the 
request  of  the  Merchants  Loan  and  Trust  Company. 

The  note  was  given  in  renewal  of  a  like  note — except  as 
to  date — ^given  in  pursuance  of  the  provisions  of  a  contract 
between  the  maker  and  payee  as  follows : 

"  This  Agreement,  made  this  fifteenth  day  of  November, 
A,  J).  1892,  by  and  between  Warren  Ewen,  Jr.,  party  of  the 
first  part,  and  Albert  G.  Wilbor,  Jr.,  party  of  the  second 
part,  both  of  the  city  of  Chicago,  Illinois, 

WITNESSETH :  That  whereas,  the  said  party  of  the  first 
part  is  the  owner  of  the  rights  in  certain  territory  of  the 
United  States  for  certain  patents  known  as  the  muti-color 
dry  process  and  has  applied  for  certain  other  letters  patent 
for  improved  process  of  making  '  blue-prints,'  and  is  about  to 
apply  for  others,  and  is  likely  to  improve  upon  the  same  and 
to  use,  invent  and  to  own  other  patent  processes  for  copying; 
and  whereas  said  party  of  the  first  part  believes  and  repre- 
sents unto  the  said  party  of  the  second  part  that  by  reason  of 
the  superiority  of  said  processes  over  all  others  he  can  procure 
the  same,  some  or  all  of  them,  to  be  adopted  by  the  United 
States  government  for  general  use  in  the.  making  of  plats, 
prints  and  drawings  used  by  government  architects  in  and 
about  all  United  States  government  architectural  work; 
now,  therefore  in  consideration  of  the  premises  and  of  the 
further  sum  of  one  ($1.00)  dollar  in  hand  paid  by  the  said 
party  of  the  second  part  to  said  party  of  the  first  part,  and 
of  other  good  and  valuable  considerations,  the  receipt  of 
which  is  hereby  acknowledged,  the  said  parties  of  the  first 


First  District — March  Term,  1897.       155 

£wen  V.  Wilbor. 

» 

and  second  parts,  respectively,  do  hereby  mutually  covenant, 
promise  and  agree  each  with  the  other  as  follows : 

First :     The  said  party  of  the  first  part  hereby  agrees  to 
use  his  best  endeavors  to  procure  the  adoption  by  the  said 
government  of  said  processes  for  use  in  all  government 
architectural  work;  and,  in  the  event  of  being  successful  in 
procuring  the  same  or  any  of  them  to  be  so  adopted,  all 
profits  and  other  benefits  arising  therefrom  are  to  be  shared 
by  the  parties  hereto  in  equal  proportions.     Whatever  con- 
tract, agreement  or  arrangement  that  shall  or  may  be  made 
with  said  United  States  government  regarding  said  processes, 
or  any  of  them,  shall  be  made  between  said  government  on 
the  one  hand  and  Warren  Ewen,  Jr.,  and  Albert  G.  Wilbor, 
Jr.,  on  the  other  hand;  the  intention  being  that  each  of  the 
parties  hereto  shall  take  in  his  own  name  and  own  an  undi- 
vided one-half  interest  in  any  and  all  contracts,  agreements 
or  arrangements  that  may  or  shall  hereafter  be  made  with 
tbe  United  States  government  respecting  the  use  of  said  pro- 
cesses or  any  of  them. 
Second :    The  said  party  of  the  second  part  has,  upon  the 
ezifirealing  and  delivery  of  these  presents,  deposited  with  the 
^^d  party  of  the  first  part,  as  a  special  deposit  and  earnest 
^f  g'ood  faith  herein,  the  sum  of  twelve  hundred  and  fifty 
(fl ,  SoO)  dollars,  the  receipt  of  which  is  hereby  acknowledged 
J^  s«i-id  first  party. 
.   ^^id  sum  of  twelve  hundred  and  fifty  ($1,250)  dollars  shall 
^  ^^Jd  by  said  party  of  the  first  part  as  a  special  deposit; 
**      iti  shall  immediately,  upon  the  receipt  by  said  second 
!r*^^.^=^  of  a  duly  executed  agreement  or  contract  between 
.^^   CUnited  States  government  and  the  parties  hereto,  pro- 
.    "^^^^  g  for  the  adoption  for  general  use  in  government  work 
^•^^  jr  of  said  processes,  become  the  property  of  the  said 
^     ^3^  of  the  first  part  to  compensate  him  in  full  for  his 
^  ^'i^es  and  the  sale  to  the  said  party  of  the  second  part  of 
^^^    one-half  interest  in  said  contract  or  agreement,  and  in 
/^  ^Vich  other  contracts,  agreements  and  arrangements  as 
B*^^l\  hereafter  be  made  with  the  United  States  government 
^^T^cting  the  use  of  said  process  or  any  of  them,  as  above 
^^^tioned. 


166  Appellate  Courts  op  Illinois. 

Vol.  70.J  Ewen  v.  Wilbor. 

Provided,  however,  that  unless  said  contract  or  agree- 
ment with  the  said  government  is  consummat-ed  on  or  before 
May  15,  A.  D.  1893,  said  sum  of  twelve  hundred  and  fifty 
.($1,250)  dollars  shall,  at  the  option  of  said  party  of  the 
second  part,  be  then  returned  by  said  first  party  to  said 
second  party,  and  then  and  in  that  case  this  agreement  shall 
be  ended,  and  from  thenceforth  absolutely  null  and  void. 
Should  said  second  party,  however,  not  elect  to  have  said 
sum  of  twelve  hundred  and  fifty  ($1,250)  dollars  returned  to 
him,  as  aforesaid,  it  shall  continue  to  be  held  by  said  first 
party  as  such  special  deposit  aforesaid  until  said  government 
contract  or  agreement  shall  be  made  or  until  demanded  by 
said  party  of  the  second  part,  when  it  shall  be  at  once  due 
and  payable  to  him. 

In  order  to  better  secure  the  repayment  of  said  sum  of 
twelve  hundred  and  fifty  ($1,250)  dollars  in  the  event  that 
repayment  thereof  should  be  demanded,  the  said  party  of  the 
first  part  has  made,  executed  and  delivered  his  note  of  hand 
for  said  sum,  of  even  date  herewith,  payable  on  demand 
after  six  months  after  date,  to  the  order  of  said  party  of  the 
second  part,  at  the  office  of  said  first  party,  Chicago,  Illi- 
nois, and  has  procured  said  obligation  to  be  guaranteed  by 
John  M.  Ewen,  of  Chicago,  Illinois. 

Warben  Ewen,  Jr.  [Seal.] 

Albert  G.  Wilbor,  Jr.   [Seal.]  " 

The  appellant's  name  on  the  back  of  the  note  is  prima 
facie  a  guaranty,  of  which  the  real  cliaracter  may  be  shown 
by  other  evidence — even  parol.  Kingsland  v.  Koeppe  35 
111.  App.  81,  137  III.  344. 

A  guaranty  is  not  an  undertaking  that  the  guarantor  will 
perform,  but  that  another  will,  the  legal  consequence  of 
which  is  that  if  that  other  does  not  perform,  the  guarantor 
must  make  good  the  damage.    Gridley  v.  Capen,  72  111.  11. 

If  there  be  no  default  by  the  principal,  there  can  be  no 
liability  by  the  guarantor.  Harts  v.  Fowler,  51  111.  App. 
612;  53  111.  App.  245. 

Now  the  note  of  which  the  note  in  suit  is  a  renewal,  being 
given  in  pursuance  of  that  agreement  of  November  15, 1892, 


First  District — March  Term,  1897.       167 

Ewen  V.  Wilbor. 

was  subject  to  whatever  there  was  in  that  agreement  to 
limit  its  effect,  as  "  all  papers  in  pari  materia  are  to  be  read 
together,  as  constituting  the  entire  contract."  Grand 
Lodge,  etc.,  v.  Jesse,  50  111.  App.  101;  Greenebaum  v.  Gage, 
61  III.  46.  And  the  note  in  suit  being  only  in  renewal  of  the 
other,  would  be  of  the  same  legal  effect  as  that.  Wheelock 
V.  Berkeley,  138  111.  153. 

The  principle  is  the  same  as  is  applied  in  case  a  note 
secured  by  mortgage  is  renewed — the  security  continues. 
Flower  v.  Elwood,  66  III.  438. 

Now  turning  to  that  agreement  of  November  15,  1892, 
it  is  seen  that  the  original  note  was  given  only  as  security 
for  the  performance  by  Warren  Ewen,  Jr.,  of  undertakings 
as  there  shown,  and  that  among  his  undertakings  was  to 
return  to  the  appellee  a  deposit  of  $1,250  upon  a  contingency, 
^ud  at  the  option  of  the  appellee,  if  demanded  by  the  ap- 
pellee, but  if  not  demanded,  to  continue  as  such  deposit 
until  demanded. 

That,  as  the  certificate  of  the  notary  says,  he  went  "  to 

the  office  of  Warren  Ewen,  Jr.,  in  the  city  of  Chicago,  dur- 

^^g  ordinary  business  hours,  and  demanded  payment,"  is  no 

aemand  under  the  agreement,  for  two  reasons  at  least : 

^ii^ty  he  went  at  the  request  of  the  bank,  which  is  not 

ftic>WTx  to  have  had  any  interest  in  the  note;   and  second, 

^s    not  shown  that  Warren  Ewen,  Jr.,  knew  anything 

aboiit  it. 

^^3  therefore,  the  appellee  did  not  show  himself  entitled 

?  ^*   ^^turn  of  the  deposit  by  Warren  Ewen,  Jr.,  he  had  no 

*p*^*^     of  action  against  the  appellant,  upon   the  security 

^^r^^^  for  the  return  of  that  deposit. 

"^  *^«  law  as  to  what  is  sufficient  presentment  for  payment 

^^^mmercial  paper  in  order  to  charge  indorsers  has  no 

^P^^ioation  to  this  case. 

"^^  tt^  judgment  is  reversed,  and  in  order  that  the  case  may 

"®  ^^viewed  by  the  Supreme  Court,  that  reversal  will  be 

aV^^ixQcally  for  refusing  the  third  instruction  asked  by  the 

M^p^Hant,  which  was  to  find  for  the  defendant,  and  the 

c^^ae  will  not  be  remanded. 


158  Appellate  Courts  of  Illinois. 

Vol.  70,]  Claney  v.  Chicago  Dredging  &  Dock  Co. 


John  Claney  and  James  Y.  Allen  t.  Chicago  Dredging 

and  Dock  Co. 

1.  CoNTRACTTS— S^Mftston^iaZ  Performance, — ^An  instruction  which 
informs  the  jury  that  if  the  plaintiff  has  on  his  part  substantially  per- 
formed the  contract  sued  on  he  will  be  entitled  to  recover,  is  erroneous 
in  form,  as  calculated  to  mislead. 

Assumpsit,  on  a  contract  for  dredging.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Abnbb  Smith,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Reversed  and  remanded.  Opin 
ion  filed  May  6,  1897, 

Veemilyea,  Burras  &  WiLcoxoN,  attorneys  for  appel- 
lants. 

Samson  &  Wilcox,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Cocrt. 

The  parties  agree  that  the  appellants  employed  the  appel- 
lee to  dredge  the  north  branch  of  the  Chicago  river  in  front 
of  their  dock,  to  the  depth  of  fourteen  feet,  is  the  appel- 
lants' version,  and  "  about "  that  is  the  appellee's,  as  they 
expected  a  boat  in  drawing  thirteen  and  one-half  feet,  whicli 
they  wanted  to  get  to  the  dock.  The  boat  came  in  and 
grounded  ten  feet  from  the  dock  in  thirteen  feet  three  inches 
of  water  at  her  keel,  eighteen  feet  from  the  dock. 

For  the  appellee  the  court  instructed : 

"  The  court  instructs  the  jury  that,  if  the  jury  believe 
from  the  evidence  tliat  the  plaintilBP  dredged  the  river  at  the 
defendants'  dock,  for  the  defendants,  substantially  fourteen 
feet  deep,  and  took  out  901  cubic  yards,  and  the  price  agreed 
upon  was  twenty  cents  per  cubic  yard,  then  the  jury 
should  find  the  issues  for  the  plaintiff  and  assess  the  plaint- 
iff's damages  at  the  sum  of  $180.20." 

And  refused  to  instruct  for  the  appellants : 

*'  The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  contract  between  the  plaintiff  and  the 


First  District — March  Term,  1897.       159 

Claney  v.  Chicago  Dredging  &  Dock  Co. 

defendants  was,  that  theplaintiflf  should  dredge  the  river  at 
the  defendants'  dock,  making  the  depth  at  that  place  four- 
teen feet,  at  a  certain  sum  per  cubic  yard,  and  that  the  doing 
of  this  work  was  a  condition  precedent  to  payment,  and 
that  the  plaintiff  did  not  dredge  the  river  to  the  depth  of 
fourteen  feet  at  the  place  contracted,  then  the  jury  should 
find  for  the  defendants." 

The  real  motive  for  the  contract — as  well  understood  by 
the  appellee  as  by  the  appellants — was  to  get  depth  of 
water  sufficient  for  the  boat;  and  it  may  well  be  presumed 
that  had  that  depth  been  reached,  the  appellants  would 
never  have  known  what  it  was  in  feet  and  inches. 

Any  instruction  which  left  the  jury  at  liberty  to  find  for 
the  appellee,  with  the  purpose  of  the  contract  not  accom- 
plished, was  error. 

Argument  to  us  that  after  the  dredging  was  done,  and 
before  the  boat  came,  the  earth  may  have  filled  in,  or  that 
by  change  of  wind  the  depth  may  have  been  affected,  does 
not  touch  the  question  here. 

Mathematical  exactness,  taking  the  version  of  either 
party,  was  not  required;  but  such  depth — near  fourteen 
feet — as  would  permit  a  boat  drawing  thirteen  and  one-half 
feet  to  get  to  the  dock,  was. 

The  river  did  not  belong  to  the  appellants. 

There  is  no  presumption  that  partial  perfonnance  of  a 
contract  to  deepen  it  wjis  any  benefit  to  the  appellants. 

The  case  has  no  resemblance  to  those  in  which  it  has 
been  held  that  recovery  might  be  had  for  substantial  per- 
formance, of  Avhich  the  party  sued  had  the  benefit,  leaving 
him  to  recoup  his  damages.  2  Chit.  Oont.  825  et  seq.  and 
notes;  Keeler  v.  Herr,  157  111.  57. 

If  after  the  word  "and"  following  "deep"  in  the  instruc- 
tion given  for  the  appellee,  had  been  inserted  "sufficient  to 
permit  a  boat  drawing  thirteen  and  one-half  feet  to  get  to  the 
dock,  and  in  so  doing,"  or  other  language  to  that  effect,  the 
appellanfe  would  have  had  no  ground  of  complaint  as  to 
the  law,  and  the  verdict  of  the  jury  might  have  been  final. 

The  judgment  is  reversed  and  the  cause  remanded. 


160  Appellate  Courts  of  Illinois. 

Vol.  70.]  Moore  v.  Cohen. 


A.  Moore  y.  Simon  Cohen. 

1.  JuDGMENTS—lZeZic/  frctm^  in  Equity,— "Ex^ity  will  grant  relief 
against  a  judgment  which  is  against  conscience,  or  the  justice  of  which 
can  be  impeached  by  facts,  or  on  grounds  of  which  the  party  could  not 
avail  himself  at  law,  or  of  which  he  was  prevented  from  availing  him- 
self by  fraud,  accident,  mistake  or  the  act  of  the  opposite  party,  with- 
out any  negligence  or  fraud  on  his  own  part,  and  will  also  sometimes 
relieve  after  verdict,  and  when  the  defendant  at  law  might  have 
defended  himself. 

Bill,  to  set  aside  a  judgment.  Appeal  from  the  Circuit  Court  of  Cook 
County;  the  Hon.  Elbridqe  Hanect,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.    Affirm  ed.    Opinion  filed  May  6,  1897. 

I.  T.  Greenacre,  attorney  for  appellant. 
John  C.  Trainor,  attorney  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

This  was  a  proceeding  in  chancery  to  set  aside  a  judg- 
ment. The  complainant  alleged  that  he  was  misled  by  the 
defendant,  plaintiff,  in  the  judgment,  and  thereby  by  mis- 
take he  failed  to  appear  upon  the  trial  of  the  cause,  and 
that  judgment  was  obtained  against  him  by  defendant. 

Upon  the  hearing  of  the  bill  it  appeared  that  appellant 
began,  against  appellee,  a  suit  before  a  justice  of  the  peace; 
that  upon  the  return  day  of  the  summons  complainant 
appeared  and  appellant,  the  plaintiff,  not  appearing,  the 
suit  was  dismissed  for  want  of  prosecution;  that  thereafter 
appellant  began  another  suit  before  a  justice  of  the  peace; 
that  appellee  again  appeared  upon  the  return  day  and  appel- 
lant, the  plaintiff,  not  appearing,  the  suit  was  dismissed; 
that  appellee  then  began  suit  against  appellant,  before  a 
justice  of  the  peace;  that  a  trial  was  had,  both  appellant 
and  appellee  being  present;  that  as  the  result  of  such  trial 
the  defendant,  appellant,  recovered  a  judgment  against 
appellee  for  $3.40  and  costs;  that  appellant  took  an  appeal 
from  said  judgment  to  the  Circuit  Court,  which  appeal  is 


First  District — March  Term,  1897.       161 

Davenport  v.  Piano  Implement  Co. 

^ ■  -  . 

there  pending;  that  thereafter  appellant  took  an  appeal  in 

the  case  first  brought  by  appellant,  which  was  dismissed  by 

the  justice  of  the  peace  for  want  of  prosecution,  appellant 

not  having  appeared  upon  the  return  day;  that  appellee 

had  no  notice  pf  such   appeal,  and  consequently  paid  no 

further  attention  to  such  suit,  and  had  no  intimation  that 

an  appeal  had  been  taken  until  he  was  informed  that  in  the 

Circuit  Court,  to  which  such  appeal  was  taken,  a  judgment 

for  $130.92,  with  $13.55  costs,  had  been  rendered  against 

^im.    The  term  at  which  such  judgment  was  entered  had 

passed  and  appallee  found  himself  without  remedy  save  in 

a  court  of  equity. 

It  is  manifest  that  appellee  was,  by  the  conduct  of  appel- 
lant in  commencing  a  second  suit  after  suffering  the  first 
to  be  dismissed,  and  in  permitting  the  second  to  be  also  dis- 
missed, and  by  the  judgment  of  $3.40  rendered  in  the  third 
^^ity  lulled  into  the  belief  that  the  suit  first  begun  had  been 
«'>ancioned. 

^i^ost  persons  would  have  thought  as  did  appellee,  and 

'^oulcl  not  have  suspected  or  watched  for  an  appeal  of  either 

*  ^li  ^  suits  which  were  dismissed.     Appellee,  without  fault, 

^  tti^  consequence  of  a  natural  mistake,  has  had  a  judgment 

^^  ^X  30.92,  with  $13.55  costs,  rendered  against  him  with- 

^^  tfc  is  having  the  opportunity  to  be  heard  in  the  matter, 

o^cij-^  j|.  jg  ^^  design  of  the  law  all  men  shall  have  before 

J"^S-«^ent  is  rendered. 

.  t>;pellee  appears  to  have  such  meritorious  defense  as 
ent>t;i^^g  him  to  a  hearing.  No  injustice  is  done  by  the 
^^^^^^  of  the  court  below  setting  aside  said  judgment 
^^^^>st  appellee,  and  it  is  aflBirmed. 


Joseph  P.  Davenport  v.  Piano  Implement  Co. 

55tock— 0/  Carporationa^Whan  it  May  Be  Paid  for  in  Properhj. 
^^^  "between  the  corporation  and  its  stockholders,  stock  may  be  paid 
(0^  U^  property  at  money's  worth,  as  well  as  in  money,  when  all  tlie  ele- 
tf^^ta  of  the  transaction  are  fair,  honest  and  open* 

Tou  LXX 11 


162  Appkllate  Courts  of  Illixois. 

Vol.  70.  j  Davenport  v.  Piano  Implement  Co. 

3.  Equity  Pleadino — Unnecessary  Averments.— When  equity  is 
resorted  to  for  the  pul^poee  of  compelling  the  performance  of  an  agree- 
ment by  a  corporation  for  the  exchange  of  stock  for  property,  there 
need  not  be  an  averment  that  the  property  which  was  the  subject  of  the 
agreement  was  of  the  value  of  tlie  stock  for  which  it  was  to  be  ex- 
changed. 

8.  SAMB—fVtwa  Facte  Case— Sufficiency  of  the  Bill  and  Burden  of 
Proof, — A  bill  which  makes  out  a  prima  facie  case  for  equitable  relief 
under  a  contract  of  sale  and  shifts  the  burden  upon  the  defendant  to 
show  an  excuse  for  non-performance,  is  not  subject  to  demurrer  for  not 
alleging  facts  which  are  pure  matters  of  defense. 

4.  Burden  op  l^oov— Non-performance  of  a  Contract— In  a  pro- 
ceeding in  equity  to  enforce  the  performance  of  a  contract,  the  burden 
of  making  out  a  case  of  excuse  for  the  non-performance  of  such  contract 
is  upon  the  defendant. 

Bill,  for  speciiic  performance.  Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  Elbridoe  Hanect,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Reversed  and  remanded.  Opin- 
ion filed  May  6,  1897. 

F.  W.  Bennett,  attorney  for  appellant. 
Slusser  &  Johnson,  attorneys  for  appellee. 

Mk.  Presiding  Justice  Shepakd  delivered  thb  opinion 
of  the  Court.. 

This  appeal  is  from  a  decree  sustaining  appellee's  de- 
murrer to  and  dismissing  appellant's  amended  bill  for  want 
of  equity. 

The  object  of  the  bill  was  to  compel  the  appellee  cor- 
poration to  issue  and  deliver  to  appellant  a  certificate  for 
180  shares  of  the  paid  up  capital  stock  of  said  corporation 
of  the  face  value  of  $9,000. 

The  bill  set  up  a  state  of  facts  under  which  the  appellant 
and  his  partner  transferred  to  the  appellee,  an  agricultural 
implement  manufacturer,  a  certain  manufacturing  plant 
consisting  of  machinery,  fixtures,  patterns  and  tools,  and  a 
stock  of  manufactured  goods,  used  and  made  in  an  agri- 
cultural implement  business  theretofore  carried  on  by  them- 
selves as  partners,  in  full  payment  for  360  shares  of  the 
full  paid  capital  stock  of  the  appellee  of  the  par  value  of 


First  District— March  Term,  1897.       163 

Davenport  v.  Piano  Implement  Co. 

$18,000,  of  which  the  appellant  was  to  have  180  shares  of 
the  par  value  of  $9,000,  and  his  partner  another  like 
amount. 

And  such  other  facts  were  alleged  as  to  make  out  a  case 
where,  except  for  such  argued  reasons  as  we  will  later  men- 
tion, appellant  should  have  had  the  certificate  for  his  shares 
of  stock  issued  to  him. 

It  is  said  that  the  bill  does  not  allege  that  appellant  paid 
for  his  stock  in  cash,  and  that  the  only  payment  that  was 
alleged  being  in  the  form  of  property,  it  was  necessary  to 
show  its  value. 

Under  the  averments  of  the  bill  particularizing  what  the 
property  was;  that  it  was  inspected  by  a  comfnittee  acting 
in  behalf  of  the  appellee,  and  was  accepted  and  has  since 
been  retained  and  used  by  the  appellee  in  its  business;  and 
that  the  board  of  directors  of  appellee  by  an  express  resolu- 
tion, unanimously  adopted,  authorized  and  directed  the 
agreed  amount  of  stock  to  be  delivered  to  appellant  in 
affirmance  of  and  in  accordance  with  the  agreement,  no  aver- 
ment of  the  actual  cash  value  of  the  property  was  required. 

Stock  may  be  paid  for  in  property  at  money's  worth,  as 
well  as  in  money,  when  all  the  elements  of  the  transaction 
are  fair,  honest  and  open. 

In  this  case  the  allegations  of  the  bill  show  that  the 
transaction  was  made  upon  a  full  investigation  by  a  com- 
mittee, and  with  deliberation  and  fairness. 

Nor  was  it  necessary  to  show,  as  argued,  that  each  stock- 
holder assented  to  the  arrangement.  The  allegation  con- 
cerning assent  and  ratification  by  the  shareholders  was  that 
the  "  stockholders  or  a  majority  of  them  ratified  "  the  act 
of  the  board  of  directors. 

Whether  such  an  allegation  would  be  sufficiently  definite 
if  the  assent  of  the  stockholders  were  an  essential  prerequi- 
site, need  not  be  considered. 

This  is  not  the  case  of  a  shareholder  who  is  objecting  to 
the  carrying  out  of  a  contract  vltra  viree  the  corporation, 
to  which  he  did  not  assent;  nor  is  it  one  in  which  a  cred- 
itor is  claiming,  in  order  to  make  his  debt  from  the  corpo- 


164  Appellate  Courts  op  Illinois. 

— -1 — • — * — 

Vol.  70.]  Davenport  v.  Piano  Implement  Co. 

ration,  to  inquire  into  the  methods  resorted  to  by  stockhold- 
ers, good,  as  between  themselves  and  the  corporation,  to  pay 
for  the  stock  subscribed  by  themselves.  Thayer  v.  El  Plonio 
Mining  Co.,  40  III  App.  844. 

But  the  case  is  that  of  a  refusal  by  a  corporation  to 
carry  out  one  of  the  essential  parts  of  a  lawful  agreement 
made  by  its  board  of  directors  to  purchase  and  pay  in  stock 
for  property  which  it  has  received  and  retains  and  uses  in 
the  conduct  of  its  business,  and,  where  equity  is  resorted  to 
for  the  purpose  of  compelling  a  full  performance  of  such 
an  agreement,  there  need  not  be  an  averment  that  the  prop- 
erty, which  was  the  subject  of  the  agreement,  was  of  the 
value  of  the  stock  for  which  it  was  to  be  exchanged. 

The  burden  of  making  out  a  case  of  excuse,  if  there  be 
any  in  such  respect  for  non-performance,  is  cast  upon  the 
appellee. 

A  bill  that  makes  out  a  prima  facte  case  for  equitable 
relief  under  such  a  contract  and  shifts  the  burden  upon  the 
defendant  to  show  excuse  for  non-performance,  is  not  sub- 
ject to  demurrer  for  not  alleging  facts  which  are  pure  mat- 
ters of  defense. 

Again,  it  is  said  that  the  bill  is  fatally  defective  in  that 
it  does  not  show  that  appellant  has  not  a  full  and  adequate 
remedy  at  law,  and  Barton  v.  DeWolf,  108  111.  195,  and 
Pierce  v.  Plumb,  74  111.  327,  are  relied  upon. 

But  those  cases  are,  in  our  opinion,  far  one  side  of  the 
mark  in  this  case. 

Although  the  bill  is  loosely  and  inartificially  drawn,  its 
object  is  plain,  and  it  should  be  treated,  as  against  a  gen- 
eral demurrer,  as  making  a  case  of  conceded  ownership  by 
the  appellant  of  the  shares  in  question,  and  of  a  denial  to 
him  by  appellee  of  his  right  to  have  issued  to  him  a  certifi- 
cate of  such  ownership,  as  an  evidence  of  his  title  to  what 
he  owns. 

According  to  the  averments  of  the  bill,  appellant  is  the 
equitable,  if  not  the  legal,  owner  of  the  180  shares  of  stock. 
He  has  paid  for  such  shares  in  full,  and  appellee  retains  and 
uses  what  he  paid  for  them.  The  agreement  between  the 
parties  has  been  fully  performed  on  both  sides,  except  in  so 


First  District — ^March  Term,  1897.       165 

Davenport  v.  Piano  Implement  Co. 

far  as  the  delivery  of  the  certificates  of  shares  is  concerned, 
and  such  a  delivery  is  a  mere  incident  to  the  ownership  of 
the  shares.  The  stock  in  which  the  ownership  exists  is  the 
substance  of  that  which  the  certificate  is  but  the  shadow  or 
evidence  of. 

While  the  possession  of  a  certificate  by  the  share  owner 
IS  not  essential  to  his  ownership,  it  is  evidence  of  owner- 
ship, and  is  such  an  evidence  as  every  share  owner  is  ordi- 
i^arily  entitled  to  be  furnished  with  by  the  corporation, 
under  reasonable  regulations. 

The  object  of  the  bill  is  not  to  compel,  by  specific  per- 
formance, the  corporation  to  pay  for  the  property  purchased 
and  received  and  held  by  it — for  taken  all  together  the 
^rerments  of  the  bill  amount  to  showing  that  to  have  been 
^one — but  is,  as  already  said,  to  enforce  a  delivery  to  appel- 
^ant  of  the  usual  certificate  which  shareholders  are  under 
'^o  Jaw  entitled  to  receive  as  evidence  of  their  ownership  in 
*Ae  oorporation. 

trn.der  such  circumstances  there  can   be  no  adequate 

*err*^<jy  at  j^w.    Appellant  could  not  be  entitled  to  recover 

Ji&    ^%rsi\xe  of  the  stock  which  he  is  already  the  full  owner  of 

^^  ^*     mere  failure  to  deliver  to  him  a  certificate  of  such 


^^«— TShip, 


'^^Tnages  at  law  for  such  a  failure  would,  under  the  cir- 

"^^^"tances  stated  in  the  bill,  be  no  more  than  nominal,  and 

^^  *^  be  wholly  inadequate  to  compensate  him  for  the  in- 

^^^nience  and  possible  loss  and  deprivation  incident  to  a 

,^^  fcolding  from  him  of  the  certificate  that  the  law  regards 

-^^^*Te  owner  to  be  ordinarily  entitled  to  the  possession  of. 


»^^  ^  regard  the  bill  as  presenting  a  proper  case  for  equi- 
^^  iJ^^  relief.     3  Pom.  Eq.  Juris.,  Se<3.  1402. 

^^  r  convenience  of  reference,  and  in  support  of  what  we 

^^  ^^  said  about  the  offices  of  and  right  to  a  certificate  of 

^     Y^^'  ^®  ^^^  Sees.  14  and  192  of  Cook  on  Stock  and  Stock- 

"^^iers;  Elliott  on   Priv.  Corp.  61  and  78;  Morawetz  on 

'^^^^.  Corp.,  Sees.  56  and  472,  and  cases  there  cited. 

*^he  decree  dismissing  appellant's  bill  is  reversed  and  the 
^^^e  remanded,   with  directions  to  allow  appellant   to 
^^end  his  bill  if  he  so  desires. 


166 


Appellate  Courts  op  Illinois. 


Vol.  70.] 


Hartford  Deposit  Co.  v.  Sollitt 


70    166 
iris  222 


70 

100 


166 
1363 


Hartford  Deposit  Go.  y.  Oliver  Sollitt. 

1.  iNSTRUcnoNB — To  be  Considered  as  a  Series. — A]l  the  instructions 
given  in  a  case,  on  both  sides  are  to  be  considered  as  a  single  series. 

2.  Same — When  a  Partu  Can  Not  Complain, — ^A  defendant  can  not 
complain  of  an  instruction  given  for  the  plaintiff  when  he  asks  and  pro- 
cures  to  be  given  one  of  the  same  kind  himself. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Francis  Adams,  Judge,  presiding. 
Hi^rd  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  6,  1897. 

BuRNHAM  &  Baldwin,  attorneys  for  appellant. 

Thomas  Bates  and  Setmoub  Edgkkton,  attorneys  for 
appellee. 

Mb.  Justice  Gary  delivered  the  opinion  of  the  Court. 

This  is  in  the  class  of  cases  in  which,  if  the  plaintiff  can 
get  by  the  court  to  the  jury,  he  is  sure  of  success,  and  in 
which  a  reviewing  court  feels  that  the  consideration  of  any 
questions  presented  by  the  record — not  going  to  the  ulti- 
mate right  of  the  plaintiff  to  recover,  nor  to  the  extent  of 
the  damages — "  is  vanity  and  vexation  of  spirit." 

The  appellee  was  a  passenger  in  an  elevator  in  an  office 
building  of  the  appellant,  and  in  which  building  appellee 
was  tenant.  The  elevator  fell  and  he  sustained  injury,  for 
which  he  sued  the  appellant  and  recovered  $4,000.  On  this 
record  we  may  not  say  that  the  amount  is  more  than  ade- 
quate compensation  for  the  severe  and  permanent  injury. 

The  declaration  contained  two  counts.  Bv  the  first  it 
charged  that  through  the  carelessness,  negligence  and  un- 
skillfulness  of  the  defendant  and  its  servant,  the  elevator 
slipped  in  the  shaft  in  which  it  ran  and  fell  from  the  eighth 
floor  to  the  ground  floor.  The  second  count  charged  that 
the  defendant  did  not  use  due  and  proper  care  that  the 
plaintiff  should  be  safely  carried,  and  did  not  have  all  the 


FiKST  District — March  Term,  1897.       167 

Hartford  Deposit  CJo.  v.  Sollitt. 

most  improved  and  proper  appliances  atta(;hed  to  prevent 
the  too  rapid  fall  of  the  elevator,  and  did  not  have  said  ap- 
pliances in  good  and  proper  order  and  condition  for  per- 
forming their  work. 

The  first  complaint  of  the  appellant  is  shown  by  the 
bnef  as  follows : 

"  In  submitting  the  case  to  the  jury,  plaintiffs  counsel 
asked,  and  the  court  gave  to  the  jury,  the  following  instruc- 
tion: 

*  The  court  instructs  the  jury  that  if  they  believe  from 
all  the  evidence  in  this  case  that  the  plaintiff,  on  or  about 
the  19th  day  of  May,  1893,  was  rightfully  in  an  elevator  in 
the  possession  of  and  operated  by  the  defendant,  and  situ- 
ated in  the  defendant's  building,  for  the  purpose  of  being  car- 
ried thereby  from  one  of  the  upj^er  floora  of  the  defendant's 
said  building  to  the  ground  floor  thereof;  and  if  you  further 
believe  from  the  evidence  that  while  the  plaintiff  was  so  in 
said  elevator  and  in  the  exercise  of  reasonable  and  ordinar}"^ 
care  on  his  part,  said  elevator,  owing  to  the  negligent  and 
faulty  construction  thereof,  or  owing  to  the  negligence  and 
carelessness  on  the  part  of  the  servant  of  the  defendant  in 
operating  the  same,  fell;  and  if  you  further  believe  from  the 
evidence  that  the  injury  to  the  plaintiff  complained  of  was 
caused  by  such  fall  of  said  elevator,  then  your  verdict  should 
be  for  the  plaintiff.' 

This  instruction  was  not  justified  or  proper  under  the 
pleadings.  It  was  too  broad,  and  it  directed  the  attention  of 
the  jury  to  an  issue  not  involved  in  the  case.  The  declara- 
tion does  not  allege  negligent  and\  faulty  construction;  it 
is  confined  to  charges  of  negligent  operation  and  failure  to 
have  the  most  approved  safety  appliances,  or  to  keep  them 
in  good  order.  Neither  of  these  grounds  can  warrant  a 
general  charge  of  negligent  construction." 

When  the  appellee  put  in  his  case,  he  confined  himself 
wholly  to  what  occurred  at  the  time  of  the  fall,  with  noth- 
ing relating  to  the  construction  of  the  elevator  or  any  of 
its  appurtenances.  His  evidence  was  only  such  as  was- 
intended  to  prove  the  first  count. 


168  Appellate  CouPvTs  of  Illinois. 

Vol.  70.  j  Hartford  Deposit  Ck).  v.  Sollitt. 

Then  the  appellant  went  into  evidence  showing  the  con- 
struction, in  partj  of  the  elevator;  why  it  fell,  and  the  means 
provided  for  arresting  its  fall  in  case  of  accident. 

The  elevator  was  operated  by  water  pressure — maximum 
750  pounds  to  the  square  inch  when  the  elevator  goes  up, 
forty  per  cent  less  going  down,  as  it  was  at  the  time  of  the 
accident. 

To  the  cylinder  the  water  was  admitted  through  an 
one  and  one-half  inch  pipe  which  burst,  letting  the  water 
run  out,  without  control,  as  fast  as  it  could  under  the  press- 
ure, through  a  five-eighth  inch  hole  in  a  washer  where  the 
pipe  was  attached  to  the  cylinder. 

There  were  dogs  intended  to  catch  hold  of  guide  posts 
in  case  the  elevator  was  descending  too  fast,  and  stop  it, 
not  suddenly,  but  sliding  "  along  a  little  distance  and  bring 
the  car  to  rest." 

The  elevator  started  to  descend  very  rapidly  from  the 
eighth  floor,  and  to  fall  at  the  fourth,  and  was  stopped  only 
about  four  feet  from  the  bottom. 

The  evidence  thereafter  put  in  by  the  appellee  with 
reference  to  the  elevator  was  substantially,  if  not  literally, 
in  reply,  and  at  the  instance  of  the  appellant  the  jury  was 
instructed — 

"  The  jury  are  instructed  that  before  the  plaintiff  can 
recover  any  damages  in  this  case  against  the  defendant,  he 
must  show  by  a  preponderance  of  the  evidence  that  the  said 
defendant  was  guilty  of  negligence  as  charged  in  the  dec- 
laration, and  that  the  plaintiff  was  injured  in  consequence 
of  such  negligence  on  the  part  of  said  defendant,  and  not 
by  reason  of  any  latent  defect  in  any  part  of  the  said  ele- 
vator or  appurtenances,  which  latent  defect  was  unknown  to 
the  said  defendant,  and  could  not  have  been  discovered  by 
it  upon  careful  examination  or  by  the  application  by  com- 
petent persons  of  the  proper  and  usual  tests  for  that  pur- 
pose." 

It  is  hardly  necessary  to  apply  the  doctrine  that  all  of 
the  instructions,  on  both  sides  are  to  be  considered  as  a 
series.  Wenona  Coal  Co.  v.  Holmquist,  152  111.  581;  Cit^^ 
of  Roodhouse  v.  Christian,  158  111.  137. 


First  District — March  Term,  1897.       169 

Thomeon  v.  Rehkopf. 

The  defect  in  the  pipe  was  latenj; — admit  that,  and  there 
remains  the  fact  that  devices  contrived  and  intended  to 
prevent  the  disastrous  consequences  of  defects  were  not  in 
condition  to  do  the  work  assigned  to  them;  and  there  is  no 
ground  to  claim  that  in  them  defects  were  latent — not  dis- 
covable  by  inspection.  So  the  instruction  could  have  done 
no  harm.  If  the  accident  did,  or  did  not,  have  its  origin  in 
the  cause  charged  in  the  first  count,  its  result  was  the  conse- 
quence of  what  is  charged  in  the  second. 

The  residue  of  the  appellant's  brief  presents  matters  less 
serious,  as  to  which  its  counsel  will  doubtless  agree,  that  if 
we  are  right  in  what  we  have  said,  we  are  not  wrong  in 
saying  there  is  no  error  in  them. 

The  judgment  is  affirmed. 


B.  A.  L.  Thomson  \.  F.  A.  Rehkopf. 

1.  Evidence — Existence  of,  and  Proceedings  Under  Mortgages. — 
The  existence  of  a  new  mortgage,  given  to  satisfy  a  prior  mortgage, 
can  not  be  shown  by  parol,  and  until  the  existence  of  such  new  mort- 
gage is  proved,  evidence  of  what  has  been  done  under  it.  or  of  any  sup- 
posed effect  of  it  in  ^tisfying  the  prior  mortgage,  is  inadmissible. 

2.  Same — Records  of  Mortgages — WJien  Competent,— To  render  the 
record  of  a  mortgage  competent  evidence  a  compliance  with  the  statute 
(Section  5,  Chapter  95,  E.  S.,  and  section  86,  chapter  80,  R.  S.)  is  neces- 
sary. 

TroTer. — Appeal  from  the  Circuit  Court  of  Cook  County;  the  Hon. 
Frank  Baker,  Judge,  presiding.  Heard  in  this  court  at  the  March 
term,  1897.    Affirmed.     Opinion  filed  May  6,  1897. 

Thomson  &  Denmark,  attorneys  for  appellant. 

A  chattel  mortgage  given  in  satisfaction  of  a  prior  mort- 
gage is  a  payment  of  the  prior  mortgage,  so  as  to  permit 
intervening  mortgages  to  take  precedence  over  the  last 
mortgage  given.  Jones  on  Chattel  Mortgages,  p.  645;  Tracy 
V.  Lincoln,  145  Mass,  357;  Brown  v.  Dunkel,  46  Mich.  29. 

S.  G.  Abbott,  attorney  for  appellee. 


170  Appellate  CtouRTa  op  Illinois. 

Vol.  70.]  Thomson  v.  Rehkopf. 

The  recordy  or  a  trcmscript  of  the  record,  of  instruments 
relating  to  the  conveyance  of  lands  may  be  read  in  evidence, 
on  proper  foundation  being  laid,  but  only  copies  of  chattel 
mortgages  certified  to  by  the  recorder  are  admissible  in  evi- 
dence, and  then  only  on  the  same  condition  as  instruments 
relating  to  the  conveyance  of  lands. 

Appellant  offered  the  record  of  a  chattel  mortgage  in  evi- 
dence, not  a  certified  copy  thereof,  and  never  laid  any  foun- 
dation therefor,  without  which  it  was  not  proper  evidence. 
Pardee  v.  Lindley,  31  111.  174;  Stow  v.  The  People,  25  111. 
81;  Rankin  v.  Crowe,  19  111.  626. 

Where  the  statute  authorized  a  certified  copy  of  the 
record  only,  on  proper  foundation  being  laid,  yet  it  is  error 
to  introduce  the  record  itself,  although  a  proper  foundation 
was  laid  to  introduce  the  copy.  Hanson  et  al.  v.  Arm- 
strong, 22  111.  442. 

Mb.  Justicb  Gaby  delivebed  the  opinion  of  the  Coubt. 

This  is  an  action  of  trover  by  the  appellant  against  the 
appellee;  the  appellant  claiming  under  chattel  mortgages 
made  by  one  Eeitz,  and  the  appellee  defending  under  a 
prior  mortgage  made  also  by  Reitz. 

The  appellant  tried  to  show  that  the  latter  mortgage 
was  not  in  force,  having  been  satisfied  by  the  taking  of  a 
new  mortgage  from  Reitz  to  the  appellee  of  later  date  than 
those  under  which  appellant  claimed. 

The  court  rightly  ruled  that  the  existence  of  such  new 
mortgage  could  not  be  proved  by  parol,  and  that  until  such 
existence  was  proved,  evidence  of  what  was  done  under  it, 
or  of  any  supposed  effect  of  it  in  satisfying  the  prior  mort- 
gage, was  inadmissible. 

The  appellant  offered,  as  evidence  of  a  new  mortgage,  the 
record  of  such  a  mortgage  in  the  recorder's  office,  but 
attempted  no  compliance  with  the  conditions  prescribed  by 
statute  to  make  such  record  evidence.  Sec.  5,  Ch.  95, 
Mortgages;  Sec.  36,  Ch.  30,  Conveyances. 

Appellant  offered  to  prove  that  he  had  "  made  a  demand  " 
upon  the  appellee — of  or  for  what  was  not  stated — and  he 


FiKST  DiSTRicjT — ^Mabch  Terh,  1897.       171 

West  Chicago  St  R.  R.  Co.  v.  Nilson. 

excepted  to  the  refusal  of  the  court  to  permit  the  questions 
to  the  appellee,  whether  he  had  handed  to  his  counsel,  or  his 
counsel  had  in  his  possession,  any  paper  executed  by  Reitz 
to  the  appellee  subsequent  to  the  mortgage  under  which  the 
appellee  claimed.  We  need  not  consider  those  questions 
further  than  to  say  that  vague  and  general  as  they  were, 
accompanied  by  no  offer  to  prove  any  specific  thing,  but 
being  merely  fishing,  no  error  was  committed  by  the  court 
in  the  rulings.    Gaffield  v.  Scott,  33  111.  App.  317. 

The  appellant  had  an  easy  method  open  to  him  to  prove 
that  later  mortgage — if  one  there  was — by  complying  with 
the  statutes  hereinbefore  referred  to;  not  adopting  it,  there  is 
no  question  of  such  mortgage  in  the  case,  and  the  judgment 
is  affirmed. 

Mr.  Justice  Watbbman. 

I  am  of  the  opinion  that  the  court  should  not  have  sur- 
tained  the  objection  made  to  certain  questions  asked  by 
appellant;  but  had  the  witness  been  permitted  to  answer, 
and  if  by  competent  evidence  it  had  appeared  that  a  sub- 
sequent mortgage  was  in  existence,  such  proof  only  would 
not  have  invalidated  the  first  mortgage  or  raised  a  pre- 
sumption that  it  had  been  satisfied. 


70    171 

82    108 


West  Chicago  Street  Railroad  Co.  v.  Nils  Nilson. 

1.  Neguoence— Cy  Street  Railway  Operating  Double  Track.-- A 
plaintiff  bringing  suit  for  personal  injuries  against  a  street  rail  way  com- 
pany operating  a  double  track  railroad  showed  that  he  came  near  the 
track  as  a  car  was  approaching;  that  he  waited  for  it  to  go  by  and  then 
undertook  to  go  on  his  way,  passing  behind  it,  and  was  knocked  down 
and  hurt  by  a  car  on  the  other  track  going  the  other  way,  of  which  car 
he  had  no  warning.  Held,  that  a  verdict  finding  the  defendant  guilty 
of  negligence  and  the  plaintiff  in  the  exercise  of  ordinary  care  must 
stand. 

2.  Ordinart  Cabx— AU  That  Is  Required,— An  instruction  telling  a 
jury  tha«  on  a  certain  hyj)othe8is  a  plaintiff  suing  for  personal  injuries 


172  Appellate  Courts  of  Illinois. 

Vol.  70.]  West  Chicago  St.  R.  R  Co.  v.  Nil^n. 

^1  ■     I  _  ■ ■  __  ■  _  I  ■  _       II  _  _  ■ i__^ i_ _  ■         _ 

should  have  exercised  '*  the  highest  degree  of  Vigilance  and  care  for  his 
own  safety  "  is  bad.  The  duty  oi  the  plaintiff  was  only  to  exercise  such 
vigilance  and  care  as  reasonably  prudent  and  cautious  persons  exercise 
under  like  circumstances. 

Trespass  on  the  Cade,  for  personal  injuries.  Appeal  from  the  Su- 
perior Court  of  Cook  County;  the  Hon.,  Philip  Stein,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  24,  1897. 

Alkxander  Suluvan,  attorney  for  appellants;  Edward 
J.MoAuDLE,  of  counsel. 

The  operation  of  street  cars  by  either  cable  or  electricity 
in  the  street  is  attended  with  hazard  and  danger,  and  appel- 
lee  is  presumed  to  know  that,  and  act  with  care  accord- 
ingly. Carson  v.  Fed.  St.  Ry.  Co.  (Pa.),  35  Cent.  L.  J.,  145; 
Ehrisman  v.  E.  H.  C.  P.  Ry.,  24  Atl.  R.  596. 

While  the  law  does  not  pronounce  the  failure  to  look  and 
listen  on  approaching  a  railroad  crossing  negligence  peree, 
the  courts,  when  vested  with  power  to  pass  on  questions  of 
fact,  regard  the  absence  of  these  precautions — without  ex- 
planation— negligence.  Partlow  v.  Illinois  C.  R.  R.  Co., 
150  111.  321. 

Taking  place  of  danger  is  an  assumption  of  all  attending 
risks.  Illinois  C.  R.  R.  Co.  v.  Beard,  49  111.  App.  232;  Illi- 
nois C.  R.  R.  Co.  V.  Hall,  72  111.  222;  Simmons  v.  C.  &.  T. 
R.  R.  Co.  110  111.  340;  Peoria  v.  Walker,  47  111.  App.  182; 
Beach,  Contrib.  Neg.,  Sec.  12;  Halpin  v.  Third  Ave.  R.  R. 
Co.,  40  N.  Y.  Super.  175:  Johnson  v.  Canal  ife  C.  Ry.  Co., 
27  La.  Anil.  53;  Mercier  v.  New  Orleans  &  C.  R.  R.  Co.,  23 
La.  Ann.  264,  Miller  y.  St.  P.  Ry.  Co.,  42  Minn.  454;  Morris 
v.  L.  S.  &  M.  S.  Ry.  Co.,  42  N.  E.  Rep.  579;  Rose  v.  Phila. 
R.  R.  Co.,  12  Atl.  Rep.  78;  Smith  v.  Marine  C.  R.  R.  Co.,  87 
Me.  339,  Trousclair  v.  Pac.  C.  S.  Co.,  80  Cal.  521. 

Persons  assuming  or  going  into  places  which  ordinarily 
prudent  men  regard  as  extra  hazardous  are  required  to  ex- 
ercise care  in  proportion  to  the  danger.  Chicago,  B.  &  Q. 
R.  R.  Co.  V.  Olson,  12  111.  App.  245;  Chicago  &  N.  W.  Ry. 
Co.  V.  Reilly,  40  IlL  App.  416;  Beach,  Contrib.  Neg.  Sec.  9, 
p.  22;  Barker  v.  Savage,  45  K  Y.  191;  B.  &  O.  R.  R.  Co.  v. 
Whitacre,  35  Ohio  St.  627;  Chicago,  R.  I.  &.  P.  R.  R.  Co. 


First  District — March  Term,  1897.        173 

West  Chicago  St.  R  R  Co.  v.  Nilson. 

V.  Houston,  95  U.  S.  697;  Childs  v.  N.  O.  City  R.  R.  Co.,  33 
La.  Ann.  154;  Gamb  v.  23d  St.  Ry.  Co.,  63  N.  Y.  Super. 
46G;  Miller  v.  St.  P.  Ry.  Co.,  42  Minn.  454. 

The  cars  of  appellant  have  a  preference  on  their  tracks 
and  the  traveler  should  give  way  and  inform  himself  whether 
a  necessity  therefore  exists.  Booth  St.  Ry.  Law,  Sec.  303; 
Chicago,  B.  &  Q.  R.  R.  Co.  v.  Lee,  Admr.,  87  111.  454;  Baker 
v.  Eighth  Ave.  R.  R.  Co.  69  N.  Y.  Sup.  Ct.  39;  Carson  v.  Fed. 
St.  Ry.  Co.,  35  Cent.  L.  J.  145;  Child  v.  N.  O.  &  C.  R.  R.  Co., 
33  La.  Ann.  154;  Donnelly  v.  B.  City  R.  R.  Co.,109N.  Y. 
16;  Ehrisman  v.  E.  H.  C.  P.  Ry.  Co.,  24  Atl.  R.  596;  Fleckea- 
atein  v.  D.  D.  E.  B.  &  B.  R.  Co.,  105  K  Y.  655;  Smith  v.  M. 
O.  R.  R.  Co.,  87  Me.  339;  Thomas  v.  Citizens  P.  R.  R.  Co.,  132 
Pa.  St.  504;  Warner  v.  People's  St.  Ry.  Co.,  141  Pa.  St.  til 5; 
Wilbrand  v.  Eighth  Ave.  R.  R.  Co.,  3  Bos w.  5  N.  Y.  Sup.  3 14. 

John  F.  Waters,  attorney  for  appellee. 

A  cable  railway  company  operating  dangerous  machinery 
at  a  rapid  speed  on  and  along  a  public  street  of  a  city  must 
know,  and  in  law  is  bound  to  know,  that  men,  women  and 
children  have  an  equal  right  to  the  use  of  the  highwav  and 
will  be  upon  it.  Winters  v.  Kansas  City  R.  R.  Co.,  40  Am. 
andEng.  R.  R.  Cases,  261;  12  S.  W.  Rep.  652. 

It  is  the  duty  of  the  company's  servants  to  be  on  the  look- 
out and  to  take  all  reasonable  measures  to  avoid  injuries  to 
persons  on  the  streets. 

The  gripman  of  a  cable  train  should  always  be  on  the 
alert  to  avoid  dangers  and  his  attention  should  never  be 
diverted  from  his  duties.  ShUur  v.  Citizens  Traction  Co., 
153  Pa.  St.  29. 

Failure  of  a  person  to  look  and  listen  before  crossing  the 
tracks  of  an  electric  railway  in  a  public  street  where  cars 
have  not  the  exclusive  right  of  way  is  not  negligence  as  a 
matter  of  law,  like  it  might  be  if  it  were  a  steam  railroad. 
Bobbins  v.  Springfield  St.  R.R.  Co.,  165  Mass.  30;  42  N.  E. 
Bep.  334. 

Mr.  Justice  Qkry  delivered  the  opinion  op  the  Court. 
The  evidence  for  the  appellee  warranted  the  conclusion 


174  Appellate  Courts  of  Illinois. 

Vol.  70.]  West  Chicago  St  R.  R  Co.  v.  Nilson. 

by  the  jury  that  on  a  very  dark  night,  November  30, 1894,  at 
nearly  seven  r.  m.,  the  appellee  attempted  to  cross  Milwaukee 
avenue  from  the  north  to  the  south  on  the  east  crosswalk  on 
Western  avenue.  Milwaukee  avenue  is  a  northwest  and 
southeast  street,  and  occupied  by  a  double  track  cable  line. 
A.  car  was  crossing  that  crosswalk,  going  northwest  on  the 
right  hand  track  as  the  car  was  going.  The  appellee  came 
near  to  it,  waited  for  it  to  go  by,  undertook  then  to  go  on 
his  way,  passing  behind  it,  and  was  knocked  down  and  hurt 
by  a  car  on  the  other  track  going  the  other  way,  of  which 
car  he  had  no  warning.  He  sued  and  recovered,  as,  under 
such  circumstances,  was  inevitable.  Cars  on  a  double  track, 
passing  each  other  at  street  intersections,  where  the  one 
going  hides  from  the  pedestrian  the  one  coming,  make  a 
case  for  a  jury  to  treat  as  negligence.  Chicago  City  Ry.  v. 
Wilcox,  33  111.  App.  450. 

And  whether  the  failure  by  the  pedestrian  to  anticipate 
such  a  method  of  operating  the  cars,  and  guard  against  it, 
is  a  want  of  ordinary  care,  is  a  question  to  which  the 
answer  of  a  jury  is  never  in  doubt. 

The  argument  here  by  the  appellant  is  all  upon  the  evi- 
dence, except  complaint  is  made  of  the  refusal  of  one  instruc- 
tion which  was  given  in  another,  and  the  refusal  of  one 
that  upon  a  certain  hypothesis  the  appellee  should  have  ex- 
ercised "  the  highest  degree  of  vigilance  and  care  for  his  own 
safety."  That  is  a  degree  of  vigilance  and  care  required 
only  where  one  party  owes  a  duty  to  the  other,  as  a  pass- 
enger carrier  to  his  passengers.  An  instruction  should  not 
deal  in  superlatives. 

The  duty  of  the  appellee  was  to  exercise  such  vigilance 
and  care  as  reasoi^ably  prudent  and  cautions  persons  exer- 
cise under  like  circumstances.  Chicago,  St.  P.  &  K.  C.  R. 
R.  v.  Ryan,  62  111.  App.  264. 

That  is  short  of  the  highest  reach  of  human  endeavor. 
The  judgment  is  aflBlrmed. 


First  District — March  Term,  1897.        175 

Bernstein  v.  The  People. 


Joseph  Bernstein  t.  The  People  of  the  State  of  Illinois. 

1.  Statutes— •Tterwdicfton  of  tht  Appellate  Court  in  Cases  Involving 
the  Validity  of. — The  Appellate  Court  has  no  jurisdiction  of  cases  in- 
volving the  validity^  of  a  statute. 

ProneeatioB,  for  selling  goods  with  false  label.  Error  to  the  Criminal 
Court  of  Cook  County;  the  Hon.  John  Gibbons,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Writ  dismissed.  Opinion 
filed  May  24,  1897. 

Elijah  N.  Zoline,  attorney  for  plaintiff  in  error;  Leon 
ZoLOTKOFF  and  Huoo  Pam,  of  counsel. 

W.  F.  Struckman,  attorney  for  defendant  in  error;  Clif- 
ford &  More,  of  counsel. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  plaintifiF  in  error  was  prosecuted  under  section  2  of 
the  act  of  1891,  amended  in  1895  (Kurd's  Statutes  of  1895, 
page  1555),  for  selling  "goods  contained  in  a  box,  to  which 
said  box  was  attached  an  imitation  of  the  label  of  the  Cigar 
Makers'  International  Union  of  America,  an  Association  of 
Workingmen." 

lie  was  convicted  and  fined  one  hundred  dollars. 

In  the  Criminal  Court,  by  motion  to  dismiss,  to  the  de- 
nial of  which  the  plaintiff  in  error  excepted,  he  challenged 
the  validity — constitutionality — of  section  12  of  the  act 
under  which  the  prosecution  was  commenced  before  a  jus- 
tice of  the  peace. 

By  motions  of  a  new  trial  and  in  arrest  of  judgment,  not 
specifying  the  grounds,  the  same  question  was  raised.  O.  O. 
&  F.  R.  V.  E.  R.  V.  McMath,  91  111.  104. 

Overruling  those  motions  is  assigned  as  error. 

Now  his  brief  argues  the  question  for  our  consideration. 
He  has  thereby  ousted  this  court  of  jurisdiction  of  this  writ 
of  error,  as' cases  involving  the  validity  of  a  statute  are  ex- 
cepted from  the  jurisdiction  of  the  Appellate  Courts.    Sec. 


70    1751 
70    819 


176  Appellate  Courts  op  Illinois. 

Vol.  70.]  Atlas  ISewer  Pipe,Co.  v.  Sticknev. 

8  of  Act  of  1877,  creating  Appellate  Courts.  Ames  v. 
Ames,  44  J 11.  App.  676;  148  111.  321. 

A  freehold  and  the  validity  of  a  statute  are  on  the  same 
plane  as  to  jurisdiction. 

The  writ  of  error  is  dismissed. 


Atlas  Sewer  Pipe  Co.  r.  Joseph  Sticknoy  and  H.  S. 

Bolkcom. 

1.  Verdicts— Sufficiency  of— In  itepZmn. —Upon  issues  in  replevin, 
formed  by  the  pleas  of  non  cepit,  non  detinet,  and  property  in  a  third 
person,  a  verdict  finding  the  issues  for  the  defendant  is  sulBcient . 

Beplevlli. — Appeal  from  the  Circuit  Ck)urt  of  Cook  County;  the  Hon. 
Charles  (h  Neelt,  Judge,  presiding.  Heard  in  this  court  at  the  March 
term,  1897.    Affirmed.     Opinion  filed  May  24,  1897. 

Edwin  C.  Crawford,  attorney  for  appellant. 
Charles  M.  Walker,  attorney  for  appellees. 

Mr.  Justice  Waterman  drliybkbd  the  opinion  of  the 
Court. 

This  was  an  action  of  replevin,  resulting  from  the  levy  of 
a  distress  yarr^i^^  upon  the  property  afterward  replevied. 

The  issues  were  formed  upon  five  pleas  filed  by  appellee, 
viz :  ^on  cepit,  non  detinet^  not  guilty,  property  in  one 
Stickney,  and  property  in  Chicago  Sewer  Pij>e  &  Coal  Co. 

The  verdict  of  the  jury  was :  "  We,  the  jury  find  the 
issues  for  the  defendants." 

This,  appellant  urges,  was  not  responsive  to  the  issues. 

The  verdict  was  sufficient. 

As  to  the  questions  of  fact,  we  find  no  sufficient  reason 
for  interfering  with  the  conclusions  of  the  jury  or  the  judg- 
ment of  the  court. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


First  District — March  Term,  1897.        177 

Am.  Trust  &  Savings  Bank  v.  Pack,  Woods  &  Co. 


70    177 
Ti    162 

American  Trast  and  Sayings  Bank  t.  Pack^  Woods  &      U^J^^ 

Co.,  for  Use,  etc.  \M^ 

1.  Attachments — Are  Purely  Statutory  Proceedings. -rProceedings 
by  attachment  are  in  derogation  of  common  law  and  can  only  exist  by 
virtue  of  some  statutory  provisions. 

2.  Same— Alias  Writs  Not  Provided  For.— The  statute  of  this  State 
makes  no  provision  for  an  alias  writ  in  case  of  an  original  attachment, 
and  the  same  is  true  of  an  attachment  in  aid. 

8.  Samb — Allans  Writs  of  Attachment  Void. — Where  an  attachment 
ia  aid  of  a  suit  at  law  was  returned  unexecuted  by  order  of  the  plaintiff's 
attorney,  who  afterward  filed  another  bond  and  affidavit  substantially 
the  same  as  the  first,  and  upon  which  another  attachment  in  aid  was 
issued,  it  was  Jield,  that  the  second  writ,  although  not  containing  the 
words  **  as  we  have  before  commanded  you,"  was  an  alias  writ  and  void 
as  not  being  authorized  by  the  statutes  of  this  State. 

4.  Alias  Writs — Defined. — An  alias  writ  is  one  which  is  issued 
when  a  former  writ  has  not  produced  its  effect,  and  is  so  called  from  the 
words  **  as  we  have  formerly  commanded,"  being  inserted  after  the 
usual  commencement,  **  We  command  you,"  although  such  words  are 
not  necessary  and  their  omission  does  not  change  the  character  of  the 
writ. 

Attachment  Proeeedlnsrs. — Appeal  from  the  Superior  Court  of  Cook 
County;  the  Hon.  Jonas  Hutchinson,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  189^.  Reversed  without  remanding.  Opinion 
filed  May  24,  1897. 

BLawley  &  PfiouTY,  attorneys  for  appellant. 

Fabson  &  Grkenfibld,  attorneys  for  appellee. 

Mb.  PRESiDiNa  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  appeal  is  from  a  judgment  by  default  for  $277, 
rendered  November  5,  1896,  against  the  appellant,  as  gar- 
nishee, in  a  suit  begun  July  23,  1895,  by  one  Parker,  as 
receiver,  etc.,  against  the  appellee,  Pack,  Woods  &  Company, 
a  corporation,  and  summons  was  issued  therein,  returnable 
to  the  August  term,  1895,  of  said  court. 

On  the  same  day  the  suit  was  begun,  the  plaintiff  filed 

Vol.  LXX  IS 


178  Appellate  Courts  of  Illinois. 

Vol.  70.]    Am.  Trust  &  Savings  Bank  v.  Pack,  Woods  &  Co. 

an  affidavit  and  bond  for  an  attachment  in  aid,  and  the 
writ  was  issued  returnable  to  the  same  term  of  court,  but 
was  returned  August  5, 1895,  unexecuted,  by  order  of  plaint- 
iffs attorney.  In  that  writ  certain  persons,  not  including 
tbe  appellant,  were  summoned  as  garnishees. 

Afterwal^,  on  October  1, 1895,  the  plaintiff  filed  another 
affidavit  and  bond  for  attachment  in  aid  of  the  same  suit, 
and  another  writ  of  attachment  in  aid  was  issued.  Such 
affidavit,  bond  and  writ,  were  in  substance  the  same  as  the 
former,  except  that  the  garnishees  named  in  the  first  writ 
were  omitted,  and  the  name  of  appellant  as  garnishee  was 
inserted  in  the  second  writ. 

The  second  writ  was  returned  served  upon  appellant  on 
the  day  it  issued.  Subsequent  proceedings  in  the  suit  were 
had,  including  publication  of  notice,  etc.,  to  the  defendant, 
resulting  in  a  conditional  judgment  against  appellant  as 
garnishee  on  October  5,  1S96,  and  the  issuance  of  a  writ  of 
scire  facias  to  the  appellant  and  service  thereof,  and  final 
judgment  against  appellant  by  default,  on  November  5, 
1896,  which  is  the  judgment  appealed  from. 

On  November  6,  1895,  appellant  filed  its  special  appear- 
ance and  motion  (specifically  limiting  such  appearance  to 
the  purpose  of  the  motion)  to  quash  the  said  second  writ, 
upon  the  ground  specified  in  the  motion  that  said  second 
writ  was  slu  alias  writ  of  attachment,  and  as  such  was  un- 
known to  and  unauthorized  by  the  laws  of  this  State,  and 
void;  and  that  said  second  writ  had  not  conferred  upon  the 
court  jurisdiction  of  the  person  of  appellant. 

.  Subsequently,  the  defendant  filed  its  like  special  appear- 
ance and  motion,  but  both  motions  were  overruled. 

This  court  has  held  in  Dennison  v.  Blumenthal,  37  111. 
App.  385  (affirmed  by  the  Supreme  Court  under  the  title  of 
Dennison  v.  Taylor,  142  111.  45,  upon  another  point,  and 
without  alluding  to  the  point  in  question),  that  proceedings 
by  attachment  are  in  derogation  of  the  common  law,  and 
can  only  exist  and  be  carried  on  by  virtue  of  some  statutory 
provision,  and  that  the  statutes  of  this  State  make  no  pro- 
vision for  an  a^^'a^  writ  in  case  of  an  original  attachment; 


First  District — March  Term,  1897.       179 

Am.  Trust  &  Savings  Bank  v.  Pack,  Woods  &  Co. 

and  such  decision  applies  as  well  in  the  case  of  an  attach- 
ment in  aid,  as  in  the  case  of  an  original  attachment. 

Sees.  31  and  33  of  the  attachment  act  require  that  pro- 
ceedings in  the  cases  of  attachments  in  aid  shall,  as  near  as 
may  be,  conform  to  proceedings  in  cases  of  original  attach- 
ments, and  it  follows  that  if  no  alias  writ  may  issue  in  cases 
of  original  attachments,  none  may  in  cases  of  attachments 
in  aid.     Crandall  v.  Birge,  61  111.  App.  234. 

But  appellee  contends  that  because  nothing  was  done 
under  the  first  writ  except  to  return  it  unexecuted  by  order 
of  plaintifTs  attorney,  it  was  a  nullity,  the  same  as  if  no 
writ  had  ever  issued,  and  therefore  the  plaintiflf  had  in  reality 
but  one  writ  of  attachment  in  aid  of  his  suit,  viz.:  the 
second  writ,  which  therefore  was  not  in  any  proper  sense 
an  alias  writ.  We  can  not  assent  to  the  correctness  of  such 
contention. 

An  "  alias "  writ  is  one  which  is  issued  when  a  former 
writ  has  not  produced  its  effect,  and  is  so  called  from  the 
words  "as  we  have  formerly  commanded  you"  (sicut  alias 
prcBcipimics,)  being  inserted  after  the  usual  commencement, 
*' We  command  you."  Blackstone,  Chap,  ly.  Book  3.  But 
whether  such  words,  simit  alias^  be  used  or  not,  can  not,  as 
we  conceive,  make  a  second  writ  an  original  one.  The  omis- 
sion by  the  clerk  of  such  words  can  not  change  the  fact. 

"An  alias  writ  is  a  writ  issued  where  one  of  the  same 
kind  has  been  issued  before  in  the  same  cause. 

The  second  writ  runs,  in  such  case,  '  we  command  you  as 
we  have  before  commanded  you '  {sicut  alias),  and  the  Latin 
word  alias  is  used  to  denote  both  the  writ  and  the  clause  in 
which  it  or  its  corresponding  English  word  is  found.  It  is 
used  of  all  species  of  writs."  Bouvier's  Law  Dictionary, 
"Alias;"  Black's  Law  Dictionary;  Eapalje  and  Lawrence's 
Law  Dictionary;  The  Century  Dictionary. 

Not  could  the  fact  that  in  the  second  writ  there  was 
named  a  different  garnishee  from  that  named  in  the  first 
writ,  make  the  second  writ  an  original  writ. 

The  naming  of  garnishees  in  either  writ  was  not  neces- 
sary to  the  full  operation  of  the  writ  against  the  property 


180  Appellate  Courts  of  Illinois. 

Vol.  70.]  Dovenmuehle  ▼#  Eilenberger. 

of  the  defendant.  The  right  to  have  garnishees  summoned 
is  only  an  additional  right  given  by  the  statute  to  the 
plaintiff  in  the  attachment  writ,  as  a  method  of  reaching 
debts  due  to  the  defendant  in  addition  to  property  of  the 
defendant  that  is  subject  to  levy,  but  such  a  summoning  is 
not  at  all  essential  to  the  validity  or  regularity  of  the  writ. 
In  such  regard  it  neither  adds  to  nor  takes  from  the  writ. 
All  other  questions  that  are  argued,  hang  upon  the  ques- 
tion of  jurisdiction,  and  no  jurisdiction  having  been  obtained 
over  the  person  of  the  appellant  through  the  alias  writ,  the 
judgment  of  the  Superior  Court  will  be  reversed,  but  with- 
out remanding  the  cause. 


Margaretha  Doyenmnehle,  Executrix^  etc.^  v.  Herman 

Eilenberger. 

1.  Statute  op  Frauds — Applied, — The  court  discusses  the  evidence 
and  holds  that  the  agreement  sued  on  is  a  promise  to  answer  for  the 
debt  of  another  and  that  not  being  in  writing  an  action  upon  it  is  barred 
by  the  statute  of  frauds. 

Assnmpslt,  on  a  guaranty.  Appeal  from  the  Superior  Court  of  Cook 
County;  the  Hon.  Pmup  Stein,  Judge,  presiding.  Heard  in  this  court 
at  the  March  term,  1897.    Affirmed.    Opinion  filed  May  24,  1897. 

Albert  N.  Eastman,  attorney  for  appellant. 
SiGMUND  Zeisler,  attorney  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellant  argues  that  the  peremptory  instruction  of 
the  court  to  find  for  the  defendant — the  appellee — was  con- 
trary to  the  opinion  of  this  court  in  Berkowsky  r.  Viall,  66 
111.  App.  349.  There  is  no  resemblance  between  the  cases. 
The  recovery  there  was  upon  the  express  promise  (as  the 
jury  found  in  effect)  to  pay  for  goods  which  the  appellee 
declined  to  furnish  except  upon  that  promise;  and  no  men- 


First  District — March  Term,  1897.       181 

Warman  v.  First  Nat  Bank  of  Akron. 

tion  was  made  in  the  court  below  of  a  defense  under  the 
statute  of  frauds.  Whether  the  contractors  were  by  the 
parties  regarded  as  also  liable  or  not  does  not  appear  in  the 
i-eport.  The  case  is  much  like  Clifford  v.  Luhring,  69  111. 
401,  and  Schoenfield  v.  Brown,  78  III.  487. 

Here  the  whole  conversation  upon  which  the  appellant 
relies  was  on  the  subject  of  a  guaranty,  and  the  attorney  of 
the  appellant,  on  the  trial  called  his  action  one  for  '^  five 
hundred  dollars,  which  we  claim  was  guaranteed  here." 

The  case  as  presented  by  the  appellant  is  that  the  brother 
of  the  appellee  wanted  to  buy  goods  from  the  appellant — 
that  the  appellant  wanted  security,  and  that  the  result  of  a 
conversation  between  the  parties  was — as  the  appellant 
described  it  in  his  testimony,"  an  understanding  I  would  sub- 
mit a  writing,  and  that  the  writing  was  to  be  the  evidence 
of  the  security  or  guaranty  that  would  give  his  brother 
credit." 

Incautiously  the  appellant  sold  and  delivered  the  goods 
without  getting  the  writing,  and  then  the  appellee  refused 
to  sign  it. 

The  case  is  governed  by  the  rule  followed  in  Geary  v. 
O'NeU,  73  III.  593. 

The  statute  of  frauds  is  a  complete  defense,  and  the  judg- 
ment is  afBrmed. 


John  I.  Warman  and  Charles  H.  Schnb  t.  The  First 

National  Bank  of  Akron. 

1.  Pleas — Verifloation  of,  on  Infonnation  and  Belief.— An  affidavit 
by  an  agent  of  a  defendant  that  he  has  read  a  plea  and  **  verily  believes 
the  same  to  be  tme/'  is  not  a  sufficient  verification  of  such  plea  under 
Sec.  84,  Chap.  110,  R.  S. 

2.  PUKADINO  — -  FaiZure  of  Consideration  of  a  Note  Held  by  an 
Assignee. — The  defense  of  a  want  or  failure  of  consideration  for  a  note, 
can  be  made  against  an  assignee  only  by  pleading  specially  and  showing 
why  it  is  subject  in  the  hands  of  an  assignee  to  the  defense. 

8.    Samb — Material  Facts  Not  Denied — Proof  UnnecesaaiT/,— In  a  suit 


170    181 
Ul85s  60 


182  Appellate  Courts  op  Illinois. 

Vol.  70.]  Warman  v.  First  Nat.  Bank  of  Akron. 

'  ^    —         ■  ■  ■■  ■         f  ,       ■  I     ■  .1     ■     ■!!     nil        ■■■»■    ■■II  ■ ■■■■■■■< II  ■ 

on  promissory  notes  the  pleas  set  up  a  failure  of  consideration  and  that 
the  plaintiff,  an  assignee,  took  the  notes,  either  with  notice  thereof,  or 
after  maturity.  Held,  that  the  pleas  did  not  deny  that  the  assignment 
was  for  value,  and  that  it  was  not  necessary  to  prove  that  fact. 

Agsnmpsit,  on  a  promissory  note.  Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  Frank  Baker,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.    Affirmed.    Opinion  filed  May  24,  1897. 

Beach  &  Beach,  attorneys  for  appellants. 
Paden  &  Gbidley,  attorneys  for  appellee. 

Mr  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  first  point  made  by  the  appellants  is  that  the  general 
issue  in  assumpsit,  to  which  an  agent  of  the  defendants 
appended  an  affidavit  that  he  had  read  it  and  *'  verily  believes 
the  same  to  be  true,"  was  sufficient  to  put  the  plaintiff  on 
proof  of  the  execution  of  the  notes  sued  upon. 

We  waive  the  inquiry  whether  to  have  that  effect  the 
affidavit  must  be  by  the  party  himself,  though  it  is  not  easy 
to  see  who  else  could  know  that  he  did  not  sign,  or  direct 
the  signing  of  the  paper. 

When  a  plaintiff  denies  an  instrument  set  up  in  defense, 
it  is  his  affidavit  that  is  required,  and  there  is  no  reason  for 
a  difference  between  the  parties. 

But  such  an  affidavit  as  was  here  appended  does  not  ver- 
ify the  plea. 

What  that  agent  believed  upon  any  subject  was  of  no  con- 
sequence in  this  suit.  The  denial  of  the  execution  is  by  the 
plea;  the  affidavit  is  to  verify  the  plea;  and  the  proviso  of 
Sec.  34,  Ch.  110,  E.  S.,  Practice  relates  (so  far  as  concerns 
pleas)  to  cases  in*  which  the  party  whose  plea  denies  is  not 
the  party  alleged  to  have  executed  the  instrument.  He  can 
not  save  his  conscience,  nor  screen  his  person  from  the  con 
sequences  of  perjury  by  procuring  some  convenient  friend 
to  believe  his  statement  that  he  did  not  execute,  preparatorv 
to  an  affidavit  by  that  friend  that  he  so  verily  believes. 

By  various  pleas  the  apj^ellants  set  up  a  failure  of  consid- 
eration of  the  notes,  and  that  the  appellee  took  the  notes, 
either  with  notice  thereof  or  after  maturitv. 


First  District— March  Term,  1897.       183 

Congress  Coostruction  Co.  v.  Gutrich. 

The  evidence  by  the  appellants  showed  that  the  bank  dis- 
counted the  notes,  and  put  the  proceeds  to  the  credit  of  the 
payees,  before  the  maturity  of  the  notes,  and  was  silent  as 
to  notice. 

A  point — which  does  not  appear  to  have  been  thought  of 
below — is  now  made  that  such  discount  and  crediting  of  the 
proceeds  does  not  show  that  the  appellee  is  a  holder  for 
value. 

The  pleas  presented  no  issue  of  that  kind. 

The  defense — if  one  there  was  in  fact — of  a  want  of  con- 
sideration for  the  notes,  could  be  made  against  an  assignee 
only  by  pleading  specially:  showing  why  it  was  subject,  in 
the  bands  of  an  assignee,  to  the  defense. 

That  showing  might  be  that  the  assignee  took  with  notice, 
or  after  maturity,  or  without  paying  value;  but  under  pleas 
of  one  reason,  proof  of  another  would  not  be  admissible. 
Had  such  an  issue  been  made,  it  is  not  an  improbable  con- 
jecture that  the  bank  would  have  shown  that  the  payee 
checked  out  the  proceeds,  that  being  the  usual  purpose  for 
which  a  holder  of  commercial  paper  submits  to  a  discount 
from  the  face  of  it. 

The  judgment  is  affirmed. 


Congress  Constraction  Co.  t.  Michael  Gutrich. 

1.  Verdicts— 0»  Conflicting  Evidence  Final.— Only  a  question  of 
fact,  depending  upon  conflicting  evidence,  is  involved  in  this  case  and 
under  the  rule  that  the  verdict  of  a  jury  on  conflicting  evidence  is  final 
the  judgment  must  be  affirmed. 

Assumpsit,  on  a  building  contract.  Appeal  from  the  Superior  Court 
of  Cook  County;  the  Hon.  Philip  Stein,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  May  24, 
1897.  * 

Edwin  F.  Abbott,  attorney  for  appellant. 
Walkeb  &  Davis,  attorneys  for  appellee. 


184  Appellate  Coubts  of  Illinois. 

Vol.  70.]  Congress  Construction  Co.  v.  Gutrich. 

Mb.  Justice  Gaby  delivebed  the  opinion  of  the  Coubt. 

From  the  record  we  dig  ont  that,  probably,  Messrs. 
Whistler  and  Fountain  bad  a  ground  lease,  and  undertook 
to  erect  a  building  so  large  that  the  labor  and  material  for 
the  excavation  and  masonry  would  be  worth  $4,550.  The 
appellant,  by  contract  with  Whistler  and  Fountain,  undei-- 
took  to  erect  the  building,  and  was  to  be  paid  $5,000  when 
the  first  story  joists  were  on.  The  appellant  and  appellee 
made  a  contract  by  which  the  appellee  undertook  to  do  the 
excavation  and  masonry.  When  the  walls  were  ready  for 
them  the  joists  were  laid,  presumably  by  the  appellant,  and 
the  appellee  presented  a  bill  for  a  p<ayraent  on  account  under 
the  contract,  for  $1,933,  less  fifteen  per  cent,  to  be  reserved 
until  after  the  work  was  all  done. 

Then  there  was  trouble. 

Whistler  and  Fountain  didn't  pay  and  couldn't. 

The  appellant  took  the  joists  away,  and  naturally  is  quite 
dissatisfied  with  the  quality  of  the  materials,  and  with  the 
manner  the  appellee  put  them  into  the  walls.  The  counsel 
of  the  appellant  has  presented  a  good  brief,  demonstrating, 
from  his  point  of  view,  that  the  complaints  of  the  appellant 
are  well  grounded.  But  the  facts  from  which  he  draws  his 
conclusions  are,  with  possibly  one  exception,  the  subject  of 
conflicting  evidence,  upon  which  the  verdict  of  a  jury  is 
final. 

That  exception  is  that  some  piers  were  to  be  built  of 
sewer  brick,  and  thev  were  in  fact  built  of  hard-burned 
brick,  selected  from  common  brick. 

There  is  no  evidence  that  sewer  brick  make  a  class  bv 
themselves;  but  several  witnesses  describe  sewer  brick  as 
hard-burned,  selected  from  common  brick. 

The  appellee  did  his  work  under  the  supervision  of  an 
architect  named  in  the  contract,  and  to  his  satisfaction;  and 
the  preponderance  of  the  evidence  is  that  the  secretary  of 
the  appellant,  himself  a  practical  builder,  was  also  sat- 
isfied. 

As  on  the  whole  case  only  a  question  of  fact,  depending 
apon  conflicting  evidence,  is  involved,  we  must  afl3.rm  the 
judgment. 


First  District — March  Term,  1897.      185 

Hazle  v.  Bondy. 


Samuel  Hazle  and  Peter  Schnnr  t.  Theresa  A.  Bondy  and 

Frederick  Bondy. 

1.  Deei>s — Effect  of  Return  of,  to  Grantor's  Custody  Without  Record- 
ing,— ^The  return  after  its  delivery  of  an  unrecorded  deed  does  not  divest 
the  grantee  of  the  title  to  the  land  described  therein  so  as  to  prevent  him 
from  making  a  conveyance  thereof  and  the  title  to  such  land  ia  effect- 
ually passed  by  deeds  from  him. 

2.  Pkomisrory  Notes — Ac^justment  of  Amount  Due  on,  in  Equity. — 
If,  by  the  conduct  of  the  holders  of  notes  secured  by  trust  deed,  matters 
have  become  complicated,  so  that  the  amount  due  upon  the  notes  is 
uncertain,  they  have  the  right  to  call  upon  a  court  of  equity  to  adjust 
the  equities. 

8.  Notice — Taking  Security  for  Relea^  is  Notice  of  the  Effect  of — 
Faking  a  deposit  as  security  against  loss  by  a  release  is  notice  of  the  effect 
the  release  may  have  upon  parties  affected  by  it. 

4.  Decrees — In  Accordance  With  the  Facts  Approved. — The  court 
reviews  the  evidence  and  finds  that  the  decree  follows  the  proofs  and  is 
right  in  all  its  parts. 

Bill  for  Relief,  from  an  incumbrance.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  Theodore  Brentano,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Mr.  Justice 
Waterman  dissenting.    Opinion  filed  May  24, 1897. 

Daniel  J.  McMahon  and  James  R.  Ward,  attorneys  for 
appellant  Samuel  Hazle. 

Wm.  S.  Young  and  John  Eeid  MoFhe,  attorneys  for  appel- 
lant Peter  Schnur. 

Hen?y  D.  Beam  and  Edward  D.  Cooke,  attorneys  for 
appellees. 

Me.  Justice  Gaby  delivered  the  opinion  of  the  Court. 

The  appellants  are  here  upon  separate  appeals,  but  on  one 
record,  and  with  no  community  of  interest.  The  appellees 
are  husband  and  wife,  identified  in  interest. 

It  will  not  be  necessary  to  state  the  voluminous^  pleadings 
or  evidence,  but  only  the  material  facts,  as  we  hold  them  to 
be.    In  doing  this,  we  are  greatly  embarrassed  by  the  fact 


70    J»)| 
173s  302, 


186  Appellate  Courts  of  Illinois. 

Vol.  70.]  Hazle  v.  Bondy. 

that  the  abstract — nearly  one  hundred  pages — is  unindexe<l, 
and  that  the  briefs  of  the  respective  appellants  are  very 
little  help  in  finding  where  in  the  abstract  or  record  the 
proof  of  any  fact  stated  can  be  found. 

In  preparing  such  documents  attorneys  should  "  put  your- 
self in  his  place"  and  consider  how  best  they  can  help  a 
stranger  to  the  case  to  a  knowledge  of  it. 

April  10,  1893,  Mrs.  Bondy  was  seized  of  two  lots,  num- 
bers 20  and  21,  each  with  a  north  front  of  fifty  feet  on 
Roscoe  street;  twenty  adjoined  twenty-one  on  the  west. 
The  appellees  then  executed  two  trust  deeds,  one  conveying 
one,  and  the  other  the  other  of  the  lots  to  Adolph  Loeb, 
each  to  secure  the  payment  of  a  promissory  note  made  by 
them  to  their  own  order,  and  by  them  indorsed,  each  for 
the  sum  of  $2,000,  payable  three  years  thereafter  with  six 
per  cent  interest. 

April  6,  1894,  they  conveyed  the  whole  100  feet,  subject 
to  these  incumbrances  of  $1,000,  to  William  J.  Haerther. 

The  deed  was  delivered  to  him,  but  never  recorded.  In 
a  short  time  he  brought  it  back,  and  it  was  destroyed  by 
mutual  consent  of  Haerther  and  Frederick  Bondy,  and  the 
appellees  made  new  deeds — dated  back,  one  to  April  5, 1894, 
purporting  to  convey  the  east  seventeen  feet  of  lot  20,  and 
the  west  sixteen  feet  of  lot  21  to  Bertha  Harder;  two  dated 
back  to  March  17, 1894,  one  purporting  to  convey  the  east 
thirty-four  feet  of  lot  20,  and  the  other  purporting  to  con- 
vey the  west  thirty-three  feet  of  lot  21  to  Haerther, 

It  will  be  readily  seen  that  by  these  three  deeds  the  west 
sixteen  feet  of  lot  20  and  the  east  seventeen  feet  ot  lot  21 
were  not  mentioned  at  all,  while  the  east  seventeen  feet  of 
lot  20  and  the  west  sixteen  feet  of  lot  21  were  twice  included 
in  the  deeds  so  made.  This  mistake  occurred  by  putting 
the  wrong  number  of  the  lot  in  each  of  the  last  mentioned 
deeds.  By  mistake,  or  fraud  of  Haerther,  these  three  deeds 
said  nothing  about  the  incumbrances. 

Before  the  deed  to  Bertha  Harder  was  delivered  to  her, 
the  premises  therein  described  were  released  to  the  appel- 
lee Theresa,  from  the  trust  deeds  by  Adolph  Loeb,  under 


First  District — March  Term,  1897.       187 

Hazle  V.  Bondy. 

authority  from  the  then  holder  of  the  notes,  upon  a  deposit 
by  Haerther  with  Loeb's  bank  of  $1,500,  to  remain  without 
interest  until  the  incumbrances  were  paid,  "  as  security  on 
account  of  released  deed," 

November  5,  1894,  the  appellees  executed  and  delivered  to 
Haerther  a  quit-claim  deed  purporting  to  convey  to  him  the 
west  thirty-three  feet  of  lot  20  and  the  east  thirty-four  feet 
of  lot  21,  subject  to  the  incumbrances  of  the  trust  deeds. 

After  the  notes  were  due,  Hazel  bought  them  from  the 
holder  through  the  Loeb  bank,  paying  in  cash  the  amount 
due  upon  them  in  excess  of  the  deposit,  ^.  e.y  $3,105.50  un- 
paid interest  having  accrued. 

Hazle  acted  by  an  agent,  assisted  by  J.  R.  Ward,  the 
then  owner  of  the  west  thirty-three  feet  of  lot  20,  and  as 
part  of  the  same  transaction  Adolph  Loeb  released  to  Ward 
the  trust  deed  as  to  those  thirty-three  feet. 

April  17,  1896,  Hazle  entered  judgment  upon  the  notes 
and  issued  executions  which  remain  wholly  unsatisfied. 

The  present  owners  of  the  two  lots  derive  their  title  from 
Haerther.  In  fact,  such  owners  have  no  title  at  law  to  the 
west  sixteen  feet  of  lot  20  and  the  east  seventeen  feet  of  lot 
21,  except  through  the  first  deed  of  April  6,  1894,  of  the 
appellees  to  Haerther,  which  conveyed  the  property  subject 
to  the  incumbrances.  That  deed  carried  to  Haerther  the 
title  which  effectually  passed  by  deeds  from  him  under  which 
the  present  owners  hold.     Gillespie  v.  Gillespie,  159  111.  84. 

No  part  of  the  lots  20  and  21  is  now  subject  to  sale  under 
an  execution  upon  the  judgments  against  the  appellees,  for 
they  had  parted  with  all  title  long  before  the  judgments. 

But  if  by  the  conduct  of  the  holders  of  the  notes,  either 
directly  or  through  authorized  agents,  matters  have  become 
complicated,  so  that  the  amount  due  upon  the  notes  is  un- 
certain, they  have  the  right  to  call  upon  a  court  of  equity 
to  adjust  the  equities. 

Under  these  fa^ts  the  appellant  Schnur,  who  is  the  owner 
of  the  east  thirty-four  feet  of  lot  21,  filed  a  bill,  the  object 
of  which  is  to  discharge  his  property  from  the  incumbrance. 

The  appellees  filed  a  cross-bill  to  cut  down  the  amount 


188  Appellate  Courts  of  Illinois. 

Vol.  70.]  C.  G.  W.  Ry.  Ck>.  v.  MitcheU. 

to  be  paid  to  Hazle,  and  for  general  relief.  All  parties  in 
interest  were  before  the  court  on  appropriate  pleadings,  and 
the  decree  was  that  by  the  releases  the  incumbrances  were 
extinguished  as  to  the  Harder  and  Ward  premises,  but 
remained  a  lien  upon  the  east  seventeen  feet  of  Schnur's. 
That  the  amount  Hazle  was  entitled  to  was  $1,742.73.  That 
the  appellees  have  leave  to  pay  that  sum  in  full  satisfaction 
of  Hazle,  and  should  be  reimbursed  by  the  proceeds  of  a  sale 
of  that  seventeen  feet. 

In  our  judgment  that  decree  is  right  in  all  its  parts  —no 
errors  in  computation  being  alleged. 

Hazle,  bujnng  the  notes  after  maturity,  took  them  subject 
to  all  equities  of  the  appellees. 

Taking  the  deposit  by  Haerther  of  $1,500  as  security — 
another  name  for  indemnity^was  notice  of  the  effect  that 
release  might  have  upon  parties  who  might  be  affected  by 
it.    Young  V.  Marshall,  8  Bing.  43,  21  E.  0.  L.  437. 

Hazle  used  that  deposit^as  so  much  of  the  purchase  money 
when  he  bought  the  notes,  and  it  was  by  his  concurrence 
that  the  release  to  Ward  was  given.  Hazle  has,  therefore, 
nothing  to  complain  of.  Schnur  has  no  real  title  to  his  thirty- 
four  feet,  and  no  apparent  title  to  the  east  seventeen  feet 
of  that  thirty-four  feet,  except  through  deeds  subject  to  the 
incumbrances. 

The  decree  is  affirmed, 

Mb.  Justice  Watbrman  dissents. 


Chicago  Great  Western  Railway  Co.  v.  Thomas  Mitchell. 

1.  Verdicts — Upon  Conflicting  Evidence, — The  evidence  in  this  case 
was  to  some  extent  conflicting,  yet  was  such  that  the  juiy  had  a  right 
to  find,  as  it  did,  that  the  accident  was  brought  about  by  the  negligence 
of  appellant,  and  their  verdict  must  stand. 

2.  NEauGKNCB— iVb*  ExciL8€d  by  Co-operating  Negligence  of  Third 
Party,— The  fact  that  the  owners  of  a  railroad  track  upon  which  a  ool- 


First  District — March  Term,  1897.       189 

O.  G.  W.  Ry.  Co.  V.  Mitchell. 

lision  occurred  were  also  negligeat,  does  not  excuse  the  negligence  of 
another  company  using  such  track  under  an  agreement  with  the  owners. 
3.  AiiKSDyLESTS^Effect  of  FaUare  to  Make  Actual  Correction  oj 
Paper, — An  action  for  personal  injuries  was  brought  and  a  declaration 
filed  against  two  defendants.  Afterward  the  suit  was  dismissed  as  to 
one  of  the  defendants,  and  an  order  made  that  "  all  papers  and  proceed- 
ings be  and  are  hereby  amended  by  discontinuing  "  as  to  such  defend- 
ant. Held,  that  the  fact  that  the  amendments  were  not  actually  made 
upon  the  declaration  itself  did  not  constitute  error. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Supcw 
rior  Court  of  Cook  County;  the  Hon.  John  Barton  Payne,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Afiirmed. 
Opinion  filed  May  24, 1897. 

Henry  A.  Gardner,  attorney  for  appellant. 

JjtANK  Scales,  attorney  for  appellee;  Albert  M.  Cross, 
of  counsel. 

JV^'r.  Justice  Waterman  delivered  the"  opinion  op  the 

Tlie  Chicago  and   Northern  Pacific  Railroad  Company 

ow"x^g  a  railroad  terminal  in  Chicago,  which  is  operated  by 

^^  "^xxder  rules,  regulations  and  time  tables  exclusively  its 

^^^x^.*    The  Chicago  Great  Western  Eailway  Company  is  a 

lio^;jr^ggQ  of  the  Chicago  and  Northern  Pacific  Company,  and 

^.^^^^    the  said  railroad  terminal  under  the  said  rules,  regula- 

^^^^^^  ^  and  time  tables  of  the  Chicago  and  Northern  Pacific 

^     ^^*>.  pany  and  under  its  directions. 

^^r\ie  plaintiff  was  injured  in  the  railroad  yard  which  lies 
>^t  west  of  the  Chicago  river  and  north  of  1 2th  street, 
fhere  are  probably  500  engines  run  in  and  out  of  this  yard 
daUy.  Many  trains  are  made  up  in  this  yard  preparatory 
to  starting  upon  their  journeys;  there  is  a  round-house,  and 
many  tracks  converging  and  running  into  other  tracks  run- 
ning parallel  to  each  other. 

The  plaintiff  being,  as  a  carpenter,  in  the  employ  of  the 
receivers  of  the  Northern  Pacific  Railroad  Company,  was, 
upon  the  morning  of  the  accident,  taken  by  it  upon  one  of 
its  engines  to  be  carried  to  the  place  where  he  was  to  work. 


190  Appellate  Couuts  of  Illinois. 

Vol.  70.]  C.  G.  W.  Ry.  Co.  v.  MitcheU. 

Proceeding  along,  the  engine  upon  which  plaintiff  was  rid- 
ing came  into  collision  with  an  engine  of  the  appellant 
upon  the  track  of  the  Northern  Pacific  Railroad  Company, 
and  consequently  at  a  place  where  both  engines  should  have 
been  running  under  the  rules  and  regulations  of  the  North- 
ern Pacific  Railroad  Company. 

To  avoid  being  crushed  by  the  collision,  plaintiff,  imme- 
diately before  it  happened,  jumped  from  the  engine  upon 
which  he  was  riding,  and  thereby  sustained  injuries  on 
account  of  which  this  action  was  brought. 

It  is  quite  evident  that  the  persons  in  control  of  each  of  the 
engines  were  at  fault.  The  engine  of  the  Northern  Pacific 
Railroad  Company  was  out  of  order,  its  brakes  being  not 
in  the  condition  they  should  have  been.  This  engine  was, 
it  appears,  running  upon  a  regular  time  schedule,  and 
would  seem  to  have  had  the  right  of  way;  so  that  it  was 
the  dut}''  of  the  managers  of  the  engine  of  appellant  to 
keep  out  of  the  way. 

The  engineer  in  charge  of  appellant's  locomotive,  seeing 
that  a  collision  was  imminent,  reversed  his  engine  in  such  a 
manner  that  the  wheels  revolved  rapidly  without  retarding 
the  engine,  as  they  would  have  done  had  the  engine  not 
been  completely  reversed. 

It  also  appears  that  appellant's  engine  was  carrying  at 
the  time  but  fifty  pounds  of  steam,  and  consequently  did 
not  respond  to  the  efforts  of  its  engineer  as  it  would  have 
done  had  it  been  carrying  120  pounds.  It  is  in  evidence 
that  it  is  not  safe  for  an  engine  to  go  upon  the  tracks  at 
the  point  where  this  accident  occurred  with  less  than  from 
120  to  140  pounds  of  steam,  in  order  that  it  may  be  able  to 
respond  quickly,  and  so  get  out  of  the  way  of  anything 
likely  to  come  into  collision  with  it. 

Appellant's  engineer  seems  to  have  been  negligent  in  not 
keeping  a  proper  lookout  for  the  approach  of  locomotives 
belonging  to  the  Northern  Pacific  Railroad  Company,  as 
it  was  his  duty  to  do. 

The  evidence  was  to  some  extent  conflicting,  yet  was 
such  that  the  jury  had  a  right  to  find,  as  it  did,  that  the 


I 

J 


\ 


First  District — March  Term,  1897.       191 

Brady  v.  Loring. 

accident  was  brought  about  by  the  negligence  of  appellant. 
It  is  quite  true  that  it  appears  that  the  receivers  of  the 
Northern  Pacific  Kailroad  Company,  who  were  then  Disrat- 
ing such  road,  were  also  negligent,  but  their  negligence 
does  not  constitute  any  defense  for  appellant. 

It  is  very  evident  that  the  accident  occurred  at  a  place 
where  the  engineer  of  each  locomotive  was  bound  to  exer- 
cise great  vigilance  and  care  to  prevent  a  collision. 

The  evidence  warranted  the  jury  in  finding  that  appel- 
lant's engineer  was  negligent. 

The  action  was  brought  and  a  declaration  filed  against 
both  appellant  and  the  receivers  of  the  Chicago  and  North- 
em  Pacific  Railroad  Company.  Afterward  the  suit  as  to  the 
receivers  of  the  Northern  Pacific  Railroad  Company  was 
dismissed,  and  an  order  made  that  "  all  papers  and  pro- 
ceedings be  and  are  hereby  amended  by  discontinuing  as  to 
such  receivers." 

Although  such  amendment  was  not  actually  made  upon 
the  declaration  itself,  yet  we  think  that  the  record  presents 
no  error  in  that  regard. 

The  fact  that  the  appellee  might  have  recovered  against 
such  receivers,  and  that  their  negligence  was  probably 
greater  than  that  of  appellant,  constituted  no  reason  for 
the  rendering  of  a  verdict  in  favor  of  appellant,  and  con- 
stitutes none  for  the  reversal  of  the  judgment  entered 
against  it. 

The  judgment  of  the  Superior  Court  is  affirmed. 


J.  F.  Brady  v.  Charles  T.  Loring^  for  Use  of,  etc. 

1.  Yexdictts— Against  the  Weight  of  the  Evidence,— The  court  dis- 
cusses the  evidence,  and  hold  that  the  verdict  of  the  jury  is  against  the 
clear  preponderance  of  the  evidence,  and  that  the  judgment  must  be 
revereed. 

Transeript,  from  a  justice  of  the  peace.  Appeal  from  the  County 
Court  of  Cook  County;  the  Hon.  Walks  W.  VVood,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Reversed  and  remanded. 
Opinion  filed  May  24,  1897. 


192  Appellate  Courts  of  Illinois. 

Vol.  70.]  Brady  v.  Loring. 

McDannold  &  Phelps,  attorneys  for  appellant. 
Ferguson  &  Goodnow,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

The  only  question  in  this  case  is  whether  appellant,  who 
had  become  indebted  to  one  Charles  T.  Loring,  and  who  has 
paid  him  in  full,  had  notice  when  he  made  such  payment 
that  the  claim  of  said  Loring  had  been  by  him  assigned  to  the 
Osburn  Electric  Supply  Company;  if  he  had,  then  the  judg- 
ment of  the  County  Court  must  be  affirmed;  otherwise,  it 
should  be  reversed.  The  only  evidence  that  he  did  have 
such  notice  is  the  testimony  of  the  president  of  the  Osburn 
Supply  Companj^  as  follows : 

"  I  first  saw  Mr.  Brady  in  reference  to  this  contract  when 
Mr.  Loring  came  after  me — some  time  after  the  assignment 
of  the  money  had  been  made — in  July,  1895,  and  I  went 
with  him  to  Brady's  office  to  receive  money  on  the  contract. 
The  conversation  which  took  place  between  us  was  up 
stairs,  between  Loring,  Brady  and  myself,  and  we  had  gone 
up  there  to  see  some  of  the  workmen  who  were  insisting  on 
their  money  before  Brady  would  consent  to  pay  over  any- 
thing to  me.  I  did  not  show  Brady  the  assignment;  in  fact, 
I  do  not  believe  I  had  it  with  me,  although  we  talked  about 
it,  and  he,  Brady,  desired  a  receipt  from  both  Mr.  Loring 
and  myself  for  money  paid  over  to  me  on  the  assignment, 
knowing  that  we  were  furnishing  Loring  the  material  to  fix 
up  the  saloon.  After  we  had  talked  about  the  matter  up 
stairs  we  came  downstairs,  and  Brady  told  his  clerk,  Mr. 
McCarty,  to  make  out  a  check  payable  to  the  Osburn  Elec- 
tric Supply  Company  for  two  hundred  dollars.  This  check 
I  received,  and  both  Mr.  Loring  and  myself,  as  president  of 
the  Osburn  Supply  Company,  signed  a  receipt  to  Mr.  Brady 
for  the  two  hundred  dollars,  to  apply  on  account  for  the 
contract  for  wiring  the  saloon."  *  *  *  "At  the  time  I 
went  to  see  Brady  and  he  paid  me  the  two  hundred  dollars, 
I,  as  I  remember  it,  did  not  have  the  assignment  of  the  con- 


FiKST  District — March. Term,  1897.        193 

^^ •' -_  ■       ■  -         — -         - ■_■-_  ■IIBI  -  - 

£mst  Tosetti  Brewing  Co.  ▼.  Rosenheim. 

tract  with  me,  and  Brady  did  not  see  it.  I  think  Brady 
knew  of  the  assignment." 

The  utmost,  as  to  notice  to  Brady,  that  thus  appears,  is 
that  the  assignment  was  "  talked  about,"  and  probably  by 
or  in  the  presence  of  Brady.  The  statements  made  from 
which  the  witness  testifies  (infers)  that  the  assignment  was 
talked  about,  is  not  shown. 

On  the  other  hand,  Bradv  testifies  that  he  never  had  anv 
notice  of  the  assignment  of  the  account. 

His  acts  in  i>aying  the  full  amount  to  Loring  strongly 
corroborate  his  testimony. 

The  finding  of  the  jury  is  opposed  to  the  clear  preponder- 
ance of  the  evidence,  and  the  judgment  of  the  County  Court 
is  reversed  and  the  cause  remanded. 


Ernst  Tosetti  Brewing  Co.  t.  David  Rosenheim. 

1.  Appellate  Court  Practice — Abstract  Must  Show  Errors  Com- 
plained of, — AUeged  errors,  not  based  on  anything  appearing  in  the 
abstract  of  the  record,  wiU  not  be  considered  by  this  cpurt. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Thoiias  G.  Windbs,  Judge,  presiding. 
Heard  in  this  coort  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  d4,  1897. 

Joseph  H.  Muhlke,  attorney  for  appellant. 
W.  A.  Sheridan,  attorney  for  appellee. 

Mk.  Presidino  Justice  Shepard  delivered  the  opinion 
OF  the  Court. 

Upon  appeal  from  a  justice's  judgment  to  the  Circuit 
Court  the  appellant  was  subjected  to  a  verdict  and  judg- 
ment for  $75  for  rent  for  the  month  of  July,  1890,  under 
what  we  conjecture  were  the  terms  of  a  lease  referred  to  by 
witnesses,  and  which  was,  by  name  at  least,  offered  in  cvi- 

YOL.  LXX  13 


194  Appellate  Courts  of  Illinois. 

Vol*.  70.]  Ernst  Toeetti  Brewing  Ck).  v.  Rosenheim. 

«  ■         I  * 

denoe  by  the  appellee,  and  the  signatures  thereto  identified 
as  being  those  of  the  appellant  and  appellee  respectively. 

The  principal  error  that  is  argued  by  appellant  is  the 
refusal  by  the  court  to  admit  in  evidence  what  is  spoken  of 
as  "the  old  lease,"  which, it  is  said,  is  the  one  referred  to  in 
the  following  language  read  by  appellant's  counsel  from 
something  spoken  of  as  the  lease  offered  in  evidence  by  the 
appellee: 

"  This  lease  is  given  for  the  express  purpose  of,  and  no 
other,  of  carrying  out  the  terras  of  a  certain  lease,  executed 
between  one  Robert  Excell,  and  one  Peter  Foy,  dated  Jan- 
uary 25,  1892;  assigned  by  Foy  to  lessee  herein,  and  by 
Excell  to  lessor  herein,  and  is  intended  to  invest  said  lessee 
with  all  the  rights  acquired  by  such  assignment  and  attorn- 
ment to  lessor  thereunder,  and  no  other  rights,  and  to  that 
end  shall  be  construed." 

The  abstract  refers  to  four  exhibits,  called  respectively 
"  lease,"  *'  old  lease,"  "  plat,"  and  *'  a  letter  dated  January  4, 
1896,  received  from  David  Eosenheim,  the  signature  to 
which  is  admitted  by  said  Rosenheim,"  but  no  contents  of 
either  exhibit  is  shown,  unless  the  foregoing  quotation  be 
considered  as  a  part  of  the  **  lease." 

It  is  not  claimed  that  the  old  lease  was  competent  evi- 
dence of  anything  unless  it  were  made  so  by  the  paragraph 
quoted,  that  was  read  by  appellant's  counsel  at  the  trial. 
If  such  paragraph  were  a  part  of  a  lease  under  which  ap- 
pellee claimed  to  hold  appellant  for  rent,  the  lease  contain- 
ing it,  as  well  as  the  old  lease  there  referred  to,  should,  in 
order  that  we  might  intelligently  pass  upon  the  question,  be 
shown  to  us  in  the  manner  required  by  the  rules  of  the 
court  concerning  abstracts. 

The  appellant,  in  its  brief,  complaining  that  the  old  lease 
was  not  admitted  in  evidence,  has  furnished  us  with  an  apt 
inquiry  descriptive  of  the  condition  in  which  the  court  is  left 
bv  the  failure  to  furnish  a  sufficient  abstract. 

"  How  are  we  to  know  if  the  *  lessee  is  invested  with  all 
the  rights  acquired  by  such  assignment  and  attornment' 
unless  we  have  the  old  lease,  showing  what  those  rights 
were  ? " 


First  District — March  Term,  1897.       19e5 

C.  &  A.  R.  R.  Co.  V.  RobbiiiB. 

The  rule  concerning  the  preparation  of  abstracts  of  the 
record  in  causes  appealed  to  the  Supreme  Court,  and  to  this 
court,  is  a  living  one,  and  has  been  so  often  applied  that  now 
to  decline  its  enforcement  would  be  to  lay  ourselves  open  to 
the  charge  of  partiality.  It  is,  that  alleged  errors,  not  based 
on  anything  appearing  in  the  abstract,  will  not  be  considered 
by  the  court.  See  Shively  v.  Hettinger,  67  111.  App.  278, 
from  which  former  decisions  may  be  traced. 

The  Circuit  Court  having  ruled  adversely  to  appellant's 
contention  on  the  question,  we  must  presume  such  ruling  to 
be  correct  under  the  law  until  the  contrary  is  made  to  ap- 
pear to  us,  which  not  so  appearing,  the  alleged  error  must 
be  held  not  to  be  well  assigned. 

The  other  points  argued  by  appellant  hang  upon  the  one 
question  mentioned,  and  must,  therefore,  fall  with  it. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


Chicago  &  Alton  Railroad  Company  v.  Louisa  Robbins. 

1.  Appeals — Involving  a  Freehold. — In  an  action  of  trespass  quare 
dausum  fregiU  in  which  a  plea  of  liberum  tenementum  is  filed  and  issue 
taken  thereon,  a  freehold  is  involved,  and  this  court  has  no  jurisdic- 
tion of  an  appeal. 

Trespass,  quare  dausum  fregit.  Appeal  from  the  Superior  Court  of 
Cook  County;  the  Hon.  Wiluam  G.  Ewing,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Appeal  dismissed.  Opinion  filed 
May  24, 1897. 

John  M.  Southwoeth,  attoiTiey  for  appellant. 
H.  T.  Helm,  attorney  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellee  sued  the  appellant  in  trespass  qu.  cL  The 
appellant  pleaded  lib.  ten.     Issue  was  taken  on  that. 

A  freehold  is  involved,  and  this  court  has  no  jurisdiction 
of  this  appeal.  It  is  dismissed.  West  Chicago  St.  K.  K.  v. 
Morrison,  54  111.  App.  556;  160  111.  288. 


196  Appellate  Courts  of  Illinois. 

Vol.  70.]  Richter  v.  Cicero  &  Proviso  St.  Ry.  Co. 


70    1961 
85    592 


g  JSi  Gusta?  Richter  t.  Cicero  &  Proviso  St.  By.  Co. 


1.  Neougence — Frightening  Horses,— In  an  action  for  damages, 
occasioned  by  running  a  street  railway  car  against  plaintiff's  wagon, 
where  the  evidence  shows  that  the  car  was  stopped  to  allow  a  funeral 
procession  to  I>as8,  but  was  started  before  the  plaintiff's  wagon  had 
passed,  and  that  by  reason  thereof  his  horse  became  frightened  and 
backed  the  wagon  in  front  of  the  car,  it  is  error  to  instruct  the  jury  to 
find  for  the  defendant. 

2.  Same— Pleading—Particularity  of  Statement  Rfquired  in  Decla- 
ration.— An  allegation  in  a  declaration  that  a  motorman,  seeing  that  a 
car  was  frightening  and  making  unmanageable  a  horse  attached  to  a 
wagon  and  traveling  in  close  proximity  to  the  track,  did  not  lessen  the 
speed  and  noise  of  the  car,  but  negligently  persisted  in  and  continued 
the  same,  is  a  sufficiently  specific  statement  of  negligence. 

8.  Pleading — What  is  Not  Denied  by  the  General  Issue.— If,  in  a 
suit  against  a  street  railway  company,  a  plea  of  the  general  issue  only 
be  interposed  to  a  declaration  setting  up  an  injury,  and  alleging  that  at 
the  time  of  the  injury  the  defendant  company  wad  operating  the  par- 
ticular line  of  railway  mentioned,  and  that  the  operatives  in  charge  of 
the  car  causing  the  injury  were  its  servants  and  employes,  the  two 
latter  facts  need  not  be  proved. 

4.  Stare  Decisis— TT/ien  Dicta  Should  he  Followed.  —  Subordinate 
tribunals  should  attach  great  weight  to  apparently  deliberate  utterances, 
though  dicta  of  the  Supreme  Court,  and  should  apply  them  to  cases  in- 
volving the  same  question. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the  Hon.  Nathaniel  C.  Sears,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1807.  Reveraed  and 
remanded.    Opinion  filed  May  24,  1897. 

J.  Henry  Kraft,  attorney  for  appellant. 

Alexander  Sullivan,  attorney  for  appellee;  Edward  J. 
McArdle,  of  counsel. 

Mr.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  the  Court. 

The  appellant  sued  the  appellee  to  recover  damages  sus- 
tained by  himself  personally,  and  also  for  the  breaking  of 
the  vehicle  in  which  he  was  riding,  by  being  run  into  by  an 


First  District— Mabch  Term,  1897.       197 

Richter  ▼.  Cicero  &  Proviso  St.  Ry.  Co. 

electric  car  alleged  to  be  owned  and  operated  by  appellee, 
and  at  the  conclusion  of  bis  evidence  the  court  took  the 
case  from  the  jury  by  a  peremptory  instruction  to  find  the 
appellee  not  guilty. 

The  accident  happened  on  West  Madison  street,  in  the 
outskirts  of  Chicago,  beyond  the  reach  of  pavements.  The 
railroad  in  question  consisted  of  double  tracks  lying,  pre- 
sumably, in  about  the  middle  of  the  roadway,  on  either  side 
of  which  was  a  ditch  five  or  six  feet  deep.  The  appellee 
was  a  farmer,  and  with  his  wagon  containing  four  members 
of  his  family  besides  himself,  formed  one  of  a  funeral  pro- 
cession of  a  dozen  or  more  carriages  and  farmers'  wagons. 
The  procession  was  moving  west  in  the  north  car  track. 
The  carriages  were  in  the  front  of  the  procession,  and  the 
wagons  and  buggies  came  after  them. 

The  electric  car  was  coming  east  on  the  south  track.  As 
the  car  and  the  head  of  the  procession  met,  the  car  stopped 
in  response  to  motions  and  calls  from  the  procession,  and 
remained  at  a  stand-still  until  the  carriages  forming  the  front 
part  of  the  procession  passed.  It  then  started  up,  and  the 
horses  attached  to  the  wagons  and  buggies  became  frightened 
and  commenced  to  back  up  against  those  behind.  The 
appellant^s  horse,  although  usually  docile,  became  unmanage- 
able and  backed  the  wagon  in  which  appellant  and  his 
family  were  riding  out  of  the  north  track  in  which  it  had 
been  running,  upon  and  across  the  south  track  and  in  front 
of  the  car,  and  the  wagon  became  crushed  and  the  occupants 
thrown  out. 

The  fair  inference  from  all  the  evidence  is  that  because 
of  the  ditches  the  wagons  could  not  have  been  driven  in 
safety  to  one  side  of  the  tracks. 

All  of  the  horses  were  frightened,  but  appellant's  outfit 
was  the  onlj^^  one  that  became  injured. 

Such  facts  made  a  clear  case  for  the  jury.  C.  &  A.  R.  R. 
Co.  v.  Hogarth,  38  111.  372;  Citizens  Street  Ry.  Co.  v.  Ix)we, 
12  Ind.  App.  47,  and  other  cases  there  cited;  L.,  N.  A.  &  C. 
Ry.  Co.  V.  Stanger,  7  Ind.  App.  179. 

Appellee,  however,  insists  that  there  is  no  sufficient  spe- 


198  Appellate  Courts  of  Illinois. 

Vol.  70.]  Richter  v.  Cicero  &  Proviso  St.  Ry.  Co. 

cific  allegation  of  negligence  contained  in  the  declaration. 
The  gist  of  the  negligence  charged  in  each  of  the  two  counts 
is  that  the  motorman,  seeing  that  the  car  was  frightening 
and  making  the  horse  unmanageable,  did  not  slacken  and 
lessen  the  speed  and  noise  of  the  car,  but  negligently  per- 
sisted in  and  continued  the  same,  and  thereby  the  injury. 

The  authorities  we  have  cited  are  ample  to  sustain  the 
declaration. 

It  is  also  urged  here,  although  it  does  not  appear  to  have 
been  raised  at  the  trial,  that  there  was  no  evidence  that 
connected  the  appellee  with  the  operation  of  the  car  in 
question. 

If  such  evidence  were  necessary  under  the  pleadings  we 
should  feel  constrained  to  hold  with  the  appellee  on  that 
point. 

The  declaration  alleged  the  running  and  operation  of  the 
car  and  railway  in  question  by  the  appellee,  and  tu  each  of 
the  counts,  so  alleged,  the  appellee  pleaded  only  the  general 
issue. 

The  Supreme  Court,  in  the  case  of  McNulta  v.  Lockridge, 
137  111.  270,  at  pages  2S5-6,  has  spoken  upon  a  suppositious 
case  of  pleadings  like  that  here  existing  somewhat  in  oppo- 
sition to  the  general  rule  as  formerly  understood  in  reganl 
to  what  is  admitted  by  a  plea  of  the  general  issue,  as  fol- 
lows: 

"In  the  case  last  stated  it  would  be  impliedly  conceded 
by  the  pleadings,  not  only  that  the  Illinois  Central  Railroad 
Company  was  a  corporation,  but  also  that  at  the  time  of  the 
alleged  injury  it  was  operating  the  particular  line  of  rail- 
road mentioned  in  the  declaration,  and  that  the  operatives 
in  charge  of  the  train  being  run  on  said  road  were  its  serv- 
ants and  employes."  Although  such  utterance  was  argu- 
mentative and  illustrative  rather  than  by  wa}'^  of  decision, 
still  the  point  there  considered  being  what  was  admitted  by 
a  plea  of  the  general  issue  alone  to  a  declaration  alleging 
not  only  the  character  and  capacity  in  which  the  defendant 
was  sued,  but  that  he  was  in  possession  of  and  operating  the 
alleged  line  of  railway,  and  that  the  employes  operating  the 


First  District — March  Term,  1897.       199 

Henning  &  Sons  v.  Williams. 

trains  on  the  road  were  his  servants;  and  considering  the 
great  weight  all  subordinate  tribunals  should  attach  to 
apparently  deliberate  utterances,  though  dicta^  of  the  Su- 
preme Court,  we  feel  that  we  should  make  application  of 
them  to  cases  involving  the  same  question. 

There  should  in  justice  be  another  trial  of  the  case,  and 
the  judgment  of  the  Superior  Court  is  therefore  reversed 
and  the  cause  remanded. 


C.  Henning  &  Sons  v.  Ella  Williams. 

1.  Biix  OF  Exceptions— S^o«7d  not  Omit  Matters  that  May  Have 
Affected  the  Result, — Where  an  examination  of  the  record  reveals  that 
an  account  book  introduced  in  evidence  is  not  incorporated  in  the  biU  of 
exceptions  and  the  court  is  not  able  to  say  that  the  contents  of  the  book 
were  not  important  enough  to  materially  affect  the  result,  the  judgment 
can  not  beheld  to  be  against  the  weight  of  the  evidence. , 

Assumpsit,  on  a  contract  of  sale.  Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  EdwakdF.  Dunne,  Judge,  presiding.  Heard  in 
this  court  a£  the  March  term,  1897.  Afl^med.  Opinion  filed  May  24, 
1897. 

Mkek,  Meek  &  Cochrane,  attorneys  for  appellant. 
Edward  J.  Walsh,  attorney  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

This  was  an  action  of  assumpsit,  the  propriety  of  the 
judgment  obtained  in  which  depends  almost  entirely  upon 
disputed  questions  of  fact,  concerning  which  the  evidence 
was  conflicting. 

An  examination  of  the  record  reveals  that  an  account 
book  introduced  in  evidence  is  not  incorporated  in  the  bill 
of  exceptions. 

We  are  not  able,  from  an  examination  of  the  testimonv. 


200  Appellate  Couuts  of  Illinois. 

I 

Vol.  70.]       Langhenry  v.  Chicaf^o  Trust  &  Savings  Bank. 

to  say  that  the  contents  of  this  book  were  not  so  important 
as  to  materially  affect  the  result,  and  consequently  can  not 
know  that,  upon  the  evidence  presented  to  the  court  below, 
the  conclusion  there  reached  was  incorrect. 

The  omission  of  the  contents  of  this  book  from  the  record 
is  urged  by  appellee  as  a  reason  why  the  judgment  should 
be  affirmed. 

To  this  no  satisfactory  reply  has  been  made. 

Perceiving  in  the  record  no  error  warranting  a  reversal 
of  the  judgment,  it  is  affirmed. 


Edwin  G.  Langhenry^  Snccessor  In  Trust,  etc.,  y.  Chi- 
cago Trust  and  Savings  Bank  et.  al. 

1.  Trover— C/iaracfcr  of  the  Action — Showing  Necessary  to  Main- 
tain,—Trover  is  a  possessory  action,  and  to  recover  tiie  plaintiff  must 
show  that  he  has  a  special  or  general  property  in  the  thing  converted 
and  the  right  to  its  possession,  and  he  must  recover,  if  at  all,  on  the 
strength  of  his  own  title,  without  regard  to  the  weakness  of  that  of  his  * 
adversary. 

2.  Same — Proof  Necessary  to  Support—To  support  an  action  of 
trover  by  one  having  either  a  general  or  special  property  he  must  prove 
a  conversioQ  thereof  at  a  time  when  the  right  of  possession  existed  in 
him.  It  is  not  enough  that  he  has  a  mere  right  of  action  or  a  right  to 
take  possession  at  a  future  day. 

Trover,  for  the  value  of  certain  promissory  notes.  Appeal  from  the 
Circuit  Ck)urt  of  Cook  County:  the  Hon.  Thomas  O.  "Windes,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1897.  Afllrmed.  Opin- 
ion filed  May  24,  1897. 

MoGlasson  &  Beitleb  and  James  E.  Wabd,  attorneys  for 
appellant. 

Cratty  Bros.,  Jarvis  &  Cleveland,  attorneys  for  ap- 
pellees. 

In  order  to  support  an  action  of  trover  the  plaintiff  must 
show  that  at  the  same  time  of  the  conversion  he  had  a 


First  District — March  Term,  1897.       201 

Langhenry  v.  Chicago  Trust  Sc  Savings  Bank. 

property  in  tho  chattels,  either  general  or  special.  He 
must  also  have  had,  at  the  time  of  the  conversion,  the 
actual  possession  or  the  right  to  immediate  possession  of 
the  property.  1  Chitty  on  Pleadings,  *  147,  *  150;  2  Green- 
leaf  on  Ev.,  Uth  E J.,  Sees.  636-640;  Puterbaugh's  Common 
Law  (1897),  290-295,  296;  Barton  v.  Dunning,  6  Blackf.  209; 
Davidson  v.  Waldron,  31  111.  120,  129;  Pressley  v.  Powers, 
82  m.  125,126-128;  Forth  v.  Pursley,  82  111.  162;  Owens  v. 
Weedmann,  82  111.  409;  Honrood  v.  Smith,  2  T.  R.  353; 
Hayes  v.  Ins.  Co.,  125  111.  626-633;  Stock  Yards  Co.  v.  Mal^ 
lory,  157  111.  554^560. 

Mr.  Peesidino  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  wq,s  an  action  of  trover,  brought  by  appellant  as  suc- 
cessor in  trust,  etc.,  to  recover  $7,495.75,  being  the  value  of 
C3rtain  notes  which  were  deposited  with  the  appellees  by 
one  Benjamin  F.  Clarke,  as  collateral  security  to  his  individ- 
ual note  for  money  borrowed. 

About  April  1,  1890,  sixteen  parsons,  including  the  appel- 
lant, constituting  what  is  popularly  called  a  syndicate, 
bought  sixty-four  lots  in  Block  "  S  "  in  Morgan  Park,  and 
on  that  day  entered  into  a  written  agreement  between  them- 
selves and  said  Benjamin  F.  Clarke  whereby  Clarke  was 
constituted  trustee,  and  the  appellant  successor  in  trust,  to 
take  the  title  to  said  premises  as  trustees  for  the  others,  and 
sell  the  same  when  directed,  and  pay  over  to  each  party  his 
proportion  of  the  proceeds  of  sale  according  to  his  specified 
interest. 

The  land  that  was  bouo^ht  was  conveyed  to  "  Benjamin  F. 
Clarke,  trustee,  as  aforesaid,  then  to  Edwin  C.  Langhenry, 
who  shall  be  successor  in  trust." 

At  least  some  of  the  lots  were  sold,  and  notes  secured  by 
trust  deeds  were  received  by  Clarke  in  part  payment. 

It  seems  to  have  been  sufficiently  established  that  all  of 
the  notes  in  question  were  received  by  Clarke  in  his  capacity 
as  trustee  under  said  agreement,  and  were  pledged,  or  de- 
posited as  collateral  security  by  him,  to  secure  an  individual 


202  Appellate  Courts  of  Illinois. 

II  I    I       I  I  _      -—  _   -  — - 

Vol.  70.]      Langhenry  v.  Chicago  Trust  &  Savings  Bank. 

indebtedness  of  his  own  to  the  appellees,  without  the  con- 
sent or  knowledge  of  any  of  the  members  of  the  syndicate, 
and  without  any  benefit  therefrom  to  them  or  any  of  them. 

Afterward,  Clarke  formally  renounced  his  trusteeship  in 
favor  of  appellant  as  successor  in  trust.  Thereupon  demand 
upon  appellees  for  the  notes  was  made,  which  being  refused, 
this  action  in  trover  was  begun. 

We  need  not  discuss  w^iether  appellees  had  notice  of  the 
character  in  which  Clarke  held  the  notes,  for  it  is  clear  that 
appellant  could  not  maintain  trover  for  them. 

If,  at  the  time  the  pledge  was  made,  appellees  took  the 
notes  without  notice  of  Clarke's  trusteeship  concerning 
them,  the  possession  of  them  then  taken  by  appellees  Avas 
rightful  and  subsequent  notice  would  not  make  it  wrongful; 
and  if  they  were  taken  with  notice,  then  their  possession 
was  wrongful  and  conversion  instantly  followed. 

In  neither  case  could  appellant  maintain  trover. 

Trover  is  a  possessory  action,  and  to  recover  the  plaintiff 
must  show  he  has  a  special  or  general  property  in  the  thing 
converted  and  the  right  to  its  possession,  and  he  must 
recover,  if  at  all,  on  the  strength  of  his  own  title,  without 
regard  to  the  weakness  of  that  of  his  adversary.  Davidson 
V.  Waldron,  31  111.  120. 

The  notes  were  never  in  the  possession  of  appellant,  and 
he  never  saw  them.  He  was  only  to  become  successor  to 
Clarke  in  the  trusteeship  after  Clarke  ceased  to  be  trustee, 
and  that  did  not  happen,  nor  did  appellant  assume  to  act 
as  trustee  until  several  weeks  after  the  notes  were  pledged 
and  their  alleged  conversion  had  taken  place. 

The  refusal  to  surrender  the  notes  upon  demand  by  ap- 
pellant did  not  make  the  conversion  occur  as  of  that  date  if 
appellees'  taking  of  them  from  Clarke  was  wrongful,  for 
in  such  case  the  conversion  was  identical  with  the  act  of 
taking;  nor  did  such  demand  and  refusal  change  a  taking, 
rightful  at  first,  into  a  wrongful  act  as  of  the  date  of  de- 
mand. 

At  the  utmost,  appellant  never  had  more  than  a  special 
property  in  the  notes,  and  to  support  an  action  of  trover  by 


FiBST  DisTBiCT— March  Term,  1897.       203 

Langhenry  v.  Chicago  Trust  &  Savings  Bahk. 

one  having  either  a  general  or  special  property  in  the  thing 
he  must  prove  a  conversion  thereof  at  a  time  when  the  right 
of  possession  existed  in  him. 

It  is  essential  that  the  plaintiff  should  have,  at  the  time  of 
the  conversion,  not  only  the  right  of  property  in  the  chattel 
or  thing,  but  also  the  right  to  its  immediate  possession.  It 
is  not  enough  that  he  has  a  mere  right  of  action,  or  a  right 
to  take  possession  at  some  future  day.  Puterbaugh's  PI. 
and  Pr.  (7th  Ed.)  290,  and  cases  there  cited. 

"  So  a  petson  having  a  special  property  in  the  goods  may 
support  trover  against  a  stranger  who  takes  them  out  of  his 
actual  possession."     1  Chitty  on  Pleading,  star  p^ige  151. 

If  a  plaintiff  "  has  only  a  special  property,  there  must 
ordinarily  be  evidence  of  actual  possession."  2  Greenleaf 
on  Evid.  (13th  Ed.),  Sec.  640. 

Whether  trover  might  be  maintained  by  Clarke  is  a  ques- 
tion not  in  this  record,  although  it  would  seem  that  it  might 
not  be,  because  of  his  own  wrongful  act  in  pledging  the 
notes.  And  as  to  the  action  being  maintainable  in  the 
names  of  the  members  of  the  syndicate,  it  would  seem  that 
it  would  not  be  because  of  their  lack  of  right  to  possession 
of  them. 

There  may  be  a  remedy  in  equity,  although  dilBculty 
therein  may  easily  be  seen,  but  we  are  not  called  upon  to 
advise,  and  do  not  intend  to  express  an  opinion  except  that 
the  appellant  may  not  maintain  the  action.  The  judgment 
of  the  Circuit  Court  is  accordingly  affirmed. 

Mr.  Justice  Gary. 

I  concur  in  the  result  for  reasons  shortly  stated  thus: 

The  deed,  under  which  the  appellant  is  successor  to  Clarke 
as  trustee,  provides  only  that  the  appellant  shall  be  such  suc- 
cessor "  in  case  of  the  death  or  other  legal  disability  of " 
Clarke;  and  neither  insolvency,  nor  abuse  of  the  powers 
conferred,  is  a  legal  disability,  though  either  may  furnish 
ground  for  removal. 

Therefore,  under  the  deed,  it  can  not  be  said  that  the  apj)el- 
lant  has  title  to  the  land  even,  much  less  to  the  notes,  con- 
cerning which  the  deed  contains  no  provision. 


204  AppELiiATE  Courts  of  Illinois. 

Vol.  70.]       Laiighenry  v.  Chicago  Trust  &  Savings  Bank. 

The  same  reason  applies  to  an  agreement  made  by  the 
members  of  the  syndicate  among  themselves,  contempo- 
raneous with  the  deed,  except  that  in  the  agreement  there  is 
•  a  provision  that  the  trustee  shall  "  pay  over  to  each  party  on 
sale  of  said  property,  their  proportion  of  all  proceeds  of  all 
sales  and  profits  as  fast  as  the  property  is  sold.  That  was  a 
duty  incumbent  upon  Clarke,  which,  as  to  the  notes  in  con- 
troversy, never  charged  the  appellant. 

Now,  waiving  the  question  whether  Clarke  could  confer 
upon  the  appellant  any  authority  to  revoke  or  repudiate 
wrongful  acts  done  by  Clarke,  it  is  clear  that  he  never  tried 
so  to  do.  The  deed  by  which  Clark  renounced,  conveys 
"  all  his  right,  title  and  interest  in  and  to  "  the  land  there 
described,  and  closes  with  the  statement :  "  It  being  the 
intention  of  the  said  Benj.  F.  Clarke  to  renounce  the  said 
trusteeship,  and  to  sell,  convey  and  assign  to  Edwin  C. 
Langhenry,  his  successor  in  trust,  the  legal  title  to  said 
property  above  described." 

So  the  notes  have  never  been  the  subject  of  any  source  of 
title  to  the  appellant. 

Whether  the  property  in  chattels  and  choses  in  action, 
adversely  held,  may  be  transferred  by  one  who  has  been 
wronged  to  an  extent  that  entitles  him  to  maintain  trover 
(for  which  there  seems  to  be  authority — Benjamin  on  Sales, 
39) — and  what  the  transferee  may  do  thereafter,  need  not  be 
discussed.  The  judgment  appealed  from  is  right,  and 
whether  it  be  so  for  the  right  reason,  is  immaterial. 

Mr.  Justice  Waterman. 

There  is  no  pretense  that  appellee  took  these  notes  to 
hold  in  trust  for  Mr.  Clarke  or  any  one  else.  It  is  undis- 
puted that  it  purchased  them  for  its  own  use  and  purpose. 
If,  therefore,  there  was  a  conversion  by  appellee,  it  took 
place  when  it  so  obtained  the  notes.  Mr.  Clarke  was  the 
legal  holder  to  these  notes,  they  having  been  received  by 
him  on  account  of  the  sale  of  certain  property  which  he 
held  in  trust  for  the  estate  of  P.  P.  Plumley  and  others; 
the  trusteeship  of  said  Clarke  as  to  the  notes,  being  bis  un- 


First  District — March  Term,  1897.       205 

City  of  ETanston  v.  Meyers. 

dertaking  to  pay  to  each  of  the  cestuia  gue  trust  on  sale  of 
said  real  estate,  their  proportion  of  all  proceeds  of  all  sales 
and  profits  as  fast  as  the  property  should  be  sold. 

Clarke,  it  would  seem,  in  bad  faith  converted  these  notes, 
or  their  proceeds,  to  his  own  use.  When  appellee  purchased 
and  took  possession  of  these  notes — that  is,  if  at  all,  converted 
them — appellant  had  no  right  to  maintain  an  action  of 
trover  for  them. 

Whatever  right  appellant  has  to  these  notes  or  their  pro- 
ceeds, accrued  long  after  appellee  obtained  the  notes  for  its 
own,  use. 

There  was,  as  the  Circuit  Court  found,  no  sufficient  evi- 
dence warranting  the  submission  to  the  jury  of  the  question 
of  whether  appellee  received  these  notes  in  bad  faith,  so  as 
to  make  it  liable  to  respond  for  their  value  to  the  legal 
owner  of  the  same. 

I  am  of  the  opinion  that,  for  the  reasons  above  stated, 
the  judgment  of  the  Circuit  Court  should  be  affirmed. 


70    •>05 

The  City  of  Evanston  v.  W.  H.  Meyers.  llSthe 

1.  Criminal  Law — Tndtunng  People  to  Violate  Ordinance*. —In  a 
prosecution  for  selling  liquor  in  violation  of  a  city  ordinance,  it 
appeared  that  the  city  employed  two  persons  to  buy  beer  of  the  defend- 
ant, giving  them  the  money  with  which  to  purchase  it.  Held,  that  the 
city  had  procured  the  commission  of  the  offense  and  should  not  be  allowed 
to  reap  a  reward  for  its  diligence  in  inducing  the  defendant  to  violate 
its  own  ordinance. 

Complaint,  before  a  justice  of  the  peace.  Appeal  from  the  Criminal 
Court  of  Cook  County;  the  Hon.  Theodore  Brent AJko,  Judge,  presid- 
ing. Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion 
filed  May  24, 1897. 

Statement  of  the  Case. 

The  Four  Mile  League  is  an  association  formed  for  the 
purpose  of  enforcing  the  law  relating  to  the  sale  of  intoxi- 


[m. 


206  Appellate  Courts  op  Illinois. 

Vol.  70.]  City  of  Evanston  v.  Meyers. 

eating  liquors  within  four  miles  of  the  Northwestern  Uni- 
versity in  Evanston,  within  which  limits  the  law  forbids 
such  sale.  The  Four  Mile  League,  in  1896,  furnished  the 
chief  of  police  of  the  city  of  Evanston  with  funds  to  pay  the 
expense  of  procuring  evidence  against  persons  engaged  in 
the  liquor  traffic  within  the  four-mile  limit.  The  funds  fur- 
nished by  the  League  were  added  to  the  funds  appropriated 
for  the  same  purpose  bj^  the  city  of  Evanston,  and  used  by 
the  chief  of  police  of  said  city  of  Evanston  to  pay  John 
Denvir  and  Tony  Collignon  for  services  and  expenses  in 
detecting  |)ersons  engaged  in  selling  liquor  in  the  city  of 
Evanston,  or  within  the  four-mile  limits,  and  procuring  the 
evidence  against  them  by  making  purchases  of  liquor. 

On  July  9,  1896,  John  Denvir  saw  the  defendant  in  the 
city  of  Evanston,  and  paid  him  fifty  cents  for  a  dozen  bottles 
of  lager  beer.  The  beer  was  at  once  delivered  to  the  wit- 
ness, by  the  defendant  from  the  wagon  of  defendant.  The 
transaction  was  witnessed  by  Tony  Collignon  and  Bob  Ker- 
nohan,  who  were  not  more  than  one  hundred  feet  away,  and 
afterward  drank  a  portion  of  the  beer. 

The  city  of  Evanston,  by  its  city  council,  adopted  the 
following  ordinance,  being  Sec.  646  of  the  Revised  Ordinances 
of  1893,  of  the  city  of  Evanston : 

"  Whoever  shall,  by  himself  or  another,  either  as  prin- 
cipal, agent,  clerk,  servant  or  otherwise,  directly  or  indi- 
rectly sell,  barter,  exchange  or  give  away  within  the 
corporate  limits  of  said  city  any  ale,  porter,  beer,  weiss-beer, 
lager  beer,  kimmel,  wine,  rum,  brandy,  ^n,.  whiskey, 
schnapps,  bitters,  cider,  hard  cider,  manufactured  cider,  or 
any  spirituous,  vinous,  malt,  fermented,  mixed  or  intoxicat- 
ing liquor,  or  any  mixture,  part  of  which  is  any  of  said 
liquor,  or  any  intoxicating  drinks,  shall  be  fined  not  less 
than  ten  dollars  nor  more  than  two  hundred  dollars  for  each 
offense." 

Georgb  S.  Baker,  attorney  for  appellant. 

Williams  &  Kraft,  attorneys  for  appellee. 


First  Dfstrict — Mabch  Term,  1897.       207 

City  of  Evanston  v.  Meyers. 

■ 1 ■ I  -IIM  -n r  ■  ■_■_  ■  -  -^  ^M^B-l »  I-    B-^M    M^MMH  ■  I     I    M      I  ■  ^  — 

Mr.  Justice  Waterman  delivered  the  opinion  op  the 
Court. 

The  oflfense  for  which  appellee  was  prosecuted  was  one 
induced  by  the  city  of  Evanston.  It  is  quite  true  that  there 
is  reason  to  believe  that  appellee  was  ready  and  willing  to 
violate  the  ordinance,  without  being  solicited  by  the  city  to 
do  so;  this  is  not,  however,  sufficient  to  constitute  an  offense. 
Parties  can  not  be  convicted  of  criminal  offenses  merely 
because  they  have  the  ability  and  are  suspected  of  a  willing- 
ness to  violate  the  law. 

It  appears  that  the  city  employed  two  minors,  furnished 
them  with  money  with  which  to  buy  beer  of  appellee,  and 
this  having  been  done,  permitted  these  boys  to  go  to  an  ice 
house  behind  a  church  and  drink  the  beer. 

The  act  of  appellee  was  induced  by  appellant.  Indeed,  it 
is  not  too  much  to  say  that  appellant  not  only  induced  but 
sought  to  have  appellee  violate  its  ordinance.  Having  pro- 
cured the  commission  of  an  offense,  appellant  now  seeks  to 
compel  the  payment  of  money,  a  fine,  to  it;  to  reap  a  reward 
for  its  diligence  in  inducing  appellee  not  only  to  violate  its 
ordinance,  but  the  law  of  the  State  against  selling  liquor  to 
minors. 

The  distinction  between  employing  detectives  to  ferret  out 
and  ascertain  who  has  been  guilty  of  crime,  and  endeavor- 
ing to  bring  about  the  commission  of  criminal  acts,  is  so 
obvious  as  not  to  require  comment. 

The  ordinance  forbids  the  giving  away  of  cider,  weiss-beer, 
or  any  vinous,  fermented  or  malt  liquor.  Can  it  be  claimed 
that  the  city  could  impose  a  fine  upon  one  who  at  its  request 
gave  wine  or  cider  to  a  guest  ? 

We  do  not  mean  to  be  understood  as  intimating  that  if  a 
citizen  of  Evanston  purchased  beer  within  the  city,  or 
received  it  as  a  gift,  the  vendor  or  donor  may  not  be  con- 
victed, although  the  object  of  the  recipient  in  receiving  was 
to  prosecute  him  from  whom  the  intoxicant  was  obtained. 

Neither  a  public  oflBcer  nor  a  municipality  may  procure 
or  encourage  the  commission  of  crime.  Love  v.  The  Peo- 
ple, 160  111.  501;  Saunders  v.  The  People,  38  Mich.  222; 


208  Appellate  Courts  of  Illinois. 

Vol.  70.]  Central  School  Supply  House  v.  Donovan. 

United  States  v.  Whittier,  5  Dillon,  36;  Williams  v.  The 
State  of  Georgia,  66  Ga.  396;  People  v.  McCord,  76  Mich. 
206. 
The  judgment  of  the  Criminal  Court  is  affirmed. 

Mr.  Justiob  Gary. 

While  I  do  not  dissent  from  the  opinion  of  Judge  Water- 
man, I  protest  that  he  is  not  competent  to  write  it,  inas- 
much as  he  confesses  that  he  has  partaken  of  the  hospital- 
ity of  highly  respected  citizens  of  Evanston  in  breach  of  the 
ordinance  forbidding  the  giving  away  of  cheering  beverages. 


Central  School  Supply  House  t.  James  Donovan  et  aL 

1.  Promissory  Notes— Jndoraed  in  Blank—Possession  Evidence  of 
Title, — Promissory  notes  indorsed  in  blank  pass  bj'  delivery,  and  posses- 
sion of  such  notes  is  prima  facie  evidence  of  title  thereta 

2.  Same.— First  Assignment  to  Bona  Fide  Holder  Without  Notice  of 
Defects  Fixes  Character  of. — The  character  of  a  promissory  note,  as  nego- 
tiable paper,  is  established  when  it  is  acquired  by  a  bona  fide  holder 
before  maturity,  and  notice  of  original  defects  does  not  affect  subse- 
quent holders  either  before  or  after  maturity. 

Assumpsit,  on  promissory  notes.  Appeal  from  the  Superior  Court  of 
Cook  Coimty;  the  Hon.  Nathaniel  C.  Sears,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  May 
24,  1897. 

Albert  N.  Eastman,  attorney  for  appellant. 

Tenney,  McConnell  &  Coffeen  and  Wm.  J.  Ammkn, 
attorneys  for  appellees. 

Bills  and  notes  indorsed  in  blank  pass  by  delivery.  Pos- 
session of  same  is  ^>W;mj^ya<?i^  proof  of  title  thereto.  Pur- 
chaser is  not  bound  to  inquire  as  to  title.  Morris  v.  Pres- 
ton, 93  111.  215;  Palmer  v.  Nassau  Bank,  78  111.  380;  see 
also  cases  cited  in  Vol.  2,  Starr  &  Curtis  Stat.,  pages 
2793-4. 

A  note  payable  to  the  maker's  order  and  indorsed  bv  him 


First  District — March  Term,  1897.       209 

Central  School  Supply  House  v.  Donovan. 

in  blank  is  in  legal  effect  a  note  payable  to  bearer,  and  is 
transferable  by  delivery.  Jones  v.  Shapera  (C.  C.  A),  57 
Fed.  flep.  457;  6  O.  C.  A.  422. 

Mb.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

The  question  presented  in  this  case  is  as  to  the  right  of 
the  transferee  of  a  negotiable  promissory  note,  who,  with 
notice  of  a  defense,  purchased  the  instrument  from  a  hona 
fide  holder,  who  acquired  it  before  it  became  due. 

Promissory  notes  indorsed  in  blank  pass  by  delivery. 

Possession  of  such  notes  is  prima  facie  evidence  of  title 
thereto.  Morris  v.  Preston,  93  111.  215;  Palmer  v.  Nassau 
Bank,  78  111.  380. 

The  character  of  a  promissory  note  as  negotiable  paper  is 
established  when  it  is  acquired  by  a  lona  fide  holder  before 
maturity,  and  notice  of  original  defects  does  not  aflfect  sub- 
sequent holders  either  before  or  after  maturity.  Daniels 
on  Neg.  Instruments,  Sees.  728-803;  Story  on  Prom.  Notes, 
Sec.  191;  Simon  v.  Merritt,  33  la.  537;  Commissioners  v. 
Clark,  94  U.  S.  278;  Rice  v.  Van  Ackere,  22  111.  App.  588; 
Vol.  2,  (6th  Ed.),  Parsons  on  Contracts,  242-253;  Wood- 
worth  V.  Huntoon,  40  111.  131;  Wilder  v.  DeWolf,  24  111. 
190;  Gillham  v.  The  State  Bank  of  Illinois,  2  Scam.  245. 

That  appellees  did  not  see  fit  to  fill  in  the  indorsement 
by  Geo.  H.  Taylor  &  Co.,  so  as  to  make  it  a  special  trans- 
fer, is  immaterial. 

By  the  indorsements  it  appears  that  appellees  took  title 
through  the  payees,  Geo.  H.  Taylor  &  Co.;  the  introduction 
of  the  notes  thus  indorsed  made  a  prima  facie  case  for 
appellees.  By  evidence  introduced  by  appellant  it  appeared 
that  the  Hide  &  Leather  Bank  purchased  these  notes  before 
they  became  due,  and  that  appellee  bought  the  paper  from 
the  bank  before  the  notes  matured. 

Appellant  does  not  contend  that  as  against  the  bank  it 
had  any  defense;  its  position  therefore  is,  that  the  bank 
could  not  transfer  its  right  to  appellee,  a  contention  for 
which  there  is,  so  far  as  we  are  aware,  no  authority. 

Vol  LXX  14 


2 10  Appellate  Courts  of  Illinois. 

Vol.  70.]  Moore  v.  Merchants  Loan  and  Trust  Co. 

All  that  is  held  in  Eost  v.  Bender,  25  Mich.  515,  is  that 
where  the  maker  of  a  promissory  note  has  a  valid  defense 
as  against  the  person  to  whom  upon  its  face  it  is  payable, 
if  such  payee,  after  assignment  to  a  bona  fide  holder,  again 
acquire  and  brin^  suit  upon  the  note,  the  law,  to  avoid  cir- 
cuity of  action,  will  allow  the  maker  to  set  up  that  he  was 
induced  by  the  fraudulent  representation  of  the  payee, 
plaintiff,  to  execute  the  note. 

The  judgment  of  the  Superior  Court  is  affirmed. 


William  J.  Moore  v.  Merchants  Loan  and  Trust  Co. 

1.  Pleadino — After  Issues  are  Made  Up, — Where  the  issues  have 
been  made  up,  and  the  time  at  which  a  defendant  was  required  to  pleiid 
has  passed,  such  defendant  should  obtain  leave  of  court  before  filing  an 
additional  plea. 

2.  Verdicts — Will  Not  Be  Disturbed  when  Warranted  by  the  Etri- 
denoe. — The  court  holds  that  there  was  evidence  which  warranted  the 
jury  in  finding  as  it  did  in  this  case,  and  that  there  is  no  sufficient  reason 
for  reversing  its  finding  upon  the  questions  of  fact. 

8.  Same— Poujer  of  Court  to  Order  Correction  of. — ^A  verdict  for  the 
face  of  a  note  and  interest  is  the  same  in  effect  as  a  verdict  for  the 
amount  due  on  such  note,  and  it  is  not  error  to  direct  the  jury  to  with- 
draw and  make  the  verdict  formally  correct,  even  after  they  have  been 
allowed  to  separate. 

Assnmpsit,  against  the  guarantors  of  a  promissory  nota  Appeal 
from  the  Circuit  Court  of  Cook  County;  the  Hon.  Abneb  Smith,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Affirmed. 
Opinion  filed  May  24, 1897. 

Statement  of  the  Case. 

This  was  a  suit  brought  by  the  appellee  Merchants  Loan 
and  Trust  Company,  against  the  appellant  William  J. 
Moore,  surviving  partner  of  the  firm  of  Moore  Brothers, 
upon  an  alleged  guaranty  of  a  promissory  note  executed  by 
Potomac  Apartment  Company,  a  duly  organized  corpora- 
tion.   Said  promissory  note  was  executed  by  said  Potomac 


FiBST  District — March  Term,  1897.       211 

Moore  v.  Merchants  Loan  and  Trust  Co. 

Apartment  Company  and  delivered  to  New  Era  Gas  Fuel 
Appliance  Company,  to  whom  it  was  paj'^able.  The  note,  at 
the  time  of  its  execution  and  delivery,  had  indorsed  upon  it 
the  words  "  Moore  Brothers."  this  indorsement  being  made 
by  James  E,  Moore,  since  deceased,  who  was  at  that  time 
president  of  the  Potomac  Apartment  Company  and  one  of 
the  copartners  in  the  firm  of  Moore  Brothers.  The  note 
was  discounted  by  appellee  before  maturity,  the  proceeds 
of  said  discount  being  placed  to  the  credit  of  New  Era  Gas 
Fuel  Appliance  Company,  and  subsequently  checked  out 
by  it. 

The  defendants,  James  E.  Moore  and  William  J.  Moore, 
appeared  on  September  16,  1893,  and  filed  five  pleas  to  the 
plaintifFs  declaration,  of  which  the  first  plea  was  the  gen- 
eral issue,  and  the  other  four  were  special. 

The  second  and  third  pleas  were  pleas  alleging  failure 
of  consideration,  and  a  demurrer  to  them  was  sustained. 
The  fourth  and  fifth  pleas  set  up  that  the  note  and  guaranty 
were  given  by  the  Potomac  Apartment  Company  to  the 
New  Era  Gas  Fuel  Appliance  Company,  and  that  the  con- 
sideration upon  which  the  note  was  given  had  failed,  and 
that  the  plaintiff  company  was  not  a  bona  fide  holder  for 
value. 

Upon  issue  being  joined  upon  the  first,  fourth  and  fifth 
pleas  the  case  was  tried  in  October,  1894,  and  resulted  in  a 
verdict  for  the  plaintiff  for  the  sum  of  eight  hundred  and 
seventy-six  dollars  and  thirty-eight  cents  ($876.38). 

A  new  trial  was  granted,  and  before  the  case  again  came 
on  for  a  hearing,  James  E.  Moore,  the  senior  partner  of 
Moore  Bros.,  died,  and  the  cause  was  ordered  to  proceed 
against  the  other  defendant,  William  J.  Moore,  as  surviv- 
ing partner. 

It  appears  from  the  record  that  on  October  20,  1896,  the 
day  before  the  case  came  on  for  trial  the  second  time, 
Messrs.  Beach  &  Beach  (who  had  previously,  on  the  3d  day 
of  September,  1895,  tiled  a  second  appearance  for  the  defend- 
ants without  obtaining  any  withdrawal  of  the  appearance 
filed  by  Messrs.  Olds  &   Griffin,  who  were  the  original 


212  Appellate  Courts  op  Illinois, 

Vol.  70.]  Moore  v.  Merchants  Loan  and  Trust  Co. 

attorneys  for  the  defendants,)  filed  in  the  clerk's  oflBce  a 
verified  plea  by  the  defendant  TVilliam  J.  Moore,  denying 
the  execution  of  the  guaranty  sued  on,  verified  by  William 
J.  Moore. 

This  plea  on  the  part  of  William  J.  Moore,  filed  in  the 
clerk's  ofiice  a  day  before  the  second  trial,  was  apparently 
filed  without  leave  of  court  after  the  issues  had  been  made 
up  for  more  than  a  y^ear,  and  after  the  case  had  been  once 
tried  upon  the  issues  so  joined. 

The  second  trial  resulted  in  a  verdict  against  the  appel- 
lant, as  follows :  "  We,  the  jury,  find  the  issues  for  the 
plaintiff,  and  assess  plaintiff's  damages  at  the  sum  of  the  face 
of  the  note  ($799.56)  seven  hundred  and  ninety-nine  and 
56-100  dollars,  with  interest  at  six  per  cent  per  annum  to 
date."  The  verdict  was  signed  by  the  jury,  sealed  and  de- 
livered to  the  bailiff  in  charge  on  October  20,  1896,  after 
which  the  jury  was  allowed  to  and  did  separate.  The 
verdict  was  opened  and  read  upon  the  convening  of  court 
October  21,  1896;  the  jury  were  then  ordered  by  the  court 
to  retire  and  correct  said  verdict.  This  was  objected  to  by 
counsel  for  defendant,  because  the  jury  had  separated;  the 
objection  was  overruled  by  the  court  and  exception  taken  by 
the  defendant.  The  jury  thereupon  retired  and  presently 
returned  and  reported  to  the  court  the  following:  "We, 
the  jury,  find  the  issues  for  the  plaintiff,  and  assess  plaintiff's 
damages  at  the  sum  of  nine  hundred  seventy-three  and 
twenty-eight  one-hundredths  dollars  ($973.28),"  signed  by 
all  the  jury.  Upon  which  verdict  thecourt  entered  judgment 
for  the  sum  of  $973.28. 

Beach  &  Beach,  attorneys  for  appellant. 

Rich  &  Stone,  attorneys  for  appellee. 

It  is  well  settled  by  numerous  decisions,  both  of  this  court 
and  of  the  Supreme  Court  that  in  cases  of  this  kind,  where 
the  verdict  is  informal,  the  court  may  either  put  it  in  form 
himself  in  the  presence  and  with  the  assent  of  the  jury 


First  District — March  Term,  1897.        213 


Harms  v.  Stier. 


(Clapp  V.  Martin,  33  111.  App.  438;  Wells  v.  Ipperson,  48  III. 
App.  580),  or  he  may  direct  the  jury  to  retire  and  reform 
the  verdict  themselves,  as  was  done  in  this  case.  Cleveland, 
C,  C.  &  St.  L.  Ry.  Co.  v.  Monaghan,  140  111.  474;  Smith  v. 
WilUams,  22  IlL  357;  BisseU  v.  Ryan,  23  111.  566. 

Mb.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

The  issues  having  been  made  up  and  the  time  at  which 
the  defendants  were  required  to  plead  having  passed,  appel- 
lant should  have  asked  leave  to  file  an  additional  plea;  the 
case,  however,  was  tried  as  if  such  leave  had  been  given,  and 
we  so  treat  it. 

We  see  no  sufficient  reason  for  reversing  the  findings  of 
the  jury  upon  the  questions  of  fact. 

There  was  evidence  which  warranted  the  jury  in  finding 
as  it  did. 

The  verdict  first  rendered  by  the  jury  was  in  effect  the 
same  as  the  second,  and  the  court  did  not  err  in  directing 
the  jury  to  withdraw  and  make  the  verdict  formally  correct. 

There  was  evidence  from  which  it  might  have  been  found 
that  Moore  Brothers  were  interested  in  the  erection  and 
equipment  of  the  Potomac  Apartment  Building  at  the  time 
of  the  execution  of  the  note  upon  which  their  guaranty 
appears. 

We  find  no  error  in  the  record  requiring  a  reversal  of  the 
judgment  of  the  Circuit  Court,  and  it  is  affirmed. 


Henry  Harms  v.  Caroline  Stier  and  Henry  Stier. 

1.  Forcible  Entry  and  Detainer—  ivhat  the  Complaint  Need  Not 
State, — Sec.  5,  Chap.  57,  R.  S.^does  not  require  the  statement  in  a  forci- 
ble entry  and  detainer  complaint  of  the  circumstances  under  which  the 
defendant  entered,  but  simply  that  he  unlawfully  withholds;  and  on 
the  trial  the  plaintiff  may  prove  his  right  to  recover  under  any  clause  of 
Sec.  2  of  said  chapter. 

3.  Same — Doubt  as  to  Oround  on  Which  Right  of  Possession  is 
Based  ImmateriaL — If  the  evidence  in  a  forcible  entry  and  detainer 
case  proves  that  under  one  or  another  of  the  clauses  of  Sec.  2,  ('hap.  57, 


214  Appellate  Courts  op  Illinois, 

Vol.  70.]  Harms  v.  Stier. 

R.  S.,  the  plaintiff  is  entitled  to  recover,  but  leaves  it  uncertain  under 
which,  he  is  not  to  be  defeated  because  of  a  doubt  as  to  whether  the 
defendant  entered  as  a  tenant  or  as  a  trespasser. 

3.  Instructions — Should  Harmonize. — It  can  not  be  known  what 
instruction  a  jury  will  f oUow,  and  hence  the  instructions  given  on  behalf 
of  the  respective  parties  should  be  made  to  harmonize  by  the  court 
before  they  are  given  to  the  jury. 

Forciole  Detainer.— Appeal  from  the  Circuit  Court  of  Cook  County; 
the  Hon.  Thomas  G.  Windes,  Judge,  presiding.  Heard  in  this  court  at 
the  March  term,  1897.  Reversed  and  remanded.  Opinion  filed  May  24, 
1897. 

Gage  &  Deming,  attorneys  for  appellant. 

Oliver  &  Mecartney  and  SnoiONs  &  Winston,  attorneys 
for  appellees. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

This  is  an  action  of  forcible  detainer  by  the  appellant 
against  the  appellees,  resulting  after  a  jury  trial  in.  a  judg- 
ment for  the  appellees. 

Of  the  evidence,  it  is  enough  to  say  that  it  was  such  as 
made  germane  to  the  case  instructions  given,  among  others, 
at  the  request  of  the  appellant,  as  follows : 

"  8.  The  jury  are  instructed  that  if  they  find  from  the 
evidence  that  the  plaintiff,  Henry  Harms,  was  in  the  peace- 
able possession  of  the  property  described  in  the  amended 
complaint,  and  had  a  house  thereon  before  the  commence- 
ment of  this  suit,  and  that  the  defendants,  without  the 
permission  of  the  plaintiff,  went  into  possession  of  said  prop- 
erty and  refused  to  surrender  the  possession  of  said  property 
to  the  plaintiff  upon  demand,  in  writing,  then  the  jury  will 
find  the  defendants  guilty. 

9.  The  jury  are  instructed  that  if  they  find  from  the  evi- 
dence that  the  defendants  went  into  possession  of  the  prop- 
erty described  in  the  complaint  in  this  case,  as  the  tenants 
of  the  plaintiff,  Henry  Harms;  and  if  they  further  find  that 
after  taking  possession  from  the  plaintiff,  and  before  the 
commencement  of  this  suit  they  disclaimed  holding  under 
the  plaintiff,  and  claimed  to  hold  the  property  under  some 


First  District — March  Term,  1897.       215 

Burke  v.  Dunning. 

Other  person,  then  the  jury  are  instructed  that  no  demand 
for  possession  was  necessary  to  be  made  by  the  plaintiff  on 
the  defendants  before  the  commencement  of  the  suit." 

Then  on  the  request  of  the  appellees  the  court  gave,  among 
others,  the  following  instruction : 

"  6.  If  you  believe  from  the  evidence  that  the  defendants 
never  acknowledged  the  possession  or  right  of  possession  to 
this  land  in  Henry  Harms,  the  plaintiff,  and  never  agreed 
in  the  manner  above  stated  in  the  other  instructions  to 
become  his  tenants  thereon,  then  vour  verdict  must  be  for 
the  defendants." 

This  nullified  the  instruction  above,  numbered  8. 

The  statute,  Sec.  5,  Ch.  67,  does  not  require  that  the  com- 
plaint shall  state  the  circumstances  under  which  the  defend- 
ant entered — but  simply  that  he  unlawfully  withholds;  and 
on  the  trial  the  plaintiff  may  prove  his  right  to  recover 
under  any  clause  of  section  2. 

If  the  evidence  proves  that  under  one  or  another  of  the 
clauses  of  that  section  the  plaintiff  is  entitled  to  recover,  but 
leaves  uncertain  under  which  of  the  two,  he  is  not  to  be 
defeated  because  of  a  doubt  whether  the  defendant  entered 
as  a  tenant  or  as  a  trespasser. 

"  It  can  not  be  known  what  instructions  the  jury  followed, 
and  hence  the  instructions  given  on  behalf  of  the  respective 
parties  should  be  made  to  harmonize  by  the  court  before 
they  are  given  to  the  jury."  C,  B.  &  Q.  R.  E.  v.  Naperville, 
lee'llLST. 

For  this  error  in  instructions,  the  judgment  must  be  re- 
versed, with  no  intimation  of  opinion  on  the  merits. 


Blchard  O'S.  Burke  v.  Joseph  E.  Banning. 

1.  Justices  of  the  Peace —  When  Judgments  by,  are  Final — A  tran- 
script of  a  justice  recited  a  verdict  and  judgment  as  follows:  **  We,  the 
jury,  find  the  issues  for  the  defendant,  and  upon  the  verdict  the  court 
readers  judgment  in  favor  of  the  defendant  against  the  plaintiff  for 
coats  of  suit."  Held,  that  the  justice  had  no  discretion  to  do  anything 
else  after  the  verdict  than  render  final  judgment  for  the  defendant,  and 


216  Appellate  Courts  of  Illinois. 

Vol.  70.]  Burke  v.  Dunning. 

that  the  judgment  for  costs  should  be  considered  a  final  judgment,  from 
which  an  appeal  would  lie. 

2,  JuDGMENTS—Form  of  J  When  Final,— In  form  a  final  judgment  foi* 
a  defendant  should  be  that  the  plaintiff  take  nothing  by  his  suit,  and 
that  the  defendant  go  hence  without  day. 

Transcript,  from  a  justice  of  tlie  peace.  Error  to  the  Circuit  Court 
of  Cook  County;  the  Hon.  Charles  G.  Neely,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Supersedeas  denied.  Opinion 
filed  May  24,  1897. 

M.  B.  Gearon  and  D.  R.  Twomey,  attorneys  for  appellant. 
No  appearance  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  tue  Court. 

The  plaintiff  in  error  applies  for  a  supersedeas  on  a  rec- 
ord showing  that  this  case  was  commenced  by  the  defend- 
ant in  error  against  the  plaintiff  in  error  before  a  justice  of 
the  peace,  and  tried  there  before  a  jury. 

The  transcript  of  the  justice  recites  the  verdict  and  judg- 
ment thus:  ''We,  the  jury, find  the  issues  for  the  defend- 
ant and  upon  the  verdict  to  the  court  renders  judgment  in 
favor  of  the  defendant  against  the  plaintiff  for  costs  of 
suit,'* 

The  word  "to"  italicised  is  impertinent  and  must  be 
rejected  as  surplusage. 

From  that  judgment  the  defendant  in  error  appealed  to 
the  Circuit  Court,  where  the  plaintiff  in  error  entered  his 
appearance,  but  seems  to  have  neglected  the  case,  as  a  coiaple 
of  years  afterward  the  defendant  in  error  took  judgment 
against  him  after  an  ex  parte  trial. 

There  is  no  bill  of  exceptions,  and  the  point  relied  upon 
by  the  plaintiff  in  error  is  that  the  judgment  merely  for 
costs  before  the  justice  w^as  not  a  final  judgment,  from 
Avhich  an  appeal  would  lie  to  the  Circuit  Court,  and  there- 
fore the  Circuit  Court  had  no  jurisdiction. 

That  in  form  a  final  judgment  for  a  defendant  should  be 
that  the  plaintiff  take  nothing  by  hissuit^and  that  the 
defendant  go  hence  without  day,  is  not  to  be  denied.  See 
Sprick  V.  Washington  Co.,  3  Nebraska,  253,  and  authority 
there  cited. 


First  District — March  Term,  1897.       217 

Wood  V.  Carter. 

But  the  justice  had  no  discretion  to  do  anything  else 
after  that  verdict  than  render  final  judgment  for  the  defend- 
ant.   Felter  v.  MuUiner,  2  Johns.  (K  Y.)  181. 

And  in  this  State,  a  judgment  before  a  justice  against  the 
plaintiflf  for  costs,  without  even  saying  in  whose  favor,  is  a 
final  judgment.     Zimmerman  v.  Zimmerman,  15  111.  85. 

The  premise  on  which  the  plaintiflf  in  error  bases  his  con- 
clusion failing,  his  conclusion  fails. 

The  supersedeas  is  denied. 


Benjamin  W.  Wood  v.  Ida  Carter. 

1.  Deeds — A  Deed  Construed. — A  eovenant  in  a  deed  planted  the  right 
of  way  over,  across  and  upon  a  private  aUey,  '*  to  be  kept  opened  and 
maintained,'*  and  reserved  **  the  ri^ht  of  arching  over  th6  said  aUey-way 
at  a  height  of  not  less  than  ten  feet  from  the  ground/'  Held,  that  the 
word  **  ground  "  referred  to  the  surface  of  the  earth  as  it  might  be  from 
time  to  time,  and  not  to  the  surface  as  it  was  in  its  original  state,  and 
that  an  aUey  of  the  agreed  width,  free  from  obstructions,  and  giving  free 
passage  to  teams  and  loads  able  to  pass  under  any  covering  not  less  than 
ten  feet  above  the  surface  of  the  aUey,  must  be  kept  and  maintained. 

2.  Easements — Abandonment  of,  by  Implication. — An  ovtiier  of  land 
is  entitled  to  whatever  appurtenances  belong  to  his  land,  regardless  of 
the  mode  in  which  he  uses  them,  and  the  fact  that  he  builds  on  his  land 
in  such  a  way  as  to  interfere  with  the  use  of  an  eaBement  can  not  be 
held  to  be  an  abandonment  of  it. 

Coyenant,  for  a  failure  to  maintain  a  private  alley.  Appeal  from  the 
Circuit  Court  of  Cook  County;  the  Hon.  Charles  G.  Neely,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1897.  Reversed  and 
remanded.  Opinion  filed  May  6,  1897.  Rehearing  denied.  Opinion 
filed  May  24,  1897. 

Oliver  &  Meoartney,  attorneys  for  appellant. 

Monk  &  Elliott,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

This  is  an  action  of  covenant  by  the  appellant  ao^ainst  the 

appellee.    The  only  question  in  the  case  is  upon  the  con- 


218  Appellate  Coukts  of  Illinois. 

Vol.  70.]  Wood  v.  Carter. 

struction  of  words  in  a  warranty  deed  from  William  Speight 
and  wife. 

By  events  since  the  making  of  the  deed  the  appellant  has 
succeeded  to  the  benefit  secured  by  those  words,  and  the 
appellee  is  bound  to  perform  what  they  require. 

The  words  follow  a  description  in  the  deed  of  the  prem- 
ises conveyed,  and  are  as  foll6ws : 

"  Also  the  right  of  way  over,  across  and  upon  a  private 
alley,  to  be  kept  opened  and  maintained  by  the  said  Speights 
and  all  future  owners  of  the  residue  of  said  sub-lot  one,  upon 
the  east  eight  feet  nine  inches  (8f  feet)  of  the  south  thirty- 
three  (33)  feet  of  said  sub-lot  one;  said  alley  was  to  be  only 
for  the  use  in  common  of  all  the  owners  and  occupants  of 
said  sub-lot  one,  and  for  the  use  of  no  other  persons  or  prop- 
erty soever;  said  Speight  reserving  to  himself,  and  such 
future  owners,  the  right  of  arching  over  the  said  alley-way 
at  a  height  of  not  less  than  ten  (10)  feet  from  the  ground, 
thereby  making  the  same  a  covered  passage-way." 

The  south  thirty-three  feet  of  sub-lot  one  is  the  northeast 
corner  of  fi^uron  and  Clark  streets  in  Chicago,  and  the  prem- 
ises conveyed  were  next  north  thereof. 

Huron  is  an  east  and  west  street,  so  that  the  premises 
conveyed  have  no  access  to  Huron  street  without  this 
alley. 

The  principal  contention  is  on  the  word  "  ground." 

The  appellee  insists,  and  the  court  held,  that  it  meant  the 
surface  of  the  earth  as  the  aborigines  left  it,  or  at  latest  as 
it  was  at  the  date  of  the  deed,  September  16,  1864. 

The  appellant  claims  a  practicable  alley  for  wagons  from 
Huron  street  to  the  premises  conveyed,  regardless  of  changes 
in  the  surface  of  Huron  street. 

That  at  the  date  of  the  deed  it  was  intended  that  this 
alley  should  give  access  with  wagons  to  the  rear  of  the 
premises  conveyed,  can  hardly  admit  of  doubt. 

Access  from  Clark  street  there  was — the  front  was  there. 
The  alley  is  not  upon  some  part  of  the  eight  feet  nine  inches, 
but  upon  the  whole,  one  part  as  much  as  another.  The 
height,  unobstructed,  is  to  be  not  less  than  ten  feet,  and  with 


FiEST  District — March  Term,  1897.       219 

Wood  V.  Carter. 

these  features  it  is  to  be  "  kept  and  maintained  "  by  tlie 
grantor  and  his  successors.  "  Ground "  most  frequently 
means  earth  surface;  but  it  also  means  the  lower  surface  in 
the  space  to  which  the  word  relates,  as  the  dictionaries 
teach  us,  and  as  popular  writers  exemplify. 

Such  an  alley  as  will  give  free  passage  from  Huron  street, 
with  teams  and  loads  that  will  go  under  any  covering  not 
less  than  ten  feet  above  the  surface  of  the  alley,  the  appellee 
must  keep  and  maintain. 

The  case  having  been  tried  without  a  jury,  we  would  be 
gladtoenterfinal  judgment  here;  but  there  is  not  sufficient 
data  for  us  to  fix  the  damages  to  which  the  appellant  is  en- 
titled by  reason  of  the  breach  of  the  covenant. 

The  fact  of  the  breach,  under  our  construction  of  the  cove- 
nant, is  not  denied. 

The  judgment  is  reversed  and  the  cause  remanded. 

Mb.  Justice  Gaby  on  petition  fob  eeheabing. 

This  petition  calls  upon  us  to  take  more  notice  of  some 
circumstances  shown  in  the  record  than  we  did  in  the  origi- 
nal opinion. 

First.  Ten  years  after  the  deed  was  made  the  appellant 
built  upon  the  property  he  holds,  and  in  so  doing,  he  built 
on  his  lot,  at  the  north  end  of  the  passage-way,  a  wall  to 
prevent  the  earth  of  his  lot  from  falling  into  the  alley,  the 
surface  of  which  was  then  lower  than  Huron  street,  and 
lower  than  the  surface  of  the  rear  of  the  lot;  and  also  so 
occupied  his  lot  by  building  that  no  wagon  could  go  upon 
the  lot  and  turn.  This,  it  is  insisted,  was  a  practical  con- 
struction by  the  appellant  of  the  covenant,  and  also  an 
abandonment  of  the  easement,  further  than  as  a  foot- way. 

But  the  convenience  of  a  wagon-way  to  Huron  street, 
while  not  as  great  when  the  wagon  must  back  in,  is  not 
thereby  wholly  lost.  It  may  be  a  valuable  incident  to  the 
lot  that  goods  can  be  received  and  delivered  in  that  way,  and 
the  appellant  is  entitled  to  whatever  appurtenances  belong 
to  his  lot,  regardless  of  the  mode  in  which  he  will  use  it. 

Second.    That  the  opinion  is  wrong  in  not  considering 


220  Appellate  Courts  of  Illinois. 

Vol.  70.]  Chicago  City  Ry.  Co.  v.  McMeen. 

that  the  reservation  of  the  right  of  arching  the  alley  was 
also  a  reservation  of  a  right  to  support  the  arch  on  the  eight 
and  three-quarters  feet. 

The  arch  was  the  grantor's  own  affair.  How  he  should 
support  it  was  no  more  the  concern  of  the  appellant  than 
of  what  material  it  should  be  built. 

All  the  interest  that  the  appellant  had  in  the  arch  was 
that  the  width  and  height  of  the  way  should  not  be  dimin- 
ished to  such  an  extent  as  to  seriously  embarrass  the  use  of 
the  alley  by  wagons. 

If  a  support  of  an  arch  can  be.so  placed  in  the  eight  and 
three-quarters  feet  as  not  to  have  that  effect,  such  support 
would  not  be  a  breach  of  the  covenant. 

The  petition  is  denied. 


Chicago  City  Railway  Co.  v.  Joseph  E.  McMeen. 

1.  Evidence — In  Rd>uttal  Must  Deny  or  Explain  Evidence  in 
Chief, — The  testimony  of  a  physician,  caUed  on  behalf  of  the  defendant, 
who  states  that  at  the  soUcitation  of  defendant  he  made  an  examina- 
tion to  ascertain  the  injuries  sustained  by  a  plaintiff  suing  for  personal 
injuries,  is  not  denied  or  explained  by  and  does  not  lay  a  foundation  for 
the  introduction  by  the  plaintiff  of  evidence  of  a  conversation  between 
the  plaintiff,  his  attorney  and  an  attorney  for  the  defendant,  in  which 
an  arrangement  was  made  that  the  plaintiff  would  submit  to  the  exam- 
ination. 

2.  Hamr— Testimony  in  Rebuttal, — After  the  plaintiff  has  rested  his 
case,  and  evidence  for  the  defendant  has  been  received,  the  plaintiff  can 
not  regularly  put  in  evidence,  except  to  deny  or  explain  evidence  pro- 
duced by  the  defendant. 

3.  Attorneys — Admissions  of.  Do  Not  Bind  Client, — What  an 
attorney  says  is  not  evidence  against  his  client,  unless  it  be  in  the  nature 
of  a  stipulation  as  to  the  conduct  of  the  cause,  and  then  it  is  not  his 
narrative  of  events,  or  his  opinion  as  to  any  body  ^s  rights  or  disabilities, 
that  binds  his  client,  but  it  is  his  agreement  as  to  the  conduct  of  the 
cause. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Cii^ 
cuit  Court  of  Ck)ok  County;  the  Hon.  Thomas  C.  Windbs,  Judge,  presid- 
ing. Heard  in  this  court  at  the  March  term,  1807.  Reversed  and 
remanded.    Opinion  filed  May  24,  1897. 


First  District — March  Term,  1897.       221 

Chicago  City  Ry.  Co.  v.  McMeen. 

Wm.  J.  HrNES  and  Laurence  A.  Young,  attorneys  for 
appellant. 

GsAHAM  H.  Habbib,  attovuej  for  appellee. 

Mb.  Justice  Gaby  delivered  the  opinion  of  the  Court. 

The  appellee  sued  the  appellant  for  injuries  received 
while — as  he  alleged — he  was  a  passenger  on  a  car  of  appel- 
lant. 

The  appellant  called  as  a  witness  Dr.  Babcock,  who  stated 
that  he,  at  the  solicitation  of  the  appellant,  made  an  exam- 
ination of  the  person  of  the  appellee,  as  to  the  injuries  he 
had  sustained,  and  made  a  written  report  thereof  to  the  claim 
agent  of  the  appellant,  and  was  paid  therefor  by  the  appel- 
lant. 

On  this  foundation  the  court  admitted  in  evidence,  over 
the  objections  and  exceptions  of  the  appellant,  a  conver- 
sation between  the  appellee,  his  attorney,  and  an  attorney 
of  the  appellant,  in  which  an  arrangement  was  made  that 
the  appellee  would  submit  to  that  examination.  The  testi- 
mony of  Dr.  Babcock  was  no  foundation  on  which  to  admit 
that  conversation;  nothing  said  by  him  was  denied  or  ex- 
plained, or  sought  to  be,  by  putting  that  conversation  in 
evidence.  At  that  stage  of  the  case  the  appellee  could  reg- 
ularly put  in  further  evidence  only  to  deny  or  explain  evi- 
dence which  the  appellant  put  in  after  the  appellee  rested 
his  case.    2  Ph.  Ev.,  Cowen  and  Hill,  878,  side  paging. 

If  Dr.  Babcock  had  never  testified,  the  conversation,  if 
admissible  at  all,  would  have  been  just  as  admissible  as  it 
was  after  his  testimony,  which  the  conversation  neither 
denied  nor  explained. 

A  part  of  that  conversation,  as  narrated  by  the  appellee, 
was,  as  quoted  in  appellee's  brief :  "  Judge  Grinnell  said 
that  they  considered  that  they  were  liable  for  it  and  would 
settle  it." 

This  was  error,  not  on  the  ground  that  the  conversation 
was  in  the  nature  of  an  offer  to  compromise,  but  on  the 
ground  that  what  an  attorney  says  is  not  evidence  against 


70    222 
173s  610 


222  Appellate  Courts  of  Illinois, 

Vol.  70.]  Wheeler  &  Wilson  Mfg.  Co.  v.  Barrett. 

his  client,  unless  it  be  in  the  nature  of  a  stipulation  as  to 
the  conduct  of  the  cause.     1  Green.  Ev.,  Sec.  186. 

Then  it  is  not  his  narrative  of  events,  or  his  opinion  as  to 
anybody's  rights  or  liabilities  that  binds  his  client,  but  it  is 
his  agreement  as  to  the  conduct  of  the  cause  that  binds. 

There  are  many  other  questions  in  the  case  which  will  not 
be  considered,  as  this  error  is  fatal  to  the  present  judgment. 

The  judgment  is  reversed  and  the  cause  remanded. 


Wheeler  &  Wilson  Hanufaetnring  Go.  v.  Margaret 

Barrett. 

1.  Evidence — Order  of  Introduction  of. — It  is  proper  to  refuse  to 
allow  a  party  to  introduce  evidence  during  the  cross-examination  of  a 
witness  for  the  adverse  party. 

2.  CXysTRAar^—Execution  of^Identiflcation  of  Parties.— At  the  con- 
clusion of  negotiations  for  the  sale  of  a  sewing  machine  the  purchaser 
authorized  her  daughter  to  execute  a  written  instrument  in  regard  to 
the  machine.  In  a  suit  regarding  the  machine  the  vendor  produced  a 
paper  purporting  to  be  signed  by  the  husband  of  the  vendee,  claiming 
that  it  was  the  paper  signed  by  her  daughter  by  her  direction.  Hdd^ 
that  the  paper  could  not  be  regarded  as  the  contract  of  the  vendee. 

8.  Damages— #i,5(?(?  Excessive,  for  Taking  Property  Worth  $60.— In 
the  case  of  an  unwarranted  bringing  of  an  action  of  replevin,  and  a 
seizure  thereunder  of  a  sewing  machine  which  originally  cost  |60,  and 
had  been  in  use  nearly  three  years,  foUowed  by  a  voluntary  dismissal  of 
the  replevin  suit,  an  award  of  $1,500  damages  is  excessive. 

4.  Estoppel— -By  Words  or  Conduct— When  one  by  his  words  or 
conduct  willfully  causes  another  to  believe  the  existence  of  a  state  of 
things,  and  induces  him  to  act  on  the  belief  so  as  to  alter  his  previous 
position,  the  former  is  precluded  from  averring  against  the  latter  a  dif- 
ferent state  of  things  as  existing  at  the  same  time. 

Trespass  on  the  Case,  for  a  wrongful  taking  of  property  under  a  writ 
of  replevin.  Appeal  from  the  Circuit  Coiuij  of  Ckwk  Ck>unty;  the  Hon. 
Richard  S.  Tutuiix,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term,  1897.  Affirmed  if  remittitur  be  entered,  otherwise  reversed 
and  remanded.  Opinion  filed  ^pril  15,  1897.  Rehearing  denied. 
Opinion  filed  May  20,  1897. 

Statement  of  the  Case. 

This  was  an  action  of  trespass  on  the  case  brought  by 
appellee  against  the  appellant.    The  declaration  consists  of 


First  District— March  Teem,  1897.       223 

Wheeler  &  Wilson  Mfg.  Co.  v.  Barrett^ 

one  count,  which  alleges  that  the  plaintiff  was  the  lawful 
owner  and  possessed  of  one  Wheeler  &  "Wilson  sewing  ma- 
chine number  13,689,  of  the  value  of  $75;  that  the  defendant 
wrongfully,  willfully  and  maliciously,  and  without  any 
reasonable  or  probable  cause,  instituted  a  replevin  suit  against 
the  plaintiif,  and  under  and  by  virtue  of  the  writ  issued 
therein,  took  said  machine  from  the  plaintiflf,  and  afterward 
on  its  own  motion,  dismissed  said  suit.  The  defendant 
pleaded  the  general  issue.  On  the  trial  a  verdict  for  $1,500 
was  rendered  in  favor  of  the  plaintiflf,  and  judgment  was 
entered  thereon. 

It  appears  from  the  evidence  of  the  plaintiflf,  that  on  the 
first  day  of  June,  1888,  one  Gleason,  the  defendant's  agent, 
took  a  new  Wheeler  &  Wilson  sewing  machine  to  the  plaint- 
iflTs  house,  and  negotiated  with  her,  in  the  presence  of  her 
daughter  and  Mrs.  Seaman,  for  the  sale  of  the  machine,  and 
the  acceptance  from  the  plaintiflf,  at  a  valuation  of  $12.50, 
of  two  old  machines  in  part  payment  for  the  new  machine. 
At  the  conclusion  of  the  negotiations  the  plaintiflf  author- 
ized her  daughter  to  execute  a  written  instrument  in  regard 
to  the  machine  which  she  bought. 

D.  F.  Flannery,  attorney  for  appellant. 

Geo.  E.  Swabtz,  attorney  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

Upon  the  trial  of  this  cause  in  the  court  below,  the  defend- 
ant, during  the  cross-examination  of  the  plaintiflf,  produced 
a  paper  purporting  to  be  signed  by  Michael  Barrett,  con- 
cerning which  the  plaintiflf  testified  as  before  set  forth.  The 
defendant  then  moved  to  exclude  all  the  evidence  given  by 
the  plaintiffs  as  to  what  took  place  when  the  negotiations 
for  the  sale  of  the  machine  were  had. 

The  court  properly  refused  to  sustain  such  motion.  The 
testimony  was  that  she,  not  Michael  Barrett,  bought  the 
machine^  and  that  a  paper  was  signed  by  her  daughter,  by 


224  Appellate  Courts  of  Illinois. 

Vou  70.]  Wheeler  &  Wilson  Mfg.  Co.  v.  Barrett. 

her  direction,  relative  to  the  machine  she  bought;  not  that 
the  contract  of  sale  or  that  any  contract  was  signed. 

The  defendant  then  offered  the  paper  in  evidence.  The 
court  properly  declined  to  admit  it,  as  at  that  time  the  cross- 
examination  of  the  plaintiff  was  going  on.  Thompson  on 
Trials,  Sec.  434;  Queen's  Case,  2  Brod.  &  Bing.,  p.  2^8,  6  E. 

C.  L.  149. 

The  paper  so  offered  is  as  follows : 

"  Wheelee  &  Wilson  Manufactitring  Co. 

185  and  187  "Wabash  Ave.,  Chicago. 
$60.  June  1st,  1888. 

Received  of  the  Wheeler  &  Wilson  Manufacturing  Com- 
pany, one  Wheeler  &  Wilson  sewing  machine,  style  No.  9, 

D.  A.  A.,  Plate  No.  13,689,  with  its  parts,  as  follows :  1 
hemmer,  1  doz.  needles,  1  quilting  gauge,  1  tuck  gauge,  1 
ordinary  glass,  1  tucking  glass,  1  cordor  glass,  1  braider 
glass,  4  bobbins,  1  needle  wrench,  1  emery  wheel,  1  black 
wrench,  1  oil  can,  1  screw  driver,  1  thumb  screw,  1  throat 
plate. 

To  be  returned  to  them  on  demand,  and  until  such 
demand  1  agree  to  pay  them,  for  the  use  thereof,  ten  dol- 
lars in  hand,  and  five  dollars  per  month  while  I  keep  the 
same;  payable  at  the  office  of  the  Wheeler  &  Wilson  Mfg. 
Co.,  185  and  187  Wabash  Ave.,  Chicago,  Illinois,  on  the 
same  day  of  each  month  following  the  above  date,  and  agree 
to  take  good  care  of  the  same  while  in  my  custody,  and  not 
to  remove  it  from  my  residence,  No.  303  S.  Halsted  street, 
without  their  written  consent  first  had  and  obtained. 

No  one  is  authorized  to  make  any  contract  or  verbal 
promise  differing  from  that  written  and  printed  on  the 
face  of  this  lease.  Michael  Baejrett. 

Eead  the  above  and  below  before  signing. 

Any  promise  or  agreement  made  by  any  one  diflferent 
from  that  written  or  printed  in  this  lease  will  not  be 
recognized. 

Wheeleb  &  Wilson  Mfo.  Co. 

Witness,  M.  J.  Gleason." 

On  the  back  of  which  were  the  following  indorsements: 


First  District— March  Term,  1897.       225 


Wheeler  &  Wilson  Mfg.  Co.  v.  Barrett. 


June  7,  1SS8,  first  payment  O.M.  $10;  September  4, 1888, 
$5;  October  3,  1S8S,  $3;  February  20,  1889.  83;  March  27, 
1SS9,  $2;  April  23,  1889,  $2.50;  May  29,  18S9,  S2;  August 
14,  1889,  $2;  September  18,  1889,  $2;  February  4,  1890,  $2; 
March  12,  1890,  $1.50;  April  24,  1890,  $2;  June  5,  1890,  $i; 
August  7,  1890,  $3;  October  2,  1890,  $2;  November  22, 
1890,  $1;  April  21,  1891,  $1. 

The  defendant  did  not  again  offer  this  paper,  and  no 
other  evidence  was  offered  bv  the  defendant;  as  a  conse- 
quence,  neither  this  paper  nor  any  evidence  on  the  part  of 
the  defendant  was  given  to  the  jury. 

As  the  case,  when  submitted,  stood,  it  appeared  that 
the  defendant  had  sold  to  the  plaintiff  a  sewing  machine; 
after  it  had  been  fully  paid,  it  had  instituted  ^  an  action 
of  replevin,  taken  the  machine  from  the  plaintiff,  and 
then  dismissed  its  suit  without  an  attempt  to  sustain  the 
same.     The  plaintiff  was  entitled  to  recover. 

The  damages  awarded  are  excessive.  It  is  a  case,  merely, 
of  an  unwarranted  bringing  of  an  action  for  replevin,  a 
seizure  thereunder  of  a  sewing  machine  which  originnlly 
cost  $60,  and  had  been  in  use  nearly  three  years;  followed 
by  a  voluntary  dismissal  of  the  replevin  suit,  a  proceed- 
ing which  Sec.  26  of  Chapter  119,  entitled  ''Replevin," 
seems  to  encourage.  It  is  not  a  case  of  a  seizure  with- 
out process  of  law,  as  was  the  case  of  Singer  Co.  v.  Hold- 
foot,  86  111.  455. 

We  think  that  $300  is  as  much  as  ought  to  be  allowed 
in  a  case  of  this  kind.  If  appellee  remits  to  that  sum 
within  ten  days,  judgment  will  be  affirmed  for  that  amount; 
otherwise  the  judgment  of  the  Circuit  Court  will  be  reversed 
and  the  cause  remanded.  In  either  case,  at  the  cost  of  the 
appellee. 

Mr.  Justice  Watermait  upon  petftion  for  reheartno. 

Appellant,  in  the  petition  for  rehearing  by  it  filed,  says 
that  this  court  holds  that  the  written  contract  was  the 
contract  of  Michael  Barrett,  and  therefore  did  not  ])reclude 
oral  testimony  by  appellee. 


226  Appellate  Coukts  of  Illinois. 

Vol.  70.  J  Wheeler  &  Wilson  Mfg.  Go.  v.  Barrett. 

This  is  a  misapprehension.  We  are  not  of  the  opinion 
that  a  written  contract  was  made  by  Michael  Barrett,  or  by 
any  one  else.  It  is  true  that  the  name  of  Michael  Barrett 
was  signed  by  the  direction  of  appellee  to  an  instrument 
that,  if  signed  by  him,  w^ould  have  been  his  contract;  but  as 
there  is  neither  evidence  nor  pretense  that  Michael  Barrett 
either  sisfned  the  instrument  or  authorized  anv  one  to  affix 
his  name  thereto,  or  has  in  any  way  made  himself  a  party 
to  the  same,  it  certainly  is  not  his  contract.  Neither  was 
it  a  written  cor^tract  by  appellee. 

The  rule  of  law  is  clear  that  where  one  by  his  words  or 
conduct,  willfully  causes  another  to  believe  the  existence  of 
a  state  of  things,  and  induces  him  to  act  'on  the  belief  so  as 
to  alter  his  own  previous  position,  the  former  is  precluded 
from  averring  against  the  latter  a  different  state  of  things 
as  existing  at  the  same  time.  Pickard  v.  Sears,  6  Adolphus 
&  Ellis,  469;  Hefner  v.  Van  Dolah,  57  111.  520. 

In  the  present  case  appellee  did  nothing  to  induce  appel- 
lant to  believe  the  existence  of  a  state  of  things  different 
from  the  real  facts.  She  did  not  pretend  that  she  had  any 
authority  to  sign  the  name  of  Michael  Barrett  to  a  contract, 
or  to  authorize  any  one  else  to  make  such  signature,  or  in 
any  way  or  wise  to  make  him  a  party  to  the  alleged  con- 
tract. She  in  no  way  deceived  appellant;  it  knew  that  the 
name  of  Michael  Barrett  was  not  that  of  ap|>ellee  or  her 
daughter,  and  must  have  understood,  when  it  took  this 
instrument  so  signed,  that  it  had  no  written  contract  what- 
ever, for  it  was  in  no  way  deceived.  The  question  is  not 
whether  this  paper  memorandum  might  have  been  used  for 
the  purpose  of  ascertaining  what  the  real  contract  between 
appellee  and  appellant  was,  but  whether  it  is  itself  a  writ- 
ten contract  between  them,  so  that  all  oral  testimony  as  to 
what  was  said  prior  to  the  signing  of  such  instrument  is  to 
be  excluded.  Appellant  attempted  to  make  use  of  it  for 
such  purpose,  and  not  as  an  adjunct  to  the  oral  testimony 
to  determine  w^hat  the  real  agreement  was.  That  it  is  not 
a  written  contract  between  appellant  and  appellee  was  appar- 
ent so  soon  as  it  was  presented  to  the  court  below;  it  did 


First  District — March  Term,  1897.       227 

Christian  ▼.  Tyler  &  Hippach. 

not  purport  to  be  a  contract  by  appellee.  There  was  no 
pretense  that  appellant  thought  that  the  named  signed 
thereto  was  that  of  appellee,  or  that  appellee  as  an  agent 
of  Michael  Barrett  had  a  right  to  make  a  contract  for  him, 
and  to  sign  his  name  to  the  instrument  in  question. 

If  appellee  had  in  any  way  deceived  appellant,  a  differ- 
ent question  would  be  presented. 

The  petition  for  rehearing  is  denied. 


Henry  W.  Christian  y.  Tyler  &  Hippach. 

1.  Joint  LiABnjTY— 0/  Husband  and  Wife—When  Proof  ofy  is  Un- 
necessary,—In  an  action  against  a  husband  and  wife  for  the  value  of 
certain  goods,  the  jury  were  instructed  that  it  is  not  necessary  for  the 
plaintifif  to  show  that  the  defendants  are  jointly  liable,  and  if  they 
believe  from  the  evidence  that  either  of  the  defendants  are  liable,  they 
will  find  for  the  plaintiffs.  Hddt  that  the  instruction  stated  the  law  cor- 
rectly. 

2.  I>]SI0SRA1&— After  Verdict, — It  is  proper  to  allow  the  dismissal  of 
a  suit  as  to  one  of  several  defendants  even  after  verdict,  where  there  is 
no  evidence  against  such  defendant. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  County 
Court  of  Cook  County;  the  Hon.  Wales  W.  Wood,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  AfQrmed.  Opinion  filed 
May  24,  1897. 

E.  G.  Lanoasteb,  attorney  for  appellant. 
Gilbert  &  Gilbert,  attorneys  for  appellees. 

Mb.  Justiqb  Gaby  delivebed  the  opinion  of  the  Coubt. 

The  appellees  recovered  a  judgment  before  a  justice 
a.gainst  the  appellant  and  his  wife.    They  appealed. 

On  the  trial  in  the  County  Court  the  appellees  proved  a 
sale  of  goods,  on  the  order  of  the  appellant  alone,  and  the 
defendants  (appellant  and  his  wife)  demurred  to  the  evidence, 
which  demurrer  the  court  overruled  and  instructed  the  jury 
as  follows : 


228  Appellate  Courts  of  Illinois, 

Vol.  70.]  •  Calland  v.  Trapet. 

"  The  jury  are  instructed,  as  law  in  this  case,  that  it  is  not 
necessary  for  the  plaintiff  to  show  that  the  defendants  are 
jointly  liable  in  the  above  cause,  and  if  they  believe  from 
the  evidence  that  either  of  the  defendants  are  liable,  then 
they  will  find  for  the  plaintiffs  and  assess  their  damages  at 
the  amount  thev  believe  from  the  evidence  is  due  them." 

That  instruction  is  in  accordance  with  the  law  held  here 
in  Touhy  v.  Daly,  27  111.  App.  459. 

After  verdict  for  the  appellees  against  both  defendants,  the 
appellees  discontinued  as  to  the  wife,  and  took  judgment 
against  theappellant  alone.  The  appellant  can  not  now  com- 
plain that  injustice  was  thereby  done  to  him,  as  his  position 
here  is,  as  it  was  in  the  County  Court,  that  there  was  no 
evidence  to  charge  her.  The  practice  that  such  discontin- 
uances may  be  entered  is  settled.  Chambers  v.  Beahan,  57 
111.  App.  285. 

A  motion  to  apportion  the  costs  was  denied,  but  that  any 
additional  costs  accrued  by  reason  that  she  was  joined  in 
the  suit  does  not  appear. 

There  is  little  to  induce  a  very  anxious  review  of  this 
judgment  of  $3S  for  a  just  debt,  and  it  is  affirmed. 


Hans  A.  Calland  and  John  F.  Pethybridgo  v.  Lonis  A. 

Trapet. 

1.  Custom  and  Usage— JVopcr  Office  of— Must  be  QeneraUy  Knoum, 
— The  proper  office  of  a  custom  or  usage  in  business  is  to  ascertain  and 
explain  the  intent  of  the  parties,  and  it  can  not  be  inconsistent  with  the 
terms  of  the  agreement  between  them,  or  against  the  established  prin- 
ciples of  law.  It  must  be  generally  known,  and  so  uniformly  acted 
upon  as  to  raise  a  fair  presumption  that  it  was  known  to  both  contract- 
ing parties,  and  that  they  contracted  in  reference  to  it. 

2.  SAME—Reqitiftitea  o/.— Where  usage  is  relied  upon  to  establisli  a 
right  it  must  be  shown  to  be  ancient,  certain,  uniform,  reasonable,  and 
BO  general  as  to  furnish  a  presumption  of  knowledge  by  both  parties. 

Assnmpsit,  for  commissions.  Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  Richard  S.  Tuthill,  Judge,  presidmg.     Heard 


First  District — March  Term,  1897.       229 

Calland  y.  Trapet 

in  this  court  at  the  March  term,  1897.  Affirmed  if  remittitur  be 
entered,  otherwise  reversed  and  remanded.  Opinion  filed  May  24, 
1897. 

Jones  &  Strong,  and  Frank  Crosby,  attorneys  for  appel- 
lants. 

St.  John  &  Merriam,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

This  was  an  action  of  assumpsiji,  to  recover  from  appel- 
lants real  estate  commissions  claimed  to  be  due  from  them 
on  account  of  an  exchange,  said  to  have  been  effected  by 
appellee,  of  certain  real  property  in  Evanston  for  real  and 
personal  property  in  Clinton,  Iowa. 

There  is  no  dispute  that  the  exchange  was  effected. 
That  appellee  was  employed  to  make  the  same  is  denied. 

It  appears  that  appellants,  when  proposing  to  trade  their 
property  for  other  real  property,  put  their  property  in  for 
consideration  at  a  valuation  of  $75,000.  That  they  at  first 
declined  to  accept  the  Clinton  property  because  there  was  a 
mortgage  of  $10,000  upon  it,  and  afterward  concluded  to 
exchange,  first  putting  an  incumbrance  of  $10,000  upon 
their  Evanston  property,  so  that  the  mortgages  upon  the 
respective  properties  might  be  equal. 

The  Clinton,  Iowa,  property  had  also,  in  being  placed 
upon  the  market  for  exchange,  been  put  in  at  a  valuation 
of  $75,000. 

It  is  evident  that  neither  of  the  trading  parties  thought 
their  respective  properties  to  be  worth  anything  like  the 
amount  that,  for  trading  purposes,  they  had  placed  its 
value  at;  so  that  when  deeds  came  to  be  drawn,  the  con- 
sideration in  the  conveyances  made  of  the  Evanston  prop- 
erty was  placed  at  $30,000,  while  the  consideration  for  the 
Clinton,  Iowa,  propertj^  was  placed  at  $37,500,  because  that 
property  included  not  only  real  estate  but  certain  personal 
property  consisting  of  horses,  furniture,  etc.;  and  thus 
while,  by  the  considerations  recited  in  the  deeds,  one  prop- 


230  Appellate  Courts  op  Illinois. 

Vol.  70.]  Calland  v.  Trai^et. 

erty  appears  to  have  been  sold  for  $7,500  more  than  the 
other,  the  exchange  was  even. 

It  appears  that  neither  property  was  actually  worth  over 
$15,000;  that  one  of  the  owners  of  the  Evanston  property 
had,  prior  to  the  trade,  offered  to  sell  his  one-half  interest 
for  $7,000.  That  a  deed  for  appellants  to  execute  was  first 
made  out  with  the  consideration  of  $75,000  written  in  it, 
and  that  thev  refused  to  execute  such  deed. 

Appellee  claimed  that  he  was  entitled  to  a  commission  of 
two  and  one-half  per  cent  upon  $75,000,  being  the  sum  of 
$1,875,  with  interest  thereon  at  five  per  cent  per  annum. 

It  was  not  claimed  that  there  had  been  any  agreement  as 
to  what  commission  should  be  paid;  while  appellants  in- 
sisted that  appellee  was  acting  for  the  owners  of  the  Clin- 
ton, Iowa,  property,  and  that  they  distinctly  told  appel- 
lee that  they  would  not  pay  any  commission. 

As  to  the  commissions  to  which  appellee  claimed  he 
was  entitled,  appellee  testified  as  follows : 

"  Have  been  in  the  real  estate  business  in  Chicago  since 
1887,  and  know  the  general  custom  and  usage  among 
owners  and  brokers  in  Chicago  as  to  brokers'  commissions. 
According  to  the  Eeal  Estate  Board  rules,  under  which  we 
work,  commissions  for  anything  under  $3,000  in  Cook 
county  is  five  per  cent  for  clear  property,  and  above  that 
to  $10,000  is  two  and  one-half  per  cent;  outside  of  Cook 
county  five  per  cent.  This  would  fall  under  the  two  and 
one-half  per  cent  class.  These  were  the  rules  governing 
transactions  at  that  time.  I  base  this  two  and  one-half  per 
cent  commission  on  the  original  proposition  on  which  the 
deal  was  made — $75,000.  It  is  ordinarily  based  on  the  prop- 
osition that  is  made  and  accepted;  it  makes  no  difference 
about  the  value  of  the  property.  It  may  be  based  on 
$100,000  and  closed  on  the  basis  of  $10,000;  that  would  not 
determine  the  value.  I  charge  on  the  value  the  owner  puts 
on.  The  owner  fixes  what  he  thinks  his  property  worth; 
he  makes  a  proposition  and  we  base  on  that.  It  depends 
very  little  on  the  value.  A  good  deal  depends  on  supply 
and  demand." 


First  District — March  Term,  1897.       231 

Calland  v.  Trapet. 

Another  witness*  for  plaintiflf  testified  :  "  "Was  familiar 
with  the  customs  pertaining  to  exchanges  of  real  estate  here 
in  the  city  in  1894.  Coraraiissions  on  sales  of  property  of 
this  description  in  Cook  county  were  by  that  custom  two 
and  one-half  per  cent  on  the  price.  By  price  1  mean  the 
price  the  property  is  sold  at.  This  price  has  nothing  at  all 
to  do  with  the  value  of  the  property.  The  price  is  given 
to  you  by  the  owner  of  the  property  in  utter  disregard  of 
its  value." 

A  witness  for  defendants  testified  that  the  custom  of  real 
estate  agents  in  Chicago,  as  to  charging  commissions,  is  not 
to  charge  on  the  consideration  mentioned  in  the  deed,  but 
on  the  value  of  the  property. 

There  is  no  evidence  in  the  case  upon  which  to  base  a  rate 
for  commissions  save  testimony  as  to  usage  in  Chicago  at 
the  time  the  exchange  under  consideration  was  made. 

The  Supreme  Court  in  Bissell  v.  Ryan,  23  III.  517,  said : 
"  The  proper  office  of  a  custom  or  usage  in  business  is  to 
ascertain  and  explain  the  intent  of  the  parties;  and  it  can 
not  be  in  opposition  to  any  principle  of  general  policy,  nor 
inconsistent  with  the  terms  of  the  agreement  between  the 
parties,  or  against  the  established  principles  of  law.  Besides 
all,  it  must  be  generally  known  and  established,  and  so  well 
settled  and  so  uniformly  acted  upon  as  to  raise  a  fair  pre- 
sumption that  it  was  known  to  both  contracting  parties,  and 
that  they  contracted  in  reference  to  it,  and  in  conformity 
with  it.  *  *  *  All  the  authorities  concur  in  saying  thsct, 
if  usage  is  relied  upon,  it  must  be  shown  to  be  ancient,  cer- 
tain, uniform,  reasonable,  and  so  general  as  to  furnish  this 
presumption  of  knowledge  by  both  parties."  See  also  Tur- 
ner V.  Dawson  &  Howe,  60  111.  85* 

This  language  of  the  court  is  repeated  and  affirmed  in 
Wilson  V.  Bauman  et  ah,  80  111.  493,  and  in  Sweet  v.  Leach, 
6  111.  App.  212.  The  same  doctrine  is  announced  in  Con- 
verse V.  Harzfeldt,  11  111.  App.  173;  MuUiner  v.  Bronson, 
14  111.  App.  355;  Leggat  et  al.  v.  Si;  nds  Brewing  Co.,  60  111. 
158,  and  in  Coffman  v.  Campbell  &  Co.,  87  111.  98. 

The  Supreme  Court  in  Bissell  v.  Ryan,  also  say  that  "  a 


232  Appellate  Coukts  of  Illinois. 

Vol.  70.]  Calland  v.  Trapet. 

usage  can  not  be  established  by  proof  of  one  instance,  but 
bv  an  accumulation  of  instances;  that  it  can  not  be  estab- 
lished  by  evidence  of  opinion  merely."  Cunningham  v.  Fon- 
blanque,  6  C.  &  P.  44. 

In  27  Am.  &  Eng.  Ency.  of  Law,  736,  737,  the  doctrine 
as  to  usages  is  declared  to  be  as  follows: 

"  Usages  being  a  fact,  and  to  be  proved  as  a  fact,  it  follows 
that  the  existence  of  a  usage  can  not  be  established  by  the 
mere  opinions  of  witnesses  as  to  what  is,  as  applied  to  the  law, 
the  case  in  hand.  It  often  appears  that  what  is  supposed 
to  be  a  usage  of  trade,  is  merely  the  general  opinion  of 
persons  as  to  their  rights  and  liabilities  under  certain  facts; 
such  opinion  can  not  constitute  a  usage.  Merchants  may 
consider  themselves  as  having  certain  rights  in  certain  cases, 
and  ma}'^  think  of  the  matter  as  being  a  usage  of  their  trade; 
but  a  usage  is  a  mode  of  conducting  business,  a  course  of 
dealing,  and  can  not  from  its  nature  be  the  subject  of  opin- 
ion. It  must  be  a  method  of  dealing  with  certain  facts,  and 
not  a  conclusion  as  to  the  rules  of  law  pertaining  to  those 
facts." 

It  is  apparent  that  the  testimony  as  to  usage  did  not  come 
within  the  rule  of  law  in  res])ect  thereto.  Appellee,  who 
did  not  claim  to  be  a  member  of  the  Real  Estate  Board, 
testified  as  to  its  rules,  under  which,  he  said,  "  we  work." 

This  is  very  far  from  being  a  statement  of  a  generally 
known,  established,  and  so  well  settled  custom  that  there- 
from the  presumption  is  raised  that  both  parties  contracted 
with  reference  to  it. 

None  of  the  witnesses  testified  to  any  established,  well 
settled,  certain  and  general  custom  about  charging  commis- 
sions upon  the  basis  of  the  price  put  upon  the  property  by 
the  owner,  without  respect  to  what  might  be  obtained  for 
it,  although  appellee  testified  that  he  charged  on  the  value 
that  the  owner  puts  on  his  property,  and  appellee's  witness, 
R.  B.  Stone,  testified  that  commissions  were  charged  upon 
the  price  the  property  is  sold  at,  which  he  declared  had 
nothing  to  do  with  the  value  of  the  property. 

In  the  present  case  it  does  not  appear  that  the  Evanston 


First  District— March  Term,  1897.       233 

Clark  V.  Parker. 

property  was  in  reality  sold  at  any  particular  price;  it 
was  exchanged  for  another  piece  of  property;  so  that  if  we 
are  to  ascertain  and  express  in  dollars  the  price  for  which 
the  Evanston  property  was  sold,  we  have  to  ascertain  the 
value  in  dollars  of  the  Clinton  propert}'^,  Avhich  does  not 
appear  to  have  been  worth  more  than  $15,000. 

The  jury  returned  a  verdict  for  $937.50,  which  is  2J  per 
cent  upon  $37,500,  the  sura  named  in  the  deed  of  the  Clin- 
ton property  as  the  consideration. 

There  was  no  evidence  either  of  a  general,  well  under- 
stood and  certain  custom  in  the  sale  of  real  estate  to  charge 
commission  on  the  consideration  named  in  the  deed,  or  on 
the  price  which  the  owner  may  have  fixed  upon  his  pro- 
perty, without  reference  to  the  value  actually  obtained 
therefor.  Whatever  custom  exists  in  this  regard  should 
have  been  proven,  in  accordance  with  the  rule  as  laid  down 
by  the  Supreme  Court  of  this  State. 

For  the  want  of  such  evidence,  the  judgment  of  the  Cir- 
cuit Court  will  be  reversed  and  the  cause  remanded,  unless 
appellee  shall,  within  ten  days,  remit  to  the  sum  of  $375.00, 
in  which  case  the  judgment  will  be  afBrmed  for  that  amount, 
in  either  case  at  the  costs  of  appellee. 


Wallace  C.  Clark  v,  W.  H.  Parker  et  al. 

1.  Contempt  OP  Court— CZcw«e«  o/—Oiin7  Contempts  Defined,— The 
main  division  of  acts  of  contempt  is  into  those  which  are  criminal  and 
those  which  are  civil.  A  civil  contempt  is  a  failure  or  refusal  of  a 
party  to  do  something  which  the  court  has  ordered  to  be  done  by  him 
for  the  benefit  or  advantage  of  another  party  to  the  cause.  The  order 
in  such  case  is  not  punitive  but  coercive. 

2.  Same — Ijength  of  Commitments  for  Civil  Contempts, — An  im- 
prisonment for  a  contempt  of  an  order  in  a  civil  proceeding  where  the 
process  is  for  the  bc^nefit  of  the  adverse  party,  should  terminate  upon 
the  compliance  by  the  contemner  with  the  requirements  of  tJie  order. 
A  court  baa  no  power  to  order  a  commitment  for  a  definite  time  in  such 

« 

a  case. 


70    233 
86    236 


234  Appellate  Courts  of  Illinois. 


Vol.  70.]  Clark  v.  Parker. 


Assigrument  Proeeedliigr. — Order  of  commitment  for  contempt  of 
court.  Appeal  from  the  County  Court  of  Cook  0)unty;  the  Hon. 
Charl.es  H.  Donnelly,  Judge,  presiding.  Heard  in  this  court  at  the 
Mai'ch  term,  1897.  Reversed  and  remanded.  Opinion  filed  May 
24,  1897. 

*  Wilbur  N.  Horner,  attorney  for  appellant. 
Ko  appearance  for  appellee, 

Mr.  PRESiDiNa  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

For  failure  to  comply  with  an  order  of  court  previously 
entered  requiring  the  appellant  to  pay  to  the  appellees  cer- 
tain money  claims  ascertained  to  be  due  by  him  to  them,  out 
of  funds  found  to  be  in  his  hands  as  assignee  of  the  Southera 
Hotel  Company^  the  appellant  was  adjudged  to  be  in  con- 
tempt, and  it  was  thereupon  ordered  that  "  he  be  and  he  is 
hereby  committed  to  the  county  jail  of  Cook  county  for  a 
term  of  thirty  days  for  his  willful  failure  and  refusal  to 
comply  with  the  said  order  of  this  court,"  and  that  a  mitti- 
mus issue,  etc. 

This  appeal  is  from  such  order. 

It  will  be  observed  that  the  order  of  commitment  is  for  a 
definite  term,  irrespective  of  whether  the  contemner  com- 
plies with  the  violated  order  or  not.  There  is  no  authority 
for  such  a  commitment  in  a  case  of  this  character.  The 
main  division  or  classification  of  acts  of  contempt  is  into 
those  which  are  criminal  and  those  which  are  civil. 

This  case  belongs  to  the  latter  class,  which  consists  in  the 
refusal  of  the  party  to  do  something  which  the  court  has 
ordered  to  be  done  by  him  for  the  benefit  or  advantage  of 
another  party  to  the  cause;  in  which  case  he  may  stand 
committed  until  he  complies  with  the  order.  The  order  ia 
such  case  is  not  punitive,  but  coercive.  Rapalje  on  Con- 
tempts, Sec.  21;  Phillips  v.  Welch,  11  Nev.  187:  In  re  Chiles, 
22  Wall.  157,  168;  Stimpson  v.  Putnam,  41  Vt.  238,  249. 

Blackstone,  Book  IV,  Chap.  20,  under  the  head  of  "  Sum- 
mary  Convictions,"  in  enumerating  the  difl'erent  species  of 
contempts,  mentions : 


First  District — March  Term,  1897.       235 

Clark  V.  Parker. 

"  6.  Those  committed  by  parties  to  any  suit  or  proceed- 
ing before  the  court:  as,  by  disobedience  to  any  rule  or  order 
made  in  the  progress  of  any  cause;  by  non-payment  of  costs 
awarded  by  the  court  upon  a  motion;  or  by  a  non-observ- 
ance of  awards  duly  made  by  arbitrators  or  umpires,  after 
having  entered  into  a  rule  for  submitting  to  such  determina- 
tion. Indeed  the  attachment  for  most  of  this  species  of 
contempts,  and  especially  for  non-payment  of  costs,  and  non- 
performance of  awards,  is  to  be  looked  upon  rather  as  a  civil 
execution  for  the  benefit  of  the  injured  party,  though  car- 
ried on  in  the  shade  of  a  criminal  process  for  a  contempt  of 
the  authority  of  the  court." 

It  follows  logically  that  if  the  process  be  for  the  benefit  of 
the  adverse  party,  the  moment  he  become  ssatisfied  the  im- 
prisonment should  terminate,  and  should  terminate  by  force 
of  the  fact  of  satisfaction.^ 

The  commitment  should  not  have  been  for  thirty  days 
absolutely,  which  is  appropriate  only  when  the  order  is  in- 
tended to  be  and  is  rightfully  for  a  punishment. 

But  the  contempt  consisting,  not  in  doing  a  forbidden  act, 
for  which  the  process  was  intended  to  be  and  might  right- 
fully be  punitive  in  character,  but,  being  purely  civil,  to 
compel  restitution  or  performance  to  the  party  injured,  the 
commitment  should  in  terms  have  been  for  a  time  no  longer 
than  until  he  should  perform  the  act  required  of  him. 

The  precedents  in  cases  of  commitment  for  a  civil  con- 
tempt, ^vherever  we  have  been  able  to  see  them,  provide  for 
the  commitment  being  in  terms  either  until  the  contemner 
performs,  or  for  a  definite  time  or  until  he  performs.  See 
authorities  above  cited,  and  also  Ex  parte  Smith,  117  111.  63, 
64;  People  v.  Pirfenbrink,  96  111.  68,  70;  Beach  on  Modern 
Eq.  Pr.  1334r-5;  Rapalje  on  Contempts,  240,  245,  251,  252. 

The  argument  of  appellant,  that  he  is  not  guilty  of  con- 
tempt, has  not  satisfied  us;  but  the  order  committing  the 
appellant  to  jail  for  thirty  days  absolutely  is  reversed,  and 
the  cau&e  remanded* 


1 


,  70    238 
I7Is  329, 


236  Appellate  Courts  of  Illinois. 

Vol.  70.]  Andrews  v.  Donnerstag. 


Henrietta  Andrews  y.  Max  Donnerstag  et  al« 

1.  Fraudulent  Conveyances— -Afay  be  Set  Aside  in  Equity,— It  has 
long  been  settled,  in  t!iis  State,  that  it  is  the  proper  province  of  a  court 
of  equity  to  remove  fraudulent  conveyances  that  stand  in  the  way  of 
the  collection  at  law  of  money  judgments. 

2.  Same — Exhauntion  of  Legal  Remedy  Not  Necessary  to  Attai^ 
Upon  in  Equity. — When  the  scope  and  effect  of  a  bill  is  simply  to  set 
aside  and  remove  out  of  the  way  of  the  complainant^s  execution 
upon  a  judgment  at  law,  certain  conveyances  executed  by  the  judgment 
debtor,  without  any  valuable  consideration,  aftex  he  became  debtor  to 
the  complainant,  it  is  not  necessary  to  allege  and  prove  the  exhaustion 
of  his  legal  remedy,  but  the  creditor  may  file  his  bill  as  soon  as  he 
recovers  judgment. 

8.  Same — Attacks  Upon,  in  Equity, — ^Thefact  that  land  fraudulently 
conveyed  could  have  been  levied  on  and  sold  without  first  attacking  the 
fraudulent  conveyance  does  not  bar  the  remedy  in  equity  to  have  the 
conveyance  set  aside. 

4.  Same— Sate  of  Land  after  Removal  of  Fraudulent  Conveyance 
Proper  under  Prayer  for  OoieraJ  Relief, — Where  a  fraudulent  convey- 
ance has  been  set  aside,  a  decree  directing  the  sale  of  the  property  is 
proper  under  the  prayer  for  general  relief. 

5.  Decrees —  When  Finding  of  Foists  Recited  in,  is  Conclusive, — In  the 
absence  of  a  bill  of  exceptions,  a  court  of  appeal  is  concluded  by  the 
finding  of  facts  recited  by  a  decree. 

Bill,  to  set  aside  a  fraudulent  conveyance.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  John  Barton  Payne,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  24,  1897. 

Moses  Salomon,  attorney  for  appellant. 
BuLKLEY,  Gray  &  More,  attorneys  for  appellees. 

Mr.  Presiding  Justice  Shepard  delivered  the  ormioif 
OF  THE  Court. 

The  bill  in  this  case  was  filed  by  the  appellees  in  aid  of 
an  execution  issued  upon  a  judgment  at  law  recovered  by 
them  against  one  Henrietta  Diamond  for  $1,395.10,  and 
levied  upon  certain  real  estate  which  it  was  alleged  was, 
prior  to  the  rendition  of  said  judgment,  but  subsequent  to 


First  District— March  Term,  1897.      v237 

Andrews  t.  Donnerstag. 

the  incurring  of  the  indebtedness  upon  which  the  judgment 
was  recovered,  fraudulently  conveyed  by  the  said  Diamond 
to  the  appellant  for  the  purpose  of  defrauding  the  cred- 
itors of  said  Diamond,  and  of  putting  the  same  be- 
yond the  reach  of  a  levy  and  sale  under  said  execution,  and 
the  prayer  was,  inter  alia,  that  said  conveyance  might  be 
set  aside,  and  that  the  premises  be  sold  to  satisfy  the  said 
judgment.  Answers  were  filed  by  all  the  defendants  to  the 
bill,  denying  all  fraud,  etc.,  and  averring  good  faith  in  the 
attacked  transaction. 

The  decree  appealed  from,  found  that  the  said  convey- 
ance to  the  appellant  was  a  sham,  was  made  by  said  Dia- 
mond without  any  consideration,  and  was  made  with  the 
fraudulent  intention  alleged,  and  that  appellant  took  the 
conveyance  with  knowledge  of  such  fraudulent  inten- 
tion; and  adjudged  that  the  same  be  set  aside  and  va- 
cated and  declared  to  be  null  and  void,  and  of  no  effect  as 
against  the  appellees,  and  ordered  that  appellees  be  author- 
ized to  proceed  under  the  said  levy  to  cause  said  real  estate 
to  be  sold  by  the  sheriff  to  satisfy  said  judgment,  etc. 

No  certificate  of  evidence  is  made  to  appear  in  the  record 
before  us,  and  the  only  question  raised  by  appellant's  brief 
is  that  the  bill  upon  its  face  is  insufficient  to  support  the 
decree,  and  is  without  equity. 

It  has  long  been  settled  in  this  State  that  it  is  the  proper 
province  of  a  court  of  equity  to  remove  fraudulent  convey- 
ances that  stand  in  the  way  of  the  collection  at  law  of 
money  judgments.     Farnsworth  v.  Strasler,  12  III.  482. 

The  bill  was  not  a  pure  creditor's  bill,  filed  for  the  pur- 
pose of  reaching  equitable  assets  and  subjecting  thera  to 
the  payment  of  the  judgment,  to  sustain  which  it  would  be 
necessary  to  allege  and  prove  an  exhaustion  of  legal  rem- 
edies by  a  return  of  execution  unsatisfied  before  the  filing 
of  the  bill. 

But,  as  said  in  Wisconsin  Granite  Company  v.  Gerrit}^, 
144  III.  77:  "  Its  real  scope  and  effect  is  simply  to  set  aside, 
and  remove  out  of  the  way  of  complainant's  execution 
upon  its  judgment  at  law,  cartain  conveyances  executed  by 
the  defendant  after  he  became  debtor  to  the  complainant, 


238  Appellate  Courts  of  Illinois. 

Vol.  70.]  Andrews  v.  Donnerstag. 

without  any  valuable  consideration  and  purely  voluntary, 
and  therefore  fraudulent  in  law  as  a^irainst  the  riorhts  of  the 
complainant,  to  sustain  which  it  was  unnecessary  to  allege 
and  prove  the  exhausting  of  its  legal  remedy  before  the 
filing  of  its  bill,  but  it  was  authorized  to  file  its  bill  as  soon 
as  it  had  recovered  its  judgment." 

In  the  case  just  quoted  from,  as  in  this  case,  it  was  con- 
tended that  there  was  other  property  belonging  to  the  judg- 
ment debtor  out  of  which  the  execution  might  have  been 
made.  In  that  case  it  was  attempted  to  make  such  fact 
appear  in  evidence,  and  in  this  case  it  is  said  that  it  so 
appears  on  the  face  of  appellees'  bill.  We  do  not  so  under- 
stand the  bill  to  show,  but  if  it  does,  the  decree  finds  that 
the  judgment  debtor  ^^  has  no  other  property,  real  or  per- 
sonal, out  of  which  the  execution  "  could  be  made;  and  in 
absence  of  a  certificate  of  evidence,  we  are  concluded  by 
such  finding. 

It  may  be,  as  argued,  that  appellees  might  have  ignored 
the  conveyance,  and  proceeded  to  sell  the  fraudulently  con- 
veyed real  estate  without  first  obtaining  a  setting  aside  of 
the  conveyance,  but  they  were  not  bound  to  do  so.  They 
had  the  right  to  elect  to  pursue  the  course  marked  out  in 
their  bill  here.     Quinn  v.  The  People,  45  111.  App.  547. 

If  we  correctly  understand  the  point  mado  by  the  appel- 
lant, that  the  decree  gave  relief  not  specifically  prayed  for, 
to  mean  that  because  the  specific  prayer  was  that  the  con- 
veyance to  appellant  be  set  aside,  it  wa,s  error  to  authorize 
appellees  and  the  sheriff  to  proceed  to  sell  the  premises  under 
the  levy  made,  we  may  say  that  the  prayer  asked  also  for 
such  other  relief  as  might  appear  to  be  equitable.  It  may 
perhaps  be  said  that  such  additional  relief  was  quite  unnec- 
essary; for  the  right  to  proceed  to  sell  would  follow  a  setting 
aside  of  the  conveyance;  but  if  it  were  necessary,  then  we 
think  it  was  properly  ordered  under  the  prayer  for  general 
relief. 

A  careful  consideration  of  the  entire  record  before  us, 
and  of  appellant's  several  contentions,  has  satisfied  us  that 
the  bill  presented  a  sufficient  and  equitable  case  for  the 
relief  decreed,  and  the  decree  is  therefore  affirmed. 


FiEST  District— March  Term,  1897-       239 


West  Chicago  St.  R.  R.  Co.  v.  Manning. 


I  10    239 

West  Chicago  Street  B.  B.  Co.  t.  Louisa  Manning.        J}P*  ^'^ 


1.  Nbouobnce — starting  Street  Cars  Suddenly  as  Passengers  Are 
Getting  Off, — In  a  suit  for  personal  injuries  against  a  street  car  com- 
pany, it  was  shown  that  at  the  time  the  plaintiff  attempted  to  alight 
other  passengers  did  get  off,  and  that  the  conductor  must,  if  he  exer- 
cised reasonable  diligence,  have  seen  them  so  alighting.  Held,  that  to 
suddenly  start  the  car  under  such  circumstances,  and  thereby  cause  an 
alighting  passenger  to  be  thrown,  was  evidence  tending  to  show  a  neg- 
ligent operation  of  the  car,  and  a  proper  matter  for  the  consideration  of 
the  jury. 

2.  Street  Railroai>s— Dufy  in  Discharging  Passengers. — An  in- 
struction defining  the  duties  of  employes  of  a  street  railroad  com- 
pany in  stopping  its  cars  to  allow  passengers  to  alight,  given  in  the 
opinion,  held  proper. 

3.  Same — Proper  Places  to  Alight — Presumption  of  Knowledge  of 
Passengers  as  to. — It  is  not  the  law  that  passengers  on  a  street  raihoad  are 
presumed  to  know  that  the  proi)er  places  for  passengers  to  alight  are  at 
the  further  crossings  of  street  intersections. 

4.  Same — Care  i2egtcti*ed  of  Passengers. —  A  passenger  of  a  street 
railroad  situated  in  a  place  of  peril  is  not  required  to  exercise  the  higliest 
degree  of  vigilance  for  his  own  safety.  Tlie  conduct  required  of  a  pas- 
8  'nger  under  circumstances  of  danger  is  only  that  which  an  ordinarily 
prudent  person  would  exercire  under  the  same  circumstances. 

6.  Same— i^oo/  of  Payment  of  Fare  in  Suits  for  Personal  Injuries, 
— In  a  suit  by  a  passenger  against  a  street  railroad  company,  an  allega- 
tion in  the  declaration  that  the  plaintiff  paid  his  fare  is  surplusage;  and 
an  instruction  that  unless  the  plaintiff  proved,  by  a  preponderance  of  the 
evidence,  that  he  had  paid  his  fare,  as  alleged  in  his  declaration,  the 
▼erdict  should  be  for  the  defendant,  does  not  state  the  law  correctly. 

6.  Words  and  Phrases— **-4^"—**  At,"  when  used  in  describing  the 
place  where  an  event  oi*'Curred,  means  a  relation  of  proximity  to  or 
nearness  to,  and  a  failure  to  prove  the  exact  spot  alleged  does  not  con- 
stitute a  variance. 

7.  Instructions— -Riflr/if  to,  Limited. — "Where  counsel  ask  tot  aeon- 
fusing  and  unreasonable  number  of  instructions  in  a  case  that  is 
controlled  by  a  comparatively  few  well  settled  principles,  a  court  of  appeal 
may  reasonably  decline  to  critically  examine  refused  instructions  to 
determine  if  they  do  not  contain  an  additional  legal  principle  applicable 
to  some  phase  of  the  case  not  covered  by  those  given. 

8.  Error — Without  Injury,  Not  Ground  for  Reversal.— A  court  of 
appeal  will  not  reverse  a  judgment  because  a  jury  neglected  to  follow 
an  erroneous  instruction  given  at  the  instance  of  the  party  making  the 
complaint,  as  no  legal  wrong  was  thereby  done  to  such  party. 


70 
118 


240  Appellate  Courts  of  Illinois, 

Vol.  70.]  West  Chicago  St.  R.  R  Co.  v.  Manning. 

I  Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Cir- 
cuit Court  of  Cook  County;  the  Hon.  Thomas  G.  Windks,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opin- 
ion filed  May  24,  1897.     ' 

Alexander  Sullivan,  attorney  for  appellant;  E.  J.  Mo- 
Abdle,  of  counsel. 

Henry  D.  Beam  and  William  E.  Rummler,  attorneys  for 
appellee. 

Mb.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  was  a  suit  to  recover  for  personal  injuries  alleg^l  to 
have  been  sustained  by  the  appellee  by  being  thrown  to  the 
ground  when  she  was  in  the  act  of  alighting  from  one  of 
appellant's  cars  upon  which  she  was  a  passenger,  by  the  sud- 
den and  negligent  starting  of  the  cable  train,  composed,  in 
part,  of  said  car,  after  it  had  come  to  a  stop  at  the  corner  of 
Washington  street  and  Fifth  avenue,  in  the  city  of  Chicago. 

The  verdict  was  for  $5,000,  from  which  $1,500  was  remit- 
ted and  judgment  was  entered  for  the  balance. 

There  is  no  point  made  in  argument  that  the  judgment 
is  for  too  much,  if,  under  the  law  and  the .  evidence,  any 
recovery  can  be  sustained. 

The  facts  are  few  and  simple.  The  train  had  come  east- 
ward from  the  West  Side  of  the  city,  through  the  Wash- 
ington street  tunnel,  and  the  accident  happened  at  or  just 
bafore  the  beginning  of  the  curve  in  the  railroad  from 
Washington  street  southward  into  Fifth  avenue. 

The  contention  of  the  appellee  is  that  the  train  stopped 
in  Washington  street,  at  or  near  its  intersection  with  Fifth 
avenue,  and  such  intersection  being  the  place  where  she  and 
her  companion  wished  to  get  oflf  she,  following  her  comi>an- 
ion  who  stepped  off  in  safety,  rose  from  her  seat  while  the 
train  was  at  a  stand-still  and  stepped  down  upon  the  foot- 
board of  the  car  in  the  act  of  stepping  to  the  ground,  when 
the  train,  without  warning  to  her,  was  suddenly  started  up, 
causing  her  to  fall  to  the  ground,  and  occasioning  the  inju- 
ries alleged  to  have  been  suffered  by  her. 

She  does  not  claim  to  have  given  any  signal  or  word  of 


■^  

First  District — March  Tkrm,  1897.       241 

West  Chicago  St.  R.  R  Co.  v.  Manning. 

her  wish  to  get  oflf  at  that  point,  except  such  as  was  implied 
hy  her  act  of  rising  from  her  seat  and  stepping  down  in  the 
manner  stated. 

On  the  other  hand,  the  appellant  contends  that  the  train 
had  not  stopped,  but  had  only  slackened  speed  because  of  a 
team  that  was  in  the  way  ahead;  that  the  regular  stopping 
place  was  at  the  further  end  of  the  curve,  and  that  for  appel- 
lee to  attempt  to  get  oflf  under  the  circumstances  was  such 
negligence  on  her  part  as  to  bar  her  from  a  right  to  recover. 

A  candid  consideration  of  all  the  evidence  as  to  whether 
the  train  stopped  or  only  slackened  up,  justifies,  in  our 
opinion,  the  correetness  of  the  jury's  conclusion  that  it 
had  come  to  a  full  stop  before  the  appellee  attempted  to  get 
off,  and  that  it  was  suddenly  started  up  again  before  she  had 
reasonably  sufficient  time  to  safely  alight. 

Whether  the  near  or  the  far  side  of  a  street  crossing  be 
the  appropriate  or  the  customary  and  lawful  place  for 
street  cars  to  stop  to  take  on  and  let  oflf  passengers  is  not 
a  subject  for  consideration  upon  this  record.  It  was  proved, 
and  not  denied,  that  when  the  stop  in  question  was  made 
other  passengers  besides  the  appellee  and  her  companion  did 
get  oflf,  and  there  was  evidence  that  tended  to  show  the  con- 
ductor must,  if  he  exercised  reasonable  diligence,  have  seen 
them  so  alighting.  To  suddenly  start  up  the  train  under 
such  circumstances  and  thereby  cause  an  alighting  passen- 
ger to  be  thrown  was,  at  the  very  least,  evidence  tending  to 
show  a  negligent  operation  of  the  train,  and  was  a  proper 
matter  for  the  consideration  of  a  jury,  and  their  finding 
under  all  the  evidence  in  the  case  ought  not  to  be  disturbed. 
See  C.  C.  Ky.  Co.  v.  Mumford,  97  111.  560. 

"  Having  by  the  acts  and  conduct  of  his  servants  justified 
the  plaintiff  in  attempting  to  got  off  the  train,  the  duty  of 
the  defendant  then  attached  to  stop  his  train  a  sufficient 
length  of  time  to  enable  the  plaintiff  to  reach  the  platform 
in  safety,"  and  such  duty  was  in  respect  to  the  place  where 
the  train  first  halted,  and  not  in  respect  of  the  place  (further 
crossing)  where  it  finally  stopped.  McNulta,  Keceiver,  etc. 
V.  Ensch,  134  111.  46. 

Vol.  LXX  16 


242  Appellate  Courts  op  Illinois. 

Vol.  70.]  West  Chicago  St  R.  R.  Co.  v.  Manning. 

It  is  contended  that  there  was  a  variance  between  the 
declaration  and  the  proof,  because  the  declaration  averred 
that  the  car  was  "  stopped  at  the  corner  of  Washington 
street  and  Fifth  avenue,''  while  the  proof  showed  that  it 
was  stopped,  if  at  all,  west  of  the  corner. 

All  of  the  testimony  on  both  sides  showed  that  the  stop- 
ping or  slackening  up,  whichever  it  was,  occurred  near  to 
if  not  exactly  at  the  line  of  intersection  of  such  streets. 

The  wagon  that  caused  the  train  to  stop  was  ^^  passing 
along  Fifth  avenue,"  and  the  appellee  fell  within  the  lines  of 
Washington  street,  and  at  the  moment  she  fell  the  grip-car, 
which  was  next  in  front  of  the  car  she  was  riding  in,  was 
upon  the  curve,  and  partly  or  wholly  within  the  lines  of 
Fifth  avenue. 

The  allegation  could  scarcely  have  been  more  definite. 
^^  At,"  in  the  sense  used  in  the  declaration,  means  a  relation 
of  proximity  to,  nearness,  near,  about.  Century  Diction- 
ary; Webster's  Dictionary. 

The  proof  sufficiently  fits  the  allegation,  and  there  was 
no  variance. 

Some  other  minor  criticisms  of  the  declaration,  as  com- 
pared with  the  evidence,  are  made,  but  they  are  unimpor- 
tant. 

At  the  instance  of  the  appellee  the  court  gave  to  the  jury 
the  following  instruction,  which  is  much  complained  of  by 
the  appellant : 

"  The  court  instructs  the  jury,  as  a  matter  of  law,  that  it 
was  the  duty  of  the  defendant,  as  a  common  carrier  of  per 
sons  of  Chicago,  when  it  stopped  its  cars,  whether  in  conse- 
quence of  a  signal  from  some  passenger  on  the  car  or  not, 
not  to  start  the  same  again  while  its  passengers,  or  any  of 
them,  were  in  the  act  of  getting  oflf  the  car,  if  the  fact  that 
its  passengers  or  any  of  them  were  in  the  act  of  alighting 
was  known  to  the  person  having  charge  of  said  car,  or 
would  be  known  to  such  person  by  the  exercise  of  due  care 
and  caution  in  the  dischai^o  of  his  duties;  and  as  a  com- 
mon carrier  of  passengers  the  defendant  should  give  its 
passengers  a  reasonable  opportunity  to  alight  from  its  cars 


First  District — March  Term,  1897.       243 

West  Chicago  8t.^R.  R.  Co.  v.  Manning. 

when  standing  still  before  starting  the  same — if  the  fact 
that  its  passengers  or  any  of  them  desire  to  alight  is  known, 
or  by  the  exercise  of  due  care  and  diligence  would  be  known, 
to  the  person  in  charge  of  the  car. 

And  if  the  jury  believe  from  the  evidence  in  this  case  th'at 
on  the  twenty-second  day  of  September,  1893.  the  plaintiff 
was  a  passenger  upon  one  of  the  street  cars  of  the  defend- 
ant, operated  by  it  on  Washington  street  and  Fifth  avenue 
in  said  city  of  Chicago,  and  that  while  such  car  of  the 
defendant,  in  which  the  plaintiff  and  others  were  being  con- 
veyed  as  passengers,  was  driven  along  Washington  street, 
west  of  and  toward  Fifth  avenue,  it  was  stopped  for  the 
purpose  of  allowing  its  passengers,  or  some  of  them,  among 
whom  was  the  plaintiff,  to  get  off;  or  had  stopped  for  any 
other  purpose,  with  or  without  a  signal  to  stop,  and  when 
so  stopped  its  passengers  or  some  of  them  were  in  the  act 
of  getting  off  said  car;  and  that  the  gripman  or  other  per- 
son in  charge  of  said  car  for  the  defendant  knew,  or  by  the 
exercise  of  due  care  and  caution  in  the  discharge  of  his  duties 
would  have  known,  that  said  passengers  were  in  the  act  of 
getting  off  said  car. 

And  if  you  further  find  from  the  evidence  that  the  plaint- 
iff, at  this  time  and  place,  the  said  car  being  stopped  and 
not  in  motion  (if  you  find  from  the  evidence  that  such  was 
the  fact),  in  the  exercise  of  due  care  and  diligence  on  her 
part  was  also  in  the  act  of  alighting  from  said  car,  and  that 
the  defendant,  by  its  gripman,  started  the  said  car  while  the 
plaintiff  was  so  getting  off,  and  before  she  had  a  reasonable 
time  to  do  so,  and  thereby  threw  the  plaintiff  down  upon 
the  street,  and  by  reason  thereof  the  plaintiff  was  greatly 
injured  in  and  about  her  hips,  and  was  thereby  otherwise 
greatly  bruised  and  suffered  severe  bodily  pain  and  injury, 
without  negligence  or  fault  on  her  part,  and  by  reason  of 
negligence  or  carelessness  on  the  part  of  the  defendant's  serv- 
ants in  charge  of  said  car  (if  you  find  from  the  evidence 
that  such  servants  of  the  defendant  were  guilty  of  careless- 
ness or  negligence  in  starting  said  car),  then  the  defendant 
would  be  liable  for  the  damages,  if  any,  thereby  sustained  by 


244  Appellate  Courts  op  Illinois. 

Vol.  70.]  West  Chicago  St  R.  R.  Co.  v.  Maiming. 

the  plaintiff,  and  the  juiy  should  find  the  issues  herein  for 
the  plaintiff  and  assess  her  damages  at  such  sum  as  the  jury 
shall  find  from  the  evidence  she  has  thereby  sustained." 

We  have  given  attention  to  the  several  objections  urged 
against  such  instruction,  and  deeming  it  unnecessary  to 
lengthen  the  opinion  by  stating  what  they  are,  we  are  of 
opinion  that  the  instruction  is  substantially  correct,  although 
unnecessarilv  verbose. 

The  appellant  offered  to  the  court  and  requested  the  giv- 
ing of  twenty-six  instructions,  of  which  eighteen  were  given 
in  their  original  form,  and  one  was  given  as  modified.  Of 
the  seven  that  were  refused,  complaint  is  made  concerning 
only  two. 

Where  counsel  thrust  such  a  mass  of  law  into  a  case  that 
is  controlled  by  a  comparatively  few  well  settled  principles, 
we  might  reasonably  decline  to  critically  examine  a  refused 
instruction,  to  determine  if  it  does  not  contain  an  additional 
legal  principle  applicable  to  some  phase  of  the  case  not 
covered  by  the  given  instructions.  Fisher  v.  Stevens,  16 
111.  399;  Leiter  v.  Kinnare,  68  111.  App.  558. 

But  in  this  case  the  labor  is  easy.  It  is  not  the  law  that 
passengers  on  the  road  in  question  "  are  presumed  to  know 
that  the  proper  places  for  passengers  to  alight  are  at  the 
further  crossings  of  street  intersections,"  etc.,  as  stated  in 
one  of  the  refused  instructions. 

Nor  is  it  the  law  that  a  passenger  situated  in  a  place  of 
peril  "  must  exercise  the  highest  degree  of  vigilance  and 
care  for  her  own  safety,"  as  stated  in  the  other  refused 
instruction.  The  conduct  required  of  a  passenger  under  cir- 
cumstances of  danger  needs  only  to  be  that  of  an  ordinarily 
prudent  person.  West  Chicago  St.  R.  R.  Co.  v.  McNulty, 
64  111.  App.  549;  same  case,  166  111.  203. 

It  is  also  urged  as  a  reason  for  reversing  the  judgment 
that  the  jury  disregarded  the  instructions  of  the  court,  and 
particularly  that  they  disregarded  an  instruction  that  un- 
less appellee  proved  by  a  preponderance  of  the  evidence 
that  she  had  paid  her  fare,  as  alleged  in  her  declaration, 
they  should  find  appellant  not  guilty,  there  being  no  evi- 


First  District — March  Term,  1897.         245 

N.  W.  Iron  &  Metal  Co.  v.  Nat  Bk.  of  lUinois, 

dence  that  she  paid  or  that  any  one  for  her  paid  her  fare. 
The  allegation  b^^  the  declaration  of  payment  of  fare  was 
sarplasage,  and  the  instruction  referred  to  did  not  state  the 
law  and  ought  not  to  have  been  given.  C,  C,  C.  &  St.  L. 
Ry.  Co.  V.  Best,  68  111.  App.  532. 

We  will  not  reverse  a  judgment  because  a  jury  has  neg- 
lected to  follow  an  erroneous  instruction  given  at  the 
instance  of  the  party  making  the  complaint,  who  was  not 
thereby  legally  wronged,  NcNulta  v.  Ensch,  134  111.  46, 
where,  as  here,  the  relation  of  carrier  and  passenger  was 
not  disputed,  and  the  obligation  to  pay  fare  will  be  implied 
from  the  relationship,  if  not  presumed  to  have  been  made. 
2  Redfield  on  Railways  (6th  Ed.),  95.  Moreover,  the  jury 
did  right.     Koerper  v.  Jung,  33  111.  App.  144. 

There  being  no  material  error  in  the  record,  the  jndg 
ment  will  be  affirmed. 


Northwestern  Iron  &  Metal  Co.  v.  The  National  Bank 

of  Illinois. 

1.  Neqotiable  Instruments— 2^w«  Allowed  Payee  to  Present  Check, 
— ^Where  a  payee,  to  whom  a  check  is  delivered  by  the  drawer,  receives 
it  in  the  place  where  the  bank  on  which  it  is  drawn  is  located,  he  may 
preserve  recourse  against  the  drawer,  by  presenting  it  for  payment  at 
any  time  before  the  close  of  banking  hours  on  the  next  day,  and  if  in 
the  meantime  the  bank  fails,  the  loss  will  be  the  drawer's,  and  in  this 
respect  there  is  no  difference  between  a  certified  and  an  uncertified 
check.  The  fact  that  the  holder  of  the  check  has  good  ground  for 
believing  that  the  bank  upon  which  it  is  drawn  is  in  a  precarious  condi- 
tion and  likely  to  fail,  does  not  create  an  exception  to  the  rule. 

Assampsit^  on  a  check.  Appeal  from  the  Superior  Ooxxrt  of  Cook 
County;  the  Hon.  PfflLiP  Stein,  Judge,  presiding.  Heard  in  this  court 
at  the  March  term,  1897.    Affirmed.    Opinion  filed  May  24,  1897. 

Statement  op  the  Case. 

This  was  an  action  at  law  on  a  certified  check  for  seven 
hundred  and  forty-seven  dollars  and  thirty  cents  ($74:7.30), 


246  Appellate  Courts  op  Illinois. 

Vol.  70.]     N.  W.  Iron  &  Metal  Ck).  v.  Nat  Bk.  of  IllinoiB. 

dated  June  2,  1893,  drawn  by  the  appellant  on  Messrs. 
Herman  Schaffner  &  Company,  and  payable  to  order  of 
appellee. 

This  check  was  given  to  the  appellee  by  appellant  under 
the  following  circumstances: 

On  Friday,  June  2,  1893,  appellant's  book-keeper,  Bern- 
stein, having  received  notice  that  a  Peoria  draft,  draVn  on 
appellant  for  $747.30,  was  in  the  hands  of  appellee  for  col- 
lection, had  this  check  (for  the  exact  amount  of  the  draft) 
drawn  on  appellant's  account  at  Schaifner  &  Company's, 
and  after  getting  the  same  certified  by  said  bankers,  took 
the  check  to  appellee's  banking  house  between  2:00  and  2:15 
on  the  afternoon  of  said  June  2d,  and  delivered  the  same 
to  appellee  in  payment  of  the  Peoria  draft,  which  draft, 
after  being  stamped  "  paid "  by  appellee,  was  delivered  to 
Bernstein.  Bernstein  made  a  deposit  of  some  seven  hun- 
dred dollars  with  Schaflfner  &  Co.,  on  behalf  of  appellant, 
just  before  getting  the  check  certified  by  them,  and  there 
was  a  sufficient  amount  to  the  credit  of  appellant  to  pay 
the  check. 

Schaflfner  &  Co.  paid  any  checks  drawn  on  them  that 
were  presented  before  close  of  business  on  said  June  2 J. 

On  the  morning  of  Saturday,  June  3d,  Schaflfner  & 
Company  made  a  voluntary  assignment  for  the  benefit  of 
creditors.  No  notice  of  the  non-payment  of  the  check  by 
Schaflfner  &  Company  was  given  appellant  until  more  than 
a  month  after  its  date,  and  then  counsel  of  appellee  wrote 
appellant  a  letter  calling  the  matter  to  its  attention,  and 
asking  appellant  to  call  and  see  the  writer  of  the  letter 
about  it.  Appellant  refused  to  pay  the  check,  and  this  suit 
was  instituted  June  20,  1894. 

For  some  time  prior  to  the  date  of  the  transaction  in 
question,  appellee  had  been  "  clearing "  for  Schaflfner  & 
Company — that  is,  Schaflfner  &  Company  were  not  mem- 
bers of  the  Chicago  Clearing  House,  and  the  appellee  had 
acted  in  their  behalf,  paying  for  Schaflfner  &  Company  all 
checks  drawn  on  them  and  presented  through  the  clearing 
house.     Schaflfner  &  Company  had,  during  such  period,  kept 


First  Distbict — March  Term.  1897.       247 

N.  W.  Iron  &  Metal  Co.  v.  Nat.  Bk.  of  IllinoiB. 

a  regular  deposit  account  with  appellee,  and  the  custom  was 
for  Schaffner  &  Company  each  day  to  give  appellee  a  check 
drawn  on  their  said  account  in  payment  of  the  aggregate 
amount  of  such  clearings  paid  by  appellee  that  day. 

It  appears  that  on  said  June  2,  1893,  appellee's  officers 
received  notice,  as  was  customary,  at  about  11  o'clock  in  the 
morning,  as  to  returns  from  the  clearing  house,  appellee's 
clerks  bringing  back  at  that  time  all  the  checks  which 
appellee  had  there  paid,  including  those  drawn  on  Schaffner 
&  Company;  that  the  aggregate  amount  of  checks  drawn 
on  Schaffner  &  Company,  so  paid  by  appellee  that  day,  was 
$163,504.94;  that  a  clerk  of  Schaffner  &  Company  came 
over  and  got  these  checks,  and  Schaffner  &  Company  gave 
appellee  a  check  drawn  on  its  deposit  account  for  the  amount 
so  paid;  that  the  giving  of  this  check  overdrew  said  deposit 
account  of  Schaffner  &  Company  at  that  time — midday  or 
one  o'clock — ^in  the  amount  of  some  $150,000  or  $160,000; 
that  Schaffner  &  Company  made  deposits  to  the  credit  of 
its  said  account  that  afternoon;  that  said  deposits  consisted 
in  part  of  three  certain  checks  drawn  by  Schaffner  &  Com- 
pany, one  being  for  $240,000,  and  drawn  on  Merchants 
Loan  &  Trust  Company,  Chicago;  one  being  for  $30,000 
on  the  same  bank,  and  one  being  for  $90,000  on  the  Amer- 
ican Exchange  Bank,  New  York  City;  that  appellee's  offi- 
cers knew  these  checks  were  not  good  at  the  time  they 
took  them;  that  Schaffner  &  Company  were  given  credit  on 
said  June  2d  by  appellee  for  the  amount  of  said  checks  so 
deposited;  that  during  that  afternoon  Schaffner  &  Company 
also  made  three  other  deposits  with  appellee  of  the  respect- 
ive amounts  of  $2,333.04,  $2,667.11  and  $6,704.15,  said 
deposits  consisting  in  part  of  cash;  and  that  it  appeared  from 
the  books  of  appellee  that  at  the  close  of  business  on  June 
2,  1893,  there  was  a  book  balance  of  $11,127  in  favor  of 
Schaffner  &  Company. 

After  banking  hours  on  June  2d,  appellee  received  from 
Schaffnef  &  Company  collaterals  to  secure  any  claims  it 
might  have  against  them,  which,  together  with  those  before 
held,  aggregated  so  that  the  total  security  held  by  appellee 


248  Appellate  Courts  of  Illinois. 

Vol.  70.]     N.  W.  Iron  &  Metal  Co.  v,  Nat.  Bk.  of  Illuiois. 

from  Herman  Schaffner  &  Company,  at  the  time  the  latter 
failed,  was  $269,482.99,  upon  which,  at  the  time  of  the  trial 
of  this  case,  appellee  had  collected  $232,542.39.  At  the  time 
of  their  failure,  Herman  Schaffner  &  Company  owed  ap- 
pellee $320,006.37  on  overdraft. 

The  amount  realized  from  the  securities  was  credited  upon 
the  overdraft,  and  was  not  suflBcient  for  that  purpose.  At 
the  time  of  the  trial,  Herman  Schaflfner  &  Company  were 
still  indebted  to  appellee. 

Appellee  on  June  3d  sent  this  check  over  to  the  clearing 
house,  and  it  was  stamped,  "  Pay  through  Chicago  Clear- 
ing House  to  National  Bank  of  Illinois." 

The  appellant  contends,  iiiier  alia^  that  prior  to  the  close 
of  business  on  June  2d,  appellee  had  notice  that  Schaffner 
&  Company  were  in  such  financial  difficulty  as  required 
appellee  to  present  the  certified  check  for  payment  on  that 
day,  and  that  its  failure  to  do  so  was  a  lack  of  diligence  that 
rendered  it  liable  for  the  amount  for  which  the  check  called; 
that  the  question  of  whether  appellee  was  negligent  should 
have  been  submitted  to  the  jury,  and  that  it  was  error  to  in- 
struct the  jury  to  find  for  the  plaintiff. 

Aldrich,  Reed,  Fosteb  &  Allen,  attorneys  for  appel- 
lant. 

MoRAN,  Kraus  &  Mayer,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  thb 
Court. 

Where  a  payee,  to  whom  a  check  is  delivered  by  the 
drawer,  receives  it  in  the  place  w^here  the  bank  on  which  it 
is  drawn  is  located,  he  may  preserve  recourse  against  the 
drawer  by  presenting  it  for  payment  at  any  time  before  the 
close  of  banking  hours  on  the  next  day,  and  if  in  the  mean- 
time the  bank  fails,  the  loss  will  be  the  drawer's;  and  in  this 
respect  there  is  no  distinction  between  the  certified  and  an 
uncertified  check.  Bickford  v.  First  Nat.  Bank,  42  HI.  238; 
Paniel  on  Negotiable  Instruments,  4th  Ed.,  Vol.  2,  Sec. 


First  District — March  Term,  1897.       249 

*  - 

N.  W.  Iron  &  Metal  Co.  v.  Nat.  Bk.  of  Illinois. 

1590;  Tiedeman  on  Commercial  Paper,  Sec.  443;  Thompson 
on  Bills  of  Exchange,  p.  119;  Story's  Bills  of  Exchange,  4th 
Ed.,  Sec.  471;  Parsons  on  Notes  and  Bills,  Vol.  1,  p. 
46d,  477. 

This  is  not  disputed  by  appellant.  What  it  contends  is, 
that  to  this  rule  there  is  an  exception,  namely  :  That  if  the 
holder  of  the  check  has  good  ground  for  knowing  that  the 
bank  upon  which  it  is  drawn  is  in  a  precarious  condition, 
and  likely  to  fail,  he  is  bound  to  present  the  check  at  once. 

The  importance  of  the  contention  of  appellant  is  mani- 
fest, for  it  in  effect  is,  that  the  holder  of  a  check  can 
not  rely  upon  the  rule  that  he  has  during  the  banking  hours 
of  the  next  day  after  its  reception  within  which  to  present 
the  check  for  payment,  but  that  it  is  a  question  of  fact  to 
be  submitted  to  a  jury,  whether,  on  account  of  some  knowl- 
edge or  notice  that  came  to  him,  he  was  not  bound  to  pre- 
sent the  check  for  payment  at  once,  and  by  a  failure  so  to 
do,  has  lost  his  recourse  against  the  drawer. 

The  question  is  not  here  presented  for  the  first  time.  In 
Schofield  V.  Hananer,  9  Heisk.  (Tenn.),  171,  the  trial  court 
had  instructed  the  jury  substantially  in  accordance  with  the 
contention  of  appellant  in  the  present  case.  On  account  of 
such  instruction  the  judgment  of  the  lower  court  was  re- 
versed, the  Supreme  Court  saying  that  the  drawer  of  a 
check  issues  it  with  the  implied  understanding  that  it  need 
not  be  presented  for  payment  except  within  the  business 
hours  of  the  next  day  after  its  issuance,  and  the  holder  takes 
it  with  the  same  understanding.  That  during  this  time, 
therefore,  no  laches  can  be  imputed  to  the  holder  unless  he 
received  it  with  a  different  contract. 

In  Story  on  Bills  of  Exchange,  4th  Ed.,  Sec.  471,  the  rule 
in  respect  to  inland  bills  of  exchange  (checks)  drawn  in  a 
town  or  city  on  a  drawee  in  the  same  town  or  city,  and  pay- 
able to  a  third  person,  or  his  order  on  demand,  is  stated  to  be 
that  in  no  case  is  it  indispensable  that  the  payee  or  other 
holder  lav  aside  all  other  business  to  make  a  demand  of 
payment  on  the  day  on  which  he  receives  the  bill,  an}^  more 
than  it  is  for  the  holder  to  give  notice  of  the  dishonor  of  a 


260  Appellate  Courts  of  Illinois. 

Vol.  70.]      N.  W.  Iron  &  Metal  Ck).  v.  Nat.  Bk.  of  Illinois. 

bill  on  the  day  of  its  dishonor,  to  the  other  parties  liable. 
Our  attention  has  been  called  to  no  case  in  which  there  has 
been  a  holding  in  accordance  with  the  contention  of  appel- 
lant. There  is,  in  Bank  v.  Alexander,  84  N.  C.  30,  in  the 
opinion  of  the  court,  a  remark  as  if  the  court  were  of  the 
opinion  that  if  the  holder  of  a  check  has  reasonable  ground 
for  thinking  the  bank  upon  which  it  is  drawn  unsafe,  he 
should  present  the  check  for  payment  at  once,  but  there  was 
no  such  holding,  nor  even  a  declaration  of  opinion  that  such 
is  the  law. 

The  remark  in  Morse  on  Banks  and  Banking,  Vol.  2, 421, 
has  for  its  support  merely  the  remark  made  in  Bank  v.  Alex- 
ander, 84  K  C.  30. 

The  case  of  Finch  v.  Karate,  56  N.  W.  Eep.  123,  cited  by 
appellant  is  that  of  the  obligation  of  a  party  to  whom  the 
draft  was  forwarded  for  collection,  in  which  the  party,  occu- 
pying a  fiduciary  relation  to  the  plaintiff,  proceeded  to 
secure  its  own  claim  against  the  drawee  before  presenting 
for  payment  the  draft  it  held  for  collection. 

There  was  no  evidence  tending  to  show  that  appellee  has 
received  payment  of  this  check  from  Schaff ner  &  Company; 
on  the  contrary,  it  appears  that  Schaffner  &  Company,  at 
the  time  of  their  failure,  were  indebted  to  appellee  in  the 
sum  of  about  $100,000  more  than  the  entire  value  of  all 
appellee  has  received,  and  of  all  the  security  it  holds;  nor 
does  it  appear  that  appellant  has  suffered  any  loss  from  the 
failure  of  appellee  to  give  notice  at  once  of  the  non-payment 
of  the  check,  while  notice  was  given  in  time  to  enable  appel- 
lee to  file  its  claim  against  the  insolvent  firm  of  Schaffner 
&  Company. 

Appellant,  for  its  own  purposes,  instead  of  presenting  its 
check  to  Schaffner  &  Company  for  payment,  had  them  cer- 
tify it,  and  then  gave  it  to  appellee  in  payment  of  its,  appel- 
lant's, obligation.  When  appellant  did  this,  it  knew  that 
appellee  had  all  of  the  business  hours  of  the  next  day  within 
which  to  present  such  check  to  Schaffner  &  Company  for 
payment.  It  did  not  leave  the  check  with  appellee  in  trust 
to  collect  and  hold  the  proceeds  thereof  for  its,  appellant's, 


First  District — March  Term,  1897.       261 

Second  Nat.  Bank  y.  Gilbert. 

use,  but  left  the  same  in  payment  of  its  obligations,  know- 
ing that  if  Schaffner  &  Company  failed  before  the  close  of 
business  on  the  next  day,  and  before  said  check  had  been 
presented  for  payment,  there  would  have  been  no  payment 
of  its,  appellant's,  obligation,  and  that  it  would  be  bound  to 
respond  to  appellee  for  the  amount  of  the  check. 

We  express  no  opinion  upon  the  question  whether  appel- 
lee had  reasonable  ground  to  apprehend  the  failure  of  Schaff- 
ner &  Company,  as  we  think  it  important  that  a  decision 
should  be  made  upon  the  contention  of  appellant  that  the 
holder  of  a  check  must  present  it  for  payment  at  once,  or 
run  the  risk  of  having  to  submit  to  a  jury  the  question  of 
whether  he  had  not  such  notice  of  the  financial  insecuritv 
of  the  drawee  as  charged  him  with  the  duty  of  hastening 
with  all  speed  to  secure  payment. 

The  judgment  of  the  Superior  Court  is  affirmed. 


Second  National  Bank  v.  James  H.  Gilbert. 

1 .  SHEBOrFS — Bight  to  Require  an  Indemnity  Bond.  — ^A  sheri£F  entitled 
to  an  indemnity  bond  has  a  right  to  require  one  that  needs  no  explana- 
tions, and  on  its  face  is  subject  to  no  objections. 

Trespass  on  the  Case,  for  a  false  return.  Appeal  from  the  Circuit 
Ck>urt  of  Cook  County;  the  Hon.  Richard  W.  Cufpord,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1897.  A  fSrmed.  Opin- 
ion filed  May  34, 1897. 

Bemy  &  Mann,  attorneys  for  appellant. 
E.  R.  Bliss,  attorney  for  appellee. 

Mb.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellant  recovered  a  judgment  in  the  Superior  Court 
of  Cook  County  against  Frederick  S.  Eames  for  $2,450  and 
costs,  upon  which  it  sued  out  execution  and  placed  the  same 
in  the  hands  of  the  appellee,  who  was  sheriff  of  Cook  county, 


I  70    851 
174t  485 


252  Appellate  Courts  of  Illinois. 

VoT..  70.1  Second  Nat.  Bank  v.  Gilbert. 

to  execute.  The  only  property  Eames  had  was  the  half 
interest  in  the  furniture  of  a  hotel,  to  the  conduct  of  which 
neither  he  nor  his  partner  gave  any  practical  attention,  but 
which  was  managed  by  one  Hanna,  who  claimed  to  be  in 
possession  under  a  bill  of  sale  from  both  partners  to  the 
father  of  Eames,  and  that  he  (Hanna)  was  managing  the 
hotel  for  the  father. 

Thereupon  the  appellee  required  an  indemnity  bond,  and 
the  one  circumstance  which  is  fully  established  is,  that  the 
attorneys  of  appellant  prepared  a  bond,  in  which  the  appel- 
lant purported  to  be  the  principal  and  John  A.  Lynch  was 
surety,  but  it  was  not  sealed  by  the  appellant,  and  was 
objected  to  by  the  appellee  for  that  defect,  which  was  never 
cured. 

It  is  not  argued  by  the  appellant  that  the  appellee  was  not 
entitled  to  an  indemnity  bond  under  Sec.  43,  Ch.  77,  E.  S., 
1872,  but  it  is  argued  that  the  bond  was  good  enough  if  the 
appellant  was  not  bound. 

That  a  good  bond,  which  the  sheriff  would  be  bound  to 
accept,  might  be  made  without  the  appellant  as  principal, 
is  beside  the  question. 

On  its  face  the  bond  was  imperfect — apparently  incom- 
plete. Had  the  appellee  accepted  it,  and  needed  recourse 
to  it,  he  might  have  been  met  by  the  defense  that  Lynch 
signed  the  bond  provisionally — not  to  be  delivered  until 
complete.  We  need  not  consider  whether  such  defense 
would  have  been  good.  That  it  would  have  been  at  least 
very  troublesome  may  be  seen  by  consulting  Gage  v.  City 
of  Chicago,  2  111.  App.  332;  City  of  Chicago  v.  Gage,  95  111. 
593;  and  Comstock  v.  Gage,  91  111.  328. 

The  appellee  was  entitled  to  a  bond  that  needed  noexplana- 
tions,  and  on  its  face  was  subject  to  no  objections. 

This  feature  of  the  case  makes  it  unnecessary  to  consider 
others. 

The  appellee  returned  the  execution  "no  property  found," 
and  the  appellant  sued  him  for  a  false  return.  The  court, 
trying  the  cause  without  a  jury,  found  for  the  appellee,  and 
entered  judgment  in  his  favor,  which  is  affirmed. 


First  District— March  Term,  1897.       253 

Redfern  v.  Botham. 


Sarah  Ann  Miller  Bedfern  y.  Thomas  H.  Botham.  * 

1.  Forcible  Detainer— CompZami  Necessary  to  Jurisdiction  in. — 
A  written  oomplaint  is  necessary  to  the  jurisdiction  of  a  justice  of  the 
peace  in  forcible  detainer  proceedings,  and  unless  the  justice  has  juris- 
diction, the  Circuit  Court,  on  appeal,  has  none. 

2.  Same — Showing  Necessary  as  to  Filing  of  Complaint — The  state- 
ment in  a  transcript  of  a  justice  of  the  peace  of  a  **  complaint  filed,"  is 
not  sufficient  to  take  the  place  of  the  writing  that  the  statute  requires 
to  be  filed  with  the  justice  in  order  to  confer  jurisdiction  in  forcible 
detainer  proceedings. 

3.  Bill  op  Exceptions— Tf'^en  Unnecessary, — Where  want  of  juris- 
diction appears  on  the  face  of  the  record,  it  is  not  necessary  that  a  bill 
of  exceptions  should  be  preserved,  nor  that  anything  which  finds  its 
appropriate  place  outside  of  the  record  proper  should  be  made  to  appear. 

Transcript,  from  a  justice  of  the  peace  in  forcible  detainer  proceedings. 
Appeal  from  the  Circuit  Court  of  Cook  County;  the  Hon.  Thomas  G. 
Windes,  Judge,  presiding.  Heard  in  this  court  at  the  March  term, 
1897.    Reversed  and  remanded.    Opinion  filed  May  24,  1897. 

James  N.  Tilton,  attorney  for  appellant. 
O'DoNNELL  &  CoGHLAN,  attomeys  for  appellee. 

Mb.  Presiding  Justice  Shepard  delitebed  the  opinion 
OF  the  Court. 

An  action,  which  the  evidence  shows  was  in  forcible 
detainer,  was  begun  before  a  justice  of  the  peace  by  the 
appellee  against  a  "Mrs.  Redfern"  as  defendant,  and 
upon  appeal  to  the  Circuit  Court  leave  was  given  to  amend 
by  changing  the  name  of  the  defendant  to  that  of  the  appel- 
lant, and  a  judgment  for  restitution  of  certain  premises 
being  there  rendered,  this  appeal  has  followed. 

The  transcript  of  proceedings  before  the  justice  of  the 
peace  shows  a  "  complaint  filed,"  but  no  complaint  in  writ- 
ing as  required  by  the  statute,  or  paper  purporting  to  be  one, 
was  transmitted  by  the  justice  to  the  Circuit  Court,  and  in 
that  court  no  proof  was  made  or  offered  that  a  written  com- 
plaint ever  did  exist  and  no  steps  were  taken  to  restore  it  if 


70 
d94 


1  70    2W 
;l71sJ91 


254  Appellate  Courts  of  Illinois. 

Vol.  70.]  S.  Chicago  City  Ry.  Co.  v.  Calumet  Electric  St.  Ry.  Co. 

lost.  The  statement  in  the  transcript,  of  a  "complaint 
filed,"  is  not  suflBcient  to  take  the  place  of  the  writing  that 
the  statute  requires  must  be  filed  with  the  justice  in  order  to 
confer  jurisdiction.  A  written  complaint  is  necessary  to  the 
jurisdiction  of  the  justice  in  forcible  detainer  proceedings, 
and  unless  the  justice  has  jurisdiction,  the  Circuit  Court  on 
appeal  has  none.  Chap.  57  111.  Bev.  Stat.,  Sec.  5;  Abbott 
V.  Kruse,  37  111.  App.  549. 

The  want  of  jurisdiction  appeared  on  the  face  of  the 
common  law  record,  and  it  was  not  necessary  that  a  bill  of 
exceptions  should  have  been  preserved,  nor  that  anything 
which  finds  its  appropriate  place  outside  of  the  record 
proper  should  be  made  to  appear. 

The  judgment  must  be  reversed  and  the  cause  remanded, 
in  order,  if  possible,  that  jurisdiction  may  be  shown  to  have 
existed  as  a  foundation  for  a  valid  judgment. 


South  Chicago  City  Railway  Co.  v.  Calumet  Electric 

St.  Ky  Co. 

1.  Injunctions— i4gatri«^  Constructum  of  Street  Jfatlroad.^It  is 
weU  settled  law  in  this  State  that  a  court  of  chancery  will  not  con- 
trol a  municipal  corporation  as  to  the  use  of  streets  by  railways. 

2.  COJXTRACHQ'- Against  Public  Policy —Agreement  of  Street  Rail' 
way  Company  not  to  Cross  Trades  of  Another  Company, — ^An  agree- 
ment by  a  street  railway  company  not  to  cross  the  track  of  another 
similar  company  at  grade  is  an  attempt  by  the  company  to  bind  itself 
against  what  the  public  interest  may  require  and  is  void,  as  against 
public  policy. 

Bill  for  Injanetion.— Appeal  from  theOircuit  Court  of  Cook  Ck>unty; 
the  Hon.  JoHS  Gibbons,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term,  1897.    Affirmed.    Opinion  filed  May  24,  1897. 

Ohas.  M.  Osbobk  and  Sam'l  A.  Lynde,  attorneys  for 
appellant. 

Mank,  Hates  &  Millbb,  attorneys  for  appellee. 


First  District — March  Term,  1897.       255 

HawkeB  v.  Taylor. 

Mb.  Justice  Gaby  delivered  the  opinion  of  the  Court. 

Each  of  these  parties  operate,  under  ordinances  of  the 
city  of  Chicago,  lines  of  street  railways  in  the  southern  part 
of  the  city. 

In  1892,  when  they  were  laying  tracks  they  made  an 
agreement  by  which  they  both  agreed  that  with  the  excep- 
tion of  crossings  mentioned  in  the  agreement,  no  crossing 
at  grade  by  one  road  over  the  other  should  ever  be. made. 

The  appellee  thereafter  procured  from  the  city  an  ordi- 
nance permitting  it  to  put  down  tracks  on  more  streets,  and 
in  putting  them  down  it,  vi  et  armisy  made  crossings  at  grade 
over  other  places  than  those  the  agreement  mentioned. 

The  appellant  filed  this  bill  to  enjoin  the  appellee  from 
operating  over  those  crossings  and  from  making  any  more 
grade  crossings. 

It  is  thoroughly  settled  in  this  State  that  a  court  of 
chancery  will  not  control  a  municipal  corporation  as  to  the 
use  of  streets  by  railways. 

Phelps  V.  Un.  El.  R.  E.,  166  111.  131,  affirming  same  case, 
60  IlL  App.  471,  is  the  last  reported  of  the  many  cases  to 
that  effect. 

And  Doane  v.  Chicago  City  Ry.,  160  111.  22,  affirming 
same  case,  51  111.  App.  353,  is  a  complete  answer  to  all 
claim  of  the  appellant  under  the  agreement. 

An  agreement  not  to  cross  at  grade  may  be — practically 
probably  is — ^an  agreement  not  to  cross  at  all,  and  is  void 
as  against  public  policy. 

The  decree  dismissing  the  bill  is  affirmed. 


Louise  B.  Hawkes  v.  Joel  T.  Taylor. 

1.  Contracts— CoTwfniciton  of-^Mentioning  Part  of  a  Class  Ex- 
cludes the  Remainder, — In  construing  contracts  the  expression  of  one 
or  more  things  of  the  same  class  wiU  be  regarded  as  implying  the 
ezclnsion  of  aU  not  expressed;  and  this  even  if  the  law  would  liave 
impUed  aU  had  none  been  expressed. 

2.  Samb— Genera/  Ground  of  a  Legal  Implication,— Hhe  general 
ground  of  a  legal  implication  is  that  the  parties  to  the  contract  would 
have  expressed  that  which  the  law  impUes,  had  they  thought  of  it,  or 


I  70    255 
175s  3441 


256  Appellate  Courts  of  Illinois. 

Vol.  70.]  Hawkes  v.  Taylor. 

■  «■■—■>■      >  ■-  »wii  ■■■  .  »■■■  m      lyi       ■  ■  ■  ■     I  -^^^^M^^^^^  .  ■  ■ 

had  they  not  supposed  it  was  unnecessary  to  speak  of  it  because  the  law 
proWded  for  it. 

3.  Sa^ie— Character  of  Obligations  liaised  by  Legal  Implication. — 
Whatever  obligation  is  sought  to  be  raised  by  legal  implication  must 
be  of  such  a  character  as  the  court  will  assume  would  have  been  made 
by  the  parties  had  their  attention  been  called  to  the  subj^t,  and  their 
conduct  inspired  by  principles  of  justice, 

4.  Same — The  Rule  as  to  Implied  Obligations  Applied, — A  contract 
for  the  sale  of  an  interest  in  a  mine  provided  for  the  payment  to  the 
vendor  of  a  proportion  of  the  net  profits  €Lrising  from  the  operation  of 
the  mine,  but  contained  no  provision  requiring  the  operation  of  the 
mine.  Held^  tlmt  such  a  provision  could  not  be  implied,  as  courts  have 
no  power,  by  implication  or  otherwise,  to  make  contracts  for  parties. 

Assaiupsit,  on  a  contract  of  sale.  Appeal  from  the  Superior  Cknirt  of 
Cook  Coimty;  the  Hon.  John  Babton  Payne,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  May 
24,  1897. 

Statement  of  the  Case. 

This  was  a  suit  brought  by  Louise  R.  Hawkes  against  Joel 
V.  Taylor  on  the  following  contract : 

"  This  agreement,  made  this  26th  day  of  May,  A.  D.  1885, 
between  Joel  V.  Taylor,  party  of  the  first  part,  of  Cook 
County,  Illinois,  and  Louise  K.  Hawkes,  of  the  same  place, 
witnesseth :  Whereas,  the  said  party  of  the  second  part 
has  this  day  sold  and  conveyed  to  the  party  of  the  first  part 
all  her  right,  title  and  interest  in  and  to  the  following  de- 
scribed mining  property  situate  in  Ruby  mining  district  in 
the  county  of  Gunnison,  State  of  Colorado,  to  wit,  an  undi- 
vided one-eighth  of  the  Ruby  mining  claim,  an  undivided 
one-eighth  of  the  Sunset  lode  mining  claim,  an  undivided 
one-eighth  of  the  Arab  lode  mining  claim,  an  undivided 
one-eighth  of  the  Peggy  lode  mining  claim,  an  undivided 
one-eighth  of  the  Gem  lode  mining  claim,  an  undivided 
one-eighth  of  the  Old  Sheik  lode  mining  claim. 

Now,  therefore,  this  agreement  witnesseth,  that  the  party 
of  the  first  part  is  to  pay  as  a  consideration  for  the  con- 
veyance of  the  property  above  described,  as  follows : 

First.  Five  thousand  dollars  ($5,000)  cash,  which  sum 
has  already  been  paid  over  to  the  party  of  the  second  part. 

Second.    The  party  of  the  first  part  is  to  have  the  option, 


First  District — March  Term,  1897.        257 

Hawkes  v.  Taylor. 

within  one  year,  to  convey  to  the  party  of  the  second  part 
real  estate  of  the  cash  value  of  ten  thousand  dollars 
($10,000);  the  value,  of  such  real  estate,  in  case  the  parties 
can  not  agree,  to  be  determined  by  arbitration,  each  party 
to  select  one  arbitrator,  and  in  case  tlieycan  not  agree  they 
are  to  select  a  third,  and  the  decision  of  two  of  such  arbi- 
trators shall  be  conclusive  on  the  parties  thereto;  and  in  case 
said  conveyance  shall  be  made,  it  shall  be  in  full  payment 
for  the  said  property  conveyed  to  the  party  of  the  first 
part. 

Third.  In  case  said  party  of  the  first  part  shall  not  elect 
to  make  such  conveyance  of  land  as  is  above  provided  for, 
then  the  party  of  the  first  part  shall  be  entitled  to  receive 
out  of  the  net  profits  of  the  property  so  conveyed  by  the 
party  of  the  second  part  the  sura  of  ten  thousand  dollars 
($10,000),  and  after  having  received  the  sum  of  ten  thousand 
dollars  ($10,000)  aforesaid,  he  shall  pay  to  the  party  of  the 
second  part  one-half  of  the  net  profits  of  said  property,  until 
the  net  profits,  after  first  deducting  the  sum  of  ten  thou- 
sand dollars,  shall  equal  forty  thousand  dollars  each,  and 
to  begin  as  soon  after  the  net  profits  amount  to  the  sum  of 
one  thousand  dollars,  after  the  party  of  the  first  part  shall 
have  received  the  sum  of  ten  thousand  dollars  from  such  net 
profits,  and  the  party  of  the  second  part  is  thereafter  to 
receive  each  alternate  one  thousand  dollars  of  the  net  profits 
until  she  has  received  from  such  net  profits  in  all  the  sum 
of  twenty  thousand  dollars;  provided,  however,  that  in  case 
the  net  profits  above  described  do  not  amount  to  the  sum 
of  fifty  thousand  dollars  within  five  years  from  the  date 
of  this  agreement,  then  the  party  of  thc5  second  part  shall 
only  be  entitled  to  one-half  of  the  net  profits  over  and 
above  the  sum  of  ten  thousand  dollars  to  be  first  deducted 
that  have  accrued  within  five  years  from  the  date  hereof. 
Such  sum,  however,  in  no  event  to  exceed  the  sum  of  ten 
thousand  dollars.  This  agreement  shall  be  binding  on  the 
heirs,  executors,  administrators  and  assigns  of  the  respective 
parties.  Jokl  V.  Taylor. 

Loms£  E.  Hawkks." 

Vol.  LXX>  17 


258  Appellate  Courts  op  Illinois. 

'  '    ■  '     » 

Vol.  70.]  Hawkes  v.  Taylor. 

The  declaration  alleged  that  plaintiif  conveyed  the  prop- 
erty described  in  the  contract;  that  she  received  $5,000  in 
cash,  but  no  real  estate;  that  defendant  did  not  work  the 
mines,  but  sold  same  shortly  after  the  conveyance  to  him, 
to  other  parties,  thereby  disabling  himself  from  working  the 
mines,  and  that  plaintiif  has  not  been  paid  any  sum  for  net 
profits,  and  has  been  damaged  $30,000.  The  common  counts 
were  added. 

The  defendant  pleaded  the  general  issue  and  several 
special  pleas.  After  demurrers  by  plaintiff  the  following 
special  pleas  remained : 

"  Third.  That  defendant  owned  onlv  an  undivided  one- 
eighth  of  the  mine,  the  residue  being  o^'ned  and  controlled 
by  plaintiff  and  bar  associates;  that  these  latter  refused  to 
work  the  mine  and  prevented  defendant  from  so  doing, 
though  defendant  was  always  ready  to  contribute  his  share. 

Sixth.  That  defendant  owned  only  one-eighth  in  the 
mine;  that  plaintiff  and  her  associates  formed  a  corporation 
to  take  the  property;  that  at  their  request  defendant  joined 
with  them  and  conveyed  to  the  corporation;  that  after  the 
formation  of  the  corporation  and  conveyance  to  it  of  the 
mines,  defendant  held  a  minority  of  the  stock,  the  majority 
being  owned  and  controlled  by  plaintiff  and  her  associates; 
and  that  defendant  always  ^tood  ready  to  contribute  his 
share  to  the  working  of  the  mines,  but  the  others  refused 
to  work  same." 

Plaintiff  replied  to  third  plea  by  denying  that  she  and 
her  associates  owned  the  remainder  of  the  mines  or  con- 
trolled the  working  thereof,  or  prevented  defendant  from 
working  them,  or  that  defendant  was  ready  to  contribute 
any  money  for  working  said  mines.  She  then  alleged  that 
after  selling  one-eighth  to  defendant  she  had  remaining  an 
eighth  interest.  This  interest  she  sold  to  him,  but  at  his 
request  retained  it  till  the  formation  of  a  corporation  by 
defendant,  and  then,  pursuant  to  his  request,  conveyed  direct 
to  the  corporation.  Certain  shares  of  stock  were  issued  to 
her  and  stood  in  her  name  on  the  books  of  the  company,  bat 
were  in  fact  not  hers,  but  nominally  held  by  her  to  legally 


First  District — ^March  Term,  1897.       259 

Hawkes  v.  Taylor. 

qualify  her  to  act  as  a  director.  She  was  made  a  director, 
and  remained  nominally  such  at  defendant's  request.  The 
defendant,  however,  was  elected  president,  treasurer  and 
general  manager  of  the  company,  and  had  complete  control 
thereof. 

To  the  sixth  plea  she  replied  by  denying  the  allegations 
thereof  and  alleging  more  at  length  the  sale  by  her  to  defend- 
ant of  her  remaining  one-eighth  interest,  the  retention  by 
her  of  the  record  title,  the  conveyance  of  it  by  her  to  the 
corporation  formed  by  defendant,  the  issuance  to  her  of  five 
hundred  shares  of  stock  which  nominallv  stood  in  her  name 
to  enable  her  to  be  elected  a  director,  and  the  assignment  at 
once  by  her  of  all  her  stock  but  the  five  hundred  shares  to 
defendant — all  at  defendant's  request.  She  further  alleges 
that  defendant  was  elected  and  continued  to  be  the  presi- 
dent, treasurer  and  general  manager  of  the  corporation; 
that  he  had  supreme  control  thereof,  and  that  she  never 
participated  in  any  meetings  nor  shared  at  all  in  the  control 
and  management  of  the  company. 

Defendant  rejoined  by  denying  his  exclusive  control  of 
the  mines  and  alleging  that  plaintiff  and  her  associates  con- 
trolled a  majority  of  the  stock  of  the  corporation. 

He  also  alleged  that  the  company  worked  the  mines  in 
good  faith,  expending  thereon  $20,000;  but  they  were  unpro- 
ductive, and  although  the  five  years  mentioned  in  the  con- 
tract had  expired,  no  net  profits  had  ever  been  derived  from 
the  mines. 

The  case  was  tried  before  a  jury.  At  the  close  of  plaint- 
iff's direct  evidence,  defendant's  counsel  moved  the  court  to 
instruct  the  jury  to  return  a  verdict  for  defendant,  which 
motion  the  court  overruled,  whereupon  defendant  testified 
in  his  own  behalf  and  offered  some  documentary  evidence, 
at  the  conclusion  of  which  the  court,  of  its  own  motion, 
instructed  the  jury  to  return  a  verdict  for  defendant,  which 
was  accordingly  done,  the  court  refusing  to  permit  plaintiff 
to  introduce  evidence  in  rebuttal,  which  plaintiff  offered 
to  do. 

On  the  trial  plaintiff  proved  contract  with  Taylor,  intro- 


260  Appellate  Courts  of  Illinols. 

Vol.  70.]  Hawkes  v.  Taylor. 

ducing  her  deed  to  him  of  the  mil jing  interests  described  in 
the  contract,  also  deed  of  same  interests  by  Taylor  to  the 
corporation.  Evidence  was  introduced  tending  to  show 
that  Taylor  paid  Mrs.  Hawkes  the  $5,000  as  called  for  in 
the  contract,  and  no  more;  that  Taylor,  upon  the  organiza- 
tion of  the  ^corporation,  became  president,  treasurer  and 
general  manager,  and  continued  as  such  until  the  time  of 
the  trial,  and  as  such  had  full  management  and  control  of 
the  mines;  that  the  corporation  made  no  profits  out  of  the 
mines,  but  expended  several  thousand  dollars  in  working 
them.  That  Mrs.  Hawkes  was  one  of  the  directors  in  said 
corporation. 

The  plaintiff  offered  evidence  tending  to  prove  that  Mrs. 
Hawkes  was  only  nominally  a  stockholder  and  director; 
that  she  became  such  at  Taylor's  instance  and  request;  that 
shQ  refused  to  have  anything  to  do  with  the  company,  and 
refused  to  attend  any  meetings  of  stockholders  or  directors 
thereof;  that  the  mines  were  not  worked  in  a  minerlike 
fashion;  that  the  proper  appliances  and  machinery  were  not 
employed  and  used,  and  that  they  could  have  been  worked 
so  as  to  produce  large  profits.  AH  of  this  evidence  was  ex- 
cluded by  the  court,  and  plaintiff  duly  excepted. 

R.  M.  WiNO,  0.  C.  Carnahan  and  D.  J.  Haynes,  at- 
torneys for  appellant. 

The  law  will  imply  from  the  contract  sued  on,  that  if  the 
defendant,  Taylor,  did  not  elect,  within  one  3^ear,  to  con- 
vey to  the  plaintiff,  Mrs.  Hawkes,  the  real  estate  therein 
specified,  that  he  Avould  within  the  five  years  duly  and 
properly  work  and  develop  the  several  mining  claims  so 
conveyed  to  him,  to  the  end  of  producing  the  specified  net 
profits.  Berger  v.  Peterson,  78  111.  633;  Nichols  v.  Mercer, 
44  111.  250;  Oliphant  v.  The  Woodburn  Coal  &  M.  Co.,  63 
la.  332;  Skidmorev.  Eikenberr\%  53  la.  621;  Potter  v.  On- 
tario ife  Livingston  M.  Ins.  Co.,  5  Hill  (N.  Y.)  147;  Roy  v. 
Hodge,  13  Pacific  Rep.  699;  Allamon  v.  The  Mayor,  etc., 
City  of  Albany,  43  Barb.  (N.  Y.)  33,  37. 

A  contract  must  be  performed  in  the  way  the  parties  to 


First  Distbict — March  Term,  1897.       261 

Hawkes  ▼.  Taylor. 

it  understand  it  at  the  time  of  its  execution.  Potter  v. 
Ontario  &  Livingston  M.  Ins.  Co.,  supra;  Walker  et  al.  v. 
Tucker  et  al.,  70  111.  527. 

The  plain  implication  of  the  contract  is,  that  the  defend- 
ant knew  at  the  time  he  entered  into  it  that  the  mines  were 
valuable  and  well  worth  undertaking,  else  why  did  he  not 
reserve  an  exception  in  his  contract  to  excuse  its  perform- 
ance as  made  ?  This  he  should  have  done  if  he  designed  to 
take  advantage  of  the  fact  or  treat  the  transaction  as  an 
experiment. 

For  a  contract  must  be  performed  as  made.  Stow  v. 
Kussell,  36  111.  20;  Bacon  v.  Cobb,  45  111.  47. 

The  execution  of  the  contract  obligated  Taylor  to  either 
work  the  mines  or  to  cause  them  to  be  worked  with  a  view 
of  producing  profits,  and  not  only  to  work  them  but  to  work 
them  as  a  prudent  man  would  work  his  own  property. 
Walker  et  aL  v.  Tucker  et  al.,  70  111.  527;  Taylor's  Land- 
lord and  Tenant,  Sec.  344;  Skidmore  v.  Eikenberry,  53  Iowa, 
621. 

Geo.  W.  Wiibub  and  Newton  A.  Pabtridgb,  attorneys 
for  appellee. 

Mr.  Justiob  Watbrmajt  belivbbed  the  opinion  of  the 
Court. 

Appellant  claims  that  appellee  was  by  the  contract  bound 
to  "  do  everything  which  would  be  necessary  to  effectuate 
the  purpose  of  the  transaction,  i,  «.,  to  make  the  mining 
interests  conveyed  to  him  by  Mrs.  Hawkes  produce  for  her 
the  $20,000  profit,  if  possible. 

If  appellee  and  appellant  so  intended,  the  question  arises 
why,  by  a  few  simple  words,  they  did  not  put  such  agree- 
ment in  the  contract. 

Appellant  insists  that  the  contract  contains  that  which 
is  not  there  in  terras,  nor  by  necessary  implication. 

It  seems  that  in  making  this  contract  the  attention  of 
the  parties  must  have  been  drawn  to  the  question  of  whether 
appellee  was  bound  to  go  on  and  develop  these  mines,  re- 


1 


262  Appellate  Coubts  op  Illinois. 

Vol.  70.]  Clarke  v.  Chamberlin. 

■  I  I  ■!  -     .  -  _■  . -^. 

gardlcss  of  what  the  prospect  for  profitably  doin^  so  might 
be,  and  that  the  failure  of  the  parties  to  stipulate  that  he 
should  do  so,  indicates  that  appellee  did  not  intend  to  so 
agree,  nor  did  appellant  understand  that  he  had  so  prom- 
ised. If  appellee  did,  directly  or  impliedly,  so  promise,  that 
he  can  not  by  any  transfer  relieve  himself  from  the  obliga- 
tion is  manifest. 

Courts  do  not,  by  implication  or  otherwise,  make  con- 
tracts for  parties. 

The  question  in  this  regard  is :  What  contract  did  the 
parties  make } 

The  general  ground  of  a  legal  implication  is,  that  the  par- 
ties  to  the  contract  would  have  expressed  that  which  the  law 
implies  had  they  thought  of  it.  or  had  they  not  supposed 
it  was  unnecessary  to  speak  of  it  because  the  law  provided 
for  it. 

The  expression  of  one  or  more  things  of  the  same  class, 
implies  the  exclusion  of  all  not  expressed;  and  this  even  if 
the  law  would  have  implied  all,  had  none  been  expressed. 
Parsons  on  Contracts,  Vol.  2,  515;  Vol.  1,  555,  6th  Ed. 

Whatever  obligation  is  sought  to  be  raised  by  legal  im- 
plication must  be  of  such  a  character  as  the  court  wixl 
assume  would  have  been  made  by  the  parties  had  their 
attention  been  called  to  the  subject,  and  their  conduct 
inspired  by  principles  of  justice.  Dermott  et  al.  v.The  State, 
99  K  Y.  101-109;  King  v.  Leighton,  100  K  Y.  386-391; 
Genet  v.  Del.  &  Hudson  Canal  Co.,  136  K  Y.  593. 

Courts,  in  reading  into  contracts  implications  not  clearly 
there  existing,  trench  upon  dangerous  ground. 

The  judgment  of  the  Superior  Court  is  affirmed. 


Louise  C.  Clarke  v.  William  E.  Chamberlin  et  al. 

1.  Parties-— ftraona  Described  as  Unknoitm  Owners, — Where  a  per- 
son was  made  a  party  to  a  biU  as  the  unknown  owner  of  a  note,  but  filed 
an  answer  and  cross-bill,  he  is  bound  bj  the  decree,  although  the  biU  was 
not  amended  so  aa  to  make  him  a  party  by  name. 


First  District— Ma rch  Term,  1897.       263 

Clarke  v.  Chamberlin. 

2.  NOTICK— Proo/  of  Publication  of, —The  publication  of  a  notice  of 
a  sale  of  real  estate  under  a  decree  of  foreclosure  may  be  proved  by  t}ie 
certificate  of  the  publisher  of  the  paper  printing  such  notice,  with  a 
copy  of  such  notice  annexed,  stating  the  number  of  times  the  same  has 
been  published,  and  giving  the  dates  of  the  first  and  last  papers  contain- 
ing such  notice;  such  certificate  need  not  show  the  date  of  other  publi- 
cations. 

Bill,  for  redemption  from  mortgage  sale.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Murray  F.  Tuley,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
May  24,  1897. 

WiLBUB  N.  Horner,  attorney  for  appellant. 

None  are  parties,  although  named  in  the  bill,  against 
whom  process  is  not  prayed.    Story  Equity  Pleading,  par.  44. 

The  defendants  are  the  persons  against  whom  process  is 
prayed.  It  is  not  sufficient  that  a  person  be  mentioned  as  a 
defendant;  process  must  be  actually  prayed  against  him. 
Mitford  &  Tyler's  Pleadings,  page  17. 

If  party  is  known,  can  not  be  treated  as  an  unknown 
owner.     Mulvey  v.  Gibbons  et  al.,  87  III.  377. 

A  flecree  does  not  bind  a  person  who,  though  joined  in  the 
bill,  is  not  in  some  way  brought  in  or  put  in  default.  Pope 
V.  North,  33  111.  441. 

A  sale  is  void  if  made  on  a  different  notice  than  that 
ordered  in  the  decree.  Glen  v.  Wolten,  3  Md.  Ch.  514;  Key* 
nolds  V.  Wilson,  16  111.  395. 

The  certificate  should  show  that  all  the  requirements  of 
the  statute  have  been  complied  with.  Finch  v.  Pinckard,  5 
111.  69. 

The  date  of  the  publication  of  the  notice  should  appear  in 
the  affidavit.  Milam  v.  Thomasson,  7  Mon.  (Ky.)  324;  Tevis 
V.  Richardson,  7  Mon.  (Ky.)  654;  King  v.  Harrington,'  14 
Mich.  5S2. 

An  affidavit  of  publication  for  "  six  successive  weeks  '^ 
does  not  show  that  the  publication  was  made  *'  once  in  each 
week''  for  the  period  stated.  Godfrey  v.  Valentine,  39 
Minn.  336. 

An  affidavit  that  a  summons  was  published  ^'  six  weeks 


264  Appellate  Coitiits  of  Illinois. 

Vol.  70.]  Clarke  v.  Chamberlin. 

successively "  does  not  show  a  compliance  with  a  statute 
requiring  publication  for  "not  less  than  once  a  week  for 
six  weeks."  Frisk  v.  Reigleraan,  75  Wis.  499;  Eamsey  v. 
Hommel,68  Wis.  12;  Morris  v.  Carmichael,  68  Wis.  133. 

Lyman  M.  Paine,  attorney  for  appellee,  Wm.  E.  Cham- 
berlin. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

May  20,  1896,  the  appellant  filed  this  bill  to  redeem 
from  a  sale  under  foreclosure  made  January  29,  1895,  to 
Chamberlin. 

She  bases  her  right  to  redeem  upon  two  grounds : 

First.  When  the  foreclosure  suit  was  commenced  she 
was  the  holder  of  a  note  made  by  a  remote  grantee  of  the 
mortgagor,  payable  to  himself  and  by  him  indorsed,  which 
was  secured  by  a  trust  deed  upon  the  same  proj^erty. 

The  trustees  named  in  that  deed  of  trust,  and  the  unknown 
owners  of  the  note  she  held  were  made  defendants  to 
the  bill  to  foreclose,  and  she  appeared  and  answered  and 
filed  her  cross-bill  in  the  suit  as  the  owner  of  the  note,  and 
a  decree  was  entered  which  provided  for  the  payment  tfo  her 
of  what  was  due  to  her,  first  satisfying  the  demands  of  the 
prior  mortgagee. 

On  this  state  of  facts  she  says  that  the  bill  to  foreclose 
never  having  been  amended  so  as  to  make  her  a  party  defend- 
ant by  name,  she  was  no  party  to  the  decree,  and  not  barred 
of  her  right  to  redeem  as  a  subsequent  incumbrancer,  though 
the  lapse  of  time  had  cut  off  the  right  of  the  defendants  to 
the  suit.  She  was  a  party  by  her  answer  and  cross-bill. 
Marsh  V.  Green,  79  111.  385.     She  is  bound  by  the  decree. 

Her  second  ground  of  attack  is  that  the  certificate  of  pub- 
lication of  notice  of  the  sale  in  accordance  with  the  decree 
is  not  sufficient.     The  certificate  is : 

"  Review  Printing  and  Publishing  Company,  publishers  of 
the  Chicago  Daily  Law  Bulletin,  do  hereby  certify  that  a 
notice,  of  which  the  annexed  printed  slip  is  a  true  copy,  was 
published  for  three  successive  weeks,  to  wit,  three  times 
in  the  Chicago  Daily  Law  Bulletin,  a  public  daily  newsjiaper 


First  District — March  Term,  1897.       265 

Hansen  v.  United  States  Brewing  Co. 

published  in  the  city  of  Chicago,  county  of  Cook  and  State 
of  Illinois,  and  of  general  circulation  throughout  said  county 
and  State,  and  that  the  date  of  the  first  paper  containing 
the  same,  was  on  the  6th  day  of  February,  A.  D.  1895,  and 
that  the  date  of  the  last  paper  containing  same  was  the  20th 
day  of  February,  1895,  and  that  we  have  received  $11  for 
publishing  the  same. 

Datesd  at  Chicago,  this  2l8t  day  of  February,  1895. 

(Signed)     Review  Printing  and  Publishing  Company, 

Publishers. 

[Seal.]     By  D.  Q.  Newell,  Secretary." 

And  the  criticism  of  the  appellant  that  it  does  not  show 
the  date  of  the  second  publication  should  be  addressed 
to  the  legislature,  and  not  to  the  courts.  McChesney  v. 
People,  145  111.  614. 

The  decree,  dismissing  the  bill  on  demurrer,  is  right, 
and  it  is  affirmed. 


Samuel  H.  Hansen  and  Theodore  Sonnlcksen  v.  The 
United  States  Brewing  Co.,  ete. 

1.  Bill  of  ExcEPnoN8---Rc/crcmjc«  to  Matters  FoUotoing  Judge^s 
CertiflocUe, — The  words  **  For  instructions  and  motion  for  a  new  trial  see 
next  page,^  in  a  bill  of  exceptions,  are  sufficient  to  make  the  instructions 
and  motion  referred  to  a  part  of  such  bill  of  exceptions,  although  they 
foUow  the  certificate  of  the  trial  judge. 

2.  Sake — Presumptions  as  to  Different  Handwritings  in, — There  can 
arise  no  presumption  adverse  to  the  authenticity  of  a  biU  of  exceptions 
from  the  mere  fact  it  is  in  various  handwritings. 

8.  CONTRACTS— ZmpZicd  Warranties, — A  made  a  contract  with  B  by 
which  he  was  to  purchase  2,000  barrels  of  beer  from  B,  deliveries  to  be 
made  from  time  to  time  as  requested:  at  the  same  time  he  received  from 
B  (300,  to  be  retained  if  the  contract  was  complied  with  by  him,  other- 
^wiise  to  be  returned.  After  a  time  A  refused  to  receive  any  more  beer 
because  of  its  claimed  poor  quality  and  unfitness  for  use  in  his  business. 
Held^  that  the  contract  contemplated  the  delivery  of  beer  of  a  merchant- 
able quality  in  A's  business,  and  that  a  refusal  by  A  to  receive  beer  not 
of  that  quality,  did  not  constitute  a  breach  of  the  contract  authorizing 
a  recovery  of  the  $800. 


266  Appellate  Couuts  op  Illinois. 

Vol.  70.]  Hansen  v.  United  States  Brewing  Co. 

Assnmpsit,  on  the  common  counts.  Appeal  from  the  Superior  Court 
of  Cook  County;  the  Hon.  Farlin  Q.  Ball,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1807.  Reversed  and  remanded.  Opin- 
ion filed  May  24, 1897.    Rehearing  denied.    Opinion  filed  June  14,  1897. 

Enni8  &  CoBUBN,  attorneys  for  appellants. 

The  law  demands  that  if  a  man  sells  generally  he  under- 
takes that  the  article  sold  is  fit  for  some  purpose;  if  he  sells 
for  a  particular  purpose,  he  undertakes  that  it  shall  be  fit 
for  that  particular  purpose.    Jones  v.  Bright,  5  Bing.  533. 

The  law  most  explicitly  requires  a  manufacturer  to  war- 
rant, by  implication,  as  fit  for  the  purpose  required,  the 
article  sold,  whether  the  order  of  the  sale  be  in  writing  or 
verbal.  Bagley  v.  Cleveland  Roll  Mill  Co.,  21  Fed.  Kep. 
159. 

The  true  distinction  is  that  when  the  goods  purchased  of 
a  manufacturer  are  to  be  made,  or  are  not  susceptible  of 
examination,  there  is  an  implied  warranty;  and  that  there 
is  also  an  implied  warranty  notwithstanding  the  goods  may 
be  subject  to  examination  where  the  defects  are  latent  and 
the  vendee  clearly  relies  on  the  skill  and  judgment  of  the 
maker,  etc.  Beals  v.  Olmstead,  24:  Vt.  1 14;  Kellogg  Bridge 
Co.  V.  Hamilton,  110  U.  S.  108;  French  v.  Vining,  102  Mass. 
132;  Jones  v.  Just,  L.  R.,  3  Q.  B.  197;  Parson  on  Con.  (5th 
Ed.),  5S6  and  note  a;  Biddle  on  Chat.  War.,  8,  Sees.  174r-182. 

Breach  of  warranty  is  a  question  of  fact  for  the  jury. 
Lanz  V.  Wacks,  50  111.  App.  263;  Avery  Plant  Co.  v.  J.  L. 
&  W.  D.  Rigg,  56  111.  App.  599;  Jones  v.  Bright,  5  Bing. 
533. 

As  to  the  law  in  this  State  on  implied  warranty  we  cite: 
Babcock  v.  Trice,  18  111.  420;  Thome  v.  McVeagh,  75  III. 
81;  Crabtree  v.  Kile,  21  111.  180;  Aultman  v.  Webber,  23 
111.  App.  91;  Murray  v.  Carlin,  67  111.  286. 

Winston  &  Mbaoher,  attorneys  for  appellee. 

The  bill  of  exceptions  is  esteemed  as  a  pleading  of  the 
party  alleging  the  exception.  If  liable  to  the  charge  of 
ambiguity,  uncertainty  or  omission,  it  must  be  most  strongly 
construed  against  the  party  who  prepared  it.  Rogers  v. 
Hall,  4  111.  6;  Alley  v.  Limbert,  35  111.  App.  592. 


First  District — March  Term,  1897.       267 

Hansen  v.  United  States  Brewing  Co. 

The  appellant  must  be  responsible  for  all  uncertainties 
and  omissions  in  the  bill  of  exceptions.  A  plausible  conject- 
ure that  certain  facts  occurred  at  the  trial  will  not  be 
enough  to  justify  the  Appellate  Court  in  assuming  that 
those  facts  did  exist.  Spangenberg  v.  Charles,  44  111.  App. 
526;  Alley  v.  Limbert,  35  111.  App.  593;  Matson  v.  The  Peo- 
ple, 50  111.  App.  210;  Page  v.  Northwestern  Brg.  Co.,  54  111. 
App.  158;  Wright  v.  Griffey,  44  111.  App.  115;  Stock  Quota- 
tion Telegraph  Co.  v.  Board  of  Trade,  44  111.  App.  358;  144 
111.  370;  A.,  T.  &  S.  F.  E.  E.  Co.  v.  Baltz,  44  111.  App.  458. 

A  paper  attached  to  a  bill  of  exceptions  after  the  signa- 
ture of  the  trial  judge  should  not  be  considered.  Kor  will 
the  instructions  so  appended  instead  of  being  copied  therein. 
Hursen  v.  Lehman,  35  111.  App.  489;  C,  M.  &  St.  P.  Ey.  Co. 
V.  Harper,  128  111.  384. 

Before,  an  Appellate  Court  will  reverse  a  case  for  error 
other  than  that  appearing  in  the  record  proper,  it  is  imper- 
ative that  the  bill  of  exceptions  itself  over  the  signature 
and  seal  of  the  judge  show,  first,  that  a  motion  for  a  new 
trial  was  made;  second,  that  it  was  denied;  and,  third,  that 
an  exception  was  taken  ^  o  such  denial.  Shedd  v.  Dalzell, 
30  111.  App.  357;  James  v.  Dexter,  113  111.  654;  Engel  v.  Sel- 
lers, 51  111.  App.  577;  City  of  Mt.  Vernon  v.  Satterfield,  58 
111.  App.  39;  Griffith  v.  Welsh,  32  111.  App.  396. 

Mr.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  the  Court. 

A  motion  is  made  by  appellee  to  strike  from  the  records 
pages  78  and  79  thereof,  being  the  sheet  next  following  the 
page  in  the  bill  of  exceptions  upon  which  appears  the  cer- 
tificate and  seal  of  the  trial  judge. 

Upon  page  77,  on  which  appears  the  certificate  and  seal 
of  the  trial  judge,  there  is  written  above  such  signature  the 
following : 

"  (Here  insert  the  instruction  given,  and  the  motion  for 
a  new  trial,  filed  Dec.  19, 1896.)  F.  Q.  B." 

Such  initials  being  those  of  the  name  of  the  trial  judge, 
and  the  sentence,  as  well  as  they,  being  apparently  in  his 
handwriting. 


2f)8  Appellate  Courts  of  Illinois. 

Vol.  70.]  Hansen  v.  United  States  Brewing  Co. 

To  the  left  of  such  sentence  there  is  written  in  ink  in  a 
diiferent  handwriting,  as  follows: 

''  For  instructions  and  motion  for  new  trial  see  next 
page." 

And  said  "  next  page,"  and  the  page  following  on  the 
same  sheet  of  paper,  are  the  pages  78  and  79  which  are 
moved  to  be  stricken  from  the  record. 

If  we  were  to  follow  former  decisions  of  our  own,  we 
should  be  constrained  to  grant  the  motion,  but  the  Supreme 
Court  has  said  we  were  wrong.  Legnard  v.  Ehoades,  156 
111.  431,  and  the  motion  is  denied. 

There  can  arise  no  presumption  adverse  to  the  authentic- 
ity of  a  bill  of  exceptions  from  the  mere  fact  that  it  is  in 
various  handwritinos.  ^ 

The  appellee  was  engaged  in  the  business  of  brewing  and 
selling  beer,  and  on  March  2, 1894,  the  appellants,  who  were 
beer  bottlers  and  peddlers,  began  to  purchase  beer  from  the 
appellee,  and  so  continued  to  do  from  day  to  day  for  the 
space  of  two  weeks.  Then,  on  March  16,  1894,  a  contract 
in  writing  was  entered  into  between  the  parties,  whereby 
the  appellee  loaned  to  the  appellants  $300  and  agreed  to  fur- 
nish them  with  2,000  barrels  of  keg  beer  at  the  price  of  four 
dollars  per  barrel,  and  appellants  agreed  to  pay  for  the 
beer  at  such  rate  or  price  upon  delivery,  deliveries  to  be 
made  when  requested  by  appellants. 

And  it  was  further  agreed  that  if  appellants  should  well 
and  truly  perform  their  agreement  and  take  and  pay  for 
said  2,000  barrels,  the  said  $300  loaned  should  belong  to 
them,  but  there  was  given  to  the  appellee  the  right  to  ter- 
minate the  contract  and  to  have  refunded  to  it  the  said 
$300,  with  interest,  as  liquidated  damages,  for  a  breach  by 
appellants  of  any  of  the  covenants  or  agreements  of  the 
contract. 

The  contract  was  lived  up  to  by  both  parties  until  some- 
time in  May,  1894,  when  some  of  the  beer  that  had  been 
delivered  was  returned  because  of  its  claimed  poor  quality 
and  unfitness  for  use  by  appellants.  An  interview  between 
the  parties  resulted,  and  disagreements  arising  between 
them  about  the  quality  of  the  beer  being  as  contracted  for 


First  District — March  Term,  1897.      269 


Hansen  v.  United  States  Brewing  Co. 


and  as  compared  with  former  deliveries,  etc.  No  further  de- 
liveries were  made  or  offered  on  the  one  hand  or  requested 
on  the  other. 

This  action  was  then  brought  by  the  appellee  to  recover 
from  appellants  the  said  three  hundred  dollars  and  interest. 

At  the  conclusion  of  the  evidence  the  court  took  the  case 
from  the  jury  by  a  peremptory  instruction  to  find  the  issues 
for  the  plaintiff,  and  to  assess  the  damages  at  the  sura  of 
$352.50,  being  three  hundred  dollars  and  accrued  interest. 

A  special  plea,  filed  by  the  appellants  to  a  special  count 
upon  the  contract,  having  been  mislaid,  it  was  stipulated 
at  the  beginning  of  the  trial  as  follows : 

"  It  is  stipulated  and  agreed  by  and  between  the  plaintiff 
and  defendants  herein  that  under  the  special  plea  hereto- 
fore filed  by  defendants  any  evidence  may  be  offered  touch- 
ing the  quality  of  the  beer  furnished  by  the  plaintiff  to  the 
defendants,  or  touching  any  warranty  or  implied  warranty 
which  may  have  been  made  by  the  plaintiff  to  defendants 
in  relation  to  the  same,  which,  under  any  circumstances, 
could  be  competent  evidence." 

It  is  probable  that  every  defense  open  to  the  appellants 
under  either  their  special  plea  or  the  above  stipulation  could 
have  been  made  under  the  general  issue. 

It  can  not  be  denied  that  the  contract  between  the  parties 
contemplated  the  delivery  by  the  appellee  of  beer  that  was 
of  a  merchantable  quality  for  the  business  of  the  appel- 
lants, and  whether  the  beer  that  was  furnished,  and  that 
appellee  was  able  and  willing  to  furnish,  was  of  such  qual- 
ity, was  a  question  of  fact  for  the  jury.  The  mere  fact 
that  a  few  barrels  of  the  beer  that  was  furnished  was 
of  a  poor  quality  and  not  fit  for  a  beverage,  would  not  have 
justified  the  appellants  in  refusing  to  accept  any  more  beer 
from  the  appellee,  but  if  it  were  of  such  unfit  character,  and 
appellee  either  could  not  or  would  not  furnish  such  as  the 
contract  called  for,  then  the  appellants  would  have  been 
justified  in  declining  to  accept  any  more  of  such  bad  qual- 
ity, and  in  so  declining  would  not  have  committed  a  breach 
of  their  contract. 

There  was  evidence  on  both  sides  that  appellee's  manager, 


270  Appellate  Courts  of  Ilukois* 

Vol.  70.]  Hansen  v.  United  States  Brewing  Co. 

Mr.  Gunderson,  said  to  appellants  at  the  interview  had  with 
them,  that  he  was  delivering  the  best  beer  he  could,  and 
that  it  was  just  as  good  then  as  it  was  when  they  first  com- 
menced to  take  it. 

The  beer  being  the  best  that  appellee  could  deliver,  it 
became  an  important  question  of  fact  whether  it  was  as 
good  as  that  formerly  delivered  and  merchantable  and  fit 
for  use  within  the  contemplation  of  the  contract.  The 
determination  of  such  questions  was  of  vital  im]K)rtance  in 
determining  whether  appellants  were  guilty  of  a  breach  of 
contract,  for  if  they  were,  a  recovery  against  them  would 
be  proper,  but  not  otherwise. 

A  prima  facie  case  of  a  breach  of  the  contract  by  the 
appellants  was  made  out  when  the  appellee  proved  that  the 
appellants  said  they  would  not  take  any  more  of  the  kind 
of  beer  that  appellee  had  been  lately  delivering  and  was 
ready  to  continue  to  deliver,  and  it  became  then  the  priv- 
ilege and  right  of  appellants  to  show,  if  they  could,  why 
the}''  so  declined,  so  as  to  avoid  the  effect  of  ^xxx^  prima 
facie  breach  on  their  part.  The  defense  appellants  sought 
to  interpose  to  the  action  was  not  by  way  of  recoupment 
for  damages,  but  was  that  they  were  not  guilty  of  the 
breach  alleged  against  them,  leaving  out  all  question  of 
damages  that  they  might  claim  because  of  the  breach  being 
by  the  appellee. 

This  latter  defense  the  appellants  attempted  repeatedly 
to  establish  by  offering  to  prove  by  several  witnesses  that 
the  beer  was  not  merchantable  and  could  not  be  used  as  a 
beverage;  that  it  was  "  rotten,"  etc.,  and  that  it  was  not  of 
the  quality  of  that  formerly  delivered. 

It  was  error  by  the  trial  court  to  refuse  to  admit  such 
testimony,  and  the  judgment  will  be  reversed  and  the  cause 
remanded. 

Mr.  Justiob  Gary  on  petition  for  rbheabing. 

"  Homer  sometimes  nods." 

The  counsel  for  the  Brewing  Company  have^  not  caught 
the  meaning  of  this  court  in  the  opinion  heretofore  filed. 
That  meaning  is  that  if  the  Brewing  Company  would  not,  at 


First  District— March  Term,  1897.       271 

South  Chicago  City  Ry.  Co.  v.  Walters. 

all,  furnish  beer  of  merchantable  quality — which  both  sides 
assumed  liad  been  furnished  before  the  contract  was  made — 
it  could  not  recover  the  $300,  even  if  the  appellants  would 
not  take  the  bad  beer. 

The  Brewing  Company  was  bound  to  deliver  beer  of  the 
quality  the  contract  contemplated. 

It  could  not  refuse  to  deliver  any  beer  (if  the  appellants 
would  take  and  pay  for  it,)  and  recover  the  $300. 

Suppose  by  the  increase  of  the  tax  on  beer,  or  by  some 
increased  cost  of  ingredients,  the  market  price  of  beer  had 
so  gone  up  that  the  Brewing  Company  concluded  not  to  sell 
any  more  to  the  appellants  at  $4  per  barrel,  could  it  have 
stopped  the  supply  and  reclaimed  the  money  they  had 
loaned  ? 

We  do  not  think  that  the  c6unsel  of  the  Brewing  Com- 
pany would  claim  that.  Now  what  is  the  diflFerence 
between  a  direct  refusal  to  furnish  any  beer,  and  a  refusal 
to  furnish  any  of  the  quality  contemplated  by  the  contract? 

The  petition  is  denied. 


South  Chicago  City  By.  Co.  r.  Christian  Walters. 

1.  iNBTEUCfnoNS— 5/iouW  be  Based  on  the  JEvidenee.— Where  there 
28  no  evidence  that  a  plaintiff  suing  for  personal  injuries  will  suffer  any 
loss  of  time  or  of  ability  to  work  in  the  future  because  of  the  injuries 
received,  it  is  improper  to  instruct  the  jury  that  they  may  allow  dam- 
ages for  future  loss  of  time  or  of  ability  to  work,  if  any,  resulting  from 
such  injuries  which  they  may  believe  the  plaintiff  will  sustain. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Superior 
Court  of  Ck)ok  County;  the  Hon.  Arthur  H.  Chetlain,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1807.  Reversed  and  remanded. 
Opinion  filed  May  24,  1807. 

OsBOBN  &  Ltnde,  attorneys  for  appellant. 
JoHH  F.  Waters,  attorney  for  appellee. 


272  Appellate  Courts  of  Illinois. 

Vol.  70.]  South  Chicago  City  Ry.  CJo.  v.  Walters. 


Mr.  Presiding  Jdsticb  Shepard  delivered  the  opinion 
OF  the  Court. 

This  action  was  brought  to  recover  damages  for  personal 
injuries  sustainefd  by  appellee  while  driving  upon  a  public 
street,  by  being  run  into  by  an  electric  car  operated  by  the 
appellant  company  in  South  Chicago,  and  resulted  in  a 
judgment  for  $3,500,  entered  upon  a  verdict  for  $5,000  in 
favor  of  appellee. 

The  case,  as  made  by  the  evidence,  was  a  close  one,  and 
demanded  the  giving  of  correct  instructions  to  the  jury. 

The  third  instruction,  given  at  the  instance  of  appellee, 
was  in  substance  like  the  fifth  instruction  approved  by  the 
court  in  H.  &  St.  J.  R.  R.  Co.  v.  Martin,  111  111.  219,  at 
page  227,  and  again  approved  in  city  of  Chicago  v.  McLean, 
133  111.  148,  except  the  following  addition :  "  and  any  future 
loss  of  time  and  inability  to  work,  if  any,  resulting  from 
such  injuries  which  the  jury  may  believe  the  plaintiff  will 
sustain;  and  may  find  for  him  such  sum  as  in  the  judgment 
of  the  jury,  under  the  evidence,  will  be  a  fair  compensation 
for  the  injuries,  if  any,  which  the  jury  may  believe  from  the 
evidence  he  has  sustained." 

There  is  but  very  little  evidence,  and  that  is  of  an  exceed- 
ingly uncertain  and  shadowy  character,  that  appellant  will 
suffer  any  loss  of  time  or  inability  to  work  in  the  future 
because  of  the  injuries  received. 

The  accident  happened  nearly  three  years  before  the 
trial  took  place,  and  at  the  trial  appellee  testified  that  six 
weeks  after  he  was  hurt  he  went  to  work  again  at  his  pre- 
vious employment,  and  had  worked  ever  since  without  the 
loss  of  a  single  day. 

In  the  face  of  such  evidence,  and  with  no  certain  evidence 
that  appellee  has  not  entirely  recovered  from  his  injuries, 
it  was  error  of  a  seriously  prejudicial  kind  to  instruct  the 
jury  that  they  might  give  the  appellee  compensation  for 
such  future  loss  of  time  and  inability  to  work  as  they 
might  believe  (without  regard  to  the  evidence)  he  will 
sustain. 

For  such  error  the  judgment  will  ba  reversed  and  the 
cause  remanded. 


First  District — March  Term,  1897.       273 

Davis  V.  Gibson. 


Samuel  Davis  r.  A.  F.  Gibson. 

1,  BuiiJ>ii7a  CoKFRAUTs— Certificate  of  Architect  Final  Except  in 
Case  of  Fraud  or  Mistake, — Where  work  on  a  building  is  done  under  the 
supervision  of  an  architect  chosen  by  the  parties,  the  owner  of  the  build- 
ing can  not  be  allowed  to  urge  defects  in  the  work.  The  decision  of  the 
architect  must  be  final  and  binding,  unless  it  be  shown  that  his  certifi- 
cate is  the  offspring  of  fraud  or  mistake. 

2.  Samb — Fraud  or  Mistake  of  Architect  in  Issuing  Certificate — How 
Shown, — Fraud  or  mistake  on  the  part  of  an  architect  in  issuing  a  certifi- 
cate to  a  building  contractor  can  not  be  shown  by  submitting  to  a  jury 
evidence  as  to  the  quality  of  the  work,  but  only  by  evidence  touching 
the  architect  himself,  to  show  that  he  did  not  exercise  his  real  judg- 
ment. 

8.  Same — Fraud  or  Mistake  of  Architect  in  Issuing  Certificate — In- 
junctions Against  Architects. — The  defendant  in  a  suit  on  an  architect*^, 
certificate,  in  order  to  impeach  such  certificate,  offered  in  evidence  the* 
record  of  a  chancery  suit  began  by  himself  against  the  architect  to  re- 
strain the  latter  from  further  acting  as  architect,  but  it  did  not  appear 
whether  such  suit  was  begun  before  or  after  the  certificate  was  issued, 
or  whether  the  holder  of  the  certificate  had  notice.  Held,  that  the  rec- 
ord was  not  admissible. 

4.  Appellate  Court  PRACTiCB--iVJ?u?  Points  Can  Not  he  Made  on 
Petition  for  Rehearing. — ^A  i>oint  not  made  in  the  original  brief  can  not 
be  raised  on  rehearing  even  on  petition  of  an  appellee. 

5.  EviDBNCE — To  Impeach  a  Witness  Should  he  Offered  Specifically, — 
It  is  not  error  for  a  court  to  refuse  to  admit  evidence  which  constitutes 
no  defense  to  an  action,  but  which  may  be  proper  for  the  purpose  of  im- 
peaching a  witness  when  such  proof  is  offered  as  a  defense  alone.  To 
make  it  admissible  it  should  be  offered  for  the  purpose  of  impeachment 
and  not  as  a  defense. 

Aasampsit,  on  an  architect's  certificate.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Frank  Baker,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion 
filed  May  ^,  1897.    Rehearing  denied.    Opinion  filed  June  14,  1897. 

CowBN  <fe  Houseman,  attorneys  for  appellant. 
William  H.  Saffobd,  attorney  for  appellee. 

Me.  Justiob  Gaby  dklivebed  the  opinion  of  the  Couet. 
Efforts  to  avoid  oertifioates  of  architects,  given  in  pursu- 

YOL.LZZ  u 


274  Appellate  Courts  of  Illinois. 

Vol.  70.]  Davis  v.  Gibson. 

ance  of  provisions  in  building  contracts,  by  submitting  the 
question  of  performance  of  the  contract  to  review  by  a  jury, 
have  been  so  often  unsuccessful^  that  counsel  could  not 
reasonably  hope  to  be  successful  in  the  present  effort  of  that 
character.  "  It  is  in  vain  to  allege  defects  in  the  ^work 
when  the  whole  work  was  done  under  the  eyes  of  architects 
chosen  by  appellant.  Their  decision  must  be  final  and  bind- 
ing, and  their  certificate  conclusive,  unless  it  be  shown  such 
certificate  is  the  offspring  of  fraud  or  mistake  connected 
with  the  issuing  or  the  obtaining  such  certificate.''  Lull  v. 
Korf,  84  III.  225. 

And  such  fraud  or  mistake  can  not  be  shown  by  submit- 
ting to  a  jury  evidence  as  to  the  quality  of  the  work,  but 
only  by  evidence  touching  the  architect  himself,  to  show 
that  he  did  not  exercise  his  real  judgment.  Arnold  v.  Bour- 
nique,  U  III.  App.  199,  144  III.  132. 

Evidence  offered  by  the  appellant,  to  show  "defective 
work  of  appellee,", was  rightly  rejected.  The  appellee  put 
in  evidence  two  architect's  certificates,  and  the  appellant 
offered  in  evidence  an  affidavit  of  the  architect  that  the  last 
one  was  issued  subject  to  a  proviso  not  named  in  it.  The 
appellant  presents  no  argument  or  authority  that  the  affi- 
davit was  admissible.  It  was  not  offered  as  impeaching  the 
architect,  for  his  testimony  denying  the  proviso  did  not  come 
in  until  afterward. 

The  court  rightly  rejected  the  affidavit. 

The  appellant  offered  in  evidence  the  record  of  a  chancery 
suit  begun  by  himself  against  the  architect  to  restrain  the 
latter  from  further  acting  as  architect. 

Whether  that  suit  was  begun  before  or  after  the  certifi- 
cates were  issued,  and  whether  the  appellee  ever  had  any 
notice  of  the  suit,  the  abstract  does  not  show.  Any  discus- 
sion of  the  question  whether,  if  the  appellee  had  notice  of 
an  injunction  against  the  architect  issuing  certificates  at 
the  time  his  were  issued,  such  certificates  would  avail  him, 
would  be  irrelevant. 

The  record  was  rightly  rejected. 

There  is  no  error  in  the  case,  and  the  judgment  is  af- 
firmed. 


First  Distbict— March  Term,  1897.       275 

North  Packing  &  Provision' Co.  v.  W.  U.  Tel.  Co. 

Mr.  Justice  Gart  on  petition  for  rehearing. 

It  now,  for  the  first  time,  comes  to  our  notice  that  the 
affidavit  of  Myers  was  offered  in  evidence  after,  as  well  as 
before,  he  testified;  but  it  was  never  offered  as  for  the  pur. 
pose  of  impeaching  him,  but  only  as  evidence  generally — 
that  is,  to  prove  the  fact  that  his  final  certificate  was  subject 
to  a  proviso  not  named  in  it« 

In  this  petition  is  the  first  allusion,  below  or  here,  by  the 
appellant  to  the  competency  of  the  affidavit  as  impeaching 
Myers. 

A  point  not  made  in  the  original  brief  can  not  be  raised 
on  rehearing,  even  on  petition  of  an  appellee.  Marthaler  v. 
Druiding,  58  IlL  App.  336,  which  cites  Gaines  v.  Williams, 
146  111.  450,  where  the  point  was  decided.  Railway  Con- 
ductors V.  Leonard,  166  111.  154. 

When  the  affidavit  was  offered,  after  Myers  had  testified, 
it  should  have  been  offered  specifically  as  impeaching  him. 
Byler  v.  Asher,  47  IIL  lOl.  Offered,  as  it  was,  generally, 
rejecting  it  was  no  error. 

The  petition  is  denied. 


North  Paeklng  and  Provision  Co.  v.  Western  Union 

Telegraph  Co. 

1.  Telegraph  Companies— Ptecc  of  Performance  of  Contract  With,  — 
Where  a  telegraph  message,  sent  from  a  place  outside  of  the  State  is 
to  be  delivered  in  this  State,  the  contract  between  the  sender  and  the 
telegraph  company  is  to  be  performed  here,  and  wiU  be  construed  in 
accordance  with  the  laws  of  this  State. 

2.  Same— Contracts  on  Back  of  Blank,— The  conditions  on  the  back 
of  a  telegraph  blank,  when  not  assented  to,  form  no  part  of  the  contract 
between  the  sender  and  the  telegraph  company. 

8.  Qamr— Contract  Exempting  Company  from  Liability  Void,— A 
condition  printed  on  a  telegraph  blank,  by  which  the  sender  of  a  mes- 
sage exonerates  the  company  from  liability,  beyond  the  amount  paid, 
for  an  incorrect  transmission  of  the  message,  is  against  public  policy 
and  void. 

4.    QAMZ—J^ect  of  Stipulation  Beguiring  Bepetition  of  Message,— A 


i 


70    275 
•89    .%J 


276  Appellate  Courts  of  Illinois. 

Vol.  70.]    North  Packing  &  Provision  Co.  v.  W.  U.  TeL  Co. 

stipulation  in  a  telegraph  blank  exempting  the  company  from  liability 
for  damages  unless  the  telegram  is  repeated  and  an  additional  charge 
paid,  does  not  protect  the  company  from  liability  for  damages  which 
such  repetition  could  have  no  tendency  to  prevent. 

5.  Negligence — Duty  of  Person  Injured  by. — ^The  law  imposes  upon 
a  person  injured  by  the  negligence  of  another  the  duty  of  making 
reasonable  efforts  to  render  that  injury  as  small  as  possible;  and  it  does 
not  permit  him  to  recover  damages  for  any  increase  of  loss  consequent 
upon  a  failure  to  perform  that  duty.  This  rule  does  not  prescribe  par- 
ticular acts,  however,  but  only  a  line  of  conduct.  The  duty  is  to  make 
reasonable  efforts  to  render  the  injury  as  small  as  possible;  what  acts 
such  efforts  should  consist  of,  depends  upon  the  circumstances  of  the 
particular  case. 

6.  Burden  op  'pROOF-'That  a  Different  lArte  of  Conduct  Would  Have 
Reduced  Damages, — A  defendant  alleging  that  a  different  line  of  con- 
duct upon  the  part  of  a  plaintiff  suing  for  damages  would  have  reduced 
the  damages,  has  the  burden  of  proving  that  proposition. 

Assampsit,  for  failure  to  deliver  a  telegram.  Appeal  from  the  Circuit 
Court  of  Cook  County ;  the  Hon.  Abner  Smith,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Reversed  and  remanded.  Opinion 
filed  May  24,  1807.    Rehearing  denied.    Opinion  filed  June  14,  1897. 

Statement  of  the  Case. 

Appellant  (plaintiff  below)  was  and  had  been  for  years 
prior  to  August  1, 1893,  engaged  in  the  business  of  slaugh- 
tering, packing  and  selling  hogs,  and  the  product  thereof,  in 
or  near  Boston.  Appellant  bought  the  live  hogs  so  used  in 
its  business,  at  the  Union  Stock  Yards  at  Chicago,  at  which 
latter  point  it  had  a  purchasing  agent  named  L.  B.  Sent, 
whose  sole  and  only  business  was  to  purchase,  pay  for  and 
ship  the  hogs  from  the  Union  Stock  Yards  to  the  appellant 
at  Boston.  The  customary  method  of  doing  business  was 
for  appellant  to  send  a  telegram  to  Kent  at  the  beginning 
of  each  week,  or  at  the  end  of  the  preceding  week,  stating 
about  the  total  number  of  cars  of  hogs  he  should  purchase 
and  ship  during  that  week,  and  thereupon  Kent  would 
make  proportionate  daily  purchases  and  shipments  to  appel- 
lant, subject  at  all  times  to  any  different  or  countermanding 
order  from  appellant.  In  accordance  with  its  usual  custom, 
appellant  sent  to  Kent  a  telegram  on  Saturday  night,  July 
2y,  1893,  instructing  him  to  ship  ninety  cars  of  hogs  during 


First  District — March  Term,  1897.       277 


North  Packing  &  Provieion  Co.  v.  W.  U.  Tel.  Co. 


the  week  following.  This  telegram  was  received  by  Kent 
on  the  following  Monday  morning,  and  thereupon  Kent 
purchased  and  shipped,  on  that  day,  twenty-one  cars  of 
hogs;  at  4:15  o'clock  in  the  afternoon  of  that  day  (Monday, 
July  31),  appellant  delivered  to  appellee,  at  its  office  in  Bos- 
ton, a  telegram  addressed  to  its  said  purchasing  agent,  at 
said  Union  Stock  Yards,  which  read  as  follows: 

"  July  31,  '93. 
L.  B.  Kent,  Union  Stock  Yards,  Chicago,  111.: 

Buy  nothing  Tuesday;  average  shipment  answer  for 
Wednesday  unless  low  day;  week's  order  unchanged. 

NoKTH  Packing  &  Provision  Co." 

At  the  time  of  delivering  said  telegram,  appellant  paid 
to  appellee  the  compensation  demanded  and  required  by 
appellee,  to  wit,  the  sum  of  sixty-two  cents,  for  the  trans- 
mission and  delivery  of  the  same,  it  being  a  day  message. 

This  telegram  was  received  at  the  branch  office  of  appel- 
lee, at  Union  Stock  Yards,  on  the  same  day  it  was  sent,  at 
4:32  p.  M.,  after  Kent  had  gone  home. 

On  Tuesday  morning,  about  six  o'clock,  Kent  called  at 
appellee's  said  branch  office  and  inquired  if  any  message  had 
been  received  for  him,  but  this  telegram  was  overlooked, 
and  Kent  was  informed  nothing  had  been  received.  Kent 
immediately  went  to  the  yards  and  commenced  buying 
hogs,  under  his  general  orders  for  the  week,  and  continued 
to  purchase  until  about  eight  o'clock  a.  m.,  when  the  tele- 
gram last  referred  to  was  delivered  to  him  from  appellee's 
office,  whereupon  Kent  at  once  quit  buying,  paid  for  the 
purchases  already  made,  and  shipped  the  same  to  appellant. 
The  purchases  so  made  by  him  were  as  follows:  496  hogs, 
weighing  141,770  pounds  (six  double  deck  car  loads);  aver- 
age price  paid,  $5.41  J  per  hundred;  total  amount  paid  for 
same,  $7,678.58.  After  receiving  said  telegram  Kent  wired 
to  appellant  the  information  that  said  telegram  had  not 
been  delivered  to  him  until  he  had  bought  six  cars  of  hogs, 
which  message  appellant  received  at  Boston  at  1:20  Au- 
gust Ist.  Afterward,  on  the  same  day,  C.  W.  Henderson, 
manager  of  appellee's  business  at  Boston,  received  from  the 


278  Appellate  Courts  of  Illinois. 

Vol.  70.]    North  Packing  &  Provision  Co.  v.  W.  U.  Tel.  Co. 

agent  of  appellee  at  Chicago  a  telegram,  which  was  in  the 
words  and  figures  following,  to  wit: 

"  Boston,  Aug.  1, 1893, 
0.  W.  Henderson,  Mgr. : 

Tour  178  yesterday,  L.  B.  Kent,  Union  Stock  Yards,  Chi- 
cago, signed  N.  P.  &  P.  Co.,  check  14  paid,  rec'd  4:20  p.  m., 
after  addressee  had  gone  home;  he  called  about  6  a.  m,  to-day 
at  our  office  in  the  yards,  but  through  an  oversight  of  a  new 
operator,  message  was  overlooked  and  was  informed  nothing 
received;  delivery  was  finally  made  at  8  a.  m.  to-day." 

A  copy  of  which  last  mentioned  telegram  was  afterward 
delivered  by  said  Henderson  to  appellant  at  its  office  in 
Boston. 

On  or  about  August  5, 1893,  appellant  presented  to  appel- 
lee the  following  claim  in  writing,  upon  the  regular  bill 
head  of  appellant,  to  wit : 

"  NoETH  Packing  and  Peovision  Co., 

Boston,  August  6,  1893. 
Sold  to  Western  Union  Tel.  Co.,  City. 

Claim  for  loss  sustained  on  account  of  not  delivering  mes- 
sage to  our  buyer,  L.  B.  Kent,  when  called  for  by  him.  The 
message  was  finally  delivered  after  six  cars  hogs  had  been 
purchased,  as  per  copies  of  telegrams  attached : 

Avg.  cost  of  6  cars,  bot.  8-1-93 $5.41i 

"      «      «      hogs,  bot.  8-2-93 4.55 

141,770  lbs.  hogs.  bot. 

Aug.  1,  1893,  at  86i 1,226.31." 

After  receiving  said  claim  and  examining  the  papers  relat- 
ing thereto  appellee  declined  to  pay  the  same,  advising 
appellant  "  that  the  responsibility  is  limited  under  the  con- 
ditions of  the  message  blank  in  cases  of  this  kind  to  the 
amount  of  telegraph  charges,  sixty-two  cents,  which  will  be 
refunded  to  you  on  application." 

Upon  the  trial  of  the  case  it  was  proved  that  the  only 
general  market  place  for  live  hogs  in  Chicago  was  at  the 
Union  Stock  Yards,  where  appellant,  through  its  said  pur- 
chasing agent,  L.  B.  Kent,  made  its  purchases;  that  the 
price  paid  for  the  said  six  carloads  of  hogs,  bought  by  him 


First  District — March  Term,  1897.       279 


North  Packing  &  Provision  Co.  v.  "W .  U.  Tel.  Co. 

on  August  1,  1893,  was  the  fair  cash  market  value  of  said 
hogs  then  and  there. 

The  hogs  bought  August  1st  were  shipped  by  Kent  to 
appellants  at  Boston,  about  12  o'clock,  in  the  usual  way. 

The  hogs  that  Kent  purchased  and  shipped  were  slaugh- 
tered and  packed  by  appellant. 

Kent  had  been  acting  as  buyer  at  the  yards  for  appellant 
for  six  years,  and  during  all  that  time  he  never  sold  a  ship- 
ment of  hop:s,  and  did  nothing  else  except  to  buy  and  ship 
them  to  appellant  at  Boston. 

Appellant  then  offered  and  attempted  to  prove  that  the 
fair  cash  market  price  of  hogs  in  the  market  at  the  Union 
Stock  Yards,  Chicago,  on  and  after  August  3, 1893,  was 
about  86i  cents  per  hundred  pounds  lower  than  it  was  on 
Tuesday,  August  1st,  when  these  six  cars  of  hogs  were  pur- 
chased, by  reason  of  the  failure  and  neglect  of  appellee  in 
delivering  the  telegram  in  question;  and  that  in  consequence 
thereof,  appellant  sustained  a  loss  and  damage  of  about 
$1,200. 

For  this  purpose  the  witness,  Kent,  was  asked,  among 
other  things,  as  follows : 

"  Q.  What  was  the  market  price  on  the  next  day,  August 
2d,  at  the  Union  Stock  Yards  ? 

Q.  "What  could  the  same  hogs  (bought  August  1st)  have 
been  bought  for  next  morning,  August  2d  i 

Q.  If  you  n^ade  any  purchases  on  the  next  day,  to  wit : 
on  August  2d,  you  will  please  state  what  purchases  you 
made,  and  at  what  prices  ? 

Q.  What  was  the  fair,  cash  market  price  of  hogs  in  the 
market  at  the  Union  Stock  Yards,  Chicago,  on  and  after 
August  2,  1893  ? 

Q.  Was  the  market  price  on  that  day,  August  1st,  higher 
or  lower  than  the  market  price  on  the  following  day,  August 
2d,  and  subsequently  ? " 

Each  and  all  of  the  foregoing  questions  were  objected  to 
by  counsel   for  appellee  as  incompetent,  irrelevant  and 


280  Appellate  Courts  of  Illinois. 

Vol.  70.]    Nortti  Packing  &  Provision  Co.  v.  W.  U.  TeL  Ck). 

immaterial,  and  the  objections  sustained  by  the  court,  and 
exceptions  by  counsel  for  appellant. 

Alter  having  proved  the  facts  hereinbefore  shown,  and 
after  having  offered  and  attempted  to  prove  the  facts  and 
others  last  above  mentioned,  appellant  rested  its  case,  and 
the  court  on  motion  of  counsel  for  appellee  found  in  favor 
of  appellee  and  rendered  judgment  against  appellant  for 
costs.  From  which  finding  and  judgment  appellant  has 
taken  this  appeal. 

Albert  H.  Vbedek  and  Mason  B.  Loomis,  attorneys  for 
appellant. 

Williams,  Holt  &  Wheeler,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

The  message  was  to  be  delivered  in  Chicago;  the  contract 
was  thus  to  be  performed  there,  and  is  to  be  construed  in 
accordance  with  the  law  of  Illinois.  Zex  loci  sohitiones. 
Leake  on  Contracts,  855. 

The  conditions  upon  the  back  of  the  message,  not  having 
been  assented  to  by  appellant,  formed  no  part  of  the  con- 
tract;  the  contention  of  appellee  that  its  liability  is  limited 
to  the  sixty-two  cents  paid  for  sending  the  message,  is  not 
the  law  in  this  State.  Tyler,  UUman  &  Co.  v.  W.  U.  Tel. 
Co.,  60  111.  424;  W.  U.  Tel.  Co.  v.  Tyler,  74  Id.  168;  W.  U. 
Tel.  Co.  V.  Harris  &  Oomstock,  19  III.  App.  347. 

A  repetition  of  the  message  would  not  have  tended  to 
prevent  the  breach  of  the  contraot  by  appellee. 

A  stipulation  as  to  repeating  a  message  does  not  protect 
the  company  from  liability  for  damages  which  repetition 
could  have  no  tendency  to  prevent.  Fleischner  v.  Pacific 
Postal  Tel.  Cable  Co.,  55  Fed.  Eep.  738;  True  v.  Interna- 
tional Tel.  Co.,  60  Me.  9. 

"  The  law  imposes  upon  a  person  injured  by  the  negli- 
gence of  another  the  duty  to  make  reasonable  efforts  to 
render  that  injury  as  small  as  possible;  and  it  does  not 


First  District— March  Term,  1897.      281 

North  Packing  &  Provision  Co.  v.  W.  U.  Tel.  Co. 

permit  him  to  recover  damages  for  any  increase  of  loss 
consequent  upon  a  failure  to  perform  that  duty."  Gray  on 
Communication  by  Telegraph,  Sec.  100. 

This  rule  does  not  prescribe  particular  acts,  but  a  line  of 
conduct.  The  duty  is  to  make  reasonable  efforts  to  render 
the  injury  as  small  as  possible;  what  acts  such  efforts  should 
consist  of  depends  upon  the  circumstances  of  the  case. 

When  appellant  obtained  knowledge  of  the  negligence, 
the  hogs  were  on  their  way  to  Boston;  it  was  too  late  to 
sell  them  otherwise  than  in  transit,  and  whether  this  was 
practicable  does  not  appear. 

When  the  hogs  arrived,  if  ever,  in  Boston,  it  is  probable 
that  appellant  could  then  have  sold  then}  in  open  market, 
and  adding  to  their  cost  the  expense  of  carriage  and  sale, 
might  have  thus  ascertained  the  loss,  if  any  there  were. 
But  was  he  bound  to  do  this  ? 

The  hogs  were  not  purchased  by  appellee  for  sale,  but 
to  be  manufactured  into  pork,  etc.  It  does  not  appear  that 
appellee  had  any  reason  for  thinking  that  by  at  once  throw- 
ing these  hogs  upon  the  Boston  market  the  loss  would  have 
been  lessened. 

What  the  expense  of  transferring  them  to  the  Boston  or 
any  other  market  and  there  selling,  or  what  the  result  of 
so  doing  would  have  been,  does  not  appear. 

The  burden  of  proving  that  a  different  line  of  conduct 
would  have  reduced  damages,  is  upon  the  negligent  party, 
appellee.  Sedgwick  on  Damages,  Vol.  1,  Sec.  227;  Shear- 
man &  Red  field  on  Negligence,  Sec.  598. 

If  appellee  had  complied  with  its  contract  to  promptly 
deliver  the  message,  no  hogs  would  have  been  bought  on 
Tuesday,  while,  as  instructed  by  the  telegram,  upon  Wednes- 
day the  average  shipment  would  have  been  purchased. 

The  average  shipment  appears  to  have  been  fifteen  car 
loads  per  day. 

The  telegram  was  delivered  so  that  but  six  car  loads  were 
purchased  on  Tuesday. 

The  damage  to  appellant  is  the  difference  in  price  between 
the  six  carloads  bought  through  the  negligence  of  appellee 
on  Tuesdaj*^  and  the  cost  of  such  property  on  Wednesday. 


282  Appellate  Courts  of  Illinois. 

- — 

Vol.  70.]    North  Packing  &  Provision  Co.  v.  W.  U.  TeL  Co. 

That  appellant  could  have  done  anything  other  than  its 
agent  did,  suspend  farther  purchases,  to  make  the  loss  less, 
does  not  appear. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded. 

Mr.  Justice  Waterman  upon  petition  fob  bbheabing. 

Counsel  for  appellee  say  that  in  the  statement  of  facts 
preceding  the  opinion  of  this  court,  there  is  an  erroneous 
statement,  viz.:  ^^  That  it  was  the  habit  of  Kent  to  make 
proportionate  daily  purchases." 

This  statement  is  found  in  appellant's  brief,  of  which 
counsel  for  appellee  in  their  brief  said :  *  ^'  The  statement  of 
the  case  in  appellant's  brief,  although  on  the  whole  correct, 
is  wanting  in  accuracy  in  one  particular  and  in  fullness." 
Counsel  for  appellee  then  go  on  to  say  that  appellant's 
brief  is  inaccurate  in  declaring  that  Kent  immediately 
sent  to  appellant  notice  that  its  telegram  had  not  been 
received  until  after  six  car  loads  of  hogs  had  been  bought. 

Counsel  for  appellee  failed  to  call  attention  to  any  other 
inaccuracy. 

Quite  naturally,  this  court  assumed  that  what  counsel  for 
each  side  declared  to  be  a  fact,  Was. 

Turning  to  the  record,  we  find  that  counsel  for  appellant 
asked  Mr.  Kent  the  following  question : 

"  Q.  When  you  got  an  order  at  the  beginning  of  the 
week,  similar  to  the  one  contained  in  the  telegram  just 
introduced  in  evidence,  for  instance,  to  buv  ninetv  cars  dur- 
ing  the  week,  how  did  you  make  those  purchases,  all  in  one 
day,  or  how  ? " 

To  which  counsel  for  appellee,  Mr.  Holt,  said :  "  I  object 
to  that  as  immaterial  and  as  not  brought  to  the  notice  of 
the  telegraph  company, 'and  therefore  not  binding  upon  it." 

The  objection  being  overruled,  Mr.  Kent  answered :  '*  A. 
I  used  my  judgment  in  purchasing,  depending  upon  the 
supply  and  market  price.  Some  days  would  be  heavier  and 
some  days  would  be  lighter;  but  the  general  custom  was  to 
use  ray  judgment  during  the  week  in  making  the  pur- 
chases." 


First  District — March  Term,  1897.       283 

North  Packing  &  Provision  Co.  v.  W.  U.  Tel.  Co. 

4  III  I  " ^-l 

Wo  think  that  the  statement  made  by  counsel  for  appel- 
lant and  appellee,  adopted  by  this  court,  and  that  made  by 
the  witness,  are  equally  inconsequential.  The  important 
fact  is,  that  owing  to  the  negligence  of  appellee,  Kent 
failed  to  receive  an  order  not  to  buy,  and  consequently 
bought  on  August  1st  at  a  higher  price  than  he  could  have 
purchased  on  August  2d. 

Appellee  insists  that  Kent  received  the  order  not  to  buy 
at  eight  o^clock  on  Tuesday,  and  that  his,  Kent's,  knowledge 
of  the  negligence  was,  at  once,  appellant's. 

There  is  no  testimony  showing  when  the  telegram  not 
to  buy  was  delivered  to  Kent,  but  it  seems  to  be  admitted 
that  this  was  done  at  eight  o'clock. 

So  too,  counsel  for  appellee  admitted  that  the  statement 
of  appellant  as  to  the  habit  of  Kent  to  make  proportionate 
daily  purchases,  was  correct,  which  admission  they  now 
retract. 

Whatever  may  be  the  fact  as  to  the  time  of  the  reception 
by  Kent  of  this  telegram,  there  is  no  evidence  that  Kent 
when  he  received  the  message  knew  that  appellee  had  been 
negligent  in  its  delivery. 

The  testimony  is  that  the  hogs  were  shipped  upon  a  train 
leaving  the  Stock  Yards  at  12  o'clock.  We  know  that  six 
car  loads  of  hogs  must  be  delivered  for  shipment  a  consid- 
erable time  before  the  train,  upon  which  they  are  carried 
actually  departs,  and  that  from  the  time  of  delivery  they 
are  "  in  transit."  That  Kent  could,  at  the  time  the  tele- 
gram was  received  by  him,  by  stopping  the  carriage,  or  in 
an}"  other  way,  have  lessened  the  loss  attendant  upon  the 
negligence  of  appellee,  does  not  appear. 

We  have  been  referred  to  no  authority  holding,  as  con- 
tended by  appellee,  that  the  reception  by  Kent,  a  mere 
accent  to  purchase,  of  the  delayed  telegram,  was  notice  to 
appellant  of  the  negligence  of  appellee;  nor  does  it  appear 
that  if  it  were,  appellant  could  have  done  anything  to  lessen 
the  loss. 

It  is  quite  true  that  if  appellant  could,  when  it  learned  of 
the  purchase,  have  at  once  sold  the  hogs  in  the  Chicago 


TO    284 1 
88    134 


284  Appellate  Courts  of  Illinois. 

Vol.  70.]  Kotz  v.  City  of  Chicago  &  L  C.  R.  R.  Co. 

market,  the  diflferenoe  between  the  purchase  and  the  net 
price  it  could  then  have  obtained,  is  the  measure  of  dam- 
ages, but  there  is  no  evidence  that  the  hogs  were  at  that 
time  in  a  place  where  they  could  have  then  been  sold  in  the 
Chicago  or  any  other  market. 
The  petition  for  rehearing  is  denied. 


Charles  Eotz  t.  City  of  Chicago  and  Illinois  Central 

R.  B*  Co* 

1.  Real  'Estate— Damages  Caused  "by  Embankments. — ^The  building 
of  an  embankment  by  a  raibroad  upon  its  own  ground  gives  no  right  of 
action  to  persons  whose  property  is  injured  thereby. 

2.  Stbss:ts— Liability  for  Changing  Grades, — Lowering  the  grade  of 
a  street  is  not  per  ae  a  wrong,  but  if  it  be  the  cause  of  injury  to  private 
property,  being  done  for  public  use,  any  damages  aUowed  therefor 
must  be  paid  by  the  public  who  use  the  street 

8.  Parties — Consequenoes  of  Misjoinder. — ^A  declaration  in  case 
against  two  defendants  for  what  can  be  a  cause  of  action  against  but 
one  of  them  is  demurrable. 

Trespass  on  the  Case,  for  injuries  to  real  estate  by  the  construction 
of  an  embankment,  and  the  lowering  of  a  street.  Appeal  from  the 
Superior  Court  of  Cook  County;  the  Hon.  William  G.  Ewinq,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Affirmed. 
Opinion  filed  June  14, 1897. 

William  E.  Hughes  and  Samuel  M.  Booth,  attorneys  for 
appellant. 

C.  V.  GwiN,  attorney  for  appellee,  the  Illinois  Central 
Eailroad  Company;  Frank  Hamlin,  attorney  for  appellee, 
the  city  of  Chicago;  James  Fentress,  of  counsel. 

As  to  the  allegations  and  averments  in  each  of  said 
additional  counts  in  regard  to  the  property  of  the  plaintiff 
having  been  damaged  by  the  elevation  of  the  tracks  and 
road-bed  of  the  Illinois  Central  Railroad  Company,  it  does 
not  appear  in  and  by  the  allegations  and  averments  in  either 


FiEisT  District — March  Term,  1897.       285 

Kotz  V.  City  of  Chicago  &  I.  C.  R.  R.  Co. 

of  said  counts  that  any  legal  right  of  the  plaintiff  was 
thereby  violated,  impaired,  or  in  anywise  interfered  with; 
nor  does  it  appear  that  the  said  defendants  or  either  of 
them  thereby  committed  any  breach  of  a  legal  duty  or 
obligation  due  and  owing  by  them  or  either  of  them  to  the 
plaintiff. 

Because  a  railroad  company  has  the  same  right  as  a 
private  individual  to  erect  proper  structures  for  railroad 
uses  on  its  own  right  of  way.  Chicago  &  Western  Indiana 
R.  Co.  V.  Cogswell,  44  111.  App.  388;  Gait  v.  Chicago  & 
North-Westem  R.  Co.,  157  III.  125;  Illinois  Central  E.  Co. 
V.  Chicago,  156  III.  98;  Cassidy  v.  Old  Colony  E.  Co.,  141 
Mass.  174;  New  Orleans,  B.,  etc.,  E.  Co.  v.  Brown,  1  So. 
Eep.  637;  Pennsylvania  R.  E.  Co.  v.  Lippincott,  1 16  Pa. 
472;  30  A.  &  E.  E.  E.  Cas.  399;  Hayden  v.  Skillin^s,  29 
A.  &  E.  E.  E.  Cas.  316;  Pierce  v.  B.  &  L.  E.  Co.,  27^A.  & 
E.  E.  E.  Cas.  363,  and  not  366;  Henry  v.  Dubucjue,  etc.,  E. 

Co.,  2  la.  288,  301 . 

Because  it  does  not  appear  from  any  fact  stated  in  either 
count  that  any  private  right  of  the  plaintiff  was  interfered 
with  or  violated  bv  the  elevation  of  the  tracks  and  the 
building  of  the  embankment,  as  would  at  common  law 
entitle  him  to  maintain  an  action  for  damages  against  a  pri- 
vate individual  building  like  structures  on  his  own  land  for 
private  use,  nor  does  it  appear  from  any  fact  stated  that  the 
plaintiff  had  or  was  entitled  to  enjoy  any  right  of  access  to 
and  from  his  lot  or  a  right  of  passage,  or  easement  of  light, 
air  or  view  over  the  right  of  way  upon  which  the  tracks 
and  road-bed  of  the  company  were  elevated  and  the  embank- 
ment constructed.  Eigney  v.  City  of  Chicago,  102  111.  64; 
Caledonian  E.  Co.  v.  Ogilvy,  2  Macq.  H.  L.  C.  229;  Metro- 
politan Board  of  Works  v.  McCarthy,  L.  E.  7  H.  L.  243;  C, 
M.  &  St.  P.  Ey.  Co.  V.  Darke,  148  111.  226;  Barrows  v.  City 
of  Sycamore,  150  III.  588;  City  of  Chicago  v.  Burcky,  158 
III.  103;  1  Sedgwick  on  Damages  (8  Ed.),  32;  Cooley  on 
Torts,  p.  63;  1  Wood  on  Nuisances  (3  Ed.),  57. 

As  to  light  and  air,  see  Keating  v.  Springer,  146  HI.  481; 
Guest  et  al.  v.  Eeynolds,  68  111.  478;  Gerber  v.  Grabel,  16 
111.  217. 


286  Appellate  Courts  of  Illinois. 

-     -   IT     1^^—^    I   I      I    M       HMM  I  I  _      _ ,  _IJ LM_I_M__II  _-_1MJJ l__LI^ _M-M-I_        _M^  ^—1— M^i^l^^M  '      ^T* 

Vol.  70.]  Kotz  v.  City  of  Chicago  &  I.  C.  R.  R.  Co. 

As  to  the  allegations  and  averments  in  each  of  said  counts 
averring  damages  to  plaintiff's  property  by  the  depression 
of  60th  street,  it  appears  by  said  counts  that,  the  Illinois 
Central  Railroad  Company  in  depressing  said  street  was 
acting  in  obedience  to  the  lawful  authority,  command  and 
direction,  and  as  an  agent  of  the  city  of  Chicago  in  depress- 
ing said  street,  and  that  the  public  use  for  which  it  was 
depressed  was  for  the  use  of  a  public  street  and  not  for  the 
use  of  the  Illinois  Central  Railroad  Company,  and  the 
plaintiff  has  no  right  of  action  therefor  against  the  defend- 
ant, the  Illinois  Central  Railroad  Company;  wherefore  the 
Illinois  Central  Railroad  Company  and  the  city  of  Chicago 
are  improperly  joined  as  parties  defendant. 

As  to  the  allegations  and  averments  in  said  counts  averring 
damages  to  plaintiff's  property  by  the  elevation  of  the  tracks 
and  road-bed  of  the  Illinois  Central  Railroad  Company,  it 
appears  that  the  public  use  for  which  said  tracks  and  road- 
bed were  elevated  were  for  the  use  of  the  Illinois  Central 
Railroad  Company,  and  not  for  the  use  of  the  city  of  Chi- 
cago as  a  municipality,  and  the  plaintiff  has  no  right  of 
action  therefor  against  the  defendant,  the  city  of  Chicago; 
wherefore  the  Illinois  Central  Railroad  Company  and  the 
city  of  Chicago  are  improperly  joined  as  parties  defendant. 
Culbertson  Packing  Co.  v.  Chicago  et  al..  Ill  111.  651;  City 
of  Olney  v.  Wharf,"!  15  111.  519;  Tinker  v.  Rockford,  137  lU. 
123;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Lenz,  35  111.  App.  330; 
Benner  v.  Atlantic  Dredging  Co.,  134  N.  Y.  156;  31  N.  £. 
328;  Interstate  Consolidated  Rapid  Transit  Co.  v.  Early,  46 
Kan.  197;  26  Pac.  422;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Arnold, 
52  Kan.  729;  35  Pac.  780;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Luening,  52  Kan.  732;  35  Pac.  801;  Webb's  Pollock  on 
Torts,  154;  Geddis  v.  Proprietors  of  Bann  Reservoir,  3  App. 
Cas.  455;  Caledonia  R.  Co.  v.  Walker's  Trustees,  7  App. 
Cas.  293;  Mercy  Docks  Trustees  v.  Gibbs,  L.^R.  1,  H.  L.  112; 
Hammersmith  R.  Co.  v.  Brandt,  L.  R.  4,  H.  L.  171;  Northern 
Transportation  Co.  v.  Chicago,  99  U.  S.  635;  Broom's  Legal 
Maxims,  11,  12;  2  Wood  on  Nuisances  (3d  Ed.),  1018,  Sec. 
751;  Addison  on  Torts,  738. 

Under  the  Constitution  of  this  State,  where  the  legislature 


FiusT  District — March  Term,  1897.       287 

Kotz  V.  City  of  Chicago  &  I.  C.  R.  R.  Co. 

has  conferred  the  power  of  eminent  domain  upon  a  munici- 
pal or  other  corporate  body  to  enable  it  to  construct  works 
for  a  particular  public  use,  the  grantee  exercising  such  power 
and  damaging  private  property  by  the  construction  of  suit- 
able works  for  the  particular  public  use  for  which  such 
grantee  is  authorized  to  construct  such  works,  and  thereby 
damage  private  proj)erty  for  the  particular  public  use,  is,  in 
the  absence  of  negligence  in  the  construction  of  such  works, 
alone  liable  to  the  owner  for  compensation  for  the  property 
so  damaged;  and  the  agents,  servants  or  employes  of  such 
grantee  acting  under  its  direction  and  personally  engaged 
in  making,  building  and  adapting  the  requisite  structures 
for  the  authorized  public  use,  are  not  liable  to  such  owner 
for  damage  to  property  resulting  from  such  structures  made 
by  them  in  a  reasonably  skillful,  prudent  manner,  free  from 
negligence,  and  no  action  can  be  maintained  by  the  owner 
of  the  property  damaged  against  such  persons  as  tort- 
feasors. Brickett  v.  Haverhill  Aqueduct  Co.,  142  Mass.  394; 
8  N.  E.  Rep.  119;  Northern  Transportation  Co.  v.  Chicago, 
99  U.  S.  635;  Benner  v.  Atlantic  Dredging  Co.,  134  N.  Y. 
156;  31  N.  E.  Eep.  328;  Webb's  Pollock  on  Torts,  154,  155; 
2  Wood  on  Nuisances  (3d  Ed.),  1018,  Sec.  751. 

Mb.  Justicb  Gary  delivered  the  opinion  of  the  Court. 

Appellant  owns  a  lot  at  the  southwest  corner  of  the 
intersection  of  Sixtieth  street  with  the  right  of  way  of  the 
Illinois  Central  Railroad,  in  Chicago.  .Before  the  track  of 
the  railroad  was  raised,  over  it  from  his  lot  he  could  receive 
the  wholesome  east  wind  from  Lake  Michigan,  and  view  the 
beauties  of  Jackson  Park.  The  track  has  been  raised  twentv 
feet  and  filled  to  that  height,  and  the  street  in  front  of  his 
lot  cut  down  four  feet;  all  to  the  injury  of  his  lot  in  value, 
and  obstruction  of  access  to  it. 

For  these  misdeeds,  committed  jointly  by  them,  he  sued 
the  city  and  the  railroad,  and  they  demurred. 

The  court  sustained  the  demurrer,  and  final  judgment 
was  entered  for  the  appellees. 

Raising  and  filling  the  railroad  track  upon  the  railroad's 
own  ground,  gives  the  appellant  no  right  of  action  against 


283  Appellate  Courts  of  Illinois. 

Vol.  70.]  Elder  v.  Chapman. 

anybody.     C.  &  W.  I.  R.  R.  v.  Cogswell,  44  111.  App.  388. 

If  the  lot  of  the  appellant  is  damaged  by  cutting  down 
the  street,  we  will  assume,  but  not  decide,  that  he  is  entitled 
to  recover  the  amount  of  that  damage  from  the  city  but  not 
from  the  railroad  any  more  than  he  would  be  to  so  recover 
from  the  laborers  who  shoveled  there. 

The  cutting  down  the  street  is  not  per  se  a  wrong,  but  if 
the  cause  of  injury  to  private  property,  though  it  be  done 
for  public  use,  the  dan^age  must  be  compensated  by  the  pub- 
lic who  use. 

The  declaration  therefore  is  against  two,  partly  for  what 
is  no  cause  of  action  against  an3'body,  and  partly  for  what 
can  be  a  cause  of  action  against  but  one  of  the  defendants. 

In  such  case  the  defendants  may  join  in  demurrer.  1  Ch. 
PI.  97,  Ed.  1883,  and  note  5. 

The  judgment  is  affirmed. 


70    288 
I78«  142 


George  W.  Elder  v.  Simcoe  Chapman. 


slOl     658 


Jm  AKft  1-  Real  Estate— W7i€>i  Party  Agreeing  to  Convey  Need  Not  Have 
Title, — A  person  who  has  made  a  contract  to  convey  land  need  not  have 
title  until  it  becomes  his  duty  to  convey,  and  all  averments  of  defects  in 
or  want  of  title  to  the  land  before  that  duty  arises,  in  pleadings  in  a  suit 
concerning  such  contract  are  useless  and  of  no  effect 

2,  Remedies — On  Agreementa  to  Convey  Real  Estate,  —A  contracted 
for  the  sale  of  certain  land  to  B  and  received  from  B  as  a  payment  on 
the  purchase  under  an  agreement  between  B  and  C,  a  receipt  for  the 
commissions  to  be  paid  to  C  for  effecting  the  sale.  B  sued  to  recover 
the  amount  of  the  receipt,  claiming  a  cancellation  of  the  agreement  by 
A.  Heldt  that  as  no  money  had  been  paid  none  could  be  recovered,  and 
that  the  remedy  was  by  suit  for  a  breach  of  the  agreement  in  which  B 
should  allege  and  prove  his  own  ability  and  readiness  to  x)erform. 

Assumpsit,  to  recover  a  partial  payment  on  a  purchase  of  land. 
Appeal  from  the  Circuit  Court  of  Cook  County;  the  Hon.  Thomas  O. 
WiNDES,  Judge,  presiding.  Heard  in  this  court  at  the  March  term, 
1897.    Affirmed.    Opinion  filed  June  14,  1897. 

Flower,  Smite  &  Musgbave,  attorneys  for  appellants. 


First  Distkict— March  Term,  1897.       289 

—     -  .  ■  -  r  1  I     ■■■■■■  I  ■■  "     I  I  I  '  I  I         r 

Elder  ▼.  Chapman. 

E.  R  Eldridoe,  W.  T.  Aldkn  and  H.  S.  Derby,  attor- 
neys for  appellee. 

Mr.  Pbesidino  Justice  Shepard  delivered  the  follow- 
ing OPINION : 

As  said  in  appellant's  brief :  "  The  simple  question  in- 
volved in  this  record  is  whether  or  not  the  contract  between 
the  plaintiff  and  the  defendant  was  void  as  a  gambling  con- 
tract, by  virtue  of  the  provisions  for  the  distribution  of  the 
lots  contained  in  the  proposed  syndicate  agreement  annexed 
thereto  and  made  a  part  thereof." 

The  contract  referred  to  recites  the  receipt  by  appellee 
from  appellant  of  $3,000,  as  part  payment  toward  the  pur- 
chase of  blocks  5  and  6  of  a  certain  subdivision  of  land  (con- 
taining ninety-six  lots),  bargained  by  appellee  to  be  sold  to 
appellant  for  $33,000,  which  said  $3,000  the  declaration 
avers  one  "  Robert  S.  Elder  advanced  and  paid  to  the  said 
Simcoe  Chapman  (appellee),  for  and  on  account  of  the 
plaintiff  (appellant),  *  *  *  by  way  of  commissions  or 
services,  or  in  some  manner  satisfactory  to  the  said  Chapman, 
which  said  $3,000  said  Simcoe  Chapman  in  and  by  said  last 
mentioned  agreement  duly  acknowledged  the  receipt  of 
from  this  plaintiff  and  for  the  payment  of  which  to  the  said 
Robert  S.  Elder,  he  then  and  there  became  duly  obligated 
to  the  said  Btobert  S.  Elder." 

The  contract  further  provided  that  appellant  should  act 
as  trustee  for  as  many  shareholders  as  there  were  lots  (96) 
in  a  syndicate  to  be  formed  for  the  purchase  of  the  lots  in 
accordance  with  the  terms  of  a  form  of  certificate  to  be  given 
to  each  shareholder,  thereto  attached  and  made  a  part  of 
the  contract;  and  that  appellee  should  accept  notes  and 
trust  deeds  made  by  future  shareholders  in  the  syndicate, 
in  part  payment  of  the  said  contract  price,  and  the  balance 
in  cash  upon  the  delivery  of  warranty  deeds. 

The  form  of  certificate  provided  for,  and  made  a  part  of 
the  contract,  first  recites  the  receipt  of  fifty  dollars  from  a 
person,  whose  name  is  left  blank  and  is  ''  called  the  sub- 
scriber," as  the  *'  first  payment  for  one  share  of  stock  in  the 

Vol  LXX  If 


*  290  Appellate  Courts  of  Illinois. 



Vol.  70.]  Elder  v.  CUapman. 

syndicate  formed  for  th6  purchase  and  development "  of  the 
said  lots,  and  then  proceed  as  follows: 

"This  receipt  is  given  on  the  following  conditions,  which 
the  said  subscriber  hereby  accepts :  The  said  fifty  ($50)  dol- 
lars payment  is  made  for  the  purpose  of  obtaining  a  contract 
with  the  owner  of  said  premises  by  (Jt.  W.  Elder,  as  trustee 
for  the  holders  of  this  and  ninety-five  (95)  other  shares  of 
stock  in  said  syndicate.  Each  share  is  of  the  value  of  four 
hundred  ($400)  dollars,  and  entitles  the  holder  thereof  to 
receive  a  good  and  sufficient  warranty  deed  and  a  mer- 
chantable abstract  to  one  lot  in  the  subdivision  of  said  prem- 
ises, upon  the  fulfillment  of  each  and  every  of  the  conditions 
herein  specified. 

Said  subscriber  agrees  to  further  pay  the  sum  of  three 
hundred  and  fifty  ($350)  dollars,  less  one  ninety-sixth  (1-96) 
part  of  the  profits  derived  by  sale  of  choice  of  lots  as  here- 
inafter provided,  in  the  manner  following  :  The  sum  of 
fifty  ($50)  dollars  when  all  of  said  shares  are  subscribed  for, 
and  the  balance  on  delivery  of  warranty  deed,  or  in  sub- 
stantially three  equal  payments,  payable  in  one,  two  and 
three  years  after  February  16,  1891.  Said  deferred  pay- 
ments to  be  secured  by  trust  deed  on  the  lot  assigned  and 
conveved  to  said  shareholder. 

The  assigning  of  lots  shall  be  under  the  direction  of  a 
board  of  directors,  who  shall  be  elected  by  the  shareholders. 
Each  share  shall  constitute  one  vote,  and  may  be  voted  by 
the  holder  of  said  share  or  his  proxy. 

Said  directors  shall  notify  each  of  said  ninety-six  (96) 
shareholders  of  the  time  and  place  for  the  assigning  of  said 
lots.  Said  notice  to  be  deposited  in  the  post  office  of  the 
city  of  Chicago,  with  postage  prepaid,  at  least  five  days 
before  the  date  of  the  meeting  for  the  assignment  of  said  lots. 

At  said  meeting  bids  will  be  received  from  said  share- 
holders for  choice  of  lots.  The  highest  bidder,  in  every 
case,  shall  immediately  select  his  choice  of  said  lots.  Bids 
will  be  received  for  choice  of  the  lots  remaining  unselected, 
until  there  appears  to  be  no  further  choice,  when  the 
remaining  shareholders  will  draw  by  lot  from  the  remain- 
ing unselected  lots. 


First  District — March  Term,  1897.       291 

Elder  v.  Chapman. 

Upon  the  selection  of  a  lot  by  a  shareholder,  said  share- 
holder shall  immediately  pay  one-fourth  of  the  amount  he 
has  bid  for  choice,  in  cash.  The  remaining  three-fourths 
of  said  amount  shall  be  paid  in  cash  upon  delivery  of  the 
warranty  deed  to  the  lot  so  selected  by  said  shareholder,  or 
may  be  divided  into  substantially  three  equal  payments, 
consolidated  with  the  deferred  payments  above  mentioned, 
and  all  be  secured  as  said  deferred  payments  first  above 
mentioned. 

No  one  shall  originally  subscribe  for  more  than  five  shares 
of  stock  in  this  syndicate,  without  the  consent  of  the  hold- 
ers of  two-thirds  of  the  shares  at  that  time  subscribed  for. 
Said  subscribers  shall  receive  a  warranty  deed  to  the  lots 
selected  by  him  upon  the  fulfillment  of  the  conditions  here- 
inbefore mentioned  ten  days  after  the  assignment  of  said 
lots  as  aforesaid.  On  failure  of  said  subscriber  to  fulfill 
each  and  every  of  the  conditions  hereinbefore  mentioned  at 
the  time  and  in  the  manner  herein  mentioned  (time  being 
the  essence  of  this  certificate),  this  share  of  stock  in  said 
syndicate  shall  be  forfeited. 

[Seal.] 

Subscriber. 
Besidence 

[Seal.] 

Trustee." 
The  record  discloses  a  plat  of  said  lots  with  a  valuation 
of  each  lot  marked  thereon,  ranging  from  $350  to  $1,550, 
and  also  a  bill  rendered  by  B.  S.  Elder  to  the  appellee  bear- 
ing the  same  date  as  said  contract,  and  receipted  by  said 
R.  S.  Elder  as  follows : 

"Telephone  2879.  CraoAoo,  February  16, 1891. 

Mb.  SiMCOB  Chapman, 

To  R  S.  Elder,  Dt. 
Beal  Estate  and  Loans, 

Room  10,  110  Dearborn  street. 
To  commission  on  sale  of  blocks  five  (5)  and  six  (6), 

in  North  Chicago  Lawn,  to  G.  W.  Elder $3,000. 

Received  payment  by  contract  to  Q.  W.  Elder  of  even 
date  herewith.  R.  S.  Elder." 


292  Appellate  Courts  of  Illinois. 

Vol.  70.]  Elder  v.  Chapman. 

The  record  also  discloses  a  contract  dated  December  1, 
1890,  between  the  appellee  and  said  R.  S.  Elder  constitut- 
ing the  latter  appellee's  sole  agent  for  the  sale  of  said  lots 
at  the  prices  named  in  said  plat,  and  providing  for  various 
other  matters  not  pertinent  to  the  issue  raised  by  this 
appeal;  and  it  also  discloses  a  contract  between  the  two 
Elders  bearing  the  same  date  as  that  between  the  parties 
to  this  suit,  concerning  the  same  property  and  providing 
that'  R.  S.  Elder  should  make  the  advance  payment  on  the 
said  contract  between  appellee  and  appellant,  and  for  a 
division  between  themselves  of  the  profits  to  be  realized 
out  of  the  syndicate  transaction,  all  of  which  may  be  said 
to  be  merely  preliminary  to  and  explanatory  of  the  circum- 
stances and  surroundings  attendant  upon  the  making  of  the 
contract  sued  upon. 

To  the  action,  the  appellant  pleaded  specially  that  the 
contract  sued  upon  was  made  in  pursuance  of  a  corrupt  and 
unlawful  agreement  to  dispose  of  lots  of  land  by  lot  and 
other  unlawful  agreements,  by  means  whereof  and  by  force 
of  the  statute,  said  contract  was^  wholly  void  in  law. 

Upon  the  trial  appellant,  to  maintain  his  action,  offered 
in  evidence  the  written  agreement  between  himself  and  the 
appellee,  and  the  other  papers  above  referred  to,  and  certain 
oral  testimony  by  witnesses,  to  each  and  all  of  which  the 
court  sustained  objections — holding  that  the  contract  sued  on 
was  forbidden  bj'  thw  statutes,  under  penalty,  and  there- 
fore void. 

The  statute,  Sec.  180  of  the  Criminal  Code  (Kurd's  Ed. 
1895),  in  force  at  the  time  the  contract  was  made,  and  now, 
is  as  follows : 

•  "  Whoever  sets  up  or  promotes  any  lottery  for  money,  or 
by  way  of  lottery  disposes  of  any  property  of  value,  real 
or  personal,  or  under  pretense  of  a  sale,  gift  or  delivery  of 
any  other  property,  or  any  right,  privilege  or  thing  what- 
ever, disposes  of,  or  offers  or  attempts  to  dispose  of  any 
real  or  personal  property  with  intent  to  make  the  disposal 
of  such  real  or  personal  property  dependent  upon  or  con- 
nected with  any  chance  by  dice,  lot,  numbers,  game,  haz- 


FiKST  District — March  Term,  1897.       293 

-* ■■ 

Elder  ▼.  Chapman. 

ard,  or  other  gambling  device,  whereby  such  chance  or 
device  is  made  an  additional  inducement  to  the  disposal  or 
sale  of  said  property  *  *  *  shall  for  each  oflfense  be 
fined  not  exceeding  $2,000." 

The  circuit  judge,  as  shown  by  the  record,  appears  to 
have  relied  upon  the  cases  of  Dunn  v.  The  People,  40  III.  465; 
Thomas  v.  The  People,  59  111.  160;  Lynch  v.  Kosenthal,  144 
Ind.  86  (42  N.  E.  E.  1103),  and  the  applicability  of  the  law 
of  those  cases  to  the  facts  of  this  record.  See  also  Seiden- 
bender  v.  Charles,  4  Serg.  &  Eawle,  151;  Fleming  v.  Bills, 
3  Oregon,  286. 

The  writer  is  inclined  to  the  opinion  that  the  scheme  con- 
stituted a  lottery  within  the  inhibition  of  the  statute,  and 
therefore,  although  with  serious  misgivings,  concurs  in  the 
reasoning  and  conclusion  of  the  learned  trial  judge,  and  also 
concurs  with  Mr.  Justice  Gary,  that  the  judgment  should  be 
affirmed  for  the  additional  reasons  stated  in  his  opinion. 

The  judgment  will  be  affirmed. 

Mr.  Justice  Gary. 

I  concur  in  affirming  the  judgment,  but  not  because  there 
is  any  lottery  in  the  case.  No  distribution  by  lot  could 
take  place  until  all  the  lots  for  which  any  shareholders 
would  give  anything  for  a  choice  among  them  were  dis- 
posed of;  then  the  syndicate  interest  in  the  remaining  lots, 
presumably  of  equal  value,  would  belong  to  the  non-bidding 
shareholders  as  tenants  in  common,  and  the  distribution  by 
lot  would  only  turn  an  undivided  interest  in  the  whole 
into  an  exclusive  interest  in  one. 

So  was  the  land  of  Canaan  divided  among  the  children  of 
Israel  (Joshua,  Ch.  14,  and  following);  and  so  sisters  divided 
at  common  law.    Co.  Litt.,  Sec.  246. 

My  reason  for  affirming  the  judgment  is  that  the  appel- 
lant never  performed  his  part  of  the  contract. 

His  declaration  avers  that  he  sold  fifty  lots. 

He  had  no  lots  to  sell;  only  shares  in  the  syndicate,  and 
until  he  had  sold  ninety-six  shares,  and  the  lots  were  dis- 
tributed, notes  and  trust  deeds  made,  and,  with  the  cash 
balance,  offered  to  the  appellee,  he  had  nothing  to  do. 


'  TO    294 
' 170s  494 


294  Appellate  Courts  of  Illinois. 

II  I  I  ■  I    ■  -      - f^ 

Vol.  70.]  Crone  v.  Orone. 

Whether  he  had  good  title  before  such  oflfer  was  imma- 
terial. 

All  averments  in  the  declaration  as  to  his  want  of  title, 
or  defects  in  it,  are  useless.  He  need  not  have  title  until  it 
should  become  his  duty  to  convey.  Foster  v.  Jared,  12  111. 
451;  Denby  v.  Graflf,  10  III.  App.  196. 

The  declaration  does  not  show  that  the  appellant  ever  paid 
the  appellee  anything.  It  shows  that  the  appellee  acknowl- 
edged the  receipt  of  $3,000,  not  that  he  received  it.  The 
evidence  shows  that  the  $3,000  was  commission  to  Robert 
S.  Elder  for  making  the  bargain  for  the  appellee  with  the 
appellant,  which  receipt  Robert  S.  gave  to  appellant  to  be 
used  as  a  payment  to  the  appellee,  and  that  Robert  S.  was 
to  have  two-thirds  of  the  profits  the  appellant  might 
make. 

Under  such  circumstances,  if  the  appellee  canceled  the 
agreement  with  the  appellant,  as  is  alleged,  the  only  action 
the  appellant  could  have  would  be  for  damages  for  breach 
of  the  agreement — refusal  to  go  on  with  and  perform  it. 
This  action  is  not  for  such  damages,  but  to  recover  the 
$3,000  as  if  it  were  money  had  and  received.  The  basis  of 
the  action  is  a  fiction  that  the  receipt  represented  money 
when  there  was  no  money. 

In  an  action  for  breach  of  the  agreement  the  appellant 
would  be  compelled  to  allege  and  prove  his  ability  and  read- 
iness to  perform  on  his  own  part. 

Whether  he  could  make  such  proof,  this  record  does  not 
show,  but  in  it  is  a  letter  from  the  appellant  indicating  that 
he  could  not. 

Mr.  Justice  Waterman. 

I  think  that  the  contract  is  not  unlawful. 


Jennie  Crone  v.  Thomas  W.  Crone. 

I.  EvTOENCE— Dectorafum*  of  Payee  of  a  Note  as  Against  an  In~ 
dorsee.—A  claimed  to  have  been  in  partnership  with  B  in  the  saloon 
business,  and  after  B*s  death  filed  a  bill  against  his  wife,  seeking  to 


First  District — March  Term,  1897.        295 

.1  ■  ■  ' 

Crone  v.  Crone. 

establish  such  claim  and  to  obtain  a  share  of  the  proceeds  of  a  sale  of  the 
saloon  made  by  B  during  his  Jast  illness.  The  evidence  showed  that 
notes  for  which  the  saloon  was  sold  were  given  to  the  wife,  and  that  she 
claimed  as  an  indorsee  and  not  as  an  h^  or  pinrchaser.  Hdd^  that 
Ks  declarations  aa  to  the  ownership  of  the  saloon  were  admissible 
against  her. 

3.  SAWB^Queations  Calling  for  Condu8ian9  Improper. — ^The  ques- 
tions, "  why  ^as  this  $1,000 16  be  paid  to  complainant;"  and  "  why  was 
oomplainant^s  name  over  the  door  of  the  saloon  ?  ^'  are  improper,  as  they 
call  for  the  conclusions  of  a  witness^ 

8.  Vabiancbs — In  Equity,  —While  the  rule  is  that  the  allegations  and 
proofs  in  proceedmgs  in  equity  must  correspond,  relief  will  not  be  denied 
because  of  mere  variance,  unless  the  case  stated  and  the  case  found  are 
so  materially  variant  as  to  prevent  a  decree  in  favor  of  the  complainant. 

Bill,  for  an  accounting.  Appeal  from  the  Superior  Court  of  Cook 
County;  the  Hon.  Elbridob  Hanbct,  Judge,  presiding.  Heard  in  this 
conrtat  the  March  term,  1897.    Aflirmed.    Opinion  filed  June  14,  1897. 

Consider  H.  Willett,  attorney  for  appellant. 

The  allegations  and  proofs  in  chancery  must  correspond; 
and  however  clear  the  evidence  may  make  a  case  for  the 
complainant,  unless  in  the  bill  there  are  averments  of  the 
shape  made  by  the  evidence,  he  can  not  have  a  decree. 
Rowen  v.  Bowies,  21  111.  17.  He  must  stand  or  fall  bv  the 
case  made  in  his  bill.  Gage  v.  Curtis,  122  111.  520.  He  can 
not  allege  one  case  and  recover  by  proof  of  another. 
Trunkey  v.  Hedstrom,  131  111.  209. 

It  is  also  the  rule  that  all  facts  must  be  clearly  and  posi- 
tively averred  in  (pleading  Primmer  v.  Patten,  32  111.  531), 
and  not  by  way  of  recital,  and  the  right,  title  and  interest 
of  the  complainant  should  be  stated  with  accuracy,  clearness 
and  precision,  and  the  proof  must  correspond  with  the  alle- 
gations. Put.  Chan.  (4th  Ed.),  46;  Fitzpatrick  v.  Beatty, 
1  Gilm.  454;  Morrison  v.  Smith,  130  111.  304, 

The  rule  that  proofs  without  corresponding  allegations 
are,  in  equity,  as  unavailing  as  allegations  without  proofs,  is 
familiar  to  every  lawyer.    Angelo  v.  Angelo,  146  111.  633. 

George  B.  Poweb  and  Asa  Q.  Reynolds,  attorneys  for 
appellee. 


296  Appellate- Courts  OF  Illinois. 

*■  ■        '  ■     ■  ■!  ■■■■■■  I      ■■  I     ■-  ■PM.M^^^  ^  ■      ■         I  ■■■-■■■  I  I— ^^^     I        ■■■  ■^^^»^  ■■■■     I  »^-^i»^^^^— ■— ^^ 

Vol.  70.1  Crone  v.  Crone. 

Mr.'  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

August  4, 1896,  Walter  S.  Crone  died  in  Chicago,  leaving 
as  his  only  heirs,  appellant,  his  widow,  appellee,  his  father, 
and  Mrs.  Knapp,  his  sister. 

Walter  Crone  had  been  a  saloon  keeper.  Appellee 
claimed  to  have  furnished  most  of  the  capital  therefor,  and 
to  have  been  a  partner  therein. 

A  bill  was  filed  by  appellee  to  establish  such  claim  and 
obtain  a  share  of  the  proceeds  for  which  the  saloon  was  by 
Walter  sold  during  his  last  illness. 

The  declarations  of  Walter  as  to  the  ownership  of  the 
saloon  were  properly  received. 

Appellant  was  not  a  purchaser.  The  notes  for  which  the 
saloon  was  8|old  were  given  to  her,  and  she  claimed  as  an 
indorsee,  not  as  an  heir  of  her  husband. 

Appellee  ^  filed  a  bill  claiming  that  the  transfer,  gift,  of 
the  notes  to  appellant,  was  a  fraudulent  transfer,  because 
the  consideration  of  the  notes  belonged  in  part,  only,  to 
Walter,  and  he  could  not  either  keep  or  give  away  what 
belonged  to  his  partner,  appellee. 

The  declarations  of  Walter  against  his  interest  were 
admissible.  Co  wen  and  Hill's  Notes  to  Phillips  on  Evi- 
dence, Vol.  1,  pages  256-  267. 

The  objections  to  the  following  questions  asked  of  appel- 
lant by  her  counsel :  "  Why  was  this  $1,000  to  be  paid  to 
complainant,"  "  and  why  complainant's  name  was  over  the 
door  of  the  saloon,"  were  properly  sustained.  Each  called 
for  the  conclusion  of  the  witness. 

While  the  rule  is  that  the  allegations  and  proofs  in  pro- 
ceedings in  chancer}^  must  correspond,  relief  will  not  be 
denied  because  of  mere  variance,  unless  the  case  stated  and 
the  case  found  are  so  materially  variant  as  to  prevent  a 
deeree  in  favor  of  the  complainant.  Lowenstein  v.  Eapp, 
67  111.  App.  678;  Barton's  Chancery  Practice,  260. 

We  find  in  this  case  no  variance  so  material  as  to  require 
the  setting  aside  of  the  decree  rendered. 

The  evidence  abundantly  sustains  the  decree,  and  it  is 
affirmed. 


First  District— March  Term,  1897.        297 


Franklin  v.  Hillsdale  Land  &  Cattle  Co. 


Lesser  Franklin  y.  Hillsdale  Land  and  Cattle  Co.  et  aL 

1.  Vendor's  Liens— (General  Principles— Waiver, ^The  lien. of  a 
vendor  of  real  estate  upon  the  premises  sold,  in  cases  where  the  purchase 
money  has  not  been  paid  and  no  security  taken  therefor,  stands  upon 
the  equitable  presumption  that  it  was  not  intended  by  the  parties  that 
one  should  part  with  and  the  other  acquire  the  premises  without  pay- 
ment of  the  purchase  price.  The  lien  exists  independent  of  contract 
and  being  secret  in  character  is  not  favored  and  may  be  easily  waived 
or  lost. 

2.  Sa^xr— Taking  Other  Security  Waives  Lien, — A  vendor's  lien  rests 
upon  the  implied  agreement  between  the  vendor  and  the  vendee  that 
the  vendor  shall  retain  a  lien  upon  the  lands  sold  as  security  for  the  pur- 
chase money;  and  the  fact  the  vendor  has  taken  other  security  rebuts 
any  such  implied  agreement  and  is  a  waiver  of  the  lien. 

8.  Same — Waiver  by  Taking  Other  Security — The  Rule  Applied. — 
Land  was  sold,  security  taken  for  part  of  the  purchase  price,  and  an 
agreement  made  that  for  the  balance  other  property  was  to  be  taken  in 
exchange.  Such  property  was  not  delivered  and  the  vendor  filed  a  bill 
for  a  lien.  Held,  that  the  circumstances  clearly  rebutted  any  intention 
to  rely  upon  an  implied  lien. 

4.  Same—  Waiver  by  Conduct. — A  traded  to  B  certain  real  estate  upon 
which  C  held  a  mortgage,  which  he  released  in  order  tiiat  B  might  get  a 
full  and  unincumbered  title,  such  as  A  had  contracted  to  deliver.  B 
had  notice  that  this  was  done  and  that  a  lien  upon  part  of  the  property 
which  he  deeded  to  A  in  exchange  for  that  received,  was  substituted  for 
the  lien  which  was  released,  yet  he  said  nothing  indicating  an  intention 
to  claim  a  vendor's  lien  upon  such  property  to  secure  the  delivery  of 
certain  horses  forming  a  further  consideration  for  the  trade.  Held,  that 
he  was  not  entitled  to  a  lien  superior  to  the  incumbrance  in  favor  of  C. 

Bill,  to  foreclose  a  vendor's  lien.  Appeal  from  the  Circuit  Court  of 
Cook  Coimty;  the  Hon.  Elbridoe  Hanect,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  June 
14, 1897. 

J.  T.  Booz,  attorney  for  appellant;  F.  M.  Bcbwash,  of 
counsel. 

The  vendor's  lien  is  recognized  in  this  State.  No  agree- 
ment is  necessary  for  its  creation.  It  is  presumed  to  exist 
until  the  contrary  is  shown  and  the  burden  of  repelling  this 
presumption  is  on  the  vendee.    Dyer  v.  Martin,  4  Scam. 


298  Appellate  Courts  of  Illinois, 

Vol.  70.]  Franklin  v.  Hillsdale  Land  &  Cattle  Ck). 

-  -  — 

146;  Trustees  v.  Wright,  11  111.  603;  McLaurie  v.  Thomas, 
39  111.  291;  28  Am.  &  Eng.  Enoy.  of  Law,  163. 

It  is  a  general  rule  in  equity  and  it  requires  a  very  strong 
case  to  make  an  exception,  that  no  man  shall  be  compelled 
to  part' with  his  title  till  he  receives  the  consideration;  and 
so  vigilant  are  the  courts  of  equity  to  protect  the  seller 
that  although  an  absolute  conveyance  be  made,  and  no 
mortgage  or  other  security  taken,  still  in  the  hands  of  the 
vendee,  or  a  subsequent  purchaser  with  notice,  the  vendor 
has  a  lien  on  the  land  for  his  money.  Dyer  v.  Martin, 
4  Scam.  146. 

As  the  vendor's  lien  is  based  upon  the  theory  that  it 
would  be  unconscionable  that  the  vendee  should  hold  the 
land  and  not  pay  for  it,  and  as  equity  r^ards  the  substance 
rather  than  the  form  of  contracts,  it  is  immaterial,  on  prin- 
ciple, what  shape  the  refusal  or  neglect  may  take.  Unless 
the  vendor  has  evinced  an  intention  by  the  acceptance  of 
other  security,  to  release  the  vendee,  it  must  be  presumed 
that  he  holds  the  land  in  trust  to  pay  what  he  has  agreed 
as  the  purchase  price,  and  in  the  case  of  conditions  annexed 
to  a  grant  and  assumed  by  the  vendee,  if  the  performance 
of  the  conditions  constituted  an  inducement  to  the  sale,  it 
is  as  much  a  part  of  the  compensation  to  be  paid  as  if  the 
promise  had  been  to  pay  the  vendor  as  part  of  the  purchase 
money,  a  sum  equal  in  amount  to  the  damages  sustained  by 
their  breach;  and  the  equitable  lien  will,  it  is  held,  attach 
to  the  land  sold,  as  well  for  such  damages  as  for  the  pur- 
chase money.  Warvelle  on  Vendors,  page  707;  Dayton, 
etc.,  Ry.  Co.  v.  Lewton,  20  Ohio  St.  401;  Bennett  v.  Ship- 
ley, 82  Mo.  448;  Elliott  v.  Plattor,  1  N.  E.  Rep.  222. 

The  lien  may  be  enforced  although  the  price  was  to  be 
paid  in  specific  articles.  Harvey  v.  Kelly,  41  Miss.  490; 
Winters  v.  Fain,  47  Ark.  490. 

So  Ions:  as  the  debt  exists  courts  "will  not  presume  that  it 
(the  lien)  has  been  surrendered  without  satisfaction,  unless 
upon  clear  and  convincing  testimony.  The  buitlen  of  proof 
of  a  waiver  rests  upon  the  party  alleging  it,  and  as  such 
waiver  is  largely  a  matter  of  intention,  if  it  be  doubtful 


First  Disteict— March  Term,  1897.       299 

Franklin  v.  Hillsdale  Land  &  Cattle  Co. 

from  all  the  facts  and  circumstances,  the  lien  will  be  pre- 
sumed to  be  still  in  force.  Cole  v.  Withers,  83  Gratt.  (Va.), 
186;  Wilson  v.  Lyon,  51  111.  166. 

^^  Generally  speaking,  the^lien  of  the  vendor  exists,  and 
the  burden  of  proof  is  on  the  purchaser  to  establish,  that  in 
the  particular  case,  it  has  been  intentionally  displaced,  or 
waived  by  consent  of  the  parties." 

^^  The  taking  of  a  security  for  the  payment  of  the  pur- 
chase money,  is  not,  of  itself,  as  it  was  in  the  Roman  law, 
a  positive  waiver  or  extinguishment  of  the  lien."  Story's 
Equity  Jurisprudence,  Sec.  1224  and  1226;  Mackreth  v. 
Symmons,  15  Ves.  342,  349;  Nairn  v.  Prowse,  6  Ves.  759, 
760;  Garson  v.  Green,  1  John.  Ch.  308;  4  Kent.  Com.  Lect. 
58,  p.  152, 153;  Lewis  v.  Caperton,  8  Gratt.  148;  Plowman  v. 
Biddle,  14  Ala.  169. 

Wilson,  Moobb  &  MoIlvaine,  attorneys  for  appellees. 

The  implied  vendor's  lien  is  a  secret  incumbrance,  which 
is  not  looked  upon  with  favor  by  the  courts  of  this  State. 

These  secret  liens  on  real  estate,  because  generally  in 
point  of  fact,  however  it  may  be  in  legal  contemplation, 
unknown  to  the  parties  to  be  affected  by  them,  are  often 
productive  of  much  injustice,  and  ought  not  to  be  encour- 
aged. The  whole  doctrine  of  implied  liens  is  of  very  ques- 
tionable policy.  As  respects  third  persons,  it  ought  not  in 
anywise  to  be  extended  or  enlarged.  Trustees  of  School 
V.  Wright,  11  111.603. 

This  species  of  incumbrance  upon  real  estate  has  never 
been  looked  on  with  favor  in  this  State.  We  ought  not, 
therefore,  to  extend  this  lien  beyond  the  requirements  of  the 
settled  principles  of  equity  law.  Whenever,  from  any  cir- 
cumstance, the  court  can  infer  that  the  vendor  did  not  rely 
upon  this  lien  for  his  security  the  courts  have  treated  it  bs 
waived.  Bichards  v.  learning,  27  111.  431;  Cowl  v.  Varnum, 
37  111.  181;  Boynton  v.  Champlin,  42  111.  57;  Doolittle  v. 
Jenkins,  55  111.  400;  Kirkham  v.  Boston,  67  111.  599;  Mo- 
shier  V.  Meek,  80  111.  80;  Mitchel  v.  Shaneberg,  149  111.  420. 

The  main  principle  that  governs  courts  of  equity  in 


300  Appellate  Courts  of  Illinois. 

Vol.  70.]  Franklin  v.  Hillsdale  Land  &  Cattle  Co. 

enforcing  the  vendor's  lien  is  the  implied  agreement  existing 
between  the  vendor  and  the  vendee,  that  the  fonner  shall 
hold  a  lien  on  the  lands  sold  for  the  payment  of  the  pur- 
chase money.  When,  therefore,  it  appears  that  the  vendor 
did  not  rely  on  the  lien,  this  does  away  with  that  implied 
agreement,  and  courts  hold  the  lien  waived.  Kirkham  v. 
Boston,  67  111.  599  (603). 

A  vendor's  lien  is  not  recognized  by  our  statute  and  is 
entirely  unknown  to  the  common  law,  but  has  been  engrafted 
upon  the  equity  jurisprudence  of  England  from  the  civil 
law.  It  is  based  upon  the  implied  agreement  between  the 
vendor  and  the  vendee  that  the  former  shall  hold  a  lien  on 
the  lands  sold  for  the  payment  of  the  purchase  money.  Ac- 
cordingly, where  the.  vendor,  parting  with  the  legal  estate, 
takes  security  other  than  the  personal  liability  of  the  pur- 
chaser for  the  payment  of  the  purchase  money,  he  thereby 
waives  his  lien.     Baker  v.  Updike,  155  111.  54:. 

The  decisions  of  the  other  courts  of  the  United  States 
hold  the  same  doctrine,  that  the  taking  of  security  upon  the 
land  sold,  or  part  of  it,  is  inconsistent  with  the  vendor's  lien, 
and  is  a  waiver  thereof.  Avery  v.  Clark,  87  Cal.  619;  Baum 
V.  Grigsby,  21  Cal.  172;  Dudley  v.  Dickson,  14  N.  J.  Eq. 
252;  Hadley  v.  Pickett,  25  Ind.  450;  Richards  v.  McPherson  • 
74  Ind.  158;  Porter  v.  The  City  of  Dubuque,  20  la.  440; 
Stewart  v.  Harrison,  52  la.  511;  Gaylord  v.  Knapp,  15  Hun, 
87;  Carrico  v.  Farmers  &  Merchants  National  Bank,  33  Md. 
235;  Briscoe  v.  Callahan,  77  Mo.  134;  Orrick  v.  Durham,  79 
Mo.  174;  Perry  on  Trusts,  Section  237;  3  Pomeroy's  Eq. 
Jur.,  Sec.  1252;  2  Jones  on  Liens,  Sec.  1080. 

Mb.  Presidino  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  appeal  is  from  a  decree  dismissing  the  amended  and 
supplemental  bill  of  the  appellant  for  want  of  equity,  and 
granting  the  relief  prayed  by  the  cross-bill  of  certain  of  the 
appellees. 

As  the  result  of  certain  contracts  entered  into  between  the 
appellee,  Hillsdale  Land  and  Cattle  Company,  of  Cheyenne, 


First  District — March  Term,  1897.       301 

Franklin  v.  Hillsdale  Land  &  Cattle  Co. 

Wyoming,  and  the  appellant,  Lesser  Franklin,  of  Cook 
county,  the  appellant  conveyed  to  the  Land  and  Cattle 
Company,  seven  hundred  lots  in  a  subdivision  known  as 
Franklin  Park,  in  the  county  of  Cook.  And  it  was  agreed 
that  for  said  lots  the  Land  and  Cattle  Company  should  con- 
vey to  appellant,  free  of  incumbrance,  twelve  hundred 
acres  part  and  parcel  of  a  certain  ranch  in  Wyoming,  and 
deliver  upon  said  ranch  a  number  of  cattle  and  horses,  and 
assign  to  appellant  certain  land  grant  contracts,  and  pay 
$75,000  in  money,  payable  in  ten  equal  annual  payments 
secured  by  mortgage  back  to  appellant  on  five  hundred  of 
the  seven  hundred  lots. 

Pending  the  closing  of  the  contract  it  developed  that  the 
ranch  was  incambered  by  trust  deed  to  Truman  B.  Hicks, 
securing  an  indebtedness  of  about  $70,000,  owed  by  the 
Land  and  Cattle  Company  to  the  First  National  Bank  of 
Cheyenne  and  one  Van  Tassell. 

To  free  the  ranch  from  such  incumbrances,  it  was 
arranged  between  the  Land  and  Cattle  Company  and  said 
bank  and  Van  Tassel,  that  a  trust  deed  by  the  Land  and 
Cattle  Company  to  Hicks  upon  the  whole  seven  hundred 
lots  should  be  substituted  for  the  trust  deeds  upon  the 
ranch,  to  secure  practically  the  same  indebtedness,  and  such 
arrangement  was  carried  out,  and  the  trust  deed  to  Hicks 
upon  the  seven  hundred  lots  was  delivered  and  recorded  at 
the  same  time  that  the  other  papers  were  exchanged  and 
recorded.  The  trust  deed  to  secure  the  $75,000,  part  pur- 
chase money,  was  a  first  lien  upon  said  five  hundred  lots, 
and  the  trust  deed  to  Hicks  was  a  second  lien  upon  them 
and  a  first  lien  upon  the  remaining  two  hundred  lots. 

There  was  afterward  a  failure  by  the  Land  and  Cattle 
Company  to  deliver  some  of  the  cattle  and  horses  contracted 
for  to  the  extent  or  value,  as  claimed,  of  $24,400;  and 
appellant's  bill  was  filed  to  foreclose  a  vendor's  lien  for  that 
Amount  as  being  unpaid  purchase  money  for  the  two  hun- 
dred lots  which  were  not  included  in  the  trust  deed  to 
secure  the  $75,000,  but  were  covered  by  the  trust  deed  to 
Hicks,  to  secure  the  bank  and  Van  Tassell  to  the  extent  of 
their  former  and  released  lien  upon  the  ranch. 


302         Appellate  Courts  of  Illinois. 

Vol.  70.]  Franklin  v.  Hillsdale  Land  &  Cattle  Co. 

The  croas-bill  was  filed  by  Hicks,  the  bank  and  Van  Tas- 
sell,  to  foreclose  the  trust  deed  to  Hicks  upon  the  same  two 
hundred  lots — the  first  trust  deed  upon  the  500  other  lots 
having  been  already  foreclosed,  as  stated  in  the  decree  at 
bar. 

There  are  numerous  reasons  why  the  Circuit  Court  rightly 
dismissed  the  appellant's  bill. 

The  lien  of  a  vendor  of  real  estate  upon  the  premises  sold, 
in  cases  where  the  purchase  money  has  not  been  paid  and  no . 
security  taken  therefor,  standa  upon  the  equitable  presump- 
tion that  it  was  not  intended  by  the  parties  that  one  should 
part  with  and  the  other  acquire  the  premises  without  pay- 
ment of  the  purchase  price.  And  the  lien^existsindependent 
of  contract,  and  being  secret  in  character  is  not  favored,  and 
may  be  easily  waived  or  lost. 

AH  authorities  hold  that  if  the  vendor  takes  security  he 
waives  his  lien.  And  this  is  so,  because  the  lien  rests  upon 
the  implied  agreement  between  the  vendor  and  the  vendee 
that  the  vendor  shall  retain  a  lien  upon  the  lands  sold  as 
security  for  the  purchase  money,  and  the  fact  that  the 
vendor  has  taken  other  security,  rebuts  any  such  implied 
agreement. 

The  authorities  in  this  State  and  elsewhere  are  numerous, 
and  without  amplification  we  will  merel}'^  cite  a  few  of 
them :  Conover  v.  Warren,  1  Gil.  498;  Trustees  v.  Wright, 
11  111.  603;  Richards  v.  Leaming,  27  III.  431;  Burger  v.  Potter, 
32  111.  66;  Kirkham  v.  Boston,  67  HI.  599;  Lehndorf  v.  Cope, 
122  111.  317;  Baker  v.  Updike,  155  111.  54;  Brown  v.  Gilman, 
4  Wheaton,  25q;  Fish  v.  Howland,  1  Paige  Ch.  20;  2  Sugden 
on  Vendors,  384,  385  (8th  Am.  Ed.,  notes  by  Perkins). 

The  contract  at  bar  was  an  entire  one,  and  did  not,  as  is 
contended,  separatel  the  two  hundred  lots  from  the  entire 
seven  hundred.  It  expressly  provided  for  security  being 
given  for  $75,000,  part  of  the  purchase  price  of  the  whole 
number  of  lots.  For  the  balance  of  the  purchase  price  other 
property  was  to  be  taken,  as  in  exchange,  clearly  rebutting 
any  intention  to  rely  upon  an  implied  lien  for  it. 

The  authorities  we  have  cited  show  that  no  lien  can  be 


First  District— March  Teem,  1897.       303 

Lane  v.  Frake. 

retained  under  6uch  circumstances.  The  parties,  by  their 
contract,  plainly  did  not  contemplate  the  reservation  of  a 
lien  by  Franklin,  and  equity  will  not  create  one  where  it  is 
manifest  from  the  contract  none  was  intended  by  either 
party.  , 

But  upon  another  ground,  no  lien  should  be  allowed  to 
appellant,  as  against  the  cross-complainants,  the  bank  and 
Van  Tassell. 

They  released  their  security  upon  the  ranch  in  order  that 
appellant  might  get  a  free  and  unincumbered  title  thereto, 
under  his  contract  with  the  Land  and  Cattle  Company  to 
have  such.  The  appellant  stood  by  and  had  notice  that  this 
was  done,  and  a  lien  upon  the  t^OO  lots  substituted  for  that 
which  they  released,  and  which  he  got  the  benefit  of.  By 
his  supplemental  agreement  with  the  Land  and  Cattle  Com- 
pany, he  gave  time  until  a  date  nearly  three  months  after 
all  transactions  in  connection  with  the  transfer  and  mort- 
gaging of  the  real  estate  took  place,  for  the  Land  and  Cattle 
Company  to  deliver  other  horses,  to  take  the  place  of  cattle 
and  horses  originally  contracted  to  be  delivered,  and  said  no 
word  indicative  of  a  retention  bv  him  of  a  vendors  lien 
upon  the  lots  which  the  cross-complainants,  with  notice  to 
him,  were  taking  a  mortgage  upon. 

He  was  then  satisfied  to  take  the  unsecured  agreement  of 
the  Land  and  Cattle  Company  to  deliver  the  horses  to  him, 
and  he  should  not  now  be  heard  in  equity  to  deny  the 
priorities  over  him  of  the  cross-complainants. 

We  omit  discussion  of  the  element  of  fraud  that  is  argued, 
for  the  reason  we  discover  no  sufficient  evidence  to  support 
the  argument. 

The  decree  was  right,  and  is  affirmed. 


James  B.  Lane  r.  James  Frake. 

1.  Dbbt— to  Eecovera  Penalty  Not  Quasi  Criminal  in  its  Nature, 
— An  action  of  debt  to  recover  the  penalty  provided  for  by  Sec.  10, 
Chap.  05,  R.  S.,  is  not  within  the  meaning  of  the  Constitution  of  this 
State  a  criminal  or  quasi  criminal  case. 


304  Appellate  Courts  of  Illinois. 

Vol.  70.]  Lane  v.  Frake. 

2.  MORTQAOES— FaiZttre  to  Edease^Sec.  10,  Chap,  96^  R,  S„  Con- 
strued.— A  mortgagee  is  not  required  by  Sec.  10,  Chap  95,  R.  S.,  to 
determine  disputed  questions  and  is  not  liable  under  that  section  for  a 
failure  or  refusal  to  release  a  mortgage  where  the  right  of  the  person 
demanding  such  release  is  a  disputed  question. 

Debt,  for  a  penalty.  Appeal  from  the  Circuit  Court  of  Cook  Coimty; 
the  Hon.  Frank  Baker,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term,  1897.    Afiftrmed.    Opmion  filed  June  14,  1897. 

Statement  of  the  Case. 

Appellant  caused  certain  undivided  premises  to  be  con- 
veyed to  one  Herbert  L.  Bailey,  by  deeds  dated  June  4, 
1891,  upon  which  premises  Bailej'^  executed  a  trust  deed  to 
appellee,  to  secure  the  payment  of  the  balance  of  the  pur- 
chase price  of  said  premises,  evidenced  by  notes  due  respect- 
ively in  one,  two  and  three  years  after  date.  Appellant 
paid  the  cash  payment  made  at  the  time  of  the  conveyance 
to  Bailoy,  and  also  paid  in  August,  1892,  the  notes  that  fell 
due  in  June  of  that  year. 

Bailey  conveyed  the  premises  to  one  Church.  Church 
subdivided  the  premises  and  conveyed  them  to  appellant, 
who  conveyed  them  to  A.  J.  Vesey,  who  executed  a  trust 
deed  to  one  Fishburn,  trustee,  on  a  part  of  the  premises. 
All  of  these  deeds  and  plut  were  tiled  for  record  the  same 
day,  October  20,  1893.  In  April,  1894,  Vesey  conveyed 
all  the  premises  to  Andrew  A.  Brock,  subject  to  all  the 
incumbrances  then  on  the  premises. 

On  June  20,  1894,  a  bill  was  filed  to  foreclose  the  Bailev 
trust  deed,  for  the  non-payment  of  the  taxes  of  the  years 
1892  and  1893,  and  the  non-payment  of  the  notes  falling  due 
June  4,  1893  and  1894.  The  trust  deed  to  appellee  pro- 
vided that  upon  payment  of  a  specified  sum,  the  trustee 
should  release  a  certain  proportion  of  the  property.  Such 
payment  having  been  made,  July  17th,  19th  and  20th,  appel- 
lant demanded  that  appellee  release  a  part  of  the  premises 
described  in  the  Bailey  trust  deed.  The  trustee  refused  to 
execute  the  release  demanded.  August  8th,  Lane  filed  his 
cross-bill  to  obtain  a  release  of  the  lots  he  had  demanded 
Frake  to  release.     On  August  20th,  Lane  brought  suit  in 


First  DistpwIct — March  Term,  1897.       305 

Lane  v.  Frake. 

debt  by  ordinary  summons  to  recover  the  penalty  provided 
for  by  Sec.  10,  Chap.  95,  Ee vised  Statutes.  Judgment  by 
default  was  rendered  against  Frake  (appellee)  for  $150,  who 
appealed  to  the  Circuit  Court  of  Cook  County.  On  trial 
in  the  Circuit  Court  judgment  was  rendered  for  appellee. 

Appellant  contends  that  the  appeal  in  this  case  should 
have  been  taken  to  the  Criminal  Court,  and  in  consequence 
of  its  being  taken  to  the  Circuit  Court,  that  Court  should 
have  dismissed  the  appeal  on  his  motion. 

This  contention  is  based  on  Sec.  26,  Art.  6,  Constitution 
of  1870,  a  part  of  which  section  reads :  "  All  recognizances 
and  appeals  taken  iii  said  county  in  criminal  and  quasi  crim- 
inal cases  shall  be  returned  and  taken  to  said  ( Criminal ) 
Court." 

Appellant  asserts  that  this  case,  commenced  before  a 
justice,  is  a  quasi  criminal  case. 

Thompson,  Delamater  &  Clark  and  William  H.  Wilkins, 
attorneys  for  appellant. 

Civil  cases  are  of  two  kinds,  those  purely  civil  and  those 
quasi  criminal.  A  quasi  criminal  case  is  not  a  criminal  case 
but  is  a  civil  case,  somewhat  resembling  in  its  nature  a  crim- 
inal case.  That  a  quasi  criminal  offense  is  not  a  criminal 
offense  as  defined  by  the  criminal  code  is,  under  the  authori- 
ties, clear.  Wiggins  v.  City,  68  111.  375;  Tully  v.  North- 
field,  6  111.  App.  358. 

Cases  of  this  character  to  recover  a  penalty,  are  quasi 
criminal  in  nature,  and  that  an  appeal  under  the  Constitu- 
tion clearly  lies  to  the  Criminal  Court  of  Cook  County.  The 
Criminal  Court  of  Cook  County,  under  the  present  Consti- 
tution has  jurisdiction  in  cases  of  quasi  criminal  nature. 
These  terms  as  used,  are  intended  to  embrace  all  offenses, 
not  crimes  or  misdemeanors,  but  in  the  nature  of  crimes, 
which  should  be  punished  not  by  indictment,  but  by  for- 
feitures and  penalties.  It  includes  all  qui  tarn  actions,  prose- 
cutions for  bastardy,  informations  in  the  nature  of  quo 
warranto,  and  suits  for  the  violation  of  ordinances.  Wiggins 
V.  City,  68  111.  875. 

TobLXX  20 


306  Appellate  Courts  of  Illinois. 

Vol.  70.]  Lane  v.  Frake. 

Actions  to  recover  statutory  penalties  are  in  their  nature 
quasi  criminal  prosecutions.  Tully  v.  Northfield,  6  111. 
App.  359;  Chicago,  R.  I.  &  P.  Ey.  Co.  v.  Calumet,  50  IlL 
App.  555. 

Chas.  S.  Cutting,  attorney  for  appellee. 

The  appeal  was  properly  taken  to  the  Circuit  Court,  as 
this  cause  is  not  a  criminal  or  quasi  criminal  case.  Webster 
V.  The  People,  U  IlL  365;  Wiggins  v.  City  of  Chicago,  68 
111.  372. 

Our  Supreme  Court  has  frequently  decided  that  where  an 
ordinance  does  not  inflict  a  fine  for  its  violation,  but  in 
terms  imposed  a  penalty,  the  suit  to  recover  the  penalty  is 
a  civil  suit,  and  an  action  of  debt  is  purely  a  civil  action. 
Town  of  Lewiston  v.  Proctor,  27  111.  414;  Town  of  Havana 
V.  Biggs,  58  111.  483;  Town  of  Pardridge  v.  Snyder,  78  111. 
519;  City  of  Chicago  V.  Enright,  27  111.  App.  568;  Knowles 
V.  Village  of  Wayne  City,  31  111.  App.  475. 

Mr.  Justice  Waterman  delivkred  the  opinion  of  the 
Court. 

The  appeal  was  properly  taken  to  the  Circuit  Court. 
The  cause  is  not,  within  the  meaning  of  the  Constitution  of 
this  State,  a  criminal  or  quasi  criminal  case.  Webster  v. 
The  People,  14  111.  365;  Wiggins  v.  City  of  Chicago,  68  111. 
372;  City  of  Chicago  v.  Enright,  27  111.  App.  659. 

This  court  does  not  aflBrm  judgments  because  of  a  failure 
on  the  part  of  appellees  to  file  briefs. 

The  statute  under  which  this  action  is  brought  is  as 
follows : 

"  If  any  mortgagee  or  trustee  in  a  deed  in  the  nature  of 
a  mortgage  *  *  *  knowing  the  same  to  be  paid,  shall 
not,  within  one  month  after  the  payment  of  the  debt  secured 
by  such  mortgage  or  trust  deed  and  request  and  tender  of 
his  reasonable  charges,  release  the  same,  he  shall,  for  every 
such  oflfense,  forfeit  and  pay  to  the  party  aggrieved  the 
sum,"  etc.    Illinois  Revised  Statutes,  Chap.  95,  Sec.  10. 

The  statute,  being  penal,  is  to  be  strictly  construed. 


First  District— March  Term,  1897.       307 

Lewinsohn  v.  Stevens. 

Appellant,  when  he  demanded  the  release,  was  not  the 
owner  of  the  premises  which  he  sought  to  have  released, 
nor  had  the  entire  mortgage  debt  been  paid. 

The  contention  of  appellant  is  that  the  trustee  should 
have  determined  that  he,  Lane,  was  entitled  to  have  a 
release  of  a  portion  of  the  mortgaged  property,  and  that  the 
portion  selected  by  appellant  was  such  portion,  both  of 
which  were  disputed  questions,  about  which  courts  have 
held  variant  opinions.  Appellant  contends  that  for  not 
having  decided  such  questions  correctly  the  trustee  must 
pay  a  penalty  of  $150. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


70    307 
78    652 

Dave  Lewinsohn  v.  Charles  A.  Stevens  et  a1.  ^®  ^ 

1.  Practice— OyecfioTW  Should  be  Specific.— To  constitute  error  in 
t'leir  overruling  objectionB  muBt  be  specific  and  direct  the  court's  atten* 
tion  to  the  very  xx>int,  to  the  end  that  an  opportunity  may  be  liad  to 
obviate  them  and  avoid  error. 

2.  SAXR-^Otjections  Should  he  Specific— The  Rule  Applied.— The 
question,  *'  What  was  the  amount  of  the  account  which  you  presented 
to  the  defendant  for  payment,"  was  objected  to  on  the  ground  that  it 
was  not  the  best  evidence.  Held,  that  the  objection  should  have  stated 
that  such  evidence  was  not  the  best  evidence  because  it  called  for  the 
contents  of  a  writing  shown  to  have  once  existed  and  which  remained 
unaccounted  for* 

8.  SA.U&— Application  of  Technical  Itul^,^A  technical  answer  to  a 
technical  claim  is  good  and  where  a  party  stands  upon  and  demands  the 
application  of  strict  rules  of  law  in  his  own  favor  equal  strictness  will 
be  observed  in  enforcing  rules  which  operate  against  him. 

4.  Appellate  Coctbt  Practice— W^a^  Abstracts  Should  Shotb.— 
Where  an  abstract  states  "Motion  for  new  trial  *  *  •  motion  denied, 
exception  by  defendant,"  without  showing  by  whom  the  motion  was 
made,  what  motion  was  denied  or  to  what  ruling  of  the  court  exception 
was  taken,  the  court  will  not  undertake  to  supply  the  omission. 

Assumpsit,  for  the  price  of  goods  sold  and  delivered.  Appeal  from 
the  Circuit  Court  of  Cook  County;  the  Hon.  Richard  S.  Tuthill,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Afi&rmed. 
Opinion  filed  June  14, 1897. 


303  Appellate  Courts  of  Illinois. 

Vol.  70.]  Lewinsohn  v.  Stevens. 

Maher  &  Gilbert  and  Egbert  F.  Kolb^  attorneys  for 
appellant. 

HoYNE,  Follansbeb  &  O'CoNNOE,  attomeys  for  appellees. 

Mr.  Presidinq  Justiok  Shepard  delivered  the  opinion 
OP  THE  Court. 

The  appellees  sued  the  appellant  for  goods,  wares  and 
merchandise  sold  and  delivered,  and  upon  an  account  stated, 
and  filed  with  their  declaration  an  affidavit  of  amount  due^ 
$384.84. 

The  appellant  pleaded  the  general  issue,  but  did  not  file 
an  affidavit  of  merits,  nor  did  he  offer  any  evidence  at  the 
trial. 

The  only  evidence  in  the  case  was  "the  testimony  of  a 
witness  for  the  appellees,  who  was  their  collector,  that  on 
numerous  occasions,  as  many  as  twenty  times,  he  called  at 
appellant's  place  of  business  to  collect  an  account  for  a  lot 
of  silks  and  draping  materials  sold  and  delivered  to  the 
appellant  by  appellees,  but  was  put  off  with  promises;  that 
he  presented  to  appellant  the  statement  of  the  account;  that 
the  amount  of  the  account  so  presented  was  $584.84,  on 
which  $200  was  paid,  but  that  he  did  not  know  whether  at 
any  of  the  times  when  he  saw  appellant  any  specific  sum  of 
money,  as  due  and  owing,  was  mentioned  between  them. 

The  witness  was  unable  to  identify  the  statement  of 
account  that  was  exhibited  to  him  when  testifying,  any. 
more  definitely  than  to  say  it  was  either  the  original  state- 
ment presented  to  the  appellant  by  him,  or  an  exact  copy 
of  it,  whereupon  such  statement,  upon  the  objection  of 
appellant,  was  refused  to  be  admitted  in  evidence. 

No  other  evidence  being  introduced  by  either  party,  the 
court  instructed  the  jury  to  find  a  verdict  for  the  appellees 
for  the  balance  of  $384.84. 

All  of  appellant's  contentions  hinge  upon  a  question  put 
to  the  witness  by  appellees'  counsel,  over  appellant's  objec- 
tion that  it  was  not  the  best  evidence,  as  follows : 

"  What  was  the  amount  of  this  account  which  you  pre- 
sented to  the  defendant  for  payment  ? " 


First  District— March  Term,  1897.       309 

Lewinsohn  v.  Stevens. 

That  question  was  put  and  ansfwered  after  the  court  had 
refused  to  admit  in  evidence  the  statement  that  the  witness 
had  failed  to  certainly  identify  as  the  one  presented. 

We  have  sometimes  said  in  cases  that  have  appeared  to 
be  wholly  based  upon  technicalities,  that  "a  technical 
answer  to  a  technical  claim  is  good."  Flaningham  v. 
Hogue,  59  111.  A  pp.  315. 

And  that  we  do  no  injustice  to  appellant  in  speaking  of 
his  defense  as  a  purely  technical  one,  is  apparent,  not  alone 
from  the  record  made  in  the  trial  court,  but  also  from  the 
closing  sentence  of  his  reply  brief  here,  where  he  says: 
^^  The  appellant  stands,  as  he  has  a  right  to  do,  on  his  strict 
legal  rights,  and  respectfully  asks  of  this  court  a  reversal  of 
the  judgment  below."  ^ 

The  objection  to  the  question,  that  it  was  "  not  the  best 
evidence,"  did  not  include  in  it,  as  in  absolute  legal  strict- 
ness it  should  have  done,  the  reason  that  it  was  not  so 
because  it  called  for  the  contents  of  a  writing  shown  to  have 
once  existed,  and  which  remained  unaccounted  for.  Had 
the  reason  been  stated,  the  objection  might  have  been  then 
and  there  cured  by  better  evidence.  The  rule  requires  that, 
to  constitute  error  in  their  overruling,  objections  must  be 
specific,  and  direct  the  court's  attention  to  the  very  point, 
to  the  end  that  an  opportunity  may  be  had  to  obviate  them 
and  avoid  error.  For  aught  that  appears,  it  was  because  of 
lack  of  such  specificness  at  the  trial  where  the  objection 
might  have  been  avoided,  that  the  court  afterward  refused 
to  set  aside  the  verdict,  and  if  so,  it  did  right.  0.  &  E.  I. 
R.  R.  Co.  V.  Holland,  122  111.  461;  James  v.  Dexter,  118  111. 
p.  656. 

Again,  the  abstract  shows :  ''  And  thereupon  the  court 
peremptorily  instructed  the  jury  to  find  a  verdict  for  the 
plaintiff  for  the  sum  of  $384.84. 

(Exception  by  the  defendant.) " 

What  was  excepted  to  ?    The  "  exception  "  does  not  state. 

And  again,  the  abstract  shows : 

"  Motion  for  new  trial  in  writing."  By  whom  was  the 
motion  made  ?    The  abstract  does  not  state.    And  follow- 


310  Appellate  Courts  op  Illinois. 

Vol.  70.]  Caiman  v.  Stuckart. 

ing  the  assio^ned  grounds  for  a  new  trial,  the  abstract 
shows : 

"  Motion  denied.    Exception  by  defendant." 

What  "motion"  was  denied?  The  abstract  does  not 
state.  To  what  ruling  of  the  court  was  the  "exception" 
taken?  The  abstract  does  not  state.  Schanzenlmch  v. 
Brough,  58  III.  App.  526;  Baker  v.  Newbury,  63  111.  App. 
405;  Gibler  v.  City  of  Mattoon,  167  III.  18. 

Probably,  we  might  infer  with  reasonable  accuracy  what 
is  meant,  but  abstracts  which  are  presumed  to  present  every- 
thing upon  which  the  party  appealing  relies,  may  not 
leave  to  inference  that  which  certainty  demands  should  be 
expressed. 

Other  imperfections  in  the  abstract  might  be  pointed  out, 
but  such  as  have  been  mentioned  are  in  connection  with  the 
vital  points  of  the  case.  If  no  motion  by  appellant  for  a 
new  trial  were  made,  or  if  made  bv  him  the  court  overruled 
the  same,  and  he  did  not  take  an  exception  to  that  action 
by  the  court,  the  appellant  can  not  complain  upon  appeal. 

This  is  the  rigorous  application  of  strict  rules  of  law,  as 
we  said  in  the  Flaningham  case,  supra,  but  the  appellant 
says  he  stands  upon  such  and  demands  their  application  in 
his  favor.  If  they  have  discomfitted  him  in  his  endeavor 
to  get  rid  of  a  judgment  which  he  has  nowhere  so  much  as 
attempted  to  deny  the  righteousness  of,  he  ought  not  to 
complain. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


Emil  Caiman,  Gastav  B.  Caiman  and  Charles  Caiman  v. 

Henry  Stuckart. 

1.  Equity— i?eZie/  Against  Judgments, — ^The  failure  of  persons  agree- 
ing  to  defend  a  suit  to  keep  their  agreement  gives  rise  to  no  equity  in 
favor  of  the  defendant  in  sucli  suit,  the  neglect  of  such  persons  is  the 
neglect  of  the  defendant,  and  a  court  of  equity  will  not  interfere  with 
the  collection  of  a  judgment  against  him. 

2.  Samb— fV>M7cr  Over  Erroneous  Judgments,— A  court  of  equity  wiU 


f 


First  District — M:arch  Term,  1897.       311 

Caiman  ▼.  Stuckart. 


not  set  aside  an  erroneous  judgment  which  is  not  void.    It  is  not  the 
business  of  a  court  of  equity  to  correct  errore  of  courts  of  law. 

S.  FRAXn>'-'How  Shoum. — Fraud  must  be  shown  by  the  allegation  of 
facts  from  which  it  is  a  necessary  or  probable  inference;  it  can  not  be 
made  out  by  the  profuse  use  of  adjectives,  characterizing  acts  alleged  to 
have  been  done,  as  fraudulently  done. 

Bill,  to  enjoin  the  collection  of  a  judgment  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the.  Hon.  John  Babton  Payne,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1897.  Reversed  and 
remanded  with  directions.  Mr.  Justice  Waterman  dissenting.  Opinion 
filed  June  14,  1897. 

WoLSELET  &  Heath,  attorneys  for  appellants. 

Before  a  bill  can  be  maintained  to  set  aside  a  judgment 
to  which  there  was  a  good  defense  at  law,  known  to  the  de- 
fendant at  the  time  it  was  rendered,  it  must  clearly  appear 
that  the  enforcement  of  the  judgment  would  be  unjust  and 
against  conscience,  and  moreover,  that  the  defendant  was 
prevented  from  making  his  defense  to  the  action  in  which 
the  judgment  was  obtained  by  fraud,  mistake,  accident  or 
surprise  without  lachesj  negligence  or  default  on  his  part  or 
those  representing  him.  Clark  v.  Ewing  et  al.,  93  111.  572; 
Bay  et  al.  v.  Cook,  31  111.  336;  Vennum  v.  Davis  et  al.,  35 
111.  568;  Kern  v.  Strausberger  et  al.,  71  111.  413;  Allen  v. 
Smith  et  al.,  72  111.  331;  Weaver  v.  Poyer  et  al.,  70  111.  567; 
Smith  et  al.  v.  Powell  et  al.,  50  111.  21;  Walker  v.  Shreveet 
aL,  87  IlL  474. 

GoLDziBR  &  RoDGEBs,  attomeys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellee  filed  this  bill  in  chancer^'',  from  which  it 
appears  that  Januarj'  2,  1896,  he  was  summoned  as  a  gar- 
nishee in  a  suit  by  attachment  commenced  by  the  appellants 
against  one  Pohle,  to  whom  he  owed  $28.  December  28, 
1895,  the  appellee  had  been  notified  by  Wolf,  of  the  firm  of 
O'Connor  &  Wolf,  attorneys,  that  Wolf  had  purch«'ised  the 
claim  of  Pohle  against  the  appellee. 

Soon  after  he  was  summoned,  the  appellee  received  a 


312  Appellate  Courts  of  Illinois. 

Vol.  10.]  Caltnan  v.  Stuckart. 

letter  from  tbe  attorneys  that  they  would  defend  him  with- 
out expense  to  him.  He  answered  that  he  was  ready^  to 
pay  the  amount  he  owed  when  the  court  should  decide 
to  whom,  and  rested  in  the  belief  that  the  attorneys  would 
take  care  of  him. 

March  24,  1896,  he  was  served  with  a  ad.  fa.  on  a  condi- 
tional judgment  entered  against  him  March  5,  1896,  for 
$375.30,  but  he  still  rested  in  the  belief  that  the  attorneys 
would  take  care  of  him.  April  18,  1896,  the  conditional 
judgment  was  made  absolute,  and  June  1,  1896,  an  exe- 
cution issued  thereon,  which  the  sheriff  was  about,  at  the 
time  the  bill  was  filed,  to  levy  upon  the  property  of  the 
appellee. 

The  facts  already  stated  present  no  excuse  for  the  neglect 
of  the  appellee  to  attend  to  the  process  against  him.  If 
the  relation  of  attornev  and  client  was  created  between 
O'Connor  &  Wolf  and  the  appellee,  their  neglect  was  his 
neglect.     Clark  v.  Ewing,  93  111.  572. 

If  such  relation  was  not  created,  but  only  some  sort  of 
contract  made  between  him  and  them,  their  failure  to  per- 
form it  gave  rise  to  no  equity  against  the  appellants. 

Having  notice  March  2i,  1 896,  that  a  conditional  judg- 
ment had  been  entered  against  him  for  more  than  a  dozen 
times  as  much  as  he  owed,  his  trust  in  the  diligence  of  the 
attorneys  to  take  care  of  him,  was  wholly  unwarranted,  and 
his  own  inattention  to  his  interest  was  great  negligence. 
Mellendy  v.  Austin,  69  111.  15. 

An  amendment  of  the  bill  states  that  the  wrong  done  to 
the  appellee  "  was  the  result  of  a  fraudulent  collusion  be- 
tween Wolf  and  the  appellants  *^  for  the  benefit  of  Wolf, 
and  describes  how  he  obtained  the  benefit;  and  both  the 
original  bill  and  amendment  state  divers  irregularities  in  the 
proceedings  by  which  the  judgment  was  obtained. 

Such  irregularities  give  the  appellee  no  standing  in 
equity.  Gibbons  v.  Bressler,  61  111.  130.  If  they  were  such 
as  to  affect  the  jurisdiction  of  the  court,  he  had  his  remedy 
by  writ  of  error.  Dennison  v.  Taylor,  142  111.  45;  Dennison 
v!  Bluraenthal,  37  111.  App.  385. 

As  to  the  charge  of  fraudulent  collusion,  no  facts  are 


First  District — March  Term,  1897.       313 

Washington  Ice  Co.  v.  Bradley. 

-■  ___■  ■■■■  ■___ l_  I        _■    M         ■    ■    ■  I  III  ■  --- -* 

alleged.  "  Fraud  must  be  shown  by  the  allegation  of  facts 
from  which  it  is  the  necessary  or  probable  inference.  Fraud 
can  not  be  made  out  by  the  profuse  interpolation  of  adjec- 
tives, characterizing  acts  alleged  to  be  done  as  fraudulently 
done."     Fowler  v.  Loomis,  37  111.  App.  363. 

A  demurrer  to  the  bill  was  overruled  and  a  decree  entered 
that  the  appellee  pay  the  appellants  $28,  and  they  enjoined 
from  enforcing  the  judgment. 

This  is  error.  The  decree  is  reversed  and  the  cause  re- 
manded, with  directions  to  the  Superior  Court  to  dissolve 
the  injunction  and  dismiss  the  bill  at  the  costs  of  the 
appellee.    Reversed  and  remanded  with  directions, 

Mb.  Justice  Waterman  dissents. 


Washington  Ice  Co.  t.  Frank  E.  Bradley^  Adm'r^  etc. 

1.  Verdicts — Upon  Conflicting  Evidence, — Under  the  law  it  is  the 
province  of  a  jury  to  determine  questions  of  fact  upon  conflicting  evi- 
dence, and  there  being  positive  evidence  tending  to  support  the  alle- 
gations of  the  declaration  in  this  case,  the  verdict  must  stand. 

2.  iNSTRUcrriONS— As  to  Issues  not  Raised  by  the  Pleadings  nor  Fol- 
lowing from  the  Evidence, — The  trial  court  refused  to  charge  the  jury, 
'*  that  if  you  believe  from  the  evidence  that  the  defendant's  ice  wagon 
did  not  run  over  the  deceased,  you  will  find  the  defendant  not  guilty 
♦  ♦  •  ."  Held,  that  the  instruction  was  properly  refused,  as  it 
presented  to  the  jury  an  issue  not  raised  by  the  pleadings,  and  not  neces- 
sarily following  from  the  evidence. 

3.  Evidence— Admisnon  o/,  in  Rebuttal  Rests  in  the  Discretion  of 
the  Trial  Judge. — The  admission  of  evidence  in  rebuttal  is  always  a 
matter  resting  in  the  discretion  of  the  trial  judge,  and  is  not  subject  to 
review  except  in  cases  of  gross  abuse. 

Trespass  on  the  Case.— Death  from  negligent  act.  Appeal  from  the 
Circuit  Court  of  Cook  County;  the  Hon.  Abner  Smith,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
June  14,  1897. 

Statement  of  the  Case. 

This  was  an  action  brought  by  appellee  as  administrator 
of  the  estate  of  Mary  Moriarity,  deceased,  to  recover  dam- 
ages resulting  from  the  death  of  said  deceased,  caused,  it 


70    313) 
171 s  255 


314  Appellate  Courts  op  Illinois. 

Vol.  70.]  Washington  Ice  Co.  v.  Bradley. 

was  alleofed,  by  injuries  received  from  one  of  the  appellant's 
ice  wagons  in  the  month  of  November,  1893. 

On  November  11,  1893,  the  servants  of  the  ice  company 
delivering  ice  in  the  neighborhood  of  Cottage  Grove  avenue 
and  32d  street,  in  the  city  of  Chicago,  left  the  team  headed 
north  in  front  of  No.  3210  Cottage  Grove  avenue  and 
carried  ice  into  a  saloon  at  that  number,  leaving  the  horses 
unhitched.  There  was  a  city  ordinance  then  in  force  pro- 
hibiting the  leaving  of  horses  attached  to  wagons  in  any 
street  of  the  city  "  without  securely  fastening  "  such  horses. 
The  ordinance  did  not  undertake  to  define  the  meaning  of 
the  words  used,  or  say  what  should  constitute  a  secure  fasten- 
ing. Another  section,  however,  provided  that  the  owners 
of  each  building  in  front  of  which  there  should  be  any  side- 
walk should  provide  and  securely  fasten  in  the  sidewalk  an 
iron  ring  of  a  specified  diameter  and  thickness,  or  erect  a 
suitable  post  for  hitching,  in  every  twenty-five  feet  of  such 
sidewalk. 

There  were  no  iron  rings  or  posts  in  the  sidewalk  at  or 
near  the  point  where  the  team  was  left,  or  between  it  and 
the  corner.  On  leaving  the  wagon,  there  being  no  rings  or 
hitching  posts  in  sight,  the  driver  and  his  helper  hooked  up 
the  lines  to  two  rings  in  the  back  of  the  wagon  so  as  to 
keep  the  horses  from  going  ahead.  When  lines  are  hooked 
up  in  this  way  the  horses  can  pull  the  wagon  only  by  the 
reins.  This  was  the  customary  way  of  hooking  them  up 
and  was  the  only  means  provided  by  the  ice  company  for 
*'  securely  fastening  "  the  horses.  During  the  few  niinutes 
while  the  men  were  delivering  the  ice  at  number  3210,  the 
horses  started  up  and  went  north  on  Cottage  Grove  avenue, 
turning  west  at  the  corner  on  32d  street.  The  deceased 
had  crossed  32d  street  and  was  about  to  step  onto  the 
sidewalk  at  the  corner,  when,  as  is  claimed  by  appellee  but 
denied  by  appellant,  she  was  struck  by  the  team  and  injured. 
She  died  the  same  day.  She  was  between  forty-four  and 
forty-five  years  of  age,  and  left  a  husband,  but  no  children, 
surviving  her. 

Ullmann  &  Hacker,  attorneys  for  appellant. 


First  District — March  Term,  1897.       315 

WashiDgton  Ice  Co.  v.  Bradley. 

Wm.  Elmore  Foster,  attorney  for  appellee. 

The  admission  or  exclusion  of  evidence  not  strictly  in 
rebuttal  is  a  matter  resting  in  the  discretion  of  the  trial 
court,  the  exercise  of  which  discretion  is  not  subject  to 
review  except  in  cases  of  gross  abuse. 

Thompson  on  Trials,  Sec  346,  p.  309,  citing  among 
others :  Farmers'  M.  F.  Ins.  Co.  v.  Bair,  87  Pa.  St.  124; 
Marshall  v.  Davies,  78  N.  Y.  414;  Huntsman  v.  Nichols, 
116  Mass.  521;  Dozier  v.  Jerman,  30  Mo.  216;  Walker  v. 
Walker,  14  Ga.  242. 

The  general  rule  is  that,  after  the  evidence  of  the  de- 
fendant is  closed,  the  plaintiff  will  be  confined  to  rebutting 
evidence  and  will  not  be  allowed  to  produce  original  or 
direct  evidence  on  his  part;  but  the  rule  is  not  inflexible 
and  the  court  may,  in  its  discretion,  allow  or  refuse  to 
receive  such  evidence.  McGowan  v.  0.  &  N.  W.  Ey.  Co.,  64 
N.  W.  Kep.  893;  Abbott's  Trial  Brief,  42;  Thomp.  Trials, 
Sees.  346, 348;  Winchell  v.  Winchell,  100  N.  T.  159;  Anker- 
smit  V.  Tuch,  114  N.  Y.  54. 

Mr.  Presidino  Justice  Shepard  delivered  the  opinion 
OF  the  Court. 

In  an  action  brought  by  the  administrator  of  the  estate 
of  the  deceased  woman,  to  recover  damages  for  her  death, 
a  verdict  and  judgment  for  $5,000  was  recovered. 

Upon  this  appeal  no  question  is  made  as  to  the  damages 
being  excessive.  The  only  errors  that  are  argued,  are  that 
the  verdict  was  against  the  weight  of  the  evidence;  that  a 
certain  instruction  asked  by  appellant  was  refused,  and  that 
rebuttal  evidence  was  allowed  as  to  marks  upon  the  body 
of  the  deceased. 

We  can  not,  with  due  regard  to  the  law  that  it  is  the 
province  of  a  jury  to  determine  questions  of  fact  upon  con- 
flicting evidence,  yield  to  the  plausible  argument  of  appel- 
lant's counsel  that  the  woman's  death  was  due  to  natural 
causes,  and  not  to  the  application  of  force,  as  charged  in  the 
declaration.  We  might  conjecture  that  her  death  was  the 
result  of  some  sudden  attack  with  which  appellant  had 
nothing  to  do,  but  it  would  be  mere  surmise,  and  there  being 


31G  Appellate  Coubts  op  Illinois. 

Vol.  70.]  Washington  Ice  Co.  v.  Bradley. 

positive  evidence  tending  to  support  the  action  as  alleged, 
we  should  not  interfere  with  the  verdict.  The  circumstance 
that  the  witnesses  for  appellee  varied  in  their  versions  of 
the  occurrence  tends  to  corroborate  their  truthfulness,  rather 
than  to  discredit  them. 

It  is  common  observation  that  eye  witnesses  to  the 
whole  or  a  part  of  an  incident  that  occurs  unexpectedly  and 
is  in  a  considerable  degree  horrifying  in  its  nature,  testify 
to  or  otherwise  relate  what  they  saw,  at  considerable  vari- 
ance with  one-  another.  And  yet  it  has  never  been  held 
that  because  they  did  so,  they  were  unreliable  or  partial 
persons. 

The  second  argued  error  is,  that  the  court  refused  to 
charge  the  jury,  "  that  if  they  believe  from  the  evidence  that 
the  defendant's  ice  wagon  did  not  run  over  the  deceased,  they 
will  find  the  defendant  not  guilty,  and  in  this  connection 
they  are  also  instructed  that  the  burden  of  proof  is  upon  the 
plaintiff  to  show  by  a  preponderance  of  evidence  that  her 
death  was  the  result  of  injuries  caused  by  her  being  run 
over  by  the  defendant's  wagon." 

The  instruction  was  properly  refused.  It  presented  to 
the  jury  an  issue  not  raised  by  the  pleadings,  and  not 
necessarily  following  from  the  evidence. 

There  does  not  appear  to  have  been,  either  in  the  original 
or  amended  declaration,  any  count  that  the  wagon  ran 
over  the  deceased. 

The  first  one  of  the  two  original  counts,  abstracted  by 
appellee  charged  that :  ^^  The  said  horses,  hauling  the  said 
wagon,  as  aforesaid  *  *  *  struck  with  great  force  and 
violence  *  *  *  upon  and  against  the  said  Mary  Moriar- 
ity,"  etc. 

And  the  second  charged  that :  "  Said  horses,  attached 
to  said  wagon  *  *  *  struck  upon  and  against  the  said 
Mary  Moriarity,"  etc. 

The  amended  declaration,  as  abstracted  by  appellant, 
charged  that:  "The  horses  *  *  *  started  up,  and 
said  wagon  struck  upon  and  against  the  said  Mary  Moriar- 
ity," etc. 


First  District— March  Term,  1897.       317 


Washington  Ice  Co.  v.  Bradley. 


But  such  do  not  amount  to  a  charge  that  she  was  run 
over  by  the  wagon. 

There  was  evidence  tending  to  show  that  the  deceased 
was  first  struck  by  the  horses,  and  that  while  in  a  stooping 
position  from  such  collision,  she  was  struck  by  a  portion  of 
the  front  wheel  of  the  wagon,  and  knocked  down  and  run 
over. 

The  counts  of  the  declaration  not  alleging  that  the  wagon 
ran  over  the  deceased,  it  was  not  necessary  to  a  recovery  to 
prove  that  it  did,  nor  was  it  necessary  that  the  jury  should 
look  only  to  the  evidence  that  it  did  do  so,  in  order  to  de- 
termine whether  the  appellant  was  guilty  as  charged  in  the 
declaration. 

It  was  enough  if  the  jury  believed,  from  all  the  evidence, 
that  the  woman's  death  was  the  result  of  being  struck  by 
either  the  horses  or  the  wagon.  One  of  appellant's  wit- 
nesses testified  that  when  he  first  looked,  after  hearing  her 
scream,  her  leg  was  in  a  hole  in  the  pavement  between 
the  team  and  the  sidewalk, '  about  midway  between  the 
front  and  hind  wheel  of  the  wagon,  and  that  the  wagon 
did  not  run  over  her.  The  clear  inference  from  that  testi- 
mony is  that  before  the  witness  saw  the  woman  the  horses 
and  front  part  of  the  wagon  had  passed  her,  and  it  was  left 
to  the  jury,  if  they  so  believed,  from  all  the  evidence, 
including  the  appearance  of  the  dead  woman's  body,  to  find 
that  she  had  been  struck  by  either  the  horses  or  the  front 
wheel,  and  not  run  over  by  the  wagon.  They  were  at  lib- 
erty to  find  from  a  part  of  the  evidence  that  the  deceased 
was  struck  by  either  the  horses  or  the  wagon,  and  from 
other  evidence  that  she  was  not  run  over,  and  that  her  death 
was  occasioned  as  charged. 

The  third  and  last  argued  error  is  the  admission  of  evi- 
dence in  rebuttal  that  was  properly  a  part  of  the  main  case. 
The  admission  of  evidence  in  rebuttal  is  always  a  matter 
resting  in  the  discretion  of  the  trial  judge,  and  is  not  sub- 
ject to  review  except  in  cases  of  gross  abuse.  Thompson 
on  Trials,  Sec.  346;  McGowan  v.  C.  &  N.  W.  Ry.  Co.,  91 
Wis.  147.    The  judgment  will  be  aflBrmed. 


318  Appellate  Courts  of  Illinois. 

Vol.  70.]  Oonlau  v.  Mead. 


i73ti3{  James  Conlan  t.  Maarice  A.  Mead  et  aL 


1.  YiSRDicrs—UpO'i  Conflicting Eoidence  and  Not  Warranted  hy  the 
Evidence. — ^The  court  holds  that  the  verdict  of  the  jury  on  conflicting 
evidence  on  the  question  of  liability  ought  not  to  be  disturbed,  but  that 
upon  the  attachment  issue  there  was  no  evidence  warranting  the  find- 
ing of  the  jury  and  that  it  must  be  set  aside. 

2.  BkiESS—What  They  Should  Contain, — Counsel  for  appellants 
should  in  all  cases  precede  their  argument  by  a  statement  of  facts,  with 
abundant  references,  showing  at  what  place  in  the  abstt'act  such  facts 
appear. 

« 

Attachment,  against  an  alleged  partnership.  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the  Hon.  Jonas  Hutchinson,  Judge,  pre- 
siding. Heard  in  this  court  at  the  March  term,  1897.  Judgment  in 
assumpsit  affirmed.  Finding  in  attachment  and  special  execution  set 
aside.    Opinion  filed  June  14,  1897. 

Thomas  J.  Walsh,  attorney  for  appellant. 
Edgar  L.  Jaynb,  attorney  for  appellees. 

Mr.  Justice  Watbrman  dblivbbbd  the  opikion  op  the 
Court. 

This  was  an  action  of  assumpsit  begun  by  suing  out  an 
attachment  against  appellant  and  William  J.  Watson,  as 
partners. 

Appellant  denied  that  he  had  been  or  was  a  partner  as 
charged,  and  also  denied  the  allegations  of  the  affidavit  upon 
which  the  attachment  was  predicated. 

The  evidence  as  to  the  partnership  was  conflicting,  and 
such  that  we  do  not  feel  that  we  ought  to  reverse  the  find- 
ing of  the  court  below,  holding  appellant  liable  for  the  debt 
of  W.  J.  Watson  &  Co. 

Upon  the  attachment  issue  there  was  no  evidence  war- 
ranting the  conclusion  of  the  court  and  jury  thereon. 

Appellant  testified  directly  and  positively  in  denial  of  the 
allegations  of  the  attachment  writ.  The  objections  made 
by  appellant  to  certain  instructions  are,  in  view  of  the 
special  findings  of  the  jury,  not  well  taken. 


First  District — March  Term,  1897.       319 

Barrow  v.  Sligh. 

The  judgment  of  the  Superior  Court  against  the  defend- 
ant for  the  sum  of  $3,281.60  is  affirmed.  The  finding  of  the 
court  upon  the  issue  in  attachment,  and  the  award  of  special 
execution  against  the  property  attached,  are  set  aside. 

Appellant  will  recover  judgment  in  this  court  for  one- 
half  of  the  amount  that  his  costs  exceed  those  of  appellees. 

Counsel  for  appellants  should  in  all  cases  precede  their 
argument  by  a  statement  of  facts,  with  abundant  refer- 
ences, showing  at  what  place  in  the  abstract  such  facts 
appear. 

Judgment  in  assumpsit  affirmed.  Finding  in  attachment 
and  special  execution  set  aside. 


William  Barrow  t.  Leanore  Sligh. 

1.  Appellate  Courts — Jurisdiction  of,  as  to  Constitutional  Ques- 
tions.— ^This  court  has  no  jurisdictioii  of  cases  involving  the  constitu- 
tionality of  a  statute. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
CJomt  of  Cook  County;  the  Hon.  Edward  F.  DtJNNE,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Appeal  dismissed.  Opinion 
filed  June  14,  1897. 

N.  N.  Ceonholm,  attorney  for  appellant. 
John  W.  Eichey,  attorney  for  appellee. 

Mb.  JusnoB  Gary  delivered  the  opinion  of  the  Court. 

This  is  a  suit  by  the  appellee  against  the  appellant  for 
wages,  and  the  Circuit  Court  added  to  the  verdict  in  her 
favor  attorney  fees  as  part  of  the  judgment. 

The  appellant  argues  that  the  statute  under  which  the 
court  acted  is  unconstitutional. 

That  argument  ousts  this  court  of  jurisdiction.  Bern- 
stein V.  People,  page  176  this  volume. 

The  appeal  is  dismissed. 


320  Appellate  Courts  of  Illinois, 

Vol.  70.]        Ruddy  v.  Philadelphia  &  Reading  C.  &  L  Co. 


John  Buddy  t.  Philadelphia  &  Beading  G.  &  I.  Co. 

1.  PLEADING! — Pleas  Setting  up  Matter  Admissible  Under  the  General 
Isstie. -^Jt  is  proper  to  sustain  a  demurrer  to  a  special  plea  where  the 
matters  specially  pleaded  were  admissible  in  evidence,  if  offered  under 
the  general  issue. 

2.  Judgments — Presumptions  in  Favor  of, — All  presumptions  neces- 
sary to  support  a  judgment  at  law  will  be  indulged  in  until  overcome, 
and  where  there  is  no  bill  of  exceptions  a  court  of  appeal  will  presume 
that  all  evidence  in  possession  of  a  party  to  sustain  his  action  or  defense 
was  admitted. 

8.  Ordinances — An  Ordinance  of  the  City  of  Chicago  Construed. — 
An  ordinance  of  the  city  of  Chicago  provided  that  **  any  person  engaged 
in  the  business  of  selling  coal  in  the  city  of  Chicago,  to  be  delivered  in 
said  city,  shall  deliver  to  the  purchaser  at  the  time  of  the  delivery  of  the 
coal  purchased,  a  certificate,  signed  by  a  city  weigher,  showing  the 
weight  of  the  coal  so  delivered,  and  the  weight  of  the  wagon  or  cart.** 
Heldf  that  the  ordinance  was  intended  to  apply  to  sales  of  coal  by  weight 
to  be  delivered  by  wagon  or  cart,  and  that  an  allegation  that  coal  was 
so  sold  and  delivered  is  necessary  to  state  a  case  under  the  ordinance. 

Assumpsit,  upon  a  guaranty.  Appeal  from  the  Circuit  Court  of  Cook 
County;  the  Hon.  Charles  G.  Neelt,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.    Affirmed.     Opinion  filed  June  14,  1897. 

S.  G.  Abbott,  attorney  for  appellant. 
Ullmann  &  Haokbr,  attorneys  for  appellee. 

Mr.  Presiding  Justice  Shepabd  delivered  tbb  opinion 
OF  the  Court. 

This  was  an  action  brought  upon  a  contract  of  guaranty 
given  by  the  appellant  to  the  appellee,  whereby  he  guaran- 
teed the  payment  by  one  McCarthy,  to  the  extent  of  $300, 
for  coal  sold  by  the  appellee  to  said  McCarthy.  The  guar, 
anty  was  specially  counted  upon,  as  was  necessary  it  should 
be;  and  to  such  special  count  a  special  plea  was  filed, 
setting  forth  that  the  appellee  had  not  complied  with  an 
ordinance  of  the  city  of  Chicago  regulating  the  sale  of  coalj 
by  reason  whereof  the  sale  of  said  coal  to  said  McCarthy 
was  illegal  and  void.  To  such  special  plea  a  general  demur- 
rer was  sustained,  and  for  that,  error  is  assigned. 

The  plea  was  unnecessary.     The  defense  could  have  been 


First  District — March  Term,  1897.       321 

Ruddy  V.  Philadelphia  &  Reading  C.  &  I.  Co. 

made  under  the  plea  of  the  general  issue  that  was  filed;  and 
the  law  is  that  it  is  not  error  to  sustain  a  demurrer  to 
a  special  plea  where  the  matters  specially  pleaded  were 
admissible  in  evidence,  if  ofiFered  under  the  general  issue. 
Travelers'  Pref.  Ace.  Co.  v.  Moore,  58  111.  App.  634;  Hart- 
ford Fire  Ins.  Co.  v.  Olcott,  97  111.  439. 

See,  also,  Hankins  v.  The  People,  106  111.  628,  which 
although  a  criminal  case,  is  the  same  in  principle. 

There  is  no  bill  of  exceptions  here,  although  the  record 
shows  that  the  cause  was  submitted  to  a  jury  upon  whose 
verdict  the  judgment  was  entered;  and  because  all  pre- 
sumptions necessary  to  support  a  judgment  at  law  will  be 
indulged  in  until  overcome,  we  may  not  know  thkt  all  the 
evidence  appellant  had  to  sustain  his  defense  was  not 
admitted,  as  it  might  have  been,  under  the  general  issue. 
Curtiss  V.  Martin,  20  III.  657;  Manny  v.  Eixford,  44  111.  129. 

The  section  of  the  ordinance  relied  upon  is  as  follows : 

"  Any  person  or  persons  engaged  in  the  business  of  selling 
coal  in  the  city  of  Chicago,  to  be  delivered  in  said  city,  shall 
deliver  to  the  purchaser  at  the  time  of  the  delivery  of  the 
coal  purchased,  a  certificate  signed  by  a  city  weigher,  show- 
ing the  weight  of  the  coal  so  delivered,  and  weight  of  the 
wagon  or  cart."  Sec.  1213,  Art.  13,  Ch.  16,  of  the  ordi- 
nance. 

And  the  next  section  prescribes  a  penalty,  by  fine,  of  from 
$20  to  $40,  for  each  offense. 

The  special  plea  was  defective  in  not  setting  up  that  the 
coal  was  sold  by  weight,  and  delivered  by  wagon  or  cart. 
It  is  manifest  that  the  quoted  section  of  the  ordinance  was 
intended  to  have  application  to  sales  of  coal  by  weight,  and 
delivered  only  by  wagon  or  cart;  and  an  allegation  that  the 
coal  in  question  was  so  sold  and  delivered  was  material  and 
necessary  to  state  a  case  under  the  ordinance.  For  aught 
that  appears  the  coal  may  have  been  sold  by  cargo,  car 
load  or  pile,  and  delivered  in  that  form,  and  hauled  by  the 
purchaser  himself. 

No  other  question  being  involved  on  this  appeal,  the  judg- 
ment of  the  Circuit  Court  is  affirmed* 

YgkLZX  Bl 


322  Appellate  Courts  op  Illinois. 


Vol.  70.]  Fox  v.  Oriel  Cabinet  Co. 


Ella  Fox  et  al.  t.  Oriel  Cabinet  Go. 

1.  Executions— K»pcn«es  of  Offlcer  Should  be  Approved  by  the  Court 
— Rights  of  Third  Pa rfic8. —Although  expenses  of  a  sheriflF  having 
charge  of  an  execution  may  have  been  treated  by  tlie  parties  in  the  exe- 
cution as  necessary  expenses,  and  as  such  deducted  from  the  amount 
made  on  the  execution,  yet  before  they  can  be  lawfully  allowed  as  dam- 
ages in  a  proceeding  against  a  third  party,  it  should  be  made  to  appear 
that  they  have  been  ascertained  and  allowed  by  the*  court  issuing  the 
execution  under  which  the  property  was  seized. 

2.  Injunctions — Solicitor's  Fees  on  Dissolution  of. — The  court  holds 
that  the  appellafit  should  have  been  allowed  a  proper  amount  for  solic- 
itor's fees  for  services  rendered  in  procuring  the  dissolution  of  the 
injunction  in  this  case. 

Snggestlon  of  Damages,  from  the  wrongful  suing  of  a  writ  of  in- 
junction. Appeal  from  the  Superior  Court  of  Cook  County;  the  Hon. 
Theodorb  Brbntano,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term,  1897.  Reversed  and  remanded.  Opinion  filed  June  14, 
1897. 

MoBAN,  Kbaus  &  Mates,  attorneys  for  appellants. 

George  W.  Plummeb  and  Wharton  PLUKMSBy  attorneys 
for  appellee. 

Mb.  Presiding  Justice  Shepabd  delitebed  the  opinion 
of  the  coubt. 

This  is  an  appeal  from  an  order  of  the  Superior  Court  dis- 
allowing each  and  every  item  of  damages  claimed  by  the 
appellant  in  a  suggestion  of  damages  filed  upon  the  dissolu- 
tion of  an  injunction  in  a  certain  chancery  cause,  wherein 
the  appellee  was  complainant  and  the  appellants  were 
defendants,  begun  in  September,  1S92,  and  dismissing  thje 
suggestion  of  damages  at  the  costs  of  appellants. 

The  bill  was  filed  by  the  appellee,  a  simple  contract  cred- 
itor of  the  copartnership  firm  of  Spiegel  &  Co.,  against  the 
appellants,  who  were  judgment  creditors  of  said  firm,  the 
members  of  said  firm  and  the  sheriflf  of  Cook  county, 
attacking  as  fraudulent  certain  judgments  confessed  by  said 


First  District— March  Teem,  1897.       323 


Fox  ▼•  Oriel  Cabinet  Co. 


firm  in  favor  of  appellants  for  about  $95,000,  and  the  levy 
of  executions  issued  thereon,  under  which  all  the  tangible 
assets  and  property  of  said  firm  had  been  seized  by  the 
sheriff,  and  were  advertised  for  sale. 

The  bill  charged  numerous  specific  transactions  and  acts 
claimed  to  be  fraudulent,  and  had  for  its  object  the  restrain- 
ing of  the  advertised  sheriff's  sale  and  the  decreeing  of  such 
transactions  as  being  in  law  a  voluntary  assignment  by  said 
firm,  and  for  the  administration  of  the  estate  of  said  firm 
in  accordance  with  the  voluntary  assignment  law  of  the 
State. 

The  sheriff's  sale  was  advertised  to  take  place  on  Septem- 
ber 26,  1892.  The  bill  was  filled  on  September  24,  and  on 
the  same  day  an  ex  parte  injunction  was  ordered  upon  the 
recommendation  of  a  master  in  chancery,  and  at  once  served; 
and  later  on  the  same  day  notice  was  given  of  a  motion  by 
appellants  to  dissolve  the  injunction,  and  such  motion  came 
on  to  be  heard  two  or  three  days  afterward  and  occupied 
two  days  in  the  hearing.  The  court  took  the  matter  under 
advisement,  and  announced  his  decision  on  October  7,  dis- 
solving the  injunction.  The  suggestion  of  damages  was 
thereupon  filed,  and  was  as  follo\^ : 

"For  counsel's  fees,  in  procuring  the  dissolution  of  said 
injunctions,  two  thousand  dollars. 

For  insurance,  twenty-five  dollars. 

For  coal,  twenty-five  dollars. 

For  custodian's  fees,  to  wit,  fifty  dollars. 

For  rent,  to  wit,  six  hundred  dollars. 

For  hire  of  clerks,  etc.,  to  wit,  three  hundred  dollars. 

For  depreciation  of  the  value  of  the  goods,  and  damage 
done  thereto,  and  loss  of  interest  sustained,  to  wit,  two 
thousand  dollars." 

No  claim  appears  to  be  argued  by  the  appellants  for  the 
last  item,  for  depreciation,  etc. 

It  was  proved  that  the  sheriff  paid  out  $1 6.32  for  insur- 
ance upon  the  stock  of  merchandise  during  the  period  of 
delay  caused  by  the  injunction;  for  coal,  $12.10;  for  cus- 
todian's fees,  $48;  for  rent,  $586.66;  for  hire  of  clerk  and 
help,  $250. 


324  Appellate  Courts  of  Illinois. 

Vol.  70.]  Fox  v.  Oriel  Cabinet  CJo. 

But  in  disallowing  such  items  the  court  committed  no 
error. 

Although  they  may  have  been  treated  by  the  parties  in 
the  execution  as  necessary  expenses,  and  as  such  deducted 
by  the  sheriff  from  the  amount  made  on  the  execution,  yet 
before  they  could  have  been  lawfully  allowed  as  damages  in 
this  proceeding  against  a  third  party,  it  should  have  been 
made  to  appear  that  they  had  been  "  ascertained  and  allowed 
by  the  court  out  of  which "  issued  the  executions  under 
which  the  pro|)erty  was  seized.  Ch.  53,  Sees.  19  and  53, 
Fees  and  Salaries  Act;  Olds  v.  Loomis,  10  111.  App.  498; 
Poppers  V.  Meager,  33  111.  App.  20. 

It  might  be  that,  although  so  ascertained,  the  appellee, 
not  being  a  party  to  the  executions,  would  not  have  been 
bound  by  the  allowance,  but  there  being  no  authority  except 
the  statute  for  such  charges,  it  would  seem  that  the  statute 
ought  to  be  complied  with  as  furnishing  a  legal  basis  for  the 
equitable  assessment  of  damages  provided  for  by  Sec.  12  of 
the  Injunction  Act. 

Compensation  for  the  injury  the  enjoined  party  has  suf- 
fered because  of  the  injunction  is  all  that  should  ever  be 
allowed;  and  such  compensation  should  not  find  its  justifica- 
tion in  the  acquiescence  by  the  enjoined  party  in  the  sherifPs 
charges,  unsupported  by  a  judicial  determination  by  the 
court  having  control  of  the  enjoined  writ,  of  the  justness 
and  propriety  of  such  charges. 

The  acquiescence  and  good  nature  of  the  parties  to  the 
executions,  concerning  the  sheriff's  charges,  ought  not  to 
prevail  over  the  method  pointed  out  by  the  statute,  where 
the  interests  of  third  parties  are  involved.  We  conclude, 
therefore,  that  an  ascertainment  and  allowance  by  the 
court  out  of  which  the  execution  issued,  of  the  necessity  and 
propriety  of  any  of  the  sheriff's  charges,  was  a  preliminary 
requirement  to  the  allowance  thereof,  on  the  suggestion  of 
damages  sustained  by  the  dissolution  of  the  injunction. 

Concerning  the  solicitor's  fees  for  services  rendered  in 
procuring  the  dissolution  of  the  injunction,  we  are  satisfied 
the  case  made  was  a  proper  one  for  an  allowance  thereof  to 


First  District — March  Term,  1897.       325 

Fox  V.  Oriel  Cabinet  Co. 

a  proper  amount.  But  whether  for  so  much  as  was  claimed 
or  proved,  is  a  matter  that  the  court  below  should  first 
determine.  The  large  charge  for  such  services  is  predicated 
upon  the  importance  of  the  case  and  the  complexity  of  the 
law  questions  involved. 

It  would  not  seem  that  the  law  questions  were  either 
intricate  or  doubtful  at  the  time  the  bill  was  filed.  Farwell 
V.  Nilsson,  35  111.  App.  164;  same  case,  133  111.  45^  First 
Nat.  Bk.  V.  N.  Wis.  Lumber  Co.,  41  111.  App.  383;  Am.  Cut- 
lery  Co.  v.  Joseph,  44  111.  App.  194;  Farwell  v.  Cohen,  138 
111.  216. 

All  of  which  cases,  except  that  in  44  111.  App.,  were 
decided  before  the  bill  was  filed. 

We  refer  to  those  cases,  as  well  as  to  Hayes  v.  C.  &  N. 
W.  S.  &  G.  Co.,  37  111.  App.  19,  on  the  subject  of  enhancing 
damages  by  superfluous  labor  on  the  motion  to  dissolve,  in 
order  that  the  court  below  may  have  its  attention  called  to 
the  then  condition  of  the  law  involved  on  the  motion,  for 
the  purpose  of  arriving  at  a  correct  determination,  under 
the  evidence,  of  the  amount  of  services  necessary  in  pro- 
curing the  dissolution  of  the  injunction,  and  the  value  of 
such  services.  And  for  such  purpose,  as  well  as  for  a  con- 
sideration of  expenses  and  costs  by  the  sheriff,  if  any  were 
•  allowed  by  the  court,  out  of  which  the  executions  issued, 
the  decree  is  reversed  and  the  cause  remanded. 

Mb.  Justice  Watbeman. 

The  statute.  Sec.  12,  Chap.  69,  provides  that:  "In  all 
cases  where  an  injunction  is  dissolved  by  any  court  of 
chancery  in  this  State,  the  court,  after  dissolving  such 
injunction,  and  before  finally  disposing  of  the  suit,  upon  the 
party  claiming  damages  by  reason  of  such  injunction  sug- 
gesting, in  writing,  the  nature  and  amount  thereof,  shall 
bear  evidence  and  assess  such  damages  as  the  nature  of  the 
case  may  require  and  to  equity  appertain,  to  the  party  dam- 
nified by  such  injunction,  and  may  award  execution  to  col- 
lect the  same." 

As  is  said  in  Roberts  v.  Fahs,  36  111.  268 :    "  The  object 


•  ■  _  m 

326  Appellate  Courts  op  Illinois. 

Vol.  70.]  Oabert  v.  Buffalo  BiU's  Wild  West  Co. 

of  assessing  damages  is  to  compensate  the  party  enjoined 
for  the  injury  he  has  suffered.  If  he  is  wrongfully  enjoined 
from  doing  one  thing  which  he  has  a  right  to  do,  he  is 
none  the  less  injured  because  he  is  at  the. same  time  right- 
fully enjoined  from  doing  another  thing  which  he  has  no 
right  to  do." 

I  am  therefore  of  the  opinion  that  the  court  should  have 
allowed  the  sheriff  all  such  reasonable  cost  and  expense  as 
he  was  pat  to  by  the  injunction.  He  had  to  store,  watch 
and  protect  the  goods  levied  upon;  he  would,  therefore,  be 
obliged  to  pay  for  storage,  custodians,  and,  as  it  was  pru- 
dent and  usual  to  insure,  for  insurance.  The  court  ought 
to  be  careful  to  see  that  the  sheriff's  expenses  are  only  such 
as  are  reasonable;  that  extravagant  charges  and  unnecessary 
outlay  is  not  allowed.  I  do  not  think  it  necessary  in  assess- 
ing damages  upon  the  dissolution  of  an  injunction  restrain- 
ing an  execution  sale,  that  the  amount  allowed  the  sheriff 
for  expense  shall  have  been  first  submitted  to  and  approved 
by  the  court,  out  of  which  the  execution  issued. 


James  H.  Gilbert  r.  Buffalo  Bill's  Wild  West  Co. 

1,  Process — As  a  Protection  to  an  Officer, — ^A  writ  of  replevin  com- 
manding an  officer  to  replevy  and  deliver  to  another,  property  described 
in  the  writ,  makeis  such  property,  as  to  the  officer,  j^oods  and  chattels, 
although  tlie  property  may  in  fact  be  a  part  of  the  realty. 

2.  Pabties — In  Replevin, — A  replevin  writ  must  be  directed  against 
one  from  whom  possession  can  be  taken  and  to  whom  possession  can  be 
returned. 

8.  Recovery — WJien  the  Evidence  Sfiows  a  Defense, — It  matters  not 
how  it  appears  in  evidence  that  a  plaintiff  has  no  case,  if  it  does  so 
appear  he  can  not  recover. 

4.  Same— Jn  Trespaaa—WTven  the  Evidence  Shows  a  Defense. — ^If  in 
an  action  of  trespass  against  several  one  is  defaulted  and  the  others 
acquitted  upon  pleas  which,  if  true,  are  a  defense  for  aU,  the  plaintiff 
can  not  have  judgment  against  the  one  defaulted. 

5.  Trespass— Against  a  Sheriff-^Writ  of  Replevin  a  Defense,— An 
action  of  trespass  will  not  lie  against  a  sheriff  for  taking  property  out  of 


First  District — March  Term,  1897.       327 

Gilbert  v.  Buffalo  BUFs  Wild  West  Co. 

the  citstodj  of  a  defendant  in  the  writ  even  where  the  sheriff  took  an 
insufficient  replevin  bond.  In  the  latter  event  the  action  should  be  in 
case. 

Trespass,  for  the  wron^ul  levy  of  a  writ  of  replevin.  Appeal  from 
the  Circuit  Court  of  Cook  County;  the.  Hon.  Thomas  G.  Windes, 
Judge,  presiding.  Heard  in  this  court  at  the  March  term,  1897.  Re- 
versed without  remanding.    Opinion  filed  June  14,  1897. 

Pam  &  Donnelly,  attornej'^s  for  appellant;  E.  JR.  Bliss^ 
of  counsel. 

I 

That  a  sheriff  is  protected  by  the  writ  of  replevin,  if  he 
takes  the  property  therein  described,  even  if  the  owner  of  the 
property  is  not  made  a  party  defendant  to  the  writ,  is  sus- 
tained by  the  great  weight  of  authority.  See  Murfree  on 
Sheriffs,  Sec.  104c;  Cobbey  on  Replevin,  Sees.  644  and  645; 
Hallett  V.  liyrt,  Carth.  3S1;  Watson  v.  Watson,  9  Conn.  140; 
Weiner  v.  Van  Rensselaer,  43  N.  J.  Law,  547;  Hayden  v. 
Shedd,  11  Mass.  500;  Willard  v.  Kimball,  10  Allen,  211;  Fos- 
ter V.  Pettibone,  20  Barb.  350;  Shipman  v.  Clark,  4  Denio, 
446. 

Where  it  is  sought  to  hold  the  principal  liable  in.  trespass 
for  the  act  of  the  agent,  when  the  agent  or  servant  is  dis- 
charged from  liability,  such  in  itself  operates  to  discharge 
the  principal  from  liability.  King  v.  Chase,  15  N.  H.  9; 
Featherstone  v.  Turnpike  Co.,  71  Hun  (N.  H.),  109;  Castle 
V.  Noyes,  14  K  Y.  329;  Emery  v.  Fowler,  39  Me.  326;  Lake 
Shore  &  M.  S..  Ry.  v.  Goldberg,  2  Brad.  228;  Vigeant  v. 
Scully,  35  111.  App.  44. 

A.  B.  Jenks,  attorney  for  appellee. 

The  appellant  having  failed  to  plead  justification  under 
the  writ  of  replevin,  that  defense  was  waived,  and  he  was 
not  entitled  to  the  benefit  of  it,  even  though  the  writ  of 
replevin  was  put  Jn  evidence  by  the  plaintiff.  Olsen  v. 
Upsohl,  69  III.  273;  Blanchard  v.  Burbanks,  16  Brad.  375. 

In  an  action  of  trespass  against  a  sheriff,  in  which  he  is 
declared  against  personally  and  not  as  sheriff,  it  is  compe- 
tent to  prove  that  the  deputy,  assuming  to  act  under  color 
or  by  virtue  of  his  office,  committed  the  trespass  complained 
of.    Poisnett  v.  Taylor,  6  Cal.  78;  Cotton  v.  Marsh,  3  Wis. 


328  Appellate  Courts  op  Illixofs, 

Vol.  70.J  Gilbert  v.  Buffalo  BiU's  WUd  West  Ck). 

199;  Watson  on  Sheriffs,  37;  Gregory  v.  Cotterell,  6  E.  j& 
B.  571  (85  E.  C.  L.);  26  Am.  &  Eng.  Enc'y  of  Law,  649, 
note  1;  Hirsch  v.  Rand,  39  Cal.  315;  5  Am.  &  Eng.  Enc'y 
of  Law,  634;  Sanderson  v.  Baker,  2  Wm.  Bl.  832;  Murfree 
on  Sheriffs  (2d  Ed.),  Sees.  20,  21,  and  59a-61a, 

It  is  the  dutv  of  the  sheriff  to  ascertain  the  value  of  the 
property,  and  take  a  bond  in  twice  that  value,  and,  if  he 
does  not  do  it,  he  is  liable  in  trespass  because  of  his  failure 
to  comply  with  this  condition  precedent.  Milliken  v.  Selye, 
6  Hill,  623;  Whitney  v.  Jenkinson,  3  W^is.  363;  Wells  on 
Replevin,  Sees.  385  and  388;  Morris  v.  Van  Voast,  19  Wend. 
283;  People  v.  Core,  85  111.  248j  Morse  v.  Hodsdon,  5  Mass. 
314. 

Mr.  Justice  Gary  delivered  the  opinion  of  the  Court. 

During  the  World's  Fair  year  the  appellee  had  a  show 
place  near  the  fair  grounds,  and  when  the  fair  was  over 
left  the  place  in  charge  of  custodians,  the  custodian  at  the 
time  of  the  events  giving  rise  to  this  suit  being  one  John 
Crowley. 

September  22,  1894,  one  Barnett  Graff  sued  out  of  the  Cir- 
cuit Court,  a  writ  of  replevin,  which — the  appellant  being  the 
sheriff — was  delivered  to  the  appellant  to  execute.  In  that 
writ  John  Crowley  was  one  of  the  defendants.  The  appel- 
lant, by  deputy,  walked  into  the  place,  read  the  writ  to 
Crowley  and  took  the  receipt  of  Graff  for  the  property 
there — it  being  the  property  described  in  the  writ. 

For  that  transaction  this  action  of  trespass  was  brought 
by  the  appellee  against  the  appellant  and  others,  and  a  judg- 
ment of  $2,208  recovered. 

The  property  was  partly  temporary  buildings  upon  leased 
ground,  but  the  writ  made  all  the  property — as  to  the  appel- 
lant— goods  and  chattels.     Sample  v.  Broad  well,  87  111.  617. 

Crowley  was  the  only  proper  defendant  in  the  writ. 

The  writ  must  be  against  one  from  whom  possession  can 
be  taken,  and  to  whom  possession  may  be  returned.     Blatch 
ford  V.  Boyden,  122  111.  657;  Richardson  v.  Cassidy,  63  III. 
App.  482;  20  Am.  &  Eng.  Ency.  Law,  1058. 


First  District— March  Term,  1897.       329 

GUbert  v.  Buffalo  BiU's  WUd  West  Co. 

As  the  appellee,  in  order  to  show  the  connection  of  the 
appellant  with  what  the  appellee  charged  was  a  trespass, 
was  obliged  to  put  in  evidence  the  writ  and  return,  the 
justification  of  the  appellant — if  he  had  any — was  in  for 
his  benefit.     Savage  v.  French,  13  111.  App.  17. 

It  needs  no  authority  that  if  the  plaintiff's  right  of  action 
is  in  issue,  he  can  not  recover  unless  he  proves  his  right; 
can  he  be  better  off  by  proving  affirmatively  that  he  had 
no  right  2  If,  in  an  action  of  trespass  against  several,  one 
is  defaulted  and  the  others  acquitted  upon  pleas  which,  if 
true,  are  a  defense  for  all,  the  plaintiff  can  not  have  judg- 
ment against  the  defaulted.  Briggs  v.  Benger,  2  Ld.  Raym. 
1372. 

The  principle  is  that  it  matters  not  how  it  comes  in  that 
the  plaintiff  has  no  case;  if  it  does  come  in,  he  can  not 
recover. 

The  defendant  may  be  prevented  from  putting  in  facts 
showing  that  the  plaintiff  has  no  case,  by  neglect  in  plead- 
ing, but  there  is  no  such  obstacle  in  the  way  of  the  plaintiff. 

Now,  will  trespass  lie  against  a  sheriff  for  executing  a  writ 
of  replevin,  by  taking  the  property  out  of  the  custody  of  a 
defendant  in  the  writ  ?  What  has  been  said  answers  that 
question  in  the  negative. 

The  court  erred  in  giving  an  instruction  as  follows : 

"If  the  jury  believe  from  the  evidence  that  James  H. 
Gilbert,  sheriff,  acting  through  John  C.  McDevitt,  his  dep- 
uty, at  the  direction  or  in  company  with  the  other  defend- 
ants, under  a  writ  of  replevin  running  against  a  person  or 
persons  other  than  the  plaintiff  in  this  suit,  entered  on  land 
then  in  possession  of  plaintiff  or  its  agent  and  took  the  per- 
sonal property  of  plaintiff  situated  on  such  land,  and.  con- 
verted such  property  to  their  own  use,  then  their  verdict 
should  be  for  the  plaintiff  for  the  fair  cash  market  value  of 
such  personal  property  with  interest  at  five  per  cent  from 
that  date." 

There  was  no  pretense  of  any  conversion  of  the  property 
by  the  appellant,  other  than  by  the  mere  execution  of  the 
writ. 


330  Appellate  Courts  of  Illinois. 

Vol.  70.]  Gilbert  v.  Buflfalo  BUl's  Wild  West  Co. 

The  appellee  relies  also  upon  the  alleged  fact  that  the 
sheriff  took  an  insaflBcient  replevin  bond  and  is  therefore 
liable  in  trespass,  and  the  court  so  instructed  the  jury. 
That  there  is  a  dictum  in  Morse  v.  Hodson,  5  Mass.  314,  and 
decisions  in  Morris  v.  Van  Voast,  19  Wend.  283;  Milliken 
V.  Selye,  6  Hill.  623,  and  Whitney  v.  Jenkinson,  3  Wis.  363 
(side  page  407),  to  that  effect  is  not  to  be  denied;  but  there 
is  no  hint  that  such  an  action  was  ever  thought  of  in  the 
country  from  which  we  derive  our  common  law.  There  the 
action  has  always  been  in  case  against  the  sheriff  for  taking 
insufficient  sureties. 

Here  it  may  be  case,  or  upon  the  official  bond  of  the 
sheriff;  Sec.  12,  Oh.  119,  R.  S.;  and  the  latter  remedy  was 
pursued  in  People  v.  Core,  85  111.  248. 

Perhaps  there  is  no  difference  in  legal  ^ect  between  the 
statute  of  this  State  and  those  under  which  the  Massachu- 
setts and  New  York  decisions  were  made,  and  upon  which 
the  Wisconsin  one  was  avowedly  based;  but  there  is  such  a 
difference  in  words  that  it  may  well  be  argued  that  the 
lesral  effect  is  different. 

In  Massachusetts  the  statute  directed  that  the  form  of 
the  writ  should  be  to  replevy  upon  condition  that  the  plaint- 
iff give  bond,  and  in  New  York  the  statute  forbid  the  exe- 
cution of  the  writ  unless  the  bond  was  given. 

Here  the  statute  is  that  before  the  writ  is  executed,  the 
plaintiff  shall  give  bond,  but  does  not  in  terms  require 
the  sheriff  to  take  the  bond,  and  makes  him  liable  ^^  in  an 
action  on  the  case  "  for  failure  to  take  and  return  the  bond. 

In  terms  providing  for  an  action  on  the  case,  upon  the 
familiar  rule  that  the  mention  of  one  thing  excludes  an- 
other, restricts  the  remedy.  It  is  not  probable  that  Judge 
Lawrence,  in  Petrie  v.  Fisher,  43  111.  442,  had  in  mind  the 
question  that  is  before  us,  but  his  words  indicate  what  is 
the  first  thought  of  a  lawyer  as  to  the  remedy  for  neglect 
by  the  sheriff  to  take  a  replevin  bond.  On  the  whole  it  is 
our  judgment  that  the  action  of  trespass  for  taking  the 
goods  does  not  lie,  though,  under  the  statute,  Sec.  22,  Prac- 
tice, the  action  under  Sec.  12  of  the  Eeplevin  Act,  might  be 
called  trespass. 


FiBST  DisTKiCT — Makch  Term,  1897.       331 

C.  &  A.  R.  R  Co.  y.  Swan. 

The  appellee  moved  that  the  bill  of  exceptions  be  stricken 
out  and  the  appeal  dismissed  upon  the  authority  of  several 
cases,  most  of  them  decided  by  this  court,  which  are  all 
wrong.    Railway  Conductors,  etc.,  v.  Leonard.  166  111.  154. 

The  motion  is  therefore  denied. 

The  appellant  asked  a  variety  of  instructions,  the  effect 
of  which  was  to  find  a  verdict  in  his  favor.  For  the  error 
of  refusing  all  of  them,  the  judgment  is  reversed  without 
remanding. 


Chicago  &  Alton  Bailroad  Company  v.  Walter  B.  Swan, 

1.  PLEADINa — Defects  Cured  by  Verdict— A  defective  statement  of 
a  good  cause  of  action  is  cured  by  verdict.  Libby  v.  Schemian,  146  Ul. 
540,  followed. 

2.  Fellow-Skevants— 7716  Rtde  Stated.— It  one  servant  is  injured 
by  the  negligence  of  another,  where  they  are  directly  co-operating  in 
the  same  line  of  employment,  or  their  duties  are  such  as  to  bring  them 
into  habitual  association,  so  that  they  may  exercise  a  mutual  influence 
upon  each  other  promotive  of  proper  caution,  and  the  master  is  guilty 
of  no  negligence  in  employing  the  servant  causing  the  injury,  the 
master  is  not  liable. 

3.  SAUJb—Must  be  Able  to  Exercise  an  Infiaence  Over  Each  Other, — 
It  is  not  sufficient  to  constitute  servants  of  a  common  master  fellow-serv- 
ants, within  the  rule  exempting  the  master  from  liability,  that  at  the 
time  of  an  injury  they  were  co-operating  in  some  particular  business  in 
hand;  it  is  also  necessary  that  the  circumstances  be  such  that  they  may 
exercise  an  influence  over  each  other  promotive  of  proper  caution. 

4.  D AM AQvaS  14,000  Held  Not  Exceesive.—Und^r  the  circumstances 
of  this  case,  as  disclosed  by  the  evidence  for  the  appellee,  the  court  hold 
a  judgment  for  |14,000  for  personal  injuries  is  not  excessive. 


70 

-ffll 

76 

600 

176s  Hi 

7U 

8»l 

bO 

397 

70 

33t 

88 

176 

I82t2a2 

182s  M7 

70 
107 


831 

586 


Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon,  Francis  Adams,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  flled 
June  14, 1897. 


MoNROB  &  Thornton,  attorneys  for  appellant;  William 
JSrown,  of  counsel. 

The  limitations  imposed  do  not  apply  if,  at  the  time  of 

the  injury  of  one  servant  by  another,  such  servants  are 


332  Appellate  Courts  op  Illinois. 

Vol.  70.]  C.  &  A.  R.  R.  Co.  v.  Swan. 

either :  (1)  associated  in  the  performance  of  their  duties,  or 
(2)  their  employment  requires  co-operation,  or  (3)  brings 
them  together,  or  (4)  brings  them  into  such  relations  that 
they  can  exercise  influence  upon  each  other  promotive  of 
proper  caution.  Chicago  &  N.  W.  Ry.  Co.  v.  Moranda,  108 
111.  576;  Leeper  v.  T.  H.  &  I.  R.  R.  Co.,  162  111.  215;  Louis- 
ville, E.  &  St.  L.  Rd.  Co.  V.  Hawthorne,  147  111.  226;  Chi- 
cago &  A.  R.  R.  Co.  V,  Kelly,  127  111.  637. 

The  limitations  are  always  separated  by  the  disjunctive 
*'or,"  not  connected  by  the  conjunction  "and." 

Servants  of  a  common  master  will  be  fellow-servants, 
within  the  rule  which  prohibits  recovery  from  that  master 
by  one  servant  for  an  injury  occasioned  by  the  negligence 
of  the  other  servant,  either  (1)  if,  at  the  time  of  the  injury, 
they  are  co  operating  in  some  particular  business  in  hand, 
or  (2)  if  they  are  brought  by  their  usual  duties  into  habitual 
association,  so  that  they  may  exercise  an  influence  over  each 
other  promotive  of  proper  caution.  Chicago  &  N.  W.  Ry. 
Co.  V.  Moranda,  93  111.  302;  Same  v.  Same,  108  111.  576;  Same 
V.  Snyder,  117  111.  376;  Same  v.  Same,  128  111.  655;  Chicago 
&  A.  Rd.  Co.  V.  Hoyt,  122  111.  369;  Chicago  &  E.  I.  R  R. 
Co.  V.  Kneirim,  152*  111.  458. 

F.  H.  Tbude,  attorney  for  appellee;  Dennis  &  Rigby,  of 
counsel. 

The  declaration  was  perfectly  good.  L.  E.  &  St.  L.  R. 
R.  Co.  V.  Hawthorne,  147  111.  226,  233;  Taylor  v.  Felsing, 
164  111.  331. 

But  even  if  it  was  defective,  it  was  cured  by  the  verdict 
and  judgment  below.  Stephen  on  Pleading,  3d  Am.  Ed., 
163;  Helmuth  v.  Bell,  150  111.  263. 

The  plaintiff,  baggageman,  and  the  engineer  were  not,  as 
a  matter  of  law,  fellow-servants  within  the  rule  of  this 
State.  Whether  they  were  fellows,  or  not,  was  »  question 
for  the  jury.  Chicago  &  A.  R.  R.  v.  O'Brien,  155  111.  630; 
L.  E.  &  St.  L.  R.  R.  Co.  V.  Hawthorne,  147  lU.  226,  31;  R. 
R.  V.  Dwyer,  162  111.  482. 

And  was  correctly  decided  by  them,  under  the  facts  of 


First  District — March  Term,  1897,       333 


C.  &  A.  R.  R.  Co.  V.  Swan. 


this  case.  That  servants  are  employed  in  the  same  depart- 
ment does  not  necessarily  constitute  them  fellow-servants. 
Chicago  &  A.  R.  R.  v.  O'Brien,  155  111.  630. 

Nor  that  they  are  engaged  in  the  promotion  of  the  same 
enterprise  for  a  common  master.  L.  E.  &  St.  L.  R.  R.  Co. 
V.  Hawthorne,  147  111.  226,  230. 

The  plaintiff,  as  baggageman,  was  not  directly  co-operat- 
ing with  the  train  crew  proper  in  the  actual  running  of  the 
train.  Though  employed  on  the  train,  his  service  was  of  a 
different  kind  or  class  from  theirs,  not  necessarily  bringing 
him  into  habitual  consociation  with  them.  He  was  not,  as 
a  matter  of  fact,  within  the  rule. 

The  rule  stated.  Chicago  &  N.  W.  Ry.  Co.  v.  Moranda, 
93  111.  302;  Same  v.  Same,  108  111.  576;  L.  E.  &  St.  L.  R.  R. 
Co.  v.  Hawthorne,  147  111.  226;  Rolling  Mill  Co.  v.  John- 
son, 114  111.  57,  64;  Chicago  &  A.  R.  R.  Co.  v.  O'Brien,  155 
111.  630. 

Mb.  Justice  Gary  delivered  the  opinion  of  the  Court. 

The  appellee  was  baggageman  in  the  service  of  the  ap- 
pellant on  a  passenger  train,  and  was  injured  by  what  "  for 
the  sake  of  argument "  the  brief  of  the  appellant  concedes 
was  the  negligence  of  the  engineer  on  the  locomotive  of 
that  train. 

The  first  point  relied  upon  by  the  appellant  is  that  the 
declaration  is  bad,  as  it  shows  that  the  baggageman  was 
injured  by  the  negligence  of  the  engineer  of  the  same  train, 
both  of  them  in  the  service  of  the  appellant,  and  does  not 
aver  that  they  were  not  fellow-servants;  citing  Joliet  Steel 
Co.  V.  Shields,  134  111.  209,  and  E.  St.  L.  C.  Ry.  v.  Dwyer, 
41  111.  App.  522.  The  latter  case  is  avowedly  based  upon 
the  former,  and  the  authority  of  the  former  is  much  dimin- 
ished by  what  is  said  of  it  fti  Libby  v.  Scherman,  146  111. 
540.  It  is  there  held  that  the  lack  of  the  averment,  if  a 
defect,  is  cured  by  verdict. 

The  main  point  of  the  appellant  is  that  the  baggageman 
and  engineer  are  in  law  fellow-servants,  because  they  co- 
operate in  the  transportation  of  the  passengers  and  their 
baggage.    Abend  v.  T.  H.  &  I.  R.  R.,  Ill  111.  202. 


334  Appellate  Couets  op  Illinois. 

Vol.  70.]  C.  &  A.  R.  R.  Ck).  v.  Swan. 

On  the  point  uader  consideratioa  the  authority  of  that 
case  is  destroyed  by  what  is  said  of  it  in  Mobile  &  Ohio  R. 
R.  V.  Massey,  152  111.  144,  which  we  need  not  quote. 

^'  The  rule  in  this  State  is,  that  where  one  servant  is 
injured  by  the  negligence  of  another  servant,  where  they  are 
directly  oo-oparating  with  each  other  in  a  particular  busi- 
nass  in  the  same  line  of  employment,  or  their  duties  being 
such  as  to  bring  them  into  habitual  association,  so  that  they 
may  exercise  a  mutual  influence  upon  each  other,  promotive 
of  proper  caution,  and  the  master  is  guilty  of  no  negligence 
in  employing  the  servant  causing  the  injury,  the  master  is 
not  liable.  Chicago  &  Northwestern  Railroad  Co.  v. 
Moranda,  93  111.  302;  Stafford  v.  Chicago,  Burlington  & 
Quincy  Railroad  Co.,  114  Id.  244;  Chicago  &  Eastern  Illi- 
nois Railroad  Co.  v.  Geary,  110  Id.  383;  North  Chicago 
Rolling  Mill  Co.  v.  Johnson,  114  Id.  57;  Chicago  &  North- 
western Railway  Co.  v.  Snyder,  117  Id.  376;  Same,  128  Id. 
655;  Chicago  &  Alton  Railroad  Co.  v.  Hoyt,  122  Id.  369; 
Chicago  &  Northwestern  Railway  Co.  v.  Moranda,  108  Id. 
576;  Chicago  &  Alton  Railroad  Co.  v.  Kelly,  127  Id.  637; 
Joliet  Steel  Co.  v.  Shields,  134  Id.  209."  C.  &  E,  R.  R.  v. 
Kneirim,  152  111.458. 

The  rule  as  thus  settled  is  based  upon  a  reason;  a  reason 
stated  in  Rolling  Mill  v.  Johnson,  114  111.  57,  thus: 

^^  The  idea  is,  that  the  relations  between  the  servants  must 
be  such  that  each,  as  to  the  other,  by  the  exercise  of  ordi- 
nary caution,  can  either  prevent  or  remedy  the  negligent 
acts  of  the  other,  or  protect  himself  against  its  conse- 
quences." 

In  the  original  formulation  of  the  rule,  C.  &  N.  W.  R,  R. 
V.  Moranda,  93  111.  302,  the  "  power  to  incite  each  other 
to  caution  by  counsel,  exhortation  or  example,  or  by  report- 
ing delinquencies  to  the  master,"  was,  in  argument,  treated 
as  essential  to  the  existence  of  the  relation  of  fellow-serv- 
ants. 

And  in  C.  &  A.  R.  R.  v.  Hoyt,  122  111.  369,  the  reason  is 
expressed  thus. 

^^  What  is  meant  is,  if  the  parties  continue  to  be  engaged 
in  a  common  service,  they  will  be  habitually  associated,  so 


FiKST  District — March  Term,  1897.       335 

C.  &  A.  B.  E.  Co.  V.  Swan. 

that  they  may  exercise  an  influence  over  each  other  promo- 
tive of  common  safe tv." 

The  appellant,  after  laboriously  analyzing  a  great  many, 
if  not  all,  the  cases  bearing  upon  the  subject,  comes  to  this 
conclusion : 

"  Servants  of  the  same  master  will  be  fellow-servants 
yrithin  this  rule,  either : 

1.  If  at  the  time  of  the  injury  they  are  co-operating  in 
some  particular  business  in  hand,  or 

2.  If  they  are  brought  by  their  usual  duties  into  habitual 
association,  so  that  they  may  exercise  an  influence  over 
each  other  promotive  of  proper  caution." 

Thus  the  words  "  so  that,"  which  express  a  condition — 
Co.  Lit.,  Sec.  329,  cited  in  White  v.  Naerup,  57  111.  App.  114 — 
are  limited  to  "  habitual  association,"  and  excluded  from 
application  to  servants  "  co-operating."  We  do  not  so  under- 
stand the  rule.  Such  a  construction  is  contrary  to  the 
reason  upon  which  the  rule  is  based,  namely,  that  the  serv- 
ant has  in  his  power  means  for  his  own  protection. 

Nor  is  such  construction  the  one  that  would  be  given  to  the 
words  of  the  rule  as  expressed  in  152  111.  if  they  were  words 
of  contract  or  statute.  Rice  v.  John  A.  Tolman  Co.,  50  111. 
App.  516;  S.  C,  title  reversed,  164  111.  255;  Sturgeon  Bay 
Co.  V.  Leatham,  62  111.  App.  386;  S.  C,  164  111.  239. 

In  adhering  to  what  we  have  hitherto  understood  to  be 
the  construction  of  the  rule,  we  do  not  overlook  what  is 
said  in  C.  &  E.  I.  R.  R.  v.  Kneirim,  152  111.  458,  in  com- 
menting upon  instructions  there  under  consideration,  nor 
the  quotation  with  apparent  approval  in  Leeper  v.  T.  H.  & 
I.  R.  R.,  162  III.  215,  from  C.  &  A.  R.  R.  v.  Murphy,  53  111, 
336,  and  we  are  not  able  to  reconcile  this  opinion  therewith; 
but  in  the  first  of  those  cases  the  question  was  not  vital, 
and  in  the  second  the  court  was  construing  a  finding  of  facts 
by  the  Appellate  Court  of  the  Fourth  District,  which  in  terms 
was  that  the  relation  between  the  negligent  servant  and  the 
servant  injured  ^'  was  such  as  to  promote  caution  for  the 
safety  of  each  other." 

It  is  insisted  that  the  damages,  $14,000,  are  excessive; 
not,  however,  if  the  testimpny  on  the  part  of  the  appellee 


70    336 
1768  685 


336  Appellate  Courts  of  Illinois. 

Vol.  70.]  North  Chicago  St  R.  R.  Co.  v.  Anderson. 

be  true.  He  was  thirty-four  years  old,  salary  $58  per 
month,  in  perfect  health,  has  not  been  able  to  walk  since, 
and  suffers  constant  pain. 

The  medical  testimony  on  his  side  corroborated  his  own 
as  to  his  condition,  and  held  out  no  hope  of  his  recovery, 
but  on  the  contrary  indicated  that  the  injury  would  accel- 
erate his  death. 

The  medical  testimony  on  the  part  of  the  appellant  is  in 
conflict  with  the  other.  Which  is  most  to  be  relied  upon, 
we  have  no  means  to  know. 

A  very  plausible  argument  against  the  amount  is  based 
upon  the  refusal  of  appellee  to  submit  to  further  examina- 
tions by  medical  men  on  behalf  of  the  appellant  But  if 
we  were  to  say  that  because  of  such  refusal,  the  damages 
are  excessive,  it  would  be  in  effect  to  say,  not  that  the 
damages  are  not  justified  by  the  evidence,  but  that  part  of 
them  should  be  forfeited  as  a  punishment  for  such  refusal. 

On  the  whole  case  there  is  no  error  unless  it  be  held  that 
in  law  the  engineer  and  the  appellee  were  fellow-servants 
for  the  reason  that  they  were  co-operating  as  servants  of 
the  appellant  in  transporting  passengers  with  their  baggage. 

If  that  be  the  law,  the  question  will  be  before  the 
Supreme  Court  on  the  refused  instruction  to  find  for  the 
defendant.    The  judgment  is  affirmed. 


*, 


Mr,  Justice  Waterman. 

I  speak  for  the  whole  court  in  saying  that  the  counsel 
for  appellant  is  entitled  to  great  credit  for  the  careful  anal- 
ysis he  has  presented  of  the  decisions  in  this  State  concern- 
ing whom  are  to  be  regarded  as  fellow-servants. 


North  Chicago  St.  B.  B.  Go.  y.  Bosalie  J.  Anderson. 

1.  Measure  op  Damages— /n  ActionB  for  Personal  Injuries,—-The 
compensation  for  injuries  to  a  previously  healthy  and  active  woman  and 
mother,  leading  a  life  of  usefulness  to  herself  and  others,  is  beyond 
the  domain  of  exact  measurement,  and  the  law  has  wisely  left  its  esoer- 
tainment  to  a  jury. 


First  District— Mabch  Term,  1897.       337 

*-  -  .  -  _ 

North  Chicago  St.  R.  R.  Co.  v.  Anderson. 

3.  Vbbdicts — When  Not  to  be  Set  Anide. — ^Unless  a  reviewing  court 
can  see  from  the  record  that  a  verdict  in  an  action  for  personal  injuries 
is  the  result  of  improper  influences,  it  will  not  be.  s^t  aside  for  excess- 
iveness,  espeolally  where  the  discration  of  the  trial  judge  has  been 
exercised  by  requiring  a  remittitur  co  satisfy  his  sense  of  what  is  adequate 
compensation. 

8.  ATTOUSEYS^Their  Duty  to  Talk  to  Witnesses. -At  is  not  only  the 
right  but  the  duty  of  an  attorney  of  a  party  to  a  cause  to  talk  to  his 
witnesses  and  to  learn  from  them  their  knowledge  of  the  facts  and  cir- 
cumstances of  the  case,  and  what  their  testimony  will  be  concerning  the 
same  before  calling  them  to  the  stand  to  testify  and  no  improper  infer- 
ences are  to  be  drawn  from  the  performance  of  such  duty.  To  instruct 
a  jury  that  such  fact  may  be  considered  by  them,  together  with  all  the 
other  facts  in  evidence,  in  determining  the  weight  of  the  testimony  of 
such  witnesses,  may  in  a  proper  case  be  ground  for  reversal. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  Arthur  H.  Chbtlain,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
June  14,  1897. 

Egbert  Jamieson  and  John  A.  Eosb,  attorneys  for  appel- 
lant. 

Richard  Prkndbroa8t  and  Carlbton  N.  Gary,  attorneys 
for  appellee. 

Mr.  Prksidino  Justiob  Shepard  delivered  the  opinion 
OF  the  Court. 

This  appeal  is  from  a  judgment  for  $10,000,  entered  after 
a  remittitur  of  $7,500,  from  the  verdict  of  a  jury,  in  an  action 
brought  by  the  appellee  to  recover  for  injuries  sustained  by 
her  through  the  alleged  negligence  of  the  appellant  in 
suddenly'starting  one  of  its  cable  trains  while  the  appellee 
was  in  the  act  of  getting  upon  a  car  of  said  train,  which 
had  stopped  to  take  on  passengers  and  was  at  a  stand  when 
she  started  to  get  aboard. 

The  defense  was,  mainly,  that  the  train  had  started  before 
appellee  began  to  get  aboard,  and  that  in  attempting  to  get 
on  while  the  train  was  in  motion,  appellee  was  guilty  of 
such  contributory  negligence  as  precluded  her  from  a  recov- 
ery.   If  such  defense  was  not  made  out,  the  appellant  does 

Vol.  LXX  S 


338  Appellate  Courts  of  Illinois. 

Vol.  70.]  North  Chicago  St.  B.  R.  C'o.  v.  Anderson. 

* 

not  dispute  appellee's  right  to  recover  something,  but  does 
vigorously  insist  that  she  should  not  have  so  much. 

We  have  carefully  considered  all  the  evidence  concerning 
the  principal  fact,  and,  in  the  observance  of  well-established 
rules  as  to  the  province  of  a  jury  upon  the  facts  of  a  case, 
we  are  not  at  liberty  to  override  the  finding  by  the  jury 
that  the  train  was  standing  still,  for  the  purpose  of  taking 
on  passengers,  when  appellee  started  to  get  on  the  car,  and 
until  she  had  partly  got  aboard,  and  that  the  train  was  neg- 
ligently started  up  before  she  had  wholly  mounted  the  car 
step,  thereby  causing  her  to  be  dragged  and  finally  thrown 
t^o  the  ground. 

There  is  no  question  made  but  that  the  injuries  sustained 
by  the  appellee  were  both  serious  and  permanent.  Of  the 
injuries  the  appellant's  brief  states:  "The  injury  in  this 
case  received  by  the  plaintijQ^  was  a  fracture  of  the  upper 
portion  of  the  femur.  From  the  testimony,  considering  her 
age  (51  years),  this  will  probably  never  perfectly  heal.  The 
injury  is,  and  about  it  there  is  no  question,  what  is  known 
in  anatomical  parlance  as  an  intra  cap8\dar  fracture  of  the 
femur,  and,  as  we  have  stated,  the  testimony  shows  that  the 
bone  will  probably  never  perfectly  unite.  Concerning  the 
injury  there  is  no  conflict." 

Uncontradicted  evidence  shows  that  the  appellee  suffered 
great  pain  for  a  long  time  and  is  still  subject  to  it;  that  it 
was  three  years  before  she  left  the  house;  that  since  the 
cast  was  taken  off  her  leg  she  has  not  been  able  to  sleep  in 
a  bed,  but  has  to  sleep  on  a  lounge,  and  th[\t  she  can  not 
turn  over  without  holding  her  limb  by  her  hands,  and  can 
not  move  about  on  her  feet  except  by  the  aid  of  crutches  or 
other  support. 

"What  is  compensation  for  such  injuries  to  a  previously 
healthy  and  active  woman  and  mother,  leading:  a  life  of 
usefulness  to  herself  and  others,  is  beyond  the  domain  of 
exact  measurement,  and  the  law  has  wisely  left  its  ascer- 
tainment to  a  jury. 

Unless  a  reviewing  court  can  see  from  the  record,  evi- 
dences which,  although  not  entirely  lacking  in  this  case, 


First  District — March  Term,  1897.       339 

North  Chicago  St.  R.  R.  Co.  v.  Anderson. 

may  hardly  be  considered  as  controlling,  that  a  verdict 
in  a  case  of  this  character  is  the  result  of  improper  influ- 
ences, the  verdict  will  not  be  set  aside  for  excessiveness, 
especially  where  the  discretion  of  the  trial  judge  has  been 
exercised  by  requiring  a  remittitur  to  satisfy  his  sense  of 
what  is  adequate  as  compensation. 

Of  assigned  errors  concerning  the  instructions,  we  see  no 
occasion  to  mention  more  than  the  modification  by  the 
court  of  the  twenty-second  instruction  asked  by  the  appel- 
lant. 

As  requested,  that  instruction  was  as  follows : 

*'  22.  The  mere  fact  that  a  witness  has  talked  to  an  attor- 
ney of  a  party  to  this  suit  and  has  told  such  attorney  what 
the  said  witness  would  testify  on  this  trial,  does  not  of  itself 
in  any  wise  tend  to  impeach  or  discredit  the  testimony  of 
such  witness." 

But  the  court  modified  the  instruction  by  adding  to  it,  as 
follows :  "  But  such  fact  may  be  considered  by  the  jury, 
together  with  all  the  other  facts  in  evidence  in  determin- 
ing the  weight  of  such  testimony." 

The  instrnction  as  asked  was  correct,  and  it  should  not 
have  been  modified  as  it  was. 

It  is  not  only  the  right,  but  the  duty  of  the  attorney  of  a 
party  to  a  cause  to  talk  to  his  witnesses  and  to  learn  from 
them  their  knowledge  of  the  facts  and  circumstances  of  the 
case,  and  what  their  testimony  will  be  concerning  the  same 
before  calling  them  to  the  stand  to  testify,  and  no  improper 
inferences  are  to  be  drawn  from  the  performance  of  such 
duty.  To  tell  the  jury  that  such  a  circumstance  of  itself 
goes  to  the  credibility  of  witnesses  or  to  the  weight  of  their 
testiraonv,  is  to  tell  them  what  is  not  the  law,  and  never 
was  the  law;  and  to  so  instruct  a  jury  as  to  the  law,  might, 
in  a  proper  case,  be  ground  for  the  reversal  of  a  judgment. 
See  0.  &  G.  T.  Ey.  Co.  v.  Spurney,  69  111.  App.  549. 

But  it  does  not  necessarily  follow  that  this  judgment 
should  be  reversed  on  that  account.  It  is  for  prejudicial 
error  alone  that  judgments  will  be  reversed,  and  here,  upon 
a  review  of  the  whole  record,  it  does  not  seem  to  be  at  all 


340  AppELiiAfE  Courts  OF  Illinois 

Vol.  70.]  McKonDa  v.  McKenna. 

probable  that  the  verdict  was  in  anywise  affected  by  the 
modification  of  the  instruction. 

Discerning  no  substantial  error  in  the  record  sufficient  to 
justify  a  reversal  of  the  judgment,  the  order  is  that  it  be 
affirmed. 


70    840 

^  ^  James  McEenna  r.  Julia  McEenna. 

1.  Alimony — Where  the  Marriage  is  Denied, — In  applications  for  ali- 
mony pendente  lite,  where  the  existeace  of  the  marriage  is  denied,  no 
order  for  the  same  can  properly  be  made  until  a  hearing  has  been  had 
by  the  court  and  the  relation  of  husband  and  wife  found  to  exist 

Bill,  to  set  aside  a  former  decree.  Appeal  from  the  Circuit  Court 
of  Cook  County;  the  Hon.  John  Oibbons,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Beversed.  Opinion  filed  June  14, 
1897. 

Statement  of  the  Case. 

This  was  a  bill  filed  July  23,  1S96,  to  set  aside  a  former 
decree  of  the  Circuit  Court  of  Cook  County,  and  for  a  sepa- 
rate maintenance. 

The  bill  set  forth  that  in  the  spring  of  1802,  complainant 
was  married  to  James  McKenna,  and  continued  to  live  with 
him  as  his  wife  until  June  30, 1894,  when  he  drove  her  from 
their  said  home;  that  during  the  time  complainant  and 
defendant  cohabited  as  husband  and  wife  six  children  were 
born  to  them,  none  of  whom  are  now  living.  That  on  said 
30th  of  June,  1894,  she  filed  her  bill  for  a  separate  mainte- 
nance; that  in  said  former  suit  the  following  decree  was 
centered  on  the  14th  day  of  July,  1894 : 

"  This  cause  now  coming  on  to  be  heard  on  the  bill  of 
complaint  herein  and  the  answer  of  the  defend.ant  herein, 
the  complainant  appearing  in  person  and  by  Albert  Phalen, 
her  solicitor,  and  the  defendant  appearing  by  Barnum, 
Humphrey  &  Barnum,  his  solicitors,  and  it  appearing  to  the 
court  that  the  complainant  consents  that  her  bill  of  com- 
plaint herein  be  dismissed  for  want  of  equity,  it  is  therefore 
ordered,  adjudged  and  decreed,  that  the  said  bill  of  com- 


i. 


First  District — ^March  Term,  1897.       341 

McKenna  v.  McKenna. 

plaint  be,  and  the  same  is  hereby,  dismissed  for  want  of 
equity,  without  costs  to  either  party,  said  costs  having  been 
paid." 

The  bill  then  alleges  that  complainant  was  asked  to  sign 
a  certain  agreement,  or  paper,  which  was  also  signed  by  said 
defendant,  which  is  as  follows: 

"This  agreement,  made  and  entered  into  at  Chicago, 
Illinois,  this  14th  day  of  July,  A.  D.  1894,  by  and  between 
Julia,  otherwise  called  Bridget  Doyle,  an  unmarried  woman, 
and  James  McKenna,  an  unmarried  man,  witnesseth : 

That  whereas,  the  said  Julia  or  Bridget  Doyle,  by  the 
name  of  Julia  McEenna,  has  filed  in  the  Circuit  Court  of 
Cook  County  a  bill  in  chancery  in  cause  general  No.  131,676, 
in  said  court,  against  the  said  James  McKenna,  wherein 
she  alleges,  umong  other  things,  that  she  is  the  wife  of  the 
said  James  McKenna,  and  [^rays,  among  other  things,  a 
separate  maintenance  as  such  alleged  wife;  but  the  said 
James  McKenna  denies  that  she  is  his  wife. 

And  whereas,  in  fact,  the  said  Juliai,  or  Bridget  Doyle,  so 
suing  as  Julia  McKenna,  is  not  and  never  has  been  the  wife 
of  the  said  James  McKenna,  and  she  has  no  legitimate 
claims,  past,  present  or  future,  in  his  lifetime,  or  after  his 
death,  against  him  or  his  property  or  estate,  as  his  wife, 
and  hereby  agrees  to  make  no  such  claims,  and  consents 
that  a  decree  may  be  entered  in  said  chancery  cause  dismiss- 
ing her  said  bill  against  him  for  want  of  equity. 

Now,  therefore,  in  consideration  of  the  premises,  the  said 
James  McKenna  hereby  covenants  and  agrees  to  pay  to  her, 
the  said  Julia,  or  Bridget  Doyle,  otherwise  calling  herself 
Julia  McKenna,  thirty  dollars  ($30)  in  cash  on  the  execution 
of  this  agreement,  the  payment  and  receipt  of  which  is  by  her 
hereby  acknowledged,  and  also  to  pay  to  her  thirty  dollars 
($30)  per  month  on  the  14th  day  of  every  calendar  month 
hereafter,  as  long  as  she  shall  live;  and  he  further  covenants 
that  he  will  pay  all  reasonable  and  necessary  bills  which 
she  may  incur  for  medicines  and  medical  services  on  account 
of  any  sickness  or  injuries  which  may  befall  her  during  her 
life;  and  the  obligations  and  covenants  herein  of  the  said 


342  Appellate  Courts  op  Illinois, 

-      -  ----- 1 uif- 

Vol.  70.]  McKenna  v,  McKenna. 

»  * 

James  McKenna   shall   be    binding  upon  him,  his  heirs, 
executors  and  administrators. 

The  said  Julia  or  Bridget  Doyle  hereby  accepts  the  pro- 
visions herein  made  for  her  in  full  satisfaction,  extinguish- 
ment, and  for  full  release  and  renunciation  which  she 
hereby  gives  and  makes  of  all  claims,  rights  and  interest, 
which  she  would  or  might  have  upon  the  said  James 
McKenna  and  his  property  or  estate  during  his  lifetime  or 
after  his  death,  if  she  were  or  had  been  his  wife. 

This  agreement  is  made  and  accepted  on  both  sides  in 
full  settlement  of  all  past  and  present  differences  between 
them  of  every  name  and  nature. 

Witness  our  hands  and  seals  this  day  and  date  afore- 
said. 

(Signed)         Julia  McKenna,     [Seal.] 

Suing  as  Julia  McKenna. 
(Signed)         James  McKenna,    [Seal.] 

James  McKenna." 

Complainant  alleges  that  the  dismissal  of  the  said  bill  and 
the  entry  of  the  decree  by  the  defendant  and  his  counsel 
was  by  fraud  and  misrepresentation  on  the  part  of  the 
defendant  and  of  his  counsel,  and  of  one  Phalen,  pretending 
to  represent  the  complainant;  that  the  defendant  promised 
to  provide  for  the  complainant  fully  and  ampl\%  and  would 
pay  her  J30  a  month  during  her  life.  That  during  the 
months  immediately  following,  and  until  the  month  of 
January,  1805,  the  payments  of  said  money,  to  wit,  thirtj^ 
dollars  ($30),  were  sent  by  the  defendant  to  the  complain- 
ant. That  defendant  knowingly  and  falsely  misled  com- 
plainant by  causing  and  procuring  a  decree  to  be  entered  in 
said  cause;  that  said  defendant  and  said  counsel,  pretending 
to  represent  this  complainant,  falsely  induced  complainant 
to  sign  the  so-called  fraudulent  agreement,  with  the  inten- 
tion of  deliberately  setting  the  same  up  as  a  defense,  and 
that  the  allegations  of  the  complainant  contained  in  the  bill 
filed  therein  were  true. 

Appellant  appeared  in  this  cause  and  moved  to  strike  the 
bill  from  the  files  and  to  dismiss  the  suit. 

On  December  18, 1896,  an  order  was  entered  as  follows: 


First  Distuictt — March  Term,  1897.       343 

McKenna  y.  McKenna. 

<  ■  '  ■      -» 

"First.  That  motion  filed  on  behalf  of  defendants  to 
strike  the  bill  filed  herein  from  the  files  be  overruled  and 
disallowed. 

Second.  That  motion  for  solicitor's  fees  and  alimonv 
pendente  lite  be  allo>ved.  The  court  decrees  that  said  defend- 
ant McKenna  pay  to  complainant,  within  thirty  days  from 
this  date,  the  sum  of  $350  as  and  for  temporary  alimony 
on  behalf  of  the  complainant,  and  expenses  heretofore 
incurred;  that  said  defendant  pay  the  additional  sum  of  $30 
per  month  to  complainant  as  additional  ali'nony  pendente 
Ute^  said  payments  beginning  on  the  1st  day  of  December, 
1896.  And  it  was  further  ordered  and  decreed  that  said 
defendant  pay  to  the  solicitor  for  the  complainant  as  and 
for  complainant's  solicitor's  fees,  the  sum  of  $300." 

January  5^1,  1897,  appellant  filed  his  verified  answer,  deny- 
ing that  appellee  is  or  ever  was  his  wife;  also  setting  forth 
that  appellee  brought  suit  against  him  upon  the  agreement 
set  up  in  her  bill,  and  obtained  before  a  justice  of  the  peace 
a  judgment  against  him  for  $90.  Appellant  also,  on  Jan- 
uary llth,  moved  that  the  order  for  alimony  and  solicitor's 
fees  entered  in  the  present  suit  be  set  aside,  and  in  support 
of  such  motion  filed  an  affidavit  setting  forth  that  said  order 
was  entered  without  his  knowledge  and  wholly  without  his 
consent  and  approval;  that  he  was  not  served  with  notice  of 
an  application  for  alimony  and  solicitor's  fees;  that  said 
order  was  irregularly  entered,  without  opportunityfor  affiant 
to  be  heard,  his  counsel  having  entered  a  special  and  not  a 
general  appearance,  as  hereinbefore  stated,  which  motion 
of  appellant  was  overruled. 

Strong,  Struckmann,  Ehlb  &  Milsted,  attorneys  for 
appellant. 

W.  A.  Doyle  and  J.  D.  Andrews,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

An  order  to  pay  temporary  alimony  or  solicitor's  fees 
must  be  based  upon  a  finding  that  the  party  so  commanded 
to  pay  is  the  husband  of  the  complainant.    If  such  condition 


344  Appellate  Courts  op  Illinois. 

, . 1 

Vol.  70.]  McKenna  v.  McKenna. 

be  admitted  or  not  denied,  it  may,  for  the  purpose  of  the 
order,  be  assumed. 

In  the  view  of  the  writer  of  this  opinion,  when  the  exist- 
ence of  the  alleged  marriage  is  denied,  no  such  order  can 
properly  be  made  until  a  hearing  has  been  had  and  the  court 
upon  it  finds  and  adjudges  that  the  relation  of  wife  and 
husband  exists. 

If,  before  hearing  and  without  regard  to  the  denials  of 
the  defendant,  an  order  to  pay  temporary  alimony  and 
solicitor's  fees  can  be  made  upon  the  mere  filing  of  a  bill 
alleging  marriage  of  the  complainant  to  the  defendant,  cause 
for  divorce  or  separate  maintenance,  and  ability  of  the 
defendant  to  pay,  then  an  easy  method  for  procuring  the 
temporary  support  of  unmarried  women  and  good  fees  for 
the  bar  has  been  found. 

Upon  disputed  questions  of  fact  to  compel  one  to  pay 
without  a  hearing,  is  to  deprive  him  of  property  without 
due  process  of  law,  for  due  process  of  law  involves  a  hearing 
upon  the  allegations  and  denials  of  the  parties. 

If  the  defendant  merely  deny  the  alleged  cause  for  sepa- 
ration, ordinarily,  an  order  for  alimony  and  solicitor's  fees 
may  be  made,  for  the  fact  of  marriage  entitles  the  suing 
Avife  to  such  order,  whether  she  has  cause  or  not  for  bring- 
ing suit;  while  if  there  be  no  marriage  there  can  not  be 
obligation  to  support  or  to  furnish  funds  to  enable  the  com. 
plainant  to  prosecute  lawsuits.  Bishop  on  Marriage  and 
Divorce,  Vol.  2,  Sec.  924;  Vreeland  v.  Vreeland,  3  N.  J. 
£q.  43. 

In  the  case  of  Schonwald  v.  Schonwald,  1  Phillips'  Eq. 
219,  which  is  based  upon  the  statute  of  North  Carolina, 
there  is  a  dictum  to  the  effect  that  temporary  alimony  may 
be  allowed,  notwithstanding  a  denial  of  the  marriage  by  the 
defendant,  the  court  saying : 

"  Our  statute  is  general  *  *  *  and  puts  the  right  to 
be  allowed  alimony  pendente  lite  upon  the  sufficiency  of  the 
matter  set  forth  in  the  petition;  proceeding  upon  the  idea 
that  it  is  better  when  a  woman  makes  oath,  under  the  pen- 
alty affixed  to  perjury,  to  the  fact  of  marriage,  to  take  it  to 
be  true  for  the  purpose  of  allowing  dXimoxxy  pendente  lite^ 


First  District— March  Term,  1897.       345 

I.  0.  R.  R.  Co.  v.  McCowan. 

even  although  it  may  turn  out  to  be  false,  and  the  man  may 
have  but  little  chance  to  get  back  what  he  ought  not  to 
have  been  compelled  to  pay,  rather  than  subject  a  wife  to 
the  danger  of  starvation,  if  a  brutal  husband  makes  oath 
denying  the  fact  of  marriage,  which  may  turn  out  to  be 
false." 

The  logical  conclusion  from  such  premise  is,  and  the  more 
accurate  statement  would  be,  that  it  is  better  to  compel  any 
man  to  pay  temporary  alimony  and  expenses  of  suit  to  any 
woman  who  may  see  fit  to  make  oath  that  he  is  her  husband, 
however  strongly  he  may  deny  the  accusation,  rather  than 
allow  her  to  be  in  want  of  money  which  he  has. 

In  the  present  case  it  appears  from  the  bill  filed  by  appel- 
lee, two  years  before  bringing  the  present  suit,  she,  under 
her  hand  sl'nd  seal,  declared  that  she  was  not  and' never  had 
been  the  wife  of  appellant,  and  had  no  claim  upon  him,  and 
that  she  consented  that  her  suit  for  separate  maintenance 
be  dismissed  for  want  of  equity;  and  that  such  decree  was 
thereupon  entered. 

The  bill  in  the  present  case  alleges  that  such  decree  was 
procured  by  fraud  of  appellant,  and  appellee  asks  that  it  be 
set  aside,  but  she  does  not  allege  that  since  the  entry  of  the 
same  there  has  been  any  marriage  or  act  indicating  a  maiv 
riage  relation. 

In  the  face  of  such  statement  and  decree,  the  court  should 
not,  without  some  proof,  have  awarded  to  the  complainant 
temporary  alimony  and  solicitor's  fees. 

The  order  of  the  Circuit  Court  is  reversed. 

In  No.  202  of  the  present  term,  McKenna  v.  McKenna,  the 
record  being  the  same  as  that  in  which  the  foregoing  opin- 
ion is  given,  the  order  of  the  Circuit  Court  is  reversed. 


Illinois  Central  Railroad  Company  v.  William  McCowan. 

1.  Fellow-Servants— Foreman  of  Contractors,  and  Employes  of  a 
BaUroad  Compiny. — A  foreman  and  gang  of  men  were  building  stone 
walls,  the  work  being  done  for  a  railroad  company  by  contract,  under 
which  the  raih:t>ad  company  was  required  to  furnish  the  necessary 


346  Appellate  Courts  of  Illinois. 

Vol.  70.1  I-  C.  R.  R.  Co.  v.  McCowan. 

switching  and  side  track  facilities  to  place  the  stone  at  the  sites  where 
it  was  to  be  used,  the  company  to  unload  it  promptly,  and  under  which 
contract  the  course  of  business  was  that  said  foreman  directed  the  serv- 
ants of  the  railroad  where  he  wanted  the  stone  placed,  but  had  no  voice 
in  saying  how  they  should  be  got  there.  It  was  held,  that  the  relation 
of  fellow-servants  did  not  exist  between  such  foreman  and  the  servants 
of  the  railroad  company. 

2.  Trials  by  the  Court— Effect  of  Finding.— The  finding  of  a  court 
trying  a  cause  without  a  jury,  in  regard  to  questions  of  negligence  and 
ordinary  care,  stands  upon  the  same  footing  as  the  verdict  of  a  jury  upon 
such  questions. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Edward  F.  Dunne,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Mr.  Justice 
Waterman,  dissenting.    Opinion  filed  June  14,  1897. 

John  G.  Drennan,  attorney  for  appellant;  Jambs  Fen- 
tress, of  counsel. 

KicHARD  Pbendergast,  attomey  for  appellee. 

Mel  Presidino  Justice  Gary  delivered  the  opinion 
OF  the  Court. 

Under  a  peculiar  stipulation,  which  there  is  no  need  to 
copy,  this  case  was  tried  without  a  jury.  The  only  claim 
of  the  appellee  on  the  trial  and  here,  was  and  is,  that  he 
was  rightfully  at  work  upon  the  north  end  of  a  car  standing 
still,  and  that  the  appellant  bumped  from  the  north  another 
car  against  the  one  he  was  upon,  and  as  a  result  he  fell  oflF 
to  the  north,  and  was  run  over  by  the  car  that  had  come 
against  the  one  upon  which  he  was. 

This  version  stands  only  upon  his  own  wholly  uncorrob- 
orated testimony,  contradicted  by  the  testimony  of  all  the 
other  persons  present — some  half  dozen. 

In  such  a  case  a  verdict  of  a  jury  or  finding  of  a  court 
against  the  overwhelming  preponderance  of  the  evidence, 
ought  not  to  stand.  North  Chicago  St.  Ey.  v.  Lotz,  44  111. 
App.  78. 

Vituperation  and  charges  of  perjury  an:l  subornation  of 
perjury,  do  not  supply  the  lack  of  proof  that  th3  m  mn3r  of 
the  injurj'^  to  the  appellee  was  as  he  states  it  to  have  been. 


First  District — March  Term,  1897.       347 

I.  C.  R.  R.  Co.  v.  McCowan. 

Whether  upon  the  real  facts  the  appellee  has  any  right 
to  recover,  is  a  question  which  remains  to  be  considered. 

The  record  furnishes  us  no  information  as  to  the  ground 
the  court  went  upon  in  finding  for  the  appellee. 

He  was  the  foreman  of  a  gang  of  men  building  stone 
walls  in  work  being  done  by  contract  for  the  appellant. 
The  contract  between  the  appellant  and  the  employers  of 
the  appellee  required  the  appellant  "  to  furnish  the  neces- 
sary switching  and  side  track  facilities  "  to  place  the  stone 
at  the  sites  where  it  was  to  be  used — the  employers  to 
unload  it  promptly.  Under  this  contract  the  course  of  busi- 
ness was  that  the  appellee  did  direct  the  servants  of  the 
appellant  where  he  wanted  carloads  of  stone  placed,  but 
had  no  voice  in  saying  how  they  should  be  got  there. 

There  was  no  fellow-servant  relation  between  the  appel- 
lee and  the  servants  of  the  appellant. 

A  car  loaded,  or  partly  so,  with  stone,  was  being  pushed 
south  on  the  track.  In  the  train  were  four  cars — one  south 
of  the  one  first  spoken  of,  and  two  north  of  it,  and  between 
it  and  the  locomotive. 

On  the  car  first  spoken  of,  and  near  the  south  end  of  it, 
the  appellant  was  at  work  "  dogging "  a  stone — making 
holes  in  it  for  placing  tools  to  lift  it  off  the  car. 

The  conductor  of  the  train  was  on  the  ground  at  the  side 
of  the  train,  and  at  the  moment  of  the  injury  to  the  appel- 
lee within  "  eifrht  or  ten  feet"  of  both  the  appellee  and  a 
brakeman  on  the  south  car,  and  directed  the  brakeman  to 
pull  the  pin  of  the  coupling  between  the  cars,  and  also 
directed  the  locomotive  engineer  to  stop. 

It  is  readily  seen  that  as  the  train  was  backing  at  a  speed 
of  about  four  miles  an  hour  these  movements  left  the  south 
car  free  to  proceed,  when  the  speed  of  the  rest  of  the  train 
diminished  before  stopping,  and  that  the  tendency  of  move- 
able objects,  on  the  car  the  appellee  was  upon,  was  to  go 
over  to  the  south  end  of  that  car,  by  reason  of  the  momen- 
tum gained  by  the  movement  of  the  car.  The  appellee  was 
such  an  object — off  his  guard  by  attention  to  the  work 
of  "dogging"  the  stone,  no  doubt  in  an  attitude  not  favor- 


348  Appellate  Courts  op  Illinois. 

Vol.  70.]  I.  C.  R.  R.  Ca  V.  McCawan. 

able  to  steady  standing — and  he  went  over  the  south  end  of 
the  car,  which,  not  stopping  instantly,  ran  over  him,  in 
"drifting  south,  probably  a  car  length."  The  evidence 
does  not  justify  us  to  say  that  the  attention  of  the  appellee 
was  called  to  the  fact  that  the  movements  directed  by  the 
conductor  were  about  to  be  made,  nor  that  he  in  any  way 
had  notice  of  what  was  about  to  happen. 

Now,  if  the  case  had  been  tried  by  a  jury,  under  correct 
instructions,  or  none  at  all,  and  a  verdict  been  rendered  (as 
it  would  have  been)  for  the  appellee,  could  we  say  that  the 
appellee,  absorbed  in  his  work,  without  notice  of  anything 
to  excite  apprehension  of  danger,  was  not  in  the  exercise  of 
ordinary  care,  and  that  tlie  servants  of  the  appellant,  know- 
ing his  position,  and  the  tendency  upon  him  of  the  move- 
ments about  to  be  made,  were  not  negligent  in  making 
those  movements  without  calling  his  attention  ?  Unless  we 
could  answer  one  or  the  other  of  those  questions  in  favor 
of  the  appellant,  we  could  not  disturb  such  a  verdict,  and 
the  finding  of  the  court  stands  upon  the  same  footing. 
There  are  counts  in  the  declaration  that  fit  such  a  case,  and 
for  ought  we  know,  it  was  upon  that  case  that  the  court 
held  that  the  appellee  was  entitled  to  recover.  We  have  a 
strong  suspicion  that  in  taking  this  view  we  are — while 
reviewing  the  record — not  reviewing  the  action  of  the  Cir- 
cuit Court ;  but  it  is  upon  the  record  that  we  must  act,  and 
if  error  is  not  there  shown,  the  judgment  must  be  affirmed. 

The  contract  between  the  appellant  and  the  employers  of 
the  appellee  provided  that  the  appellant  would  "  not  fur- 
nish transportation  for  any  of  the  contractors,  foremen  or 
laborers,  to  or  from  the  work."  It  would  be  straining  the 
words  to  hold  that  the  presence  of  the  appellee  upon  a  car, 
preparing  a  stone  for  unloading,  was  thereby  wrongful, 
even  if  the  car  was  moving  in  the  course  of  switching. 

Upon  the  whole  record  we  can  not  say  that  the  judgment 
is  wrong,  and  it  is  therefore  affirmed. 

Mr.  Justice  Waterman,  dissents. 


First  District — March  Term,  1897.       349 

Humiston,  Keeling  &  Co.  v.  Wheeler. 


70    849 
175*  6!4 

70       349 

Hamiston^  Eeeling  &  Co.  y.  Gharies  6.  Wheeler.  92   g62i| 

1.  liRASR'-What  Passes  as  Appurtenances. — ^The  lease  of  a  building 
with  the  appurtenances  passes  the  land  upon  which  it  stands  and  that 
appurtenant  thereto,  to  the  lessee,  and  a  partial  destruction  of  the  build- 
ing by  fire  does  not  terminate  the  lease. 

2.  Eviction— TT/ia^  is  Nat— The  fact  that  a  landlord  re-enters  upon 
leased  premises  and  repairs  a  building  damaged  by  fire  without  objec- 
tion on  the  part  of  the  lessee,  and  requests  such  lessee  to  remove  his 
effects  from  such  building,  does  not  amount  to  an  eviction. 

'8.  LiiNDLORD  AND  Tes ANT— When  the  Landlord  May  Relet  for  the 
BenefU  of  the  Tenant. — Where  the  lessee  of  a  building  damaged  by  fire 
permits  the  landlord  to  repair  the  same,  but  vacates  the  premises,  insists 
that  the  lease  is  terminated  and  refuses  to  pay  rent,  the  landlord  may 
relet  the  same  for  the  benefit  of  such  tenant  lessee,  and  his  liability  for 
r^nt  will  be  diminished  to  the  amount  of  rent  from  such  reletting. 

"4.  Same — Acceptance  Necessary  to  a  Surrender, — A  surrender  of 
premises  by  a  tenant  during  a  term  to  be  effectual  so  as  to  amount  to  a 
termination  of  the  tenancy  must  be  accepted  by  the  landlord. 

5.  Bamr— Re-entry  for  Making  Repairs  Not  an  Eviction. — ^Taking 
possession  of  premises  damaged  by  fire,  by  a  landlord,  with  the  apparent 
consent  of  a  tenant,  for  the  purpose  of  making  necessary  repairs,  is  not 
an  eviction,  nor  is  a  tenant  who  has  abandoned  the  premises  and  refused 
to  pay  rent  relieved  from  liability  by  the  action  of  the  landlord  in  rent- 
ing the  premises  to  another  party,  save  to  the  extent  of  the  rpnt  received 
by  the  landlord  on  account  of  such  renting. 

Debt,  for  rent.  Appeal  from  the  Superior  Court  of  Cook  County;  the 
Hon.  Jonas  Hutchinson,  Judge,  presiding.    Heard  in  this  court  at  the  < 

March  term,  1897.    Affirmed.    Opinion  filed  June  14, 1897. 

Statement  of  the  Case« 

.  This  suit  was  brought  by  the  appellee  (plaintiff  below)  to 
recover  rents  for  certain  parts  of  the  premises  known  as 
143  and  145  Lake  street,  from  March  13,  1891,  to  May  I, 
1S92,  less  the  sum  of  $2,400,  $300  of  which  was  obtained 
by  the  appellee  for  temporary  lease  in  the  fall  of  1891,  and 
the  remainder,  $2,100,  for  rents  received  at  the  rate  of  $525 
per. month,  for  January,  February,  March  and  April,  1892. 

>  The  record  shows  that  plaintiff  rented  to  appellant  cer- 
tain premises  at  143  and  145  Lake  street,  Chicago,  from 


350  Appellate  Courts  op  Illinois. 

Vol.  70.]  Humiston,  Keeling  &  Co.  v.  Wheeler. 

May  1,  1890.  to  May  1,  1892,  at  $400  per  month— $200  to 
be  paid  in  cash  and  $200  to  be  paid  in  trade.  The  building 
was  five  stories  high,  and  the  premises  rented  wereNos.  143 
and  145  Lake  street,  except  the  fourth  floor  and  stairway 
leading  thereto,  part  of  the  basement  and  second  floors,  use 
of  gas  engine  for  grinding  drugs,  and  of  pumps  and  engines 
for  raising  water  to  the  fourth  floor,  etc. 

On  the  night  of  March  13,  1891,  a  fire  took  place  which 
burned  out  most  of  the  interior — leaving  the  walls  standing, 
also  a  portion  of  the  third  and  fourth  floors  and  the  entire 
first  floor  and  basement — the  first  floor  being  covered  with 
debris  from  the  other  floors. 

On  the  morning  of  March  17th  appellee  claims  to  have 
met  Humiston  at  the  building,  and  that  Humiston  asked 
him  if  he  should  rebuild,  and  that  he  replied  he  would  do  so 
as  soon  as  possible — and  that  either  Humiston  or  Keeling 
told  him  they  (the  defendant)  had  taken  a  new  store. 

He  further  claims  to  have  called  on  them  at  the  close  of 
March,  and  asked  for  rent  for  the  month  of  March,  and  that 
they  paid  him  ^sts  of  a  month's  rent,  or  ^sts  of  $200. 

That  he  then  refused  to  sign  a  receipt  in  full,  but  took 
the  money  on  account.  That  they  then  told  him  they  had 
taken  a  new  store,  and  that  he  then  said  he  "  had  let  the 
contract  for  repairing  the  old  store,"  and  "  that  he  expected 
them  to  occupy  it  or  find  a  tenant." 

All  of  these  conversations,  however,  are  specifically 
.  denied  by  both  Humiston  and  Keeling,  and  defendant  claims 
that  the  only  commuication  had  (prior  to  June  6th)  was  the 
receipt  of  a  postal  card  which  Wheeler  admits  sending  on 
April  24,  1891,  which  was  addressed  to  defendant,  and  is  as 
follows : 

''Please  remove  your  barrels,  empty  and  full  ones,  from 
143  Lake  St.,  to-morrow,  Friday,  as  they  are  in  the  ^vay  of 
my  contractors." 

Appellant  claims  that  there  was  no  payment  made  on  the 
last  of  March;  but  that  $100  was  paid  on  April  29,  1891. 

Appellee  admits  the  payment  of  all  rents  accrued  prior  to 
the  fire  of  March  13th. 


Fin^T  District — March  Term,  1897.       351 

Huiuiston,  Keeling  &  Co.  v.  Wheeler. 

At  the  end  of  March,  after  the  fire,  appellee  told  defend- 
ant that  he  was  "  going  to  rebuild."  On  the  24th  of  April 
appellee  begun  rebuilding  the  structure. 

Appellee  took  possession  of  the  entire  building  and  prem- 
ises and  rebuilt  the  structure.  It  was  completed  about  June 
6th,  and  on  that  day  Wheeler  wrote  appellants  advising 
them  that  the  building  was  ready  for  occupancy,  and 
requested  them  to  return  as  his  tenant. 

Appellant  answered  on  June  8th,  saying  it  had  not  been 
his  tenant  since  the  morning  of  March  14th. 

Appellee  placed  the  premises  in  the  hands  of  an  agent  for 
rent  as  early  as  May  27th,  at  $6,500  per  year.  Appellant 
was  paying  only  $4,800  per  year,  one-half  cash  and  one-half 
in  trade. 

In  December  of  1891,  plaintiflf  rented  the  store  of  the 
premises  to  a  clothing  house  for  about  $300,  and  for  Janu- 
ary, February,  March  and  April,  1892,  he  obtained  rent  at 
the  rate  of  $525  per  month  for  the  entire  premises. 

Under  these  circumstances  this  suit  is  brought  to  recover 
the  entire  rental  of  $400  per  month,  under  the  lease,  from 
the  time  of  the  tire,  March  13,  1891,  up  to  M  ly  1, 1892,  less 
only  the  amounts  received  as  above,  and  with  interest  on 
all  installments,  and  verdict  and  judgment  were  rendered 
in  the  court  below  accordingly. 

The  lease  in  this  case  contains  no  covenant  to  repair  by 
the  landlord;  it  in  terms  gives  no  right  of  re-entry  to  the 
landlord. 

Nor  does  this  lease  grant  to  the  landlord  any  right  to 
relet  the  premises. 

The  tenants  were  to  return  the  property  in  as  good  con- 
dition as  when  entered  upon,  "  loss  by  fire,  or  unavoidable 
accident,  or  ordinary  wear  excepted." 

Flower,  Smith  &  Musgravb,  attorneys  for  appellant. 

Where,  as  in  this  case,  only  a  portion  of  a  building  is  rented 
and  the  building  is  destroyed  by  fire,  or  that  portion  rented 
is  destroj'ed  by  fire,  the  lease  is  terminated.  Taylor  on 
landlord  and  Tenant,  Sec.  520;  Wood  on  Landlord  and 
Tenant,  (2d  Ed.),  pages  1032  and  1033;  Shawmut  Bank  v. 


352  Appellate  Courts  op  Illinois. 

Vol.  70.]  Humiston,  Keeling  &  Co.  v,  Wheeler. 

Boston,  118  Mass.  125;  Harrington  v.  Watson,  50  Am.  Kep. 
465,  and  note  on  page  469,  and  cases  cited  therein;  Porter 
V.  TuU,  22  L.  R.  Ann.  613,  and  note  appended;  12  Am.  and 
Eng.  Ency.  757. 

The  landlord,  Wheeler,  beinof  given  no  right  of  re-entry 
by  his  lease  under  any  circumstances,  having  entered  therein 
and  taken  exclusive  possession  of  the  premises,  and  rebuilt 
the  building,  was  guilty  of  a  total  eviction,  and  even  if  his 
acts  were  with  the  consent  of  the  tenant,  it  constituted  a 
surrender  of  the  lease.  McGaw  v.  Lambert,  3  Pa.  St.  444; 
Hoveler  v.  Fleming,  91  Pa.  St.  324;  Halligan  v.  Wade,  21 
111.  470;  Taylor  on  Landlord  and  Tenant,  5th  Ed.,  Sec.  378, 
pages  276  and  277. 

SiGMUND  Zeisler,  attorney  for  appellee. 

The  tenant  must  not  only  abandon  the  premises,  but  it 
must  also  appear  that  he  abandoned  them  on  account  of  the 
acts  of  the  landlord,  which  are  claimed  to  operate  as  an 
eviction;  and  if  his  abandonment  was  due  to  other  causes,  in 
part  even,  he  can  not  set  up  such  acts  in  defense  to  an  action 
for  the  rent.  Wood,  Landl>-iand  Tenant,  (2d  Edition), 
page  1107. 

■  If  the  tenant  abandons  the  premises  before  the  expiration 
of  his  term,  the  landlord  has  a  right  to  re-enter.  12  Am. 
&  En.  Ency.  of  Law,  684. 

The  landlord  has  an  unquestioned  right  to  re-enter 
demised  premises  for  the  purpose  of  making  such  repairs  as 
are  indispensable  to  the  preservation  of  the  reversion.  12 
Am.  &  En.  Ency.  of  Law,  725. 

•  By  the  common  law,  where  the  tenant  abandons  the  prem- 
ises during  the  term  without  fault  of  the  landlord,  it  is  no 
relief  from  the  payment  of  rent.  The  landlord  maj'  there- 
upon take  possession,  re-rent  and  credit  the  first  lessee  with 
the  proceeds.     12  Am.  &  En.  Ency.  of  Law,  751. 

Mb.  Justice  Waterman  delfverrd  the  opinion  of  the 
Court. 

The  lease  being  of  the  premises,  143  and  145  Lake  street, 
"with  the  appurtenances,"  except  certain  portions  of  the 


First  District — March  Tkrm,  1897.       353 

Humiston,  Keeling  Sc  Co.  v.  Wheeler. 

building,  the  land  upon  which  the  building  stood  and  that 
appurtenant  thereto,  passed  to  the  lessees.  Wood  on  Land- 
lord &  Tenant,  Sec.  212;  Sherman  v.  Williams,  113  Mass. 
481;  Shep.  Touchstone,  94. 

Such  being  the  case,  the  partial  destruction  of  the  build- 
ing did  not  terminate  the  lease.  Nonotuck  Silk  Co.  v.  Shay, 
37  111.  App.  542. 

Did  appellee,  by  rebuilding,  release  appellant  from  its  lia- 
bility as  a  tenant  ? 

Had  appellee  done  nothing,  appellant  would  have  had 
to  pay  rent  to  the  end  of  the  term,  for  a  building  which,  in 
the  condition  it  was  left  by  the  fire,  was  useless.  The  act 
of  appellee  in  rebuilding  was  therefore  in  the  highest  degree 
beneficial  to  appellant.  So  far  from  the  rebuilding  being  a 
thing  of  which  appellant  may  justly  complain,  it  was  for  its 
interest  and  benefit,  and  went  on  without  its  protest. 

There  was,  by  appellee,  no  interference  with  appellant's 
possession,  save  such  as  was  necessary  in  order  to  rebuild, 
and  none  to  which  appellant  objected. 

Appellant  was  by  the  fire  driven  out  of  the  building; 
only  a  small  quantity  of  its  goods  remained  in  the  premises. 
Doubtless  it  could  have  insisted  upon  its  right  to  full  pos- 
session of  all  it  had  rented,  and  thus  prevented  a  rebuilding 
by  appellee,  or  it  might  itself  have  rebuilt,  but  it  evinced 
no  disposition  to  do  either. 

Neither  the  rebuilding  by  appellee  nor  the  request  to 
appellant  to  remove  its  barrels,  etc.,  was  an  eviction.  Wood, 
Landlord  and  Tenant,  Sec.  481;  Nonotuck  Silk  Co.  v.  Shay, 
37  111.  App.  542. 

Did  the  oflfer  b}''  appellee  to  rent  the  premises,  and  the 
actual  renting  of  them  by  him,  discharge  appellant  from  its 
liability  ? 

Before  this  was  done,  appellant  had  not  only  stopped  pay- 
ing rent,  but  insisted  that  its  tenancy  was  at  an  end. 

The  reletting  of  the  premises  was  for  the  benefit  of 
appellant,  as  thereby  the  amount  of  its  liability  was  dimin- 
ished. Scott  V.  Beecher  et  al.,  91  Mich.  590;  Rich  v.  Doyenn, 
85  Hun,  510;  Lane  v.  Nelson,  31  Atl.  Eep.  864. 

Vol.  LXX  » 


354  Appellate  Courts  of  Illinois. 

Vol,  70.]     Wheeler  Chemical  Works  v.  Boston  Nat  Bank. 

Whenever  a  breach  of  contract  is  made,  the  party  against 
whose  right  the  breaking  is  should  endeavor  to  make  the 
consequent  damage  as  light  as  possible.  Sutherland  on 
Damages,  Vol.  2,  473;  Joslin  v.  McLean,  99  Mich.  450. 

A  surrender  of  premises  by  a  tenant  during  a  term,  to  be 
effectual  so  as  to  amount  to  a  termination  of  the  tenancy, 
must  be  accepted  by  the  lessor. 

In  the  present  case  appellee  refused  to  accept  the  surren- 
der, and  notified  appellant  that  the  building  was  ready  for 
its  occupancy. 

Taking  possession  of  premises  by  a  landlord,  with  the 
apparent  consent  of  a  tenant,  for  the  purpose  of  making  neces- 
sary repairs,  is  not  an  eviction;  nor  is  a  tenant,  who  has 
abandoned  premises  and  refused  to  pay  rent,  relieved  from 
liability  by  the  action  of  his  landlord  in  renting  the  prem- 
ises to  another  party,  save  to  the  extent  of  the  rent  so 
received  by  the  landlord  from  another.  Nonotuck  Silk  Co. 
V.  Shay,  37  111.  App.  542;  Scott  v.  Beecher,  91  Mich.  590; 
Stewart  v.  Sprague,  71  Mich.  50;  Rich  v.  Doyenn,  85  Hun, 
510;  Joslin  v.  McLean,  99  Mich.  480. 

The  judgment  of  the  Superior  Court  is  affirmed. 


Wheeler  Chemical  Works  and  C.  Gilbert  Wheeler  v. 

The  Boston  National  Bank. 

1,  Bill  op  ExcEPnoys— Affidavits  Bead  on  a  Motian  for  a  New 
Trial, — AflSdavits  read  on  a  motion  for  a  new  trial  must  be  preserved  in 
the  bill  of  exceptions.  The  certificate  of  the  clerk  stating  that  they  are 
the  affidavits  referred  to  in  the  bill  of  exceptions  is  a  nullity. 

Assumpsit,  on  promissory  notes.  Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  Edward  F.  Dunne,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  Jane 
14,  1897. 


H.  M.  Pierce,  attorney  for  appellants. 
Otis  &  Graves,  attorneys  for  appellee. 


First  District — March  Term,  1897.       355 

Harding  v.  Kuessner. 

Mb.  Justice  Gary  delivebkd  the  opinion  of  the  Court. 

The  appellants  first  demurred  to  the  declaration,  and  the 
demurrer  being  overruled,  pleaded.  No  question  is  now  in 
the  case  as  to  the  demurrer,  which  was  waived  by  pleading. 
Foltz  V.  Hardin,  139  111.  405. 

The  case  was  tried  without  the  presence  of  any  represent- 
ative of  the  appellants,  and  whether  any  cause  existed  for 
granting  a  new  trial,  we  can  not  inquire,  as  the  affidavit 
upon  which  a  motion  for  a  new  trial  was  based,  is  not  in  a 
bill  of  exceptions.  We  may  not  read  it  upon  a  certified 
copy  by  the  clerk  of  the  court. 

Wright  V.  Griffey,  146  111.  394,  is  one  of  dozens  of  cases 
to  that  effect.  The  statement  of  the  clerk  that  it  is  the 
aflBdavit  referred  to  in  the  bill  of  exceptions  is  a  nullity. 
Smith  V.  Trimble,  27  111.  152,  Village  of  Melrose  v.  Bern- 
ard, 126  111.  496;  Chicago,  M.  &  St.  P.  Ry.  v.  Yando,  127 
111.  214. 

There  is  no  error  shown,  and  the  judgment  is  affirmed. 


George  F.  Harding  and  Firemen's  Insurance  Co.  v. 
Ferdinand  Knessner^  for  Use^  etc. 

1.  Appeal  Bonds— TF/iaf  is  a  Breach  of,— The  non-payment  of  the 
amount  due  upon  a  judgment  which  has  been  affirmed  in  part  on  ap- 
peal, a  remittitur  having  been  entered  to  the  balance,  is  such  a  breach 
of  the  appeal  bond  as  wiU  support  an  action. 

Debt,  upon  an  appeal  bond.  Appeal  from  the  Superior  Court  of  Cook 
County;  the  Hon.  James  Goqoin,  Judge,  presiding.  Heard  in  this  court 
at  the  liarcb  term,  1897.    Affirmed.    Opinion  filed  June  14,  1897. 

Wm.  J.  Ammei^,  attorney  for  appellants. 

Nelson  Monkob,  attorney  for  appellee. 

Mb.  Justice  Waterman  delivered  the  opinion  op  the 
Court. 
This  was  an  action  brought  upon  a  bond  given  upon  an 


70  3551 
t7as  125 


70    0)6 
172s  337 


356  Appellate  Courts  of  Illinois. 

Vol.  70.]  Standard  Brewery  v.  Nudelman. 

appeal  to  this  court  from  a  judgment  rendered  against  the 
insurance  company. 

Upon  such  appeal,  in  this  court,  the  plaintiff  remitted  the 
gum  of  $390.28,  and 'the  judgment  of  the  Superior  Court 
was  affirmed  for  $1,072.22.  Appellants  contend  that  as 
the  judgment  of  the  Superior  Court  was  not  affirmed  in  totOj 
and  as  the  Firemen's  Insurance  Company  has  taken  an 
appeal  from  the  judgment  of  this  court,  there  has  been  no 
breach  of  the  condition  of  its  bond. 

It  does  not  appear  from  the  record  in  this  cause,  here 
filed,  that  an  appeal  has  been  taken  from  the  judgment  of 
this  court  affirming  the  judgment  of  the  Superior  Court, 
upon  appeal  from  which  the  bond  was  given.  It  was  not 
necessary  to  aver  or  prove  that  no  appeal  had  been  taken. 
2  Chitty's  Pleading,  484n. 

The  affirmance  by  this  court  of  the  judgment  of  the 
Superior  Court  for  $1,072.22,  and  the  failure  to  pay  the 
same,  constituted  a  breach  of  the  condition  of  the  bond* 

The  judgment  of  the  Superior  Court  is  affirmed. 


Standard  Brewery  t.  Jacob  Nadelman. 

1.  Chattel  Mortgages — After-Acquired  Property,^ A.  chattel  mort- 
gage upon  property  to  be  acquired  by  the  mortgagor  after  its  execution 
is  ineffectual. 

2.  Same— Q)on  a  Stock  of  Merchandise  Kept  for  Sdle^-^X  chattel 
mortgage  upon  a  stock  of  merchandise  on  hand  and  kept  for  sale  is  void 
as  against  purchajsers. 

8.  BhXEr— Foreclosure  by  Agents  Under  Oenerdl  Directions, — General 
directions  to  his  salesman  by  the  holder  of  a  chattel  mortgage,  which 
covers  the  right  of  possession  of  the  premises,  to  foreclose  the  same, 
leaves  to  such  salesman  the  exercise  of  discretion  as  to  taking  possession 
of  the  premises. 

4.  Verdicts — When  Final, — A  verdict  upon  conflicting  and  irrecon- 
cilable evidence  is  final. 

Trespass.— Assault  and  battery.  Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  Francis  Adams,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1807.    Affirmed.    Opinion  filed  June  14, 


First  District — March  Term,  1897.       367 

standard  Brewery  v.  Nudelman. 

Stbin  &  Plait,  attorneys  for  appellant. 
M.  Salomon,  attorney  for  appellee. 

Mr.  Justiob  Gaby  delivered  the  opinion  of  the  Ooubt. 

There  is  a  fair  average  of  perjury  in  this  case,  but  we 
can  not  tell  on  which  side,  and  must  accept  the  verdict  of 
the  jury  as  being  based  upon  the  truthful  testimony. 

August  6  or  7, 1892,  the  appellee  bought  from  one  Panofif 
a  saloon,  upon  the  contents  of  which,  June  18, 1892,  Panoff 
had  given  a  mortgage  to  the  appellant.  The  mortgage  in 
terms  included  all  wines,  liquors  and  cigars  that  might  be 
added  to  the  stock,  and  the  leasehold  interest  of  Panoff  in 
the  premises. 

What  sort  of  leasehold  interest  Panoff  had  in  the  prem- 
ises is  not  shown  with  any  degree  of  certainty.  If  the 
appellant  would  justify  under  the  mortgage  of  it,  what  it 
was  should  be  proved. 

The  abstract  does  not  show  that  the  appellant  pleaded  in 
justification  that  Panoff  had  any  leasehold  interest,  nor 
what  replications  were  filed.    Olsen  v.  Upsahl,  69  111.  273. 

As  to  stock  that  might  be  added  the  mortgage  was  inef- 
fectual. Jones,  Chat.  Mtges.,  Sec.  138,  cited  with  approval 
in  Borden  v.  Croak,  131  111.  68 ;  and  as  to  stock  on  hand, 
kept  for  sale,  the  mortgage  was  void  against  a  purchaser. 
Deering  v.  Washburn,  141  111.  153. 

After  an  interview  between  the  appellee  and  the  presi- 
dent of  the  appellant  in  the  forenoon  of  August  11,  1892, 
during  which  it  does  not  appear  that  any  unpleasantness 
occurred,  the  president  gave  the  mortgage  to  a  salesman  of 
the  appellant  with  directions  to  collect  the  money — $450 — 
and  if  he  did  not  get  the  money,  to  get  a  constable  and 
forolose. 

The  salesman  obeyed  the  instructions,  got  a  constable  and 
another  man,  went  to  the  saloon,  took  possession  of  the 
place,  and  took  away  stock,  furniture  and  fixtures.  Thus 
far  there  is  no  dispute,  and  a  clear  case  of  trespass  is  made 
out.  On  a  mortgage  of  the  movables  in  the  saloon,  which 
in  fact  were  moved  the  same  day  in  wagons  of  the  appel- 


358  Appellate  Courts  of  Illinois. 

Vol.  70.]  Albert  Pick  &  Co.  v.  Slimmer. 

lant,  the  app3llant  had  no  right  to  turn  the  appellee  out 
nor  to  take  away  any  stock  kept  for  sale,  whether  bought 
by  the  appellee  from  Panoflf  or  brought  in  afterward,  of 
which  there  is  testimony  as  to  part  of  the  stock. 

The  general  directions  to  foreclose  a  mortgage,  which  in 
terms  covered  the  right  of  possession  of  the  premises,  left 
to  the  salesman  the  exercise  of  discretion  as  to  taking  pos- 
session of  the  premises.    Moir  v.  Hopkins,  16  111.  313. 

Why  the  president  directed  the  salesman  to  get  a  con- 
stable, was  a  proper  subject  of  inquiry  before  the  jury. 
There  was  no  legal  process  to  be  served.  Only  muscle  to 
handle  and  wagons  to  transport  the  goods  were  necessary 
to  the  foreclosure. 

The  jury  might  well  infer  that,  intending  to  turn  out  of 
doors,  without  any  right  shown  so  to  do,  a  man  in  peace- 
able possession,  the  appellant  thought  resistance  might  be 
expected,  and  that  "  arms  and  the  man  "  might  be  necessary 
to  overcome  such  resistance. 

In  fact  the  constable  shot  the  appellee,  wounding  him  in 
the  shoulder. 

The  appellee  sued  and  has  recovered  $1,500  against  the 
appellant  and  the  constable.  The  result  is  presumed  to  be 
right  unless  the  record  shows  it  to  be  wrong.  No  complaint 
is  made  of  instructions  given  at  the  request  of  the  appellee,  or 
by  the  court  without  request,  and  in  those,  with  four  given 
at  the  request  of  the  defendants  below,  all  the  law  appli- 
cable to  the  case  was  before  the  jury. 

The  whole  controversy  is  upon  the  evidence — conflicting 
and  irreconcilable — and  the  verdict  is  final. 

The  damages  are  liberal,  as  the  wounding  was  not  severe, 
but  the  transaction  was  arbitrary  and  tyrannical. 

The  judgment  is  aifirmed. 


Albert  Pick  &  Company  y.  Edward  Slimmer. 

1.  Accou.VT  Stated— Njt  Conjhisive, — An  account  stated  is  not  con- 
clusive upon  the  parties  but  simply  affords  a  prima  facie  case. 

2.  Sajie— PoM^er  of  a  Corporation  to  Make.— The  president  and  sec- 


FiBST  District— March  Term,  1897.        359 

Albert  Pick  &  Co.  v.  Slimmer. 

retary  of  a  corporation  are  presumed  to  have  authority  to  make  and 
render  a  statement  of  account. 

8.  Propositions  op  Law — Must  Not  be  Propositions  of  Fact. — It  is 
not  error  to  refuse  to  hold,  as  a  proposed  proposition  of  law,  what  is  in 
reality  a  proposition  of  fact. 

Assnnipsit,  on  an  account  stated.  Appeal  from  the  Superior  Court  of 
Cook  County;  the  Hon.  Farlin  Q.  Ball,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.  Afiirmed.  Opinion  filed  June  14, 
1897. 

Steik  &  Platt,  attorneys  for  appellant. 

Rendering  the  account  in  question  while  certain  require- 
ments of  plaintiff's  contract  were  unfulfilled  would  not  con- 
stitute such  an  account  stated  as  to  afford  ground  for 
maintaining  the  suit  in  disregard  of  such  requirements. 
Phelps  V.  Hubbard,  59  111.  79. 

Even  if  the  statement  constituted  an  "  account  stated," 
such  account  would  not  be  conclusive  upon  the  plaintiff, 
but  errors  might  be  shown  and  corrected  under  the  plea  of 
general  issue.  2  Greenleaf  on  Evidence  (15th  Ed.),  Sec. 
128;  Thomas  v.  Hawks,  8  M..  &  W.  140;  Bouslog  v.  Garrett 
39  Ind.  338;  Vanderveer  v.  Statesir,  39  K  J.  L.  593;  Field 
V.  Knapp,  108  N.  Y.  87. 

And  it  is  not  necessary  that  this  should  be  done  by  admit- 
ting the  account  stated  and  formally  "  surcharging "  or 
** falsifying."  The  correctness  of  the  items  may  be  dis- 
puted under  the  general  issue.  McKinster  v.  Hitchcock, 
19  Neb.  100;  Hodge  v.  Boynton,  16  111.  App.  524. 

An  account  stated  is  not  conclusive  upon  the  parties  but 
simply  ^affords  &  prima  facie  case.  The  burden  of  proof  is 
shifted  but  the  correctness  of  items  may  still  be  attacked. 
Gruby  v.  Smith,  13  111.  App.  43;  McKinster  v.  Hitchcock, 
19  Neb.  100;  St.  Louis  Co.  v.  Bank,  8  Colo.  70. 

Even  when  the  circumstances  are  such  that  it  would  be 
improper  to  inquire  into  the  items  if  the  settlement  of  the 
account  were  admitted,  yet  it  is  proper  to  inquire  as  to  the 
correctness  of  such  items  with  a  view  to  determining  the 
probability  of  the  respective  claims  where  the  rendering  of 
the  statement  is  disputed.  Coffee  v.  Williams,  103  Cal.  550; 
S.  C,  37  Pac.  Kep.  504;  Field  v.  Knapp,  108  N.  Y.  87. 


360  Appellate  Courts  of  Illinois. 

Vol.  70.]  Albert  Pick  <ft  Co.  v.  Slimmer. 

KiNOEB,  WiLHAUTz  &  LowENHAUPT,  attomeys  for  appellee. 

An  account  stated  is  conclusive,  and  courts  will  not  per- 
mit an  inquiry  into  the  origin  thereof  where  some  act  has 
been  done  or  forborne  in  consequence  of  the  accounting, 
and  relying  upon  it,  which  would  put  the  party  claiming 
the  benefit  of  it  in  a  worse  position  than  as  though  it  had 
not  been  had.    Wharton  v.  Anderson,  28  Minn.  301. 

There  is  some  confusion  in  the  books  as  to  the  precise 
eflfect  of  a  stated  account  upon  the  rights  of  the  parties,  but 
we  are  inclined  to  the  opinion  that  it  is  only  prima  facie 
evidence  of  the  correctness  of  the  balance,  and  not  conclu- 
sive upon  it,  unless  in  arriving  at  the  agreed  balance  there 
has  been  some  concession  made  upon  items  disputed  between 
the  parties,  so  that  the  balance  is  the  result  of  a  compromise, 
or  some  act  has  been  done  or  forborne  in  consequence  of  the 
accounting,  and  relying  upon  it,  which  would  put  the  party 
claiming  the  benefit  of  it  in  a  worse  position  than  as  though 
it  had  not  been  had,  so  as  to  bring  the  case  within  the  prin- 
ciples of  an  estoppel  in  pais.  A  stated  account,  not  affected 
by  such  new  consideration  or  estoppel,  may  be  impeached 
for  mistake  or  error  in  law  or  in  fact,  with  respect  to  the 
items  included  in  it,  or  for  omission  of  items.  Perkins  v. 
Hart,  11  Wheat.  237;  Hardin  v.  Gordon,  2  Mason,  562; 
Thomas  v.  Hawks,  8  Mees.  &  W.  140;  Wiggins  v.  Burkham, 
10  Wall.  129;  Lockw<x)d  v.  Thorne,  18  N.  Y.  285;  1  Story 
Eq.  Jur.  524;  2  Chitty  on  Contracts,  962;  Warner  v.  Myrick, 
16  Minn.  91;  Wharton  v.  Anderson,  23  Minn.  301. 

Where  parties  have  settled  and  stated  their  accounts  with 
one  another,  each  is  bound  thereby,  unless  he  can  furnish 
clear  proof  of  fraud  or  mistake.  Neff  v.  Wooding,  83  Ya. 
432;  Weed  v.  Dyer,  53  Ark.  155;  Frankel  v.  Wathen,  58 
Hun,  543;  Ware  v.  Manning,  86  Ala.  238;  Powell  v.  Heis- 
ler,  16  Oreg.  412;  Hawley  v.  Harran,  79  Wis.  379;  Mosco- 
witz  v.  Lemp,  Ar.  12  S.  W.  Eep.  781. 

In  action  on  a  stated  account,  it  is  not  necessary  to  prove 
the  items  of  the  original  account,  nor  can  they  be  inquired 
into  or  surcharged,  except  for  some  fraud,  error  or  mistake, 
which  must  be  set  forth  in  the  pleadings.  Auzerais  v. 
Naglee,  74  Cal.  60;  Devecmon  v.  Shaw,  69  Md.  199. 


First  District — MaPwCH  Term,  1897.       361 

Albert  Pick  &  Co.  v.  Slimmer. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

This  was  an  action  of  assumpsit  upon  an  alleged  account 
stated  made  in  settlement  of  services  rendered  by  appellee 
to  appellant. 

The  statement  was  in  writing,  and  was  prepared  by  the 
secretary  of  appellant  and  given  to  appellee.  It  is  as  fol- 
lows: 

«  Albert  Pick,  Pres.  Abe  Bloch,  Sec'y  &  Treas. 

STATEMENT. 

Chicago,  May  1, 1896. 
M     Ed.  Slimmer, 
In  account  with  Albert  Pick  &  Co.,  successors  to  Pick 
Bloch  &  Joel,  Importers,  Jobbera  and  Dealers 
and  Complete  Outfitters  of  Bars, 
Hotels  and  Eestaurants. 

199,  201  &  203  Randolph  St. 
Telephone,  Main  1886. 

Cr. $3,000". 

Dr. 

Drawings $1,300.00 

A.  Lipman 63.75 

$1,363.75 

By  balance  due $1,636.25 

May  8th— By  cash 300.00 

$1,336.25 
1896.    Payable  as  follows : 

May  13 $200.00 

June  8 378.75        Eec.  $200  May  19, '96. 

July    8 378.75        Eec.   100  July   6,  '96. 

Aug.   8 378.75        Eec.  200  Aug.  18, '96. 

$1,336.25 

Appellee  testified  that  it  was  given  upon  a  settlement  of 
accounts,  and  that  the  president  of  appellant  promised  to 
pay  the  balance  therefrom  appearing  to  be  due  to  appellee, 


302  Appellate  Courts  of  Illinois. 

Vol.  70.]  Albert  Pick  &  Co.  v.  Slimmer. 

the  payments  to  be  made  by  installments  of  the  amounts, 
and  at  the  times  indicated  upon  the  statement.  In  this 
appellee  was  corroborated  by  a  Mr.  Loser. 

Appellant  denied  that  the  "statement"  was  anything 
more  than  a  transcript  from  the  ledger,  and  insisted  that 
appellee  should  be  charged  with  certain  goods  sold  by  him 
which  had  not  been  paid  for,  and  also  with  certain  goods 
charged  to  him  upon  the  order  of  a  third  party. 

Appellant  sought  to  introduce  evidence  concerning  what 
was  said  when  appellee  was  hired  as  to  uncollectible  accounts 
for  goods  he  might  sell. 

Upon  the  trial  appellant  desired  to  show  the  conversa- 
tion had  with  appellee  when  the  statement  was  made,  that 
appellant  had  claims  against  appellee  growing  out  of  his 
contract  of  employment  by  it;  also,  what  the  terms  of  the 
contract  under  which  appellee  was  hired  were. 

The  president  of  appellant  corporation  testified  that  it 
had  claims  against  appellee  for  goods  sold  and  delivered, 
and  also  what  such  claims  are.  That  these  claims  arose 
subsequent  to  the  making  of  the  statement  did  not  appear; 
and  appellant  also  wished  to  introduce  evidence  showing 
the  terms  under  which  appellee  entered  its  service. 

Such  evidence  was  properly  rejected. ' 

Appellee's  suit  was  upon  an  account  stated,  and  upon 
nothing  else.  If  there  were  no  stating  of  an  account,  then 
appellee  had  no  case. 

What  the  terms  of  the  hiring  of  appellee  were,  and  what 
claims  appellant  had  against  him  when  the  alleged  state- 
ment was  made,  was  immaterial. 

If  there  were  a  statement  and  if  appellee  had  produced 
it  in  evidence,  it  could  be  attacked  only  for  fraud  or  mis- 
take. 

There  was  no  attempt  to  show  either  fraud  or  mistake 
in  the  making  of  the  alleged  stated  account. 

An  account  stated  is  not  conclusive  upon  the  parties;  it 
does  afford  ^,  prima  facie  case.  Gruby  v.  Smith,  13  111. 
App.  43;  McKinster  v.  Hitchcock,  19  Neb.  100;  St.  Louis 
Co.  V.  Bank,  8  Colo.  70;  Vandemeer  v.  Statesir,  39  N.  J. 
Law,  593;  Clarke  v.  Marbourg,  33  Kansas,  471. 


First  District — March  Term,  1897.        363 

standard  Brewery  v.  Hales  &  Curtis  Malting  Co. 

— — ^—^^—^fci^^^^^  ■       I     ■  ■■  »■■■»■■  ■!       ■  ,,■■■■■■  11  m 

The  court  held  all  the  propositions  of  law  submitted  by 
appellant,  except  the  following : 

'•  That  the  declarations  and  statements  alleged  to  have 
been  rendered  by  various  officers  of  the  corporation  to  the 
plaintiff  in  this  case  would  not  constitute  an  account 
stated  as  between  the  plaintiff  and  the  defendant  corpora- 
tion." 

In  refusing  to  hold  this  there  was  no  error;  it  was  not  a 
proposition  of  law,  but  of  fact. 

The  court  found  the  issues  for  the  plaintiff,  and  assessed 
the  plaintiff's  damages  at  the  sum  of  eight  hundred  and 
thirty-six  dollars  and  twenty-five  cents. 

The  court  thus,  upon  conflicting  testimony,  found  that 
there  was  an  account  stated,  as  testified  by  appellee. 

That  when  the  account  was  stated  the  hiring  and  service 
of  appellee  had  come  to  an  end  is  undisputed.  The  case  is, 
therefore,  not  like  that  of  Phelps  v.  Hubbard,  59  111.  79,  in 
which  there  had  been  only  a  partial  performance. 

The  president  and  secretary  of  appellant  are  presumed 
to  have  had  authority  to  make  and  render  the  statement  in 
question. 

The  judgment  of  the  Superior  Court  is  affirmed. 


Standard  Brewery  v.  Hales  &  Curtis  Malting  Company. 

1.  Case — Where  the  Action  Lies. — The  action  of  case  lies  only  for  the 
breach  of  such  duties  as  the  law  implies  from  the  existing  relations  of 
the  parties,  whether  such  relations  have  been  established  with  or  w^ith- 
out  the  aid  of  a  contract;  but  if  created  by  contract  it  is  no  objection  to 
the  action  that  the  performance  of  the  duty  in  question  has  beeii 
expressly  stipulated  for  if  it  would  have  existed  by  reason  of  such  rela- 
tions without  stipulation 

2,  Same — Where  the  Action  Lies. — A  malting  company  received  a 
quantity  of  barley  from  a  brewing  company  under  a  contract  to  ma't 
the  same  and  to  redeliver  the  same  to  the  said  brewing  company.  The 
malting  company  malted  the  barley  but  failed  to  deliver  the  same 
according  to  the  terms  of  the  contract.  After  a  demand  was  made  for 
the  delivery  of  the  malt,  it  was  destroyed  by  fire.  It  vxls  held,  that  an 
action  of  case  would  lie  for  the  value  of  the  malt. 


70    363 
171s  602 


364  Appellate  Courts  of  Illinois. 


Vol.  70.]    standard  Brewery  v.  Hales  &  Curtis  Malting  Ca 

3.  Legal  Obligations— T^Tien  Not  Varied  by  Contract— Whea  lan- 
guage is  used  in  a  contract  which  does  no  more  than  express  in  terms 
the  same  obligation  which  the  law  raises  from  the  facts  of  the  transac- 
tion itself,  the  party  using  the  language  is  no  further  bound  than  he 
would  have  been  without  it. 

4.  Bailments— Lo88  of  the  Property  by  the  Bailee. — In  an  action 
against  the  bailee  for  the  loss  of  the  property  bailed,  if  the  bailee  proves 
that  the  loss  was  occasioned  by  fire,  t6e  burden  of  proof  is  shifted  to  the 
bailor  to  show  the  negligence  or  fault  of  the  bailee. 

Trespass  on  the  Case,  for  loss  of  goods  by  a  bailee.  Appeal  from 
the  Circuit  Court  of  Cook  County;  the  Hon.  Francis  Adams,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Affirmed. 
Opinion  filed  June  14,  1897. 

Stein  &  Platt,  attorneys  for  appellant. 
"W.  A.  Foster,  attorney  for  appellee. 

Mr.  Presiding  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

Subsequent  to  the  commencement  of  this  action  the  name 
of  Bemis  &  Curtis  Malting  Company  was  changed  to  that 
of  the  appellee.  By  its  former  name  the  appellee  and  the 
appellant  entered  into  a  contract  in  writing  as  follows : 

"  Chicago,  September  9,  1893. 
This  agreement  made  this  day  by  and  between  The  Stand- 
ard Brewing  Co.  and  the  Bemis  &  Curtis  Malting  Co.,  both 
corporations  of  Illinois,  city  of  Chicago,  wherein  it  is  agreed 
on  the  part  of  said  Standard  Brewing  Company  to  furnish, 
during  the  coming  malting  season,  to  the  said  Bemis  &  Cur- 
tis Malting  Company,  50,000  bushels  of  barley  to  be  malted, 
and  to  pay  to  the  said  Bemis  &  Curtis  Malting  Company 
the  sum  of  fifteen  cents  per  bushel  for  malting  the  said 
barley.  The  Bemis  &  Curtis  Malting  Company  on  their 
part  agree  to  receive  the  said  barley  from  any  railroad  in 
Chicago,  haul  the  barley,  pay  the  switching  charges  to  their 
plant,  store  and  malt  the  said  barley  in  the  best  manner  pos- 
sible, deliver  the  malt  to  the  said  Standard  Brewery  Co.  at 
their  brewery,  corner  of  12th  and  Campbell  avenue^  all  for 


First  District — March  Term,  1897.       365 

standard  Brewery  t.  Hales  &  Curtis  Malting  Co. 

and  in  consideration  of  the  sum  of  fifteen  cents  per  bushel, 
as  above  stated.  The  said  brewing  company  may  increase 
the  amount  to  60,000  bushels  at  their  option. 

Bemis  &  Curtis  Malting  Company, 

By  Burton  F.  Hales,  President. 
The  Standard  Brewery, 

By  August  J.  Dewes,  President." 

In  pursuance  of  such  contract,  there  was  received  by  the 
appellee  on  different  days  between  the  making  of  the  con- 
tract and  December  12,  of  the  same  year,  27,847  bushels 
and  thirty-four  pounds  of  barley;  and  it  was  stipulated  that 
on  January  15, 189:^,  a  demand  was  made  on  the  appellee 
by  the  appellant  "  for  30,000  bushels  of  the  malted  barley." 

All  of  the  barley  that  had  been  received  by  appellee  was 
malted  prior  to  January  12,  1894,  but  none  of  it  had  been 
delivered  to  the  appellant.  On  January  12,  1894,  a  fire 
occurred  in  the  malt  house  of  appellee,  where  the  malted 
barley  was  contained,  and  it  was  destroyed. 

This  suit  followed,  and  resulted  in  a  verdict  and  judg- 
ment for  the  defendant,  appellee  here. 

The  action  was  on  the  case,  in  trover,  and  not  in  assump- 
sit upon  the  contract. 

"  Case  lies  only  for  the  breach  of  such  duties  as  the  law 
implies  from  the  existing  relations  of  the  parties,  whether 
such  relations  have  been  established  with  or  without  the  aid 
of  a  contract;  but  if  created  by  contract,  it  is  no  objection 
to  the  action  that  the  performance  of  the  duty  in  question 
has  been  expressly  stipulated  for,  if  it  would  have  existed 
by  reason  of  such  relations  without  such  stipulation." 
Nevin  v.  Pullman  P.  Car  Co.,  106  III.  222,  p.  236;  Kinnare 
V.  City  of  Chicago  et  al.  (p.  106,  this  volume). 

The  duty  of  the  appellee  to  return  to  appellant  the  barley 
when  malted  would  have  been  implied  by  law  by  reason  of 
the  relation  of  the  parties,  and  did  not  depend  upon  the  fact 
that  it  was  expressly  stipulated  for,  and,  therefore,  case 
was  an  appropriate  remedy,  though  a  concurrent  one  with 
assumpsit.    Nevin  v.  P.  P.  Car  Co.,  supra. 

The  written  contract  not  having  provided  when  the  barley 


366  Appellate  CoupwTS  of  Illinois. 

Vol.  70.]    Standard  Brewery  v.  Hales  &  Curtis  Malting  Co. 

should  be  returned,  left  the  duty  just  where  the  law  itself 
would  have  left  it  if  there  had  been  no  express  agreement. 
That  is  to  say,  the  express  contract  did  not  enlarge  appellee's 
duty  in  that  regard  beyond  what  the  law  imposed. 

"  When  language  is  used  which  does  no  more  than  express 
in  terms  the  same  obligation  which  the  law  raises  from 
the  facts  of  the  transaction  itself,  the  party  using  the  lan- 
guage is  no  further  bound  than  he  would  have  been  without 
it."     Young  V.  Leary,  135  N.  Y.  569. 

In  other  words,  in  such  a  case  the  common  law  liability 
is  not  enlarged  because  the  contract  is  an  express  one.       ' 

The  action  being  in  case,  and  therefore  one  in  which  there 
could  be  no  recovery,  though  the  contract  be  express,  except 
for  the  breach  of  a  duty  that  the  law  implies,  whatever 
would  in  law  excuse  the  breach  of  the  implied  duty  would 
excuse  the  appellee  from  a  breach  of  its  express  duty.  And 
this  is  so,  notwithstanding  if  the  action  had  been  in  assump- 
sit upon  the  alleged  breach  the  appellee  might  not  have  been 
excused. 

The  written  agreement  between  the  parties  needs  but  to 
be  read  to  have  it  appear  that  appellee  having  received  the 
barley  from  the  appellant  undertook,  by  agreeing  to  rede- 
liver it,  no  greater  duty  than  the  law,  without  any  agree- 
ment, would  have  imposed. 

And  our  Supreme  Court,  in  Steele  v.  Buck,  61  111.  343,  has 
clearly  pointed  out  the  distinction  between  an  obligation  or 
duty  imposed  by  law,  and  that  created  by  covenant  or  act 
of  the  party,  and  has  stated  what  will  excuse  a  party  in  the 
one  case  and  not  in  the  other. 

The  liability  of  the  appellee  in  the  case  at  bar,  being  the 
same  as  the  law  would  impose  upon  it  if  it  had  made  no 
agreement  concerning  a  redelivery  of  the  barley,  and  the 
jury  having  settled  by  their  verdict  that  appellee  used  ordi- 
nary care  and  diligence  in  its  safe  keeping,  and  that  its  loss 
and  destruction  was  not  by  reason  of  appellee's  negligence, 
we  see  no  occasion  to  interfere  with  such  verdict.  The 
evidence  shows  conclusively  to  the  mind  of  any  reasonable 
person  that  the  fire  was  one  that  could  not  be  accounted  for, 


First  District — March  Term,  1897.       367 

Malcolm  v.  Shanklin. 

and  could  not  have  been  prevented  upon  any  theory  of  ordi- 
nary prudence  and  diligence,  and  such  degree  of  prudence 
and  diligence  was  all  that  was  required  of  the  appellee. 

Under  the  rule  applicable  to  bailments  of  such  character, 
it  is  not  necessary  that  the  bailee  should  acquit  himself  of 
all  negligence.  "  If  he  proves  the  loss  to  have  occurred 
from  some  cause  which  prima  facie  exonerates  him,  it  is 
sufficient.  Thus,  if  he  proves  the  loss  was  occasioned  by 
*  *  *  fire,  *  *  *  the  burden  is  again  shifted  to  the 
bailor  to  prove  the  bailee's  negligence."  3  Am.  &  Eng. 
Ency.  of  Law  (2d  Ed.),  751;  Eussell  v.  Koehler,  66  111.  459; 
Story  on  Bailments,  Sees.  36  and  437;  Edwards  on  Bail- 
ments, Sec.  425. 

Our  conclusion  upon  this  branch  of  the  case  renders  a 
consideration  of  other  argued  defenses  to  the  action  unneces- 
sary. There  was  no  error  in  the  instructions,  nor  in  the 
admission  or  rejection  of  evidence. 

The  point  is  made  by  the  appellant  that  there  should  have 
been  a  recovery  to  the  extent,  at  least,  of  the  value  of  so 
much  of  the  barley  as  was  not  actually  destroyed,  but  was 
"soaked  with  water  and  mixed  with  cinders,"  and  was  taken 
away  by  the  insurance  companies.  But  there  was  not  suf- 
ficient evidence  to  base  any  recovery  for  such  "  muck " 
upon. 

Upon  the  record  no  error  is  shown,  and  the  judgment  will 
be  affirmed. 


Fremont  B.  Malcolm  r.  Robert  F.  Shanklin. 

1.  Short  Cause  Calendar— J/ofton  to  Shrike  Cause  From,— Where 
a  cause  has  been  placed  upon  the  short  cause  calendar  without  dissent, 
and  trial  by  jury  waived,  a  motion  thereafter  to  strike  it  from  such 
calendar  because  no  replication  to  the  defendant's  plea  has  been  filed, 
is  properly  overruled. 

Assampslt,  on  a  guaranty.  Appeal  from  the  Circuit  Court  of  Cook 
County;  the  Hon.  Edward  F.  Dunne,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.    Affirmed.    Opinion  filed  June  14, 1897. 


368  Appellate  Courts  op  Illinois. 

Vol.  70.]  Malcolm  v.  Shanklin. 

Statement  of  the  Case. 

This  was  an  action  in  assumpsit  by  appellee  against  appel- 
lant to  recover  upon  the  guaranty  by  the  latter  of  a  note 
for  six  hundred  and  fifty  dollars,  made  to  the  former  by 
William  Mitchell  and  Nellie  D.  Driver,  which  note  was  due 
December  1,  1895.  After  a  plea  of  the  general  issue,  with 
affidavit  of  meritorious  defense,  October  10,  1896,  both  par- 
ties appeared;  by  agreement  the  case  was  passed,  jury 
•  waived,  and  cause  set  for  trial  on  November  2,  1896,  upon 
the  short  cause  calendar.  No  replication  was  ever  filed. 
Rule  18  of  the  Circuit  Court  provides  that,  "  no  cause  shall 
be  noticed  for  trial  until  the  same  is  at  issue." 

The  counsel  of  defendant  who  had  filed  pleas,  being  ill, 
other  counsel  were  substituted,  who  moved  to  strike  the 
cause  from  the  short  cause  calendar,  because  the  suit  was 
not  at  issue  when  placed  on  such  calendar.  This  being 
denied,  counsel  asked  for  a  few  hours  time  in  which  to  pre- 
pare a  special  plea;  this  was  denied,  and  upon  trial  judgment 
for  the  plaintiff  for  the  amount  of  the  note  was  rendered. 

David  J.  Wile,  attorney  for  appellant. 

Paden  &  Geidley,  attorneys  for  appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

The  cause  having  been  placed  upon  the  short  cause  calen- 
dar without  dissent,  and  trial  by  jury  waived,  the  motion 
thereafter  made  to  strike  the  cause  from  the  calendar 
because  no  replication  to  the  defendant's  plea  had  been  filed, 
was  properly  overruled.  Wheatley,  Buck  &  Co.  v.  Chicago 
Trust  &  Savings  Bank,  64  111.  App.  612. 

The  cause  was  originally  set  for  trial  on  November  2d. 
Upon  that  day  there  was  no  court.  November  9th  the  case 
was  continued  to  November  16th  on  account  of  the  illness 
of  defendant's  attorney.  November  16th  there  was  no  trial 
of  cases  on  the  short  cause  calendar.  November  23d, 
defendant,  after  his  motion  to  strike  from  the  calendar  had 


First  Disteict— March  Term,  1897.       369 

Bernstein  v.  Zolotkoff. 

been  overruled,  asked  for  time  in  which  to  file  a  special 
plea. 

We  can  not  say  that  the  court  in  refusing  to  give  time 
for  the  filing  of  a  special  plea,  abused  its  discretion.  The 
filing  of  such  plea  might  have  necessitated  a  further  Con- 
tinuance of  the  cause.  No  sufficient  reason  for  not  having 
before  presented  such  plea  was  shown. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


Abraham  Bernstein  y.  Leon  Zolotkoff  and  Fannie 

Zolotlcoff. 

1.  Chattel  MoRTOkQiES— Household  Qooda  Sold  on  the  Installment 
Plan, — The  act  of  June  5,  1889,  to  regulate  the  foreclosure  of  chattel 
mortgages  on  household  goods,  etc.,  has  no  application  to  the  sale  of 
furniture  by  regular  dealers  on  the  installment  plan. 

BepleTin.— Appeal  from  the  Superior  Court  of  Cook  County;  the  Hon. 
John  Barton  Patnb,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term,  1897.  Reversed  and  remanded.  Mr.  Presiding  Justice 
Shjepabd  dissenting.    Opinion  filed  June  14,  1897. 

Blum  &  Blum,  attorneys  for  appellant. 
Zolotkoff  &  Zoline,  attorneys  for  appellees. 

Mr.  Justice  Gary  delivered  tue  opinion  of  the  Court. 

December  5,  1891,  the  appellant,  a  regular  dealer  in  fur- 
niture on  the  so-called  installment  plan,  sold  to  the  ^v^ife 
— then  Fannie  Ogers —  furniture,  for  which  he  took  her 
nineteen  promissory  notes,  payable  at  intervals  extending 
over  two  years,  secured  by  chattel  mortgage  on  the  same 
furniture. 

Thereafter  she  married  the  appellee  Leon,  and  December 
4,  1893,  the  appellees  gave  to  the  appellant  a  new  mort- 
gage on  the  same  furniture  to  S3oare  the  unpaid  portioa  of 

ToL  LZX  M 


370  Appellate  Courts  of  Illinois. 

Vol.  70.]  Bernstein  v.  Zolotkoff. 

the  original  debt,  to  be  paid  at  like  intervals — also  fixed  by 
promissory  notes. 

December  4,  1894,  by  a  suit  before  a  justice  of  the  peace, 
the  appellant  replevied  the  goods.  By  appeal  the  case  got 
into  the  Superior  Court,  where  it  was  dismissed  for  want 
of  jurisdiction. 

Whether  the  supposed  want  of  jurisdiction  was  based 
upon  a  construction  of  an  act  to  regulate  the  foreclosure  of 
chattel  mortgages,  etc.,  approved  June  5,  18S9,  that  "the 
so-called  installment  plan''  did  not  permit  a  transfer  of  the 
title  and  possession  of  the  goods  sold,  and  a  mortgage  back 
to  secure  the  price;  or  that  the  second  mortgage  in  which 
the  husband — who  did  not  purchase— joined,  was  an  aban- 
donment of  the  "  installment  plan;"  or  why  the  court  held 
it  had  not  jurisdiction,  does  not  appear. 

Until  the  appellant  had  been  paid  the  price  of  his  furni- 
ture, however  many  the  mutations  through  which  his  secu- 
rity for  that  price  had  passed,  he  was  in  relation  to  it,  and 
the  security  for  it,  exempt  from  the  enacting  part  of  the 
act  cited;  and  whether  he  sold  upon  a  contract  which  in 
terms  called  for  payment  by  installments,  or  by  any  other 
method  which  in  fact  made  the  price  payable  by  install- 
ments, the  result  is  the  same  and  he  is  within  the  exemp- 
tion of  the  proviso. 

The  original  affidavit  upon  which  the  writ  of  replevin 
was  sued  out  was  sufficient.    No  amendment  was  necessary. 

The  refusal  to  permit  the  amendment,  therefore,  need  not 
be  considered. 

The  judgment  is  reversed  and  the  cause  remanded  for 
further  proceedings  not  inconsistent  with  this  opinion.  If 
it  should  appear  that  the  appellant  replevied  any  gools  not 
sold  by  him  to  the  wife  at  the  time  of  the  first  mortgage, 
then  only  as  to  those  goods  his  suit  would  faiL 

Ms.  FfiEsiDiNa  JusTioB  Shspard  dissents. 


First  District — March  Term,  1897.       371 


Knefel  v,  Swartz. 


Panl  Knefel  y.  David  0.  Swartz. 

1.  Appellate  Court  Practice— Grouiufo  for  ReveracU  Must  be 
Skoicn  by  the  Abstract, — Whatever  the  appellant  relies  upon  for  a 
reversal  of  the  judgment  must  he  shown  by  the  abstract. 

Assumpsit,  on  a  guaranty  of  a  promissory  note.  Appeal  from  the 
Circuit  Court  of  Cook  County;  the  Hon.  Thomas  G.  Windes,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Afiirmed. 
Opinion  filed  June  14,  1897. 

John  Knefel,  attorney  for  appellant. 
Oliver  &  MscABTNEr,  attorneys  for  appellee. 

Mr.  Justice  Gary  delivered  the  opinion  op  the  Court. 

The  abstract  does  not  show  what  was  the  declaration 
upon  which  the  appellee  recovered,  nor  upon  what  evi- 
dence, on  an  ex  parte  trial. 

It  is  impossible  to  tell  from  the  abstract  whether  the 
affidavits  presented  on  a  motion  for  a  new  trial,  have  any 
ralation  to  the  cause  of  action  upon  which  the  recovery 
was  had. 

In  such  a  case  we  can  not  say  that  the  court  erred  in  not 
granting  a  new  trial. 

Whatever  the  appellant  relies  upon  for  reversal  of  the 
judgment  he  must  show  by  his  abstract.  City  Electric 
Ey.  V.  Jones,  161  111.  47;  Wabash  E.  E.  v.  Smith,  58  IlL 
App.  419;  Newman  v.  Jacobson,  67  111.  App.  639. 

The  judgment  is  affirmed. 


70a  371 

78  552 

78  665 

7Ua  871 

94  247 

70  371 

d8  >     4 


Calumet  Electric  St.  By.  Co.  v.  Frederick  Lynholm. 

1.  NEGLiaENCE— Absence  of  Lights  Upon  Electric  Cars.— Headlights 
should  be  placed  upon  electric  cars  on  dark  nights  ao  as  to  enable  the 
motorman  to  see  wagons  in  time  to  prevent  collisions. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the 
Superior  Court  of  Cook  County;  the  Hon.  John  Babton  Patne,  Judge, 


372  Appellate  Courts  op  Illinois. 

Vol.  70.]  Calumet  Electric  St  Ry.  Ck>.  v.  Lynholm. 

presiding.    Heard  in  this  court  at  the  March  term,   1897.    Affirmed. 
Opinion  filed  June  14,  1897. 

Statement  of  the  Case. 

This  appeal  is  brought  from  a  judgment  for  $500  ren- 
dered against  the  appellant  in  the  Superior  Court  of  Cook 
County  in  favor  of  Frederick  Lynholm. 

On  the  night  of  September  3,  1894,  appellee  was  driving 
eastward  on  95th  street;  the  night  was  dark  and  it  rained 
intermittently. 

Appellant  maintained  a  street  car  line  with  two  tracks 
on  95th  street.  On  the  south  or  east-bound  track  appellee 
was  driving  a  one-horse  wagon  when  he  was  overtaken  by 
an  east-bound  car.  Appellee  being  signaled  by  the  gong 
and  hallooing  of  the  motorman  to  turn  out,  did  so  in  the 
only  way  he  could,  viz.,  by  going  on  to  the  north  track. 

At  this  time  a  west-bound  car  was  approaching  from  the 
east,  about  two  blocks  away;  this  car  struck  the  wagon  of 
appellee,  and  he  being  thrown  forward,  was  caught  in  the 
arms  of  the  motorman  and  set  down  on  the  front  platform 
of  the  car. 

JuDsoN  F.  Going,  attorney  for  appellant. 

Case  &  Hogan  and  Munson  T.  Case,  attorneys  for 
appellee. 

Mr.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

We  quite  agree  with  the  opening  sentence  of  appellant's 
argument,  that  *'  There  was  no  reason,  from  appellee's  own 
statement,  why  he  should  have  been  run  into." 

Why  did  appellant,  without  reason,  run  into  him  ?  His 
right  to  be  upon  the  track  was  the  equal  of  a))pellant's. 

Even  had  he  willfully  remained  upon  the  track  for  the 
purpose  of  obstructing  the  way,  appellant  would  have  had 
no  right  to  run  into  him  in  the  manner  it  did. 

The  night  was  dark,  but  there  should  have  been  such 


First  District — March  Term,  1897.       373 

Kinnare  ▼.  M.  C.  R.  R.  Co. 

headlight  upon  the  car  as  would  have  enabled  the  motor- 
man  to  see  the  wagon  in  time  to  prevent  a  collision.  The 
motorman  at  all  events  should  have  run  his  car  with  reference 
to  the  distance  he  could  see,  and  so  as  not  to  collide  with 
a  team  or  person  walking  upon  the  track. 

Whether,  after  the  passage  of  the  east-bound  car,  there 
had  been  sufficient  time  for  appellee  to  return  to  that  track, 
and  whether  he  exercised  ordinary  care,  were  questions  of 
fact  for  the  jury. 

The  damages  are  not  excessive. 

The  jury  was  fairly  instructed,  and  the  judgment  of  the 
Superior  Court  is  affirmed. 


Frank  T.  Kinnare^  Adm'r^  etc.^  v.  The  Michigan  Central 

B.  B*  Co* 

1.  Bills  of  Exceptions.— Mim*  Show  That  They  Contain  aU  the 
Evidence. — If  a  bill  of  exceptions  does  not  show  that  it  contains  all  of 
the  evidence  a  court  of  review  wiU  presume  that  the  decision  of  the 
lower  court,  which  could  be  justified,  was  justified  by  the  evidence  not 
shown  in  the  bill  of  exceptions. 

Trespass  on  the  Case,  death  from  negligent  act.  Appeal  from  the  Cir- 
cuit Court  of  Cook  County;  the  Hon.  Frank  Baker  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
June  14,  18d7. 

B.  M.  Shaffner,  attorney  for  appellant. 

It  will  be  noticed  that  the  court  trying  the  cause  certi- 
fies, "  that  the  foregoing  witnesses  (naming  them),  were  all 
the  witnesses  produced  by  either  party  to  the  suit,  but  that 
the  foregoing  was  not  all  the  evidence  of  such  witnesses." 

It  is  not  necessary  that  a  bill  of  exceptions  should  contain 
all  the  evidence  where  a  question  of  law  is  involved,  or 
where  it  is  decided  to  question  the  decision  of  the  court  in 
giving  or  refusing  instructions.  In  such  case  it  is  sufficient 
that  the  bill  of  exceptions  states  that  the  evidence  tended 


374  Appellate  Courts  op  Illinois. 

Vol.  70.]  Kinnare  v.  M.  C.  R.  R.  Co. 

to  prove  certain  facts.  In  the  case  at  bar,  upon  motion  of 
counsel  for  appellee,  the  court  instructed  the  jury  to  find 
the  defendant  not  guilty;  in  effect,  a  demurrer  to  appellant's 
evidence,  which  not  only  admits  the  truth  of  the  facts  tes- 
tified to,  but  all  inference^  logically  flowing  therefrom.  See 
Schmidt  v.  O.  &  N.  W.  Ky.  Co.  et'^al.,  83  III  412;  Nason  v. 
Letz,  73  lU.  371. 

Winston  &  Meagher,  attorneys  for  appellee;  Fbedkeick 
E.  Baboook  of  counsel. 

In  the  absence  of  a  certificate  by  the  judge  before  whom 
the  case  is  tried,  that  the  bill  of  exceptions  contains  all  the 
evidence  introduced  upon  the  trial,  the  court  is  bound  to 
presume  that  there  was  sufficient  evidence  to  sustain  the 
judgment  of  the  court  below.  Oehraen  v.  Thurnes,  51  111. 
App.  435;  Clough  et  al.  v.  Kyne  et  al.,  51  111.  App.  120; 
Keating  et  al.  v.  Stebbins,  2ii  111.  App.  567;  Redner  v. 
Davern,  41  111.  App.  245;  Reid  v.  Flanders,  62  111.  App. 
106;  Thompkins  v.  Mann,  6  III.  App.  171;  Robertson  v. 
Morgan,  38  111.  App.  137;  Fuller  v.  Bates,  6  111.  App.  442; 
Ballance  v.  Leonard,  37  111.  43;  Buckland  v.  Goddard,  36 
111.  206. 

It  is  a  familiar  doctrine  that  appellate  tribunals  will 
indulge' in  all  reasonable  presumptions  in  favor  of  the  action 
of  the  court  below,  in  order  to  sustain  the  judgment  or 
decree  reviewed.  Schmidt  et  al.  v.  Braley,  112  111.  48;  John- 
son V.  Glover,  19  111.  App.  586;  Redner  v.  Uavern,  41  111. 
App.  246;  Board  of  Trustees  v.  Misenheimer,  89   111.  151. 

Where  there  is  no  bill  of  exceptions,  only  such  questions 
as  arise  on  the  pleadings  in  the  record,  aside  from  the  bill 
of  exceptions,  can  be  considered  on  the  appeal.  Stern  et 
al.  V.  The  People,  96  111.  475. 

Mr.  Presiding  Justice  Shepard  delivered  thb  opinion 
OF  THE  Court. 

This  action  was  brought  by  appellant,  as  administrator 
of  the  estate  of  B.  F.  Schmidt,  deceased,  to  recover  damages 
for  negligently  causing  the  death  of  said  Schmidt. 


First  District — March  Term,  1897.       375 

Kiimare  v.  M.  C.  R.  R  Co. 

At  the  closeof  the  plaintifFs  case,  the  court,  at  the  request 
of  the  defendant,  peremptorily  instructed  the  jury  to  return 
a  verdict  of  not  guilty. 

The  only  question  of  law  presented  by  the  record  is 
whether  the  court  erred  in  giving  such  instruction,  and  that, 
in  turn,  depends  upon  whether  the  evidence  failed  to  make 
a  case  for  the  jury  to  pass  upon. 

The  bill  of  exceptions  affirmatively  shows  that  it  does  not 
contain  all  the  evidence  that  was  heard  at  the  trial. 

It  is  therein  certified  by  the  trial  judofe,  as  follows : 

"  The  foregoing  witnesses,  Louis  Schmidt,  James  Patton, 
Gustav  Mehlschmidt  and  H.  F.  McLean  were  all  the  wit- 
nesses produced  by  either  party  to  the  suit,  upon  the  trial 
thereof,  but  the  foregoing  is  not  all  the  evidence  of  said 
witnesses." 

And  the  point  that  with  less  than  all  the  evidence  before 
US,  we  can  not  determine  a  question  of  law  that  depends 
upon  the  evidence,  is  insisted  upon  by  the  appellee,  and 
must  prevail. 

"  It  has  always  been  the  law  of  this  State  that  if  a  bill  of 
exceptions  did  not  state  that  it  contained  all  the  evidence,  a 
court  of  review  would  presume  that  the  decision  of  the 
lower  court,  which  could  be,  was  justified  by*  the  evidence 
not  shown,  if  that  shown  was  not  sufiicient,"  was  the  lan- 
guage of  this  court  in  Garrity  v.  Hamburger  Co.,  35  111. 
App.  309,  quoted  with  approval  by  the  Supreme  Court  in 
the  same  case,  136  111.  499,  where  it  was  added :  "  We  think 
the  Appellate  Court  took  a  substantially  correct  view  of  the 
matter,  since  it  aflirmatively  appeared,  from  the  bill  of 
exceptions,  that  evidence  which  probably  bore  on  the  ques- 
tion in  issue  was  introduced  at  the  hearing,  but  was  not 
copied  into  the  bill  of  exceptions."  See  also  Goodwillie  v. 
City  of  Lake  View,  137  111.  51;  Buokland  v.  Goddard,  36  III. 
206;  Ballance  v.  Leonard,  37  III,  43;  James  v.  Pexter,  113 
111.  654. 

This  court  has  had  occasion  manv  times  to  announce  the 
rule,  some  of  the  later  oases  being  Poppers  v.  Hynes,  60  111. 
App.  448;  Keid  v.  Flanders,  62  111.  App.  106;  Clougb  v. 


70  a'7« 

80    530 


376  Appellate  Courts  of  Illinois. 

Vol,  70.]  Mallen  v.  Langworthy. 


Kyne,  51  111.  App.  120;  Eedner  v.  Davern,  41  111.  App.  245; 
and  the  early  case  of  Tompkins  v.  Mann,  6  111.  App.  171. 

It  follows,  necessarily  and  emphatically,  that  an  assign- 
ment of  error  in  law  which  rests  wholly  upon  the  evidence 
can  not  be  considered  upon  but  a  part  of  the  evidence  being 
before  us. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


Herman  Z.  Mallen  et  al.  v.  Benjamin  F.  Langworthy^ 

Beceiyer^  etc. 

1.  Mutual  Insuranck  Companies— IFfc<»nlfemfter«  Can  Not  Quea- 
tion  Assessments  in  Case  of  Insolvency.— An  aasessment  made  by  a 
court  upon  the  members  of  an  insolvent  mutual  insurance  company  can 
not  be  questioned  by  a  member  in  a  suit  against  him  by  the  receiver  for 
the  purpose  of  collecting  such  assessment,  upon  the  ground  that  such 
member  has  not  had  his  day  in  court,  and  ought  not  to  be  bound  by  a 
judgment  or  decree  to  which  he  was  not  a  party  or  privy. 

2.  Same — Caruaellation  of  Policies  and  Subsequent  Insolvency. — 
While  the  cancellation  of  a  policy  of  mutual  insurance  ends  the  liability 
of  the  policy  holder  as  to  future  losses  and  expenses  of  the  company,  the 
relation  of  the  assured  to  the  insurance  company  remains  for  the 
purpose  of  an  assessment  for  prior  losses  and  expenses  of  the  assessment 
until  the  liability  of  the  assured  to  the  extent  of  his  premium  or  deposit 
note  has  been  discharged,  and  when  the  assessment  is  made  by  the 
court,  the  court  must,  in  the  nature  of  things,  have  a  reasonable  discre- 
tion in  respect  to  the  expenses  to  be  provided. 

3.  Trial  by  Jvry— Directing  a  Verdict  for  the  Plaintiff.—A  defend- 
ant in  a  suit  upon  an  assessment  is  not  necessarily  deprived  of  his  con- 
stitutional right  of  trial  by  jury  because  the  court  peremptorily  directi 
a  verdict  for  the  plaintiff  for  the  amount  of  such  assessment. 

4.  Variance — When  Immaterial,-:-A  technical  variance  in  a  single 
respect  between  the  declaration  and  the  proof  concerning  an  immate- 
rial matter  in  the  suit  is  of  no  legal  consequence. 

Assumpsit,  for  an  assessment.  Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  Frank  Baker,  Judge,  presiding.  Heard  in 
this  court  at  the  March  term,  1897.    Affirmed.    Opinion  filed  June  14, 

1897. 

William  II.  Tatgb  and  William  A.  Deyl,  attorneys  for 
appellants. 


First  District — March  Term,  1897.       377 

Mallen  v.  Langworthy. 

Fakson  &  Gbkknfield,  attorneys  for  appellee. 

Mr.  Presiding  Justice  Shepabd  delivered  the  opinion 
of  the  codrt. 

This  was  a  suit  brought  by  the  receiver  of  the  Mutual 
Fire  Insurance  Company,  of  Chicago,  against  the  appellants, 
copartners,  doing  business  as  H.  Z.  Mallen  &  Co.,  to  recover 
an  assessment  made  in  a  proceeding  for  the  purpose  of 
winding  up  the  affairs  of  said  company,  upon  their  premium 
or  deposit  note,  ^iven  to  the  insurance  company  at  the  time 
they  took  out  a  policy  of  fire  insurance  in  said  company. 

Except  in  particulars  applicable  to  the  different  trans- 
actions, the  note  was  like  the  one  set  forth  in  the  statement 
of  facts  in  Eand,  McNally  &  Co.  v.  M.  F.  Ins.  Co.,  58  111. 
App.  528,  and  was  for  five  times  the  amount  of  the  annual 
premium  that  was  paid  when  the  policy  was  issued. 

And  the  assessment  in  question  was  ordered  in  the  same 
proceedings  stated  in  that  case. 

It  is  urged  that  because  the  appellants  were  not  parties 
by  name  to  the  proceedings  in  which  the  receiver  was  ap- 
pointed and  the  assessment  was  made,  the  transcript  of 
such  proceedings  was  improperly  admitted  in  evidence,  upon 
the  ground  that  appellants  have  never  had  their  day  in 
court,  and  that  no  one  should  be  bound  by  a  judgment  or 
decree  to  which  he  was  not  a  party  or  privy. 

We  have  substantially  answered  that  proposition  in  the 
Eand,  McNally  &  Co.  case,  above  cited.  See  also  Ward  v. 
Farwell,  97  111.  593;  G.  W.  Tel.  Co.  v.  Gray,  122  111.  630; 
Parker  v.  Stoughton  Mill  Co.,  91  Wis.  174;  Mutual  F.  Ins. 
Co.  V.  Phoenix  Furn.  Co.,  66  N.  W.  Rep.  (Mich.)  1095; 
Hawkins  v.  Glenn,  131  U.  S.  319;  Lycoming  F.  Ins.  Co.  v. 
Langley,  62  Md.  196. 

An  objection  is  made  that  the  assessment  included  items 
of  losses  and  expenses  for  which  appellants  were  not  liable. 
If  we  were  to  assume  that  such  a  question  could  be  raised 
coUaterallj'',  we  should  be  obliged,  from  a  careful  analysis  of 
all  that  appears  to  us  by  the  abstract  of  the  lengthy  assess- 
ment proceedings  shown  in  the  record,  to  hold  that  the 
objection  is  not  well  founded  and  ought  not  to  be  sustained. 


378  Appellate  Courts  op  Illinois. 

Vol.  70.]  Mallen  v.  Langworthy. 

What  is  said  in  Seamans  v.  The  Millers  Mut.  F.  Ins.  Co., 
90  Wis.  490,  on  p.  496,  in  referring  to  Davis  v.  Shearer,  90 
Wis.  250,  where  the  general  subject  was  examined,  is  appli- 
cable here. 

While  the  cancellation  of  a  policy  of  mutual  insurance 
ends  the  liability  of  the  policy  holder  as  to  future  losses 
and  expenses  of  the  company,  the  relation  of  the  assured  to 
the  insurance  company  still  remains  for  the  purpose  of  an 
assessment  for  prior  losses  and  expenses  of  the  assessment, 
until  the  liability  of  the  assured  to  the  extent  of  his  pre- 
mium or  deposit  note  has  been  discharged;  and  where  the 
assessment  is  made  by  the  court,  the  court  must,  in  the 
nature  of  things,  have  a  reasonable  discretion  in  respect  to 
the  expenses  to  be  provided  for.  We  fail  to  find  that 
appellants  have  been  assessed  for  losses  occurring  subsequent 
to  the  termination  of  their  policy,  or  prior  to  its  issuance, 
or  for  any  more  than  their  due  proportion  of  the  expenses 
fixed  in  the  exercise  of  a  reasonable  discretion  by  the  court 
that  ordered  the  assessment. 

There  is  no  force  in  the  contention  that  appellants  were 
deprived  of  their  constitutional  right  to  a  trial  by  jury 
because  the  court  peremptorily  directed  a  verdict  for  the 
appellees  for  the  amount  of  the  assessment  against  appel- 
lants. 

The  documentary  matter  by  which  that  assessment  was 
made  to  appear,  was  very  voluminous,  and  having  been 
oflFered  in  evidence,  the  directing  of  a  verdict  for  the 
amount  so  made  to  appear,  was  no  more  than  telling  the 
jury  what  the  legal  effect  was  of  such  record,  and  was  no 
more  erroneous  than  to  instruct  a  jury  in  a  proper  case  to 
bring  in  a  verdict  for  the  amount  of  a  promissory  note  that 
had  been  sued  upon. 

It  is  also  urged  that  there  was  a  variance  between  the 
declaration  and  the  proof. 

There  was  a  technical  variance  in  a  single  respect  be- 
tween the  declaration  and  the  proof,  but  it  was  concerning 
an  immaterial  matter  in  this  suit. 

No  error  appearing,  the  judgment  is  affirmed. 


FiEBT  DisTBiCT— March  Teem,  1897.       379 

lindgren-Mahan  Fire  Engine  Co.  v.  Revere  Rubber  Co. 


Lindgren-Mahan  Chemical  Fire  Engine  Go.  y.  Seyere 

Bnbber  Go.  et  aL 

1.  "RBCEiWBS—Appointmeni  of.  Without  Notice.—A  receiver  for  an 
Insolvent  corporation  may  be  appointed  without  notice,  when  it  is 
shown  that  notice  can  not  be  served  upon  the  officers  of  such  corporation. 

Order  Appointing  a  Beceiver.— Appeal  from  the  Circuit  Court  of 
Cook  County;  the  Hon.  Ouvbb  H.  Horton,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  June 
U,  1897. 

John  G.  Campbkll^  attorney  for  appellant. 
MoBSE,  Ives  &  Tone,  attorneys  for  appellees. 

Mb.  PfiEsiDiNa  Justice  Shepard  delivered  the  opinion 
OF  THE  Court. 

This  appeal  is  from  an  interlocutory  order  appointing  a 
receiver  of  ''  all  the  moneys,  property,  effects  and  choses  in 
action  of"  the  appellant  corporation,  "according  to  the 
prayer  of  the  bill  of  complaint." 

The  bill  was  filed  by  appellees  on  behalf  of  themselves 
and  such  other  persons  as  might  join  in  and  share  the  costs 
thereof,  and  alleged  that  the  complainants  were,  severally, 
contract  creditors  of  the  defendant  corporation  tQ  separate 
amounts  aggregating  $1,208;  that  said  corporation  had, 
three  days  before  the  bill  was  filed,  confessed  a  judgment  in 
favor  of  Kelley,  Maus  &  Company  for  $15,500,  an  amount 
alleged  to  be  far  in  excess  of  its  indebtedness  to  said  firm, 
and  that  under  an  execution  issued  upon  said  judgment  on  the 
day  said  judgment  was  confessed,  all  the  stock,  merchandise, 
goods  and  other  tangible  property  of  said  corporation 
were  levied  upon  by  the  sheriff,  and  that  said  corpo- 
ration had  no  real  estate;  that  said  judgment  ahd  execution 
levy  were  pursuant  to  a  conspiracy  between  said  corporation 
and  said  Kelley,  Maus  &  Company  to  save  to  the  corporation 
some  part  of  its  assets;  that  said  corporation  had  assigned 


380  Appellate  Courts  of  Illinois. 

Vol.  70.]  Lindgren-Mahan  Fire  Engine  Co.  v.  Revere  Rubber  Co. 

—   ---■  II  . ■ 

all  debts  and  accounts  due  to  it,  but  without  stating  to 
whom,  for  the  purpose  of  putting  the  same  beyond  the 
reach  of  complainants  and  other  creditors;  that  on  the  day 
of  the  levy  of  said  execution  said  corporation  discharged  all 
the  help  employed  by  it  in  the  conduct  of  the  business  for 
which  it  was  organized,  and  wholly  ceased  to  do  business, 
and  does  not  intend  to  resume  the  same,  and  that  it  is  hope- 
lessly insolvent  and  has  permanently  ceased  to  do  business, 
and  that  certain  of  the  stockholders  of  said  corporation  have 
not  fully  paid  up  their  stock  subscriptions. 

The  prayer  of  the  bill  was  for  a  dissolution  and  winding 
up  of  the  corporation,  among  other  things,  and  for  the 
appointment  of  a  receiver  to  close  up  its  affairs  under  the 
supervision* of  the  court.  There  was  no  prayer  that  the 
receiver  should  take  possession  of  any  specific  property,  nor 
that  he  should  exercise  any  powers  except  such  as  the  court 
might  deem  to  be  expedient  in  the  future,  nor  did  the  court, 
in  its  order  appointing  a  receiver,  give  any  such  directions. 

It  was  simply  the  case  of  the  appointment  of  a  receiver 
of  an  insolvent  corporation  which  had  ceased  to  do  business 
leaving  debts  unpaid,  and  had  nothing  left  to  it  in  the  way 
of  tangible  assets  subject  to  execution. 

The  corporation,  alone,  appeals. 

The  order  was  entered  without  notice,  but  the  court  found 
that  the  complainant  was  unable  to  get  service  of  notice 
for  the  appointment  of  a  receiver  upon  the  officers  of  the 
corporation,  and  the  affidavits  upon  which  such  a  finding 
were  based  justified  the  finding. 

The  case  is  very  unlike  that  of  Graver  and  Steele  Co.  v. 
Whitman,  62  111.  App.  313.  There  the  order  was  very 
broad.  It  affected  third  persons  and  property  in  their 
hands,  and  included  the  taking  possession  by  the  receiver 
of  all  property  and  assets  in  which  the  defendant  "  had,  or 
has,  any  beneficial  interest,  wherever  said  assets  or  property 
may  be  found." 

There  is  no  such  sweeping  scope  to  the  order  under  con- 
sideration. Here  the  receiver  has  only  to  close  up  the  busi- 
ness and  affairs  of  the  corporation  under  the  direction  of  the 


FiKST  District — Mauch  Term,  1897.       381 

-^^ TM  ^  ^M  ^^     ^m  I     ■  ■  I  l_l  I  _  ■       ■■     ■  *■        ^Ml  B^  I  -  ■  -  ^ 

Calumet  Electric  St  Ry.  Go.  v.  Grosse. 

court,  and  we  will  not  assume  that  the  court  will  permit 
any  unjust  deprivation  of  the  rights  of  third  persons  by 
the  receiver,  nor  interfere  with  the  possession  of  property 
by  third  persons  until  after  an  adjudication  of  their  rights. 
The  case  seems  to  be  one  that  comes  clearly  within  that 
clause  of  the  25th  section  of  the  corporation  act,  which  per- 
mits the  filing  of  a  bill  to  wind  up  a  corporation  when  it 
has  ceased  to  do  business  leaving  debts  unpaid,  and  we  see 
no  ground  for  the  corporation  to  complain  of  the  appoint- 
ment of  a  receiver.    Affirmed. 


Galnmet  Electric  St.  By.  Co.  t.  Charles  Grosse. 

1.  Electric  Wires — Duty  in  Locating. — Where  an  electric  wire  is 
located  upon  an  overhead  structure  and  removed  by  several  feet  from  all 
possibility  of  injuring  any  person  who,  in  the  exercise  of  his  usual  rights 
and  duties  upon  a  highway,  may  be  in  its  vicinity,  the  proprietors  of 
such  wire  are  under  no  duty  to  protect  it  by  an  absolutely  perfect  insula- 
tion, so  that  no  person,  however  extraordinary  may  be  the  rightful  duties 
he  is  engaged  in,  will  be  injured  through  contact  with  it. 

Trespass  on  the  Case,  for  iiijtiries  from  an  electric  wire.  Appeal 
from  the  Circuit  Court  of  Cook  County;  the  Hon.  Charles  G.  Neely, 
Judge,  presiding.  Heard  in  this  court  at  the  March  term,  1897.  Re- 
versed and  remanded.    Opinion  filed  June  14,  1897. 

JuDsoN  F.  Going  and  Louis  G.  Knight,  attorneys  for 
appellant. 

Clark  &  Clark,  attorneys  for  appellee. 

Mr.  Presiding  Justiob  Shepard  delivered  the  opinion 
OP  THE  Court. 

The  appellee  was  a  lineman  engaged  in  stringing  tele- 
phony wires  for  the  Chicago  Telephone  Company  upon  its 
poles  on  Cottage  Grove  avenue,  standing  at  or  about  the 
curb  line,  on  the  east  side  of  said  avenue. 


382  Appellate  Courts  op  Illinois. 

Vol.  70.]  Calumet  Electric  St.  Ry.  Ck).  v.  Ghroese. 

The  appellant  operated  its  electric  car  line  upon  and  in 
^.bout  the  center  of  the  same  avenue.  Its  trolley  wires 
were  fed  by  span  wires  from  insulated  feed  wires  carried 
upon  poles  standing  between  the  telephone  poles  and  the 
east  sidewalk.  The  two  lines  of  poles  were  on  substantially 
parallel  lines,  about  fifteen  feet  apart.  Both  lines  of  poles 
were  on  the  east  side  of  the  avenue,  and  the  telephone 
poles  stood  not  far  from  midway  between  the  feed  wire 
poles  and  the  trolley  wires,  and  were  from  five  to  ten  feet 
higher  than  the  feed  wire  poles.  The  arms  of  the  tele- 
phone poles  being  higher  than  the  span  wires,  it  was  neces- 
sary, in  order  to  string  the  telephone  wires  taut,  to  get  them 
across  and  above  the  span  wires  that  reached  across  the 
street,  from  the  feed  to  the  trolley  wires,  between  the  suc- 
cessive telephone  poles. 

As  we  understand  the  method  of  doing  the  work,  it  was 
for  appellee,  acting  as  lineman,  to  proceed  ahead  and,  tak- 
ing hold  of  the  telephone  wire  that  reached  from  the  last 
preceding  telephone  pole,  across  the  feed  wires  to  the  coil 
of  wire  on  the  ground,  to  flop  or  swing  it  over  the  inter- 
vening feed  wire  pole,  after  which  it  would  be  taken  by  a 
man  upon  the  next  telephone  pole  and  fastened,  and  so  on 
to  the  next  pole. 

To  an  inexperienced  person  such  a  method  speaks  poorly 
for  the  ingenuity  of  those  who  employed  it,  but  there  is 
testimony  that  it  was  the  only  method  then  used  in  Chicago 
under  like  conditions. 

The  method  pursued,  whether  precisely  stated  by  us  or 
not,  was  followed  in  the  instance  under  consideration  for 
the  distance  of  about  a  mile  and  a  half  in  safetv,  but  then 
the  telephone  wire  in  some  way  came  into  contact  with  an 
uninsulated  space  in  the  feed  wire,  or  at  the  point  of  con- 
nection between  the  feed  wire  and  one  of  the  span  wires, 
and  appellee  received  the  shock  and  burns  for  which  he  was 
awarded  the  damages  of  $1,000  in  question. 

The  right  to  any  recovery  against  the  appellant  in  iavor 
of  the  appellee,  under  all  the  circumstances  of  the  accident, 
which  we  have  stated  only  in  most  general  respects,  is  at 
least  doubtful. 


First  District— March  Term,  1897.       383 

Calumet  Electric  St.  Ry.  Co.  t.  Groese. 

Perhaps  the  most  serious  question  in  the  case  is  that  of 
the  duty  of  the  appellant  to  the  appellee.  The  appellee  was 
not  in  the  employ  of  the  appellant,  or  of  any  person  under 
the  appellant.  There  does  not  appear  to  have  been  any 
contractual  relation  between  the  telephone  company,  for 
which  appellee  was  at  work,  and  the  appellant,  providing 
in  any  way  for  the  use  of  the  feed  wire  by  the  telephone 
company.  And  in  this  connection,  quite  a  serious  question 
arises,  whether  without  proof  of  authority  to  do  so,  the 
telephone  company  or  its  employes  had  the  right,  without 
being  treated  as  trespassers,  to  drag  their  wires  upon  and 
across  those  of  appellant  in  the  manner  pursued  in  this  case, 
even  though  both  companies  were  in  rightful  occupancy  of 
the  public  street.  But  we  need  not  press  that  inquiry  at 
this  time. 

The  wire  from  which  the  shock  was  received  was  upon  an 
overhead  structure,  and  removed  by  several  feet  from  all 
possibility  of  injuring  anybody,  who  might,  in  the  exercise 
of  his  usual  rights  and  duties  upon  a  highway,  be  in  its 
vicinity.  The  wire  being  so  located,  was  the  appellant 
under  a  duty  to  protect  it  by  an  absolutely  perfect  insulation, 
so  that  no  person,  however  extraordinary  might  be  the  right- 
ful duties  he  was  engaged  in,  should  be  injured  through 
contact  with  it  ? 

The  trial  judge  seems  to  have  thought  there  was  such  a 
high  degree  of  duty  resting  upon  appellant,  and  at  the 
instance  of  appellee  be  instructed  the  jury  to  that  effect,  as 
follows : 

"  3.  The  court  instructs  the  jury  that  the  business  of 
distributing  electricity  on  wires  strung  over  the  streets  of 
the  city  of  Chicago  is  a  dangerous  business,  and  the  persons 
or  corporations  engaged  in  the  same  are  held  to  the  utmost 
degree  of  care  and  diligence  in  the  construction  and  mainte- 
nance of  its  Kne  of  wire  so  as  to  make  the  same  safe  against 
accidents,  so  far  as  such  safety  can,  by  the  use  of  such  care 
and  diligence,  be  secured." 

We  will  not  by  any  present  holding  deny  the  high  degree 
of  care  to  be  exercised  by  persons  or  corporations  in  the  use 


384 


Appellate  Courts  of  Illinois. 


Vol.  70.] 


Suburban  Ck)n8truction  Co.  v.  Naugle. 


along  the  public  highways  of  the  powerful  and  secret  agency 
of  electricity,  but  under  the  circumstances  of  this  case,  where 
it  was  also  shown  that  the  defect  in  the  insulation  was  not 
discernible  from  below,  and  could  only  be  seen  by  a  close 
inspection  at  the  very  point  of  imperfection,  we  can  not 
assent  to  the  proposition,  as  one  of  law,  that  the  "utmost 
degree  of  care  and  diligence" — that  is  to  say,  such  a  degree 
of  care  as  might  be  observed  by  the  exercise  of  everythinsr 
that  human  ingenuity  could  suggest — was  required.  And 
because  such  instruction,  under  the  facts  of  this  case,  is 
unsupported  by  authority,  and  is  contrary  to  what  we 
conceive  to  be  the  law,  and  was  probably  prejudicial  to  the 
appellant,  we  are  constrained  to  reverse  the  judgment  and 
remand  the  cause  for  another  trial. 

Mb.  Justice  Gary. 

I  think  the  court  should  have  given  the  instruction  asked 
by  the  appellant  to  find  for  the  defendant,  for  the  reason 
that  no  duty  was  incumbent  upon  the  appellant  to  furnish 
conveniences  to  string  the  telephone  wires,  and  that  there- 
fore the  judgment  should  be  reversed  without  remanding. 


70    384 
76    691 


70    3841 
86    5441 


70 
94 


884 
*809 


70      384 
105  «500 


70 
10 


384 
*  55 


Suburban  Construction  Company  et  aL  t.  E.  E. 

Naugle  et  aL 

1.  Specific  Pbrformance— WiZI  not  be  Granted  at  the  Bequest  of  a 
Party  when  it  Can  Not  be  Enforced  Against  Him, — ^A  contract  to  be 
specifically  enforced  by  the  court  must  be  mutual;  that  is  to  say,  such 
that  it  may  be  enforced  by  either  of  the  parties  against  the  other,  and  it 
is  immaterial  what  constitutes  the  want  of  mutuality,  whether  resulting 
from  personal  incapacity,  from  the  nature  of  the  contract,  or  from  any 
other  cause;  whenever  it  is  ascertained  that  the  contract  is  incapable  . 
of  being  enforced  against  one  of  the  contractors,  he  wiU  be  equally 
incapable  of  enforcing  it  against  the  other  party. 

2.  Same— Of  Contracts  Including  a  Series  o/ ^cfs.— Courts  will  not 
undertake  to  enforce  specific  performance  of  contracts  extending  over 
considerable  time,  and  including  a  series  of  acts,  essential  to  a  complete 
performance;  and  among  such  contracts,  non-enforceable  specifically, 
railroad  building  contracts  are  included. 


First  District — March  Term,  1897.       385 

»— ^—  III! 

Suburban  Construction  Co.  v.  Naugle. 

8.  iNJUNcnoNa—On  BUUfar  Specific  Performance.  —Where  the  object 
of  a  bill  is  to  enforce  specific  performance  of  a  contract,  and  that  object 
can  not  be  attained,  a  writ  of  injunction,  ancillary  thereto,  will  usually 
fall  with  the  bill;  for  a  court  will  not  say  we  are  unable  to  decree  a 
specific  performance  of  the  contract,  but  we  will  restrain  from  actions 
which  are  inconsistent  with  it. 

4.  Same— /88iMznc6  of.  Without  Notice.— To  avoid  the  necessity  of 
notice  of  an  application  for  an  injunction,  the  complainant  must  show  \ 

such  facts  by  sworn  statement  as  will  lead  the  court  to  the  conclusion 
that  the  rights  of  complainant  will  be  unduly  prejudiced  if  notice  be 
given  before  the  writ  issues.  And  a  statement  that  "  complainants  fear 
that  unless  restrained  immediately  and  without  notice,  said  parties 
*  *  will  enter  into  some  contract  or  make  some  fraudulent  settlements 
whereby  the  interests  of  complainants  *  *  *  will  be  greatly  dimin- 
ished and  injured,"  is  too  vague  and  indefinite  to  warrant  a  court  in 
concluding  that  an  injunction  should  issue  without  notice. 

Speoiflc  Performance  and  Injanctlon.— Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Oliver  H.  Horton,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Reversed  and  remanded 
with  directions.    Opinion  filed  July  16,  1897. 

Knight  &  Brown  and  Green,  Bobbins  &  Honore,  attor- 
neys for  appellants. 

This  injunction,  being  but  ancillary  to  the  ultimate  relief 
— ^specific  performance — can  not  be  sustained  if  a  case  for 
specific  performance  is  not  made.  Gelston  v.  Sigmund,  27 
Md.  334,  343;  Baldwin  v.  Society,  9  Simons,  Ch.  394;  Allen 
V.  Burke,  2  Md.,  Ch.  534;  Hovnanian  v.  Bedessern,  63  111. 
App.  353;  Fargo  v.  N.  Y.  &  N.  E.  R.  R.  Co.,  23  N.  Y.  Supp. 
360;  Ross  v.  Union  Pao.  R.  R.  Co.,  Woolworth,  26. 

The  remedy  by  specific  performance  must  be  mutual,  and 
in  the  present  case  will  not  be  decreed  in  favor  of  appellees, 
unless  equity  would  decree  specific  performance  of  the 
contract  by  appellees  upon  a  bill  filed  by  the  Suburban 
Construction  Company.  Ross  v.  Union  Pac.  R.  R.  Co.,  Wool- 
worth,  26;  Cooper  v.  Pena,  21  Cal.  403,  410;  Marble  Co.  v. 
Ripley,  10  Wallace,  339;  Lancaster  v.  Roberts,  144  III.  213; 
Mastin  v.  Halley,  61  Mo.  196,  p.  200;  Blackett  v.  Bates,  L. 
R.,  1  Oh.  App.  Cas.  117. 

It  is  a  firmly  established  limitation  upon  the  jurisdic- 
tion to  decree  specific  performance   that  it  will  not  be 

TouLXX  » 


386  Appellate  Courts  of  Illinois. 

Vol.  70.]  Suburban  Consti'uction  Co.  v.  Naugle. 

decreed  of  a  contract  (like  the  one  at  bar),  requiring  the 
direct  superintendence  of  the  court,  nor  where  the  contract 
or  duties  to  be  performed  are  continuous.  This  rule  has 
received  emphatic  application,  especially  in  cases  involving 
the  construction  or  operation  of  a  railroad,  as  will  appear 
in  the  following  cases  :  Ross  v.  Union  Pacific  Railway  Co., 
Wool  worth,  26;  Texas  Railway  Co.  v.  Marshall,  136  U.  S. 
407;  Oregonian  Ry.  Co.  v.  Oregon  Navigation  Co.,  11  Sawyer 
33;  Peto  v.  Brighton  Ry.  Co.,  1  Hemming  &  Miller,  468; 
South  Wales  Railroad  Co.  v.  Wythes,  1  Kay  &  Johnson's 
Rep.  186;  Grape  Creek  Coal  Company  v.  Spellraan,  39  111. 
App.  630;  Harley  v.  Sanitary  District,  54  111.  App.  337; 
Danforth  v.  Phil.,  etc.,  Ry.  Co.,  30  N.  J.  Eq.  12;  Blackett 
V.  Bates,  Law  Reports,  1  Ch.  App.  Cas.  117;  Johnson  v. 
Shrewsbury  Ry.  Co.,  3  DeG.  M.  &  G.  914;  Atlanta,  etc.,  R. 
R.  Co.  V.  Speer,  32  Ga.  550;  Blanchard  v.  Detroit,  etc.,  R. 
R.  Co.,  31  Mich.  43;  Powell  Coal  Company  v.  Taft  Vale  Ry. 
Co.^  L.  R.  9  Ch.  App.  Cas.  331;  Port  Clinton  R.  R.  v.  Cleve- 
land, etc.,  R.  R.,  13  Ohio  State,  644;  Fargo  v.  K  T.  &  N.  £. 
R.  Co.,  23  N.  Y.  Supp.  360. 

Hatch  &  Ritsheb,  attorneys  for  appellees. 

The  jurisdiction  of  equity  to  interfere  by  way  of  injunc- 
tion is  not  confined  to  cases  in  which  specific  performance 
can  be  decreed,  but  is  exercised  whenever  it  can  operate  to 
bind  men's  consciences  to  a  true  and  literal  fulfillment  of 
their  agreement.  Woodman,  Specific  Performance  of  Con- 
tracts, Sec.  109,  110,  112,  114;  W.  U.  Tel.  Co.  v.  U.  P.  Ry. 
Co.,  3  Fed.  Rep.  423;  Pomeroy  on  Specific  Performance, 
Sec.  24,  25,  310,  311  and  312;  Lawrence  v.  Saratoga  Lake 
Ry.  Co.,  36  Hun,  467;  Chi.,  etc.,  R.  R.  Co.  v.  N.  Y.,  etc.,  R. 
R.  Co.,  22  Am.  &  Eng.  R.  R.  Cases,  270;  Singer  Sewing 
Machine  Co.  v.  Union  Button-Hole  &  Embroidery  Co.,  1 
Holmes  253;  Bumgardner  v.  Leavitt,  12  Lawyer's  Rep. 
Ann.  776. 

A  glance  at  the  more  recent  decisions  in  suits  brought  to 
enforce  or  to  prevent  the  violation  of  contracts  shows  that 
the  trend  of  decisions  in  recent  years  is  to  establish  the 


First  District — March  Term,  1897.       387 

Suburban  Construction  Co.  v.  Naugle. 

doctrine  that,  no  matter  how  much  of  personal  supervision 
specific  performance  may  seem  to  entail  on  the  court,  a 
court  of  equity  will  not  permit  injustice  to  be  done,  but 
will  command  performance  by  general  decree,  and  will 
restrain  violation  by  general  injunction,  relying  on  its 
inherent  powers  to  punish  contempt  and  to  enforce  its  man> 
dates  and  defying  the  attempt  of  the  wrongdoer  to  put 
himself  where  the  hand  of  a  court  of  equity  can  not  reach. 
Prospect  Park  &  C.  I.  K.  E.  Co.  v.  Coney  Island  &  B.  R.  K. 
Co.,  144  N.  Y.  162. 

The  more  recent  adjudications  of  the  United  States 
Supreme  Court  are  a  direct  refutation  of  the  contention  of 
appellants  on  this  point.  Union  Pac.  K.  Co.  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  163  U.  S.  564;  Joy  v.  St.  Louis,  138  U.  S.  1; 
Franklin  Tel.  Co.  v.  Harrison,  145  U.  S.  459;  Denver  &  R. 
G.  Ry.  Co.  V.  Ailing,  99  U.  S.  463;  Memphis  &  L.  R.  R.  Co. 
V.  Southern  Ex.  Co.,  117  U.  S.  1. 

Mr.  Jdstice  Seabs  dkliverbd  the  opinion  of  the  Court. 

This  is  an  appeal  from  an  interlocutory  order  of  the 
Circuit  Court  granting  an  injunction. 

Appellees,  as  contractors,  had  undertaken  by  their  agree- 
ment of  November  28,  1896,  to  construct,  equip  for 
operation  by  electricity,  and  to  operate  for  the  period  of 
two  years,  a  certain  system  of  railroad  known  as  the 
Suburban  Railroad  Company.  By  the  same  agreement  the 
Suburban  Construction  Company,  one  of  appellants,  under- 
took to  pay  appellees  for  such  construction,  services,  etc., 
in  stocks  and  bonds  of  the  railroad  to  be  constructed.  Cer- 
tificates of  the  3tock  were  to  be  issued  and  delivered  to 
appellees  in  accordance  with  the  terms  of  the  agreement, 
by  S.  P.  Shope,  as  trustee. 

The  bonds,  executed  by  the  Suburban  Railroad  Company, 
were  to  be  secured  by  a  deed  of  trust  to  the  Chicago  Title 
&  Trust  Company.  Both  stocks  and  bonds  were  to  be 
delivered  to  appellees  as  work  progressed. 

The  bill  alleges  that  certain  of  appellants,  pretending  to 
act  for  the  Suburban  Construction  Company,  have  declared 


388  Appellate  Courts  op  Illinois. 

Vol.  70.]  Suburban  CJoiujtruction  Co.  v.  Naugle. 

that  this  contract  has  been  abrogated  by  said  Suburban 
Construction  Company;  and  prays  for  the  following  relief : 
^*  That  the  said  defendants,  and  each  of  them,  their  agents, 
servants  and  attorneys,  may  be  perpetually  enjoined  from 
interfering  with,  obstructing,  or  preventing  the  perform- 
ance of  the  contract  of  your  orators  with  the  Suburban 
Construction  Company,  dated  November  28,  1896,  and 
from  interfering  with,  obstructing  or  preventing  the  certi- 
fying, issuing  and  delivery  of  the  bonds  of  the  Suburban 
Kailroad  Company,  and  the  benejQcial  certificates  issued, 
and  to  be  issued,  by  S.  P.  Shope,  trustee,  to  your  orators, 
in  accordance  with  the  terms  of  said  contract  of  November 
28,  1896,  and  from  interfering  with,  obstructing  or  prevent- 
ing said  S.  P.  Shope,  trustee,  from  carrying  out  and  execut- 
ing said  trust  agreement  of  March  16,  1896,  and  that  said 
Charles  S.  Leeds,  Herbert  F.  Hatch,  Frank  E.  Hall,  A.  B. 
Leeds,  C.  C.  Chandler,  James  B.  Vredenburgh,  Lyman  A. 
Walton  and  Joseph  A.  Dutfy,  and  each  of  them,  their 
agents,  servants  and  attorneys,  may  be  perpetually  enjoined 
from  acting  as  oflBcers  or  directors  of  the  Suburban  Con- 
struction Company  in  any  niatter  relating  to  the  rights, 
interests  or  contracts  of  your  orators  with  said  Suburban 
Construction  Company,  or  from  interfering,  disposing  of 
or  encumbering,  moving  out  of  the  State,  or  otherwise  dis- 
posing of  the  property  of  the  Suburban  Construction  Com- 
pany, or  its  books  and  papers,  or  from  making  any  contract, 
agreement  or  settlement  relating  to  the  construction  or 
operation  of  the  lines  of  railroad  of  the  Suburban  Rail- 
road Company  or  of  the  lines  leased  from  the  receiver  of 
the  Northerrn  Pacific  Railroad  Company  by  said  Suburban 
Railroad  Company,  and  that  said  Suburban  Construction 
Company,  its  officers,  agents,  directors,  servants  and  attor- 
neys, may  be  directed  to  immediately  transfer  and  deliver 
to  your  orators  such  bonds  and  beneficial  certificates  as 
shall  from  time  to  time  be  due  to  your  orators  under  and 
by  virtue  of  said  contract  of  November  28,  1896,  and  that 
vour  orators  may  have  such  other  and  further  relief  in  the 
premises  as  to  your  honors  shall  seem  meet." 


First  District— Maech  Term,  1897.       389 

Suburban  Construction  Ck).  v.  Naugle. 

A  preliminary  injunction  was  granted.  Two  reasons  are 
urged  by  appellants  why  the  injunction  should  be  dissolved : 

1.  It  is  contended  that  the  true  scope  and  purpose  of 
the  bill  is  to  enforce  a  specific  performance  of  the  contract 
of  November  28,  1896;  that  this  contract  is  lacking  in 
mutuality  of  possible  enforcement;  that  it  is  such  a  contract 
as  must  come  within  the  rule  that  courts  will  not  specific- 
ally enforce  railroad  building  contracts,  and  contracts  for 
personal  services;  and  that  the  prayer  for  injunction,  being 
but  ancillary  to  the  main  relief  sought,  can  not  avail,  if  the 
bill  fails  in  its  main  purpose. 

2.  That  the  injunction  was  improvidently  issued,  because 
without  notice  to  defendants  and  without  sufficient  showing 
in  avoidance  of  notice. 

If  the  contract  in  question  could  not  be  specifically 
enforced  as  against  the  complainants,  it  should  not  be  so 
enforced  against  the  defendants. 

This  doctrine  of  mutuality  seems  to  be  well  settled.  In 
Peto  V.  Brighton,  etc.,  K3'.  Co.,  1  Hemming  &  Miller,  468, 
the  vice-chancellor  says :  "  This  case  turns  upon  the  ques- 
tion how  far  this  court  can  interfere  where  a  contract  pro- 
vides that  the  plaintiffs,  in  consideration  of  certain  shares 
and  other  advantages,  which  the  company  engaged  to  give 
them,  were  to  complete  the  construction  of  some  ten  or 
eleven  miles  of  railway.  *  *  *  Now,  on  this  the  diffi- 
culty at  once  arises,  that  if  I  restrain  the  transfer  of  these 
shares,  I  can  only  do  so  on  an  undertaking,  on.  the  part  of 
the  plaintiffs,  that  they  will  perform  their  part  of  the  agree- 
ment; a  submission  to  do  so  is  a  necessary  ingredient  in  the 
bill,  and  it  is  essential  that  that  offer  should  be  one  over 
which  this  court  should  have  complete  control.  *  *  * 
If  these  gentlemen,  being  under  an  undertaking,  express  or 
implied,  to  perform  this  agreement,  should  fail  in  doing  so, 
I  could  not  place  the  parties  in  the  position  in  which  both 
sides  intended  that  they  should  be,  and  I  should  be  driven 
to  leave  the  defendants,  when  they  came  here  to  complain 
of  such  failure,  to  their  remedy  at  law.  Seeing,  therefore, 
that  no  arrangement  could  so  deal  with  the  case  as  to  do 


390  Appellate  Couuts  of  Illinois. 

Vol.  70.]  Suburban  Construction  Co.  v.  Naugle. 

complete  justice  to  both  sides,  I  think  the  only  proper 
course  for  this  court  to  take,  is  to  leave  both  parties  to  their 
remedies  at  law." 

The  same  rule  is  declared  in  Cooper  v.  Pena,  21  Cali- 
fornia, 411 : 

"  In  respect  to  the  remedy,  therefore,  there  is  no  mutu- 
ality, and  it  is  universally  admitted  that  equity  will  not 
enforce  a  contract  when  the  party  asking  its  enforcement 
can  not  himself  be  compelled  to  perform  it."  And  in  Tyson 
V  .Watts,  1  Maryland  Ch.,  Sec.  13 : 

"  And  in  addition  to  the  elements  of  fairness,  justice  and 
certainty,  the  agreement  must  be  mutual  before  the  power 
of  the  court  to  order  its  specific  performance  can  be  success- 
fully invoked."  And  in  Duvall  v.  Myers,  2  Maryland  Ch., 
Sec.  401: 

"  As  I  understand  the  decision,  the  right  to  a  specific  exe- 
cution of  a  contract  so  far  as  the  question  of  mutuality  is 
concerned,  depends  upon  whether  the  agreement  itself  is 
obligatory  upon  both  parties,  so  that  upon  the  application 
of  either  against  the  other,  the  court  would  coerce  a  specific 
performance."     And  in  Waterman  on  Spec.  Perf.,  Sec.  196 : 

*'  It  is  immaterial  what  constitutes  the  want  of  mutuality, 
whether  resulting  from  personal  incapacity,  from  the  na- 
ture of  the  contract,  or  from  any  other  cause.  Whenever 
the  absence  of  the  essential  element  is  ascertained  to  exist 
on  the  part  of  one  of  the  contractors,  and  for  that  reason  is 
incapable  of  being  enforced  against  him,  he  will  be  equally 
incapable  of  enforcing  the  contract  against  the  other 
party."     And  in  Fry  on  Spec.  Perf.,  Sees.  440-441 : 

"A  contract  to  be  specifically  enforced  by  the  court 
must  be  mutual — that  is  to  say,  such  that  it  might,  at  the 
time  it  was  entered  into,  have  been  enforced  by  either  of 
the  parties  against  the  other,  *  *  *  where  the  plaint- 
iJBfs  had  agreed  to  perform  certain  services  in  making  a 
railwav,  which  were  of  such  a  confidential  nature  that  the 
court  could  not  have  enforced  them  if  the  defendants  had 
sued  the  plaintifl^s;  and  the  defendants  were  to  pay  money, 
and  do  nothing  else,  the  court  refused  specific  performance, 


First  District — March  Term,  1897.       391 

Suburban  Construction  Co.  v.  Naugle. 

on  the  ground,  among  others,  of  want  of  mutuality.".  And 
in  Lancaster  v.  Roberts,  144  111.  223,  quoting  Fry  on  Spe- 
cific Performance,  as  above : 

We  come  then  to  the  question:  Could  this  contract  be 
specifically  enforced  as  against  appellees  ? 

The  contract  is,  in  effect,  an  agreement  upon  the  part  of 
appellees  to  construct  and  equip  a  railroad,  and  to  operate 
the  railroad  for  a  period  of  two  years.  The  performance 
by  appellees  is  but  partly  executed.*  Courts  will  not  under- 
take to  enforce  specific  performance  of  contracts,  extending 
over  considerable  time  and  including  a  series  of  acts  essen- 
tial to  a  complete  performance.  Among  such  contracts, 
non-enforceable  specifically,  railroad  building  contracts 
seem  to  be  included.  In  The  South  Wales  Ky.  Co.  v. 
Wythes,  1  Kay  &  Johnson,  186,  the  vice-chancellor  says : 

"  In  the  cases  referred  to,  from  that  of  Flint  v.  Brandon 
to  Stover  v.  The  Great  Western  Ry.  Co.,  which  was  decided 
not  in  any  way  in  opposition  to  the  rule,  but  in  perfect 
accordance  with  it,  the  court  has  held  that  contracts  for 
building,  and  contracts  for  executing  works  generally,  are 
matters  which,  in  the  first  place,  the  court  can  not  easily 
superintend.    ♦    *    * 

In  Stover  v.  The  Great  Western  Ry.  Co.,  the  court 
anxiously  guarded  itself,  by  pointing  out  the  special  circum- 
stances of  that  particular  case.  *  *  *  But  this  court 
could  hardly  bring  a  suit  of  this  description  to  a  termina- 
tion; the  motions  would  have  to  be  incessant  for  committal, 
or  otherwise,  for  non-performance  of  the  different  orders 
with  regard  to  the  making  of  a  particular  bridge,  cutting 
or  other  work." 

In  Ross  V.  The  Union  Pa<5ific  Ry.  Co.,  a  case  in  many 
respects  similar  to  the  one  under  consideration,  reported  in 
Woolworth,  p.  30,  Justice  Miller  says : 

*'  The  plaintiffs  have  done  work  and  furnished  material 
to  the  value  of  $40,000  or  $50,000.  They  have  made  exten- 
sive arrangements  for  procuring  the  necessary  capital,  and 
for  the  purchase  of  the  iron,  and  are  fully  ready  and  able 
to  prosecute  the -work  diligently  and  successfully.    But  the 


/ 


J 


392  Appellate  Courts  of  Illinois. 

Vol.  70.]  Suburban  Construction  Co.  v.  Naugle. 

defendant  has  notified  them  that  their  contract  is  forfeited, 
and  the  work  covered  by  it  he  has  employed  other  parties 
to  perform.  To  secure  its  bonds,  which  are  to  be  delivered 
to  the  new  contractors,  etc.,  the  defendant  has  made  mort- 
gages on  the  road.  The  bonds  have  not  been  issued  yet. 
The  bill  therefore  prays  for  an  injunction  to  prevent  their 
issue,  and  on  final  hearing,  that  the  defendant  may  be  decreed 
specifically  to  perform  its  covenants  in  said  contract. 

If,  for  the  purpose  of  compelling  the  parties  to  perform 
specifically  their  contract^  the  court,  on  the  case  made  by 
its  bill,  ought  to  entertain  it,  it  should  grant  the  injunction. 

*  *  *  On  the  other  hand,  if  on  the  hearing,  specific 
performance  will  not  be  decre3d,  there  is  no  ground  for 
the  injunction,  which  is  sought  only  for  the  purpose  of 
making  the  final  decree  effective.  *  *  *  It  is  the  settled 
doctrine  of  this  court  that  such  a  contract  will  not  be  spe- 
cifically enforced,  unless  the  remedy  is  mutual;  that  is  to 
say,  that  the  covenant  of  the  plaintiff  to  be  performed  on 
his  part,  and  that  of  the  defendant  on  his  part,  must  both 
be  of  such  a  character  that,  if  either  of  them  shall  be  delin- 
quent, the  court  can  give  relief  by  .compelling  its  perform- 
ance specifically  by  him.  (Citing  2  Story  Eq.  Jr.,  Sec.  711, 
723,  790;  Cathcart  v.  Robinson,  5  Peters,  28i.)  1  proceed, 
then,  to  inquire  whether  this  contract  is  of  such  a  character 
that,  if  thQ  plaintiffs  were  in  default,  it  could  be  specific- 
ally enforced  as  against  them  by  a  decree  of  this  court. 

*  *  *  No  oasto  is  reported,  I  believe — at  least  none  has 
baen  produced  on  the  hearing — in  which  the  court  has  under- 
taken to  compel  a  party  to  build  a  railroad.'^  And  after  a 
careful  analysis  of  cases  cited  as  apparently  holding  contra, 
the  court  concludes :  ''  I  am  inclined  to  concur  f ullv  with 
Judge  Story,  that,  in  cases  of  contract  to  build  a  house  or 
a  bridge,  '  or,  I  will  venture  to  add,  a  railroad,^  a  specific 
performance  would  not  now  .be  decreed.*' 

"  It  seems,  therefore,  that  in  granting  this  injunction, 
which  would  require  that  this  railroad  should  be  built^ 
equipped  and  delivered  by  one  party,  and  payments  made 
by  the  other,  under  the  control  and  compulsion  of  the  court. 


First  District — March  Term,  1897.       393 

Suburban  Construction  Co.  v.  Naugle. 

I  should  be  going  far  beyond  any  adjudged  case,  or  any  prin- 
ciple established  by  any  adjudged  case." 

Nor  will  courts  attempt  to  do  that  which  is  beyond  their 
power  to  accomplish,  viz.,  to  enforce  specific  performance 
of  contracts  requiring  personal  service.  Kennicott  v. 
Leavitt,  37  111.  App.  437,  and  cases  therein  cited. 

Counsel  for  appellees  urge  that  as  this  contract  is  largely 
executed,  the  rule,  which  has  been  so  generally  applied  to 
contracts,  mainly  executory,  naay  not  here  apply. 

But  the  reason  of  the  rule,  viz.,  the  difficulty  of  enforcing 
and  supervising  a  continuous  course  of  action,  involving 
the  rendering  of  some  considerable  personal  service,  still 
obtains.  No  matter  how  much  has  been  done,  the  vital 
question  remains,  what  is  yet  to  be  done  ?  Here  is  still  a 
portion  of  the  road  to  be  constructed,  and  the  entire  road 
to  be  operated.  How  can  a  court  enforce  and  superintend 
this  service?  And,  if  not,  then,  mutuality  of  enforcement 
being  wanting,  it  should  not  enforce  the  payment  in  part 
for  such  service. 

A  case  wherein  the  services  of  the  contractor  had  been 
partially  rendered  and  the  contract  partly  executed,  is  found 
in  Fallon  v.  Railroad  Co.,  1  Dillon,  121. 

While  there  is  some  conflict  of  decisions,  the  decided 
weight  of  authority  seems  to  be  to  the  effect,  that,  where  the 
object  of  a  bill  in  equity  is  to  enforce  specific  performance 
of  a  contract  and  that  object  can  not  be  attained,  the  writ 
of  injunction,  ancillary  thereto,  falls  with  the  bill.  That 
is,  the  court  will  not  say,  "  We  are  unable  to  decree  a 
specific  performance  of  the  contract,  but  we  will  restrain 
from  actions  which  are  inconsistent  with  the  contract." 

In  Allen  v.  Burke,  2  Maryland  Ch.,  Sec.  537,  the  chan- 
celor  says: 

"  The  object  of  the  bill  is  to  enforce  the  specific  perform- 
ance of  the  agreement  therein  referred  to,  and  fpr  an 
injunction  in  the  meantime  to  restrain  the  defendant  from 
taking  and  conveying  away,"  etc.,  etc.,  *  *  *  "  and  it 
seems  to  me  quite  clear  that  if  upon  the  plaintiffs  case,  as 
exposed  by  his  bill,  he  is  not  entitled  to  a  specific  execution 


394  Appellate  Courts  of  Illinois. 

Vol.  70.]  Suburban  Ck)nstruction  Co.  v.  Naugle. 

of  the  agreement  set  up  by  him,  ho  can  not  be  entitled  to 
the  injunction,  which  is  only  ancillary  to  the  principal  object 
of  the  suit." 

Counsel  for  appellees  contend  that  there  is  a  decided 
conflict  of  authorities  upon  these  questions,  viz.,  the  doctrine 
of  mutuality  and  non-enforcement  of  contracts  of  this  sort, 
and  the  necessity  of  the  failure  of  the  relief  by  way  of 
injunction  upon  the  failure  to  attain  a  specific  performance. 
And  in  support  of  their  contention  cite  Lumley  v.  Wagner, 
1  DeG.,  M.  &  G.  616,  the  leading  case  from  which  all 
authority  seems  to  have  been  drawn  for  decisions  contrary 
to  the  established  rule.  Upon  careful  analysis,  however,  a 
reason  may  be  found  why  the  court  might  in  that  case 
refuse  to  enforce  a  specific  performance,  and  yet  grant  the 
writ  of  injunction  prayed  in  the  same  bill.  The  defendant, 
a  singer,  had  agreed  to  sing  at  plaintiff's  theatre,  and  not 
to  sing  at  any  other,  and  the  court  enjoined  her  from 
performing  at  a  rival  establishment,  though  it  was  clear 
that  the  court  could  not  compel  her  to  sing  for  the  plaintiff. 
But  there  were  two  important  elements  distinguishing  it 
from  the  other  authorities,  viz.,  a  covenant  not  to  sing  else- 
where, disregarded  and  broken,  and  in  addition  to  the  wrong 
done  to  {plaintiff  by  breach  of  the  engagement  with  him,  a 
new  and  affirmative  wrong  threatened  by  aiding  a  compet- 
ing rival.  Hence  the  decision  in  this  case  may  properly  be 
regarded  as  resting  upon  other  grounds  and  in  no  way 
conflicting  with  the  authorities  heretofore  cited. 

The  case  of  Singer  Co.  v.  Union  Co.,  1  Holmes,  257,  rests 
upon  the  authority  of  Lumley  v.  Wagner,  but  without  the 
same  distinguishing  features,  and  is  a  case  clearly  in  conflict 
with  the  majority  of  English  and  American  decisions.  The 
court  says  in  that  case : 

"  The  relief  asked  is  specific  performance  and  injunction. 
It  is  argued  with  great  ability  by  the  defendants,  that  the 
complainant  is  not  entitled  to  specific  performance,  and  that, 
therefore,  it  can  not  have  an  injunction  which  is  merely 
auxiliary.  Granting  the  premises,  I  am  not  prepared  to 
concede  the  conclusion.   If  the  court  can  not  order  a  contract 


First  District — March  Term,  1897,       395 

Suburban  Construction  Co.  v.  Naugle. 

for  the  making  of  button-hole  machines  to  be  specifically 
performed  by  reason  of  the  impossibility  of  supervising  the 
details  of  such  a  business,  it  does  not  follow  that  the  bill 
may  not  be  retained  as  an  injunction  bill.  It  was  formerly 
thought  that  an  injunction  would  not  be  granted  to  restrain 
the  breach  of  any  contract,  unless  the  contract  was  of  such 
a  character  that  the  court  could  fully  enforce  the  perform- 
ance of  it  on  both  sides.  ♦  *  *  Upon  this  ground  there 
were  many  decisions  refusing  to  interfere  with  contracts  for 
personal  service,  however  flagrant  might  be  the  breach  of 
them.  (Citing  Kemble  v.  Kean,  6  Sim.  333;  Kimberly  v. 
Jennings,  Id.  340;  Baldwin  v.  Society,  etc.,  9  Sim.  393.) 
*  *  *  "  But  all  these  cases  were  overruled,  by  one  of 
the  ablest  chancellors  who  has  adorned  the  woolsack,  in 
Lumley  v.  Wagner." 

That  this  case  is  clearly  in  support  of  appellee's  conten- 
tion, and  quite  irreconcilable  with  the  authorities  above 
cited,  is  beyond  dispute.  It  can  only  be  said  of  it  that  it 
stands  against  the  decided  weight  of  authority,  and  hardly 
supported  by  the  reason  of  Lumley  v.  Wagner,  from  which 
it  draws  its  authority.  The  Supreme  Court  of  this  State, 
while  not  passing  upon  the  precise  questions  here  involved, 
has  yet  indicated  that  it  does  not  follow  the  reasoning  of 
Singer  Co.  v.  Union  Co.  In  Chi.  Mun.  Gas  Light  Co.  v. 
Town  of  Lake,  130  111.  60,  the  court  say : 

"  The  bill  of  complaint  in  this  case,  though  not  strictly  a 
bill  for  the  specific  performance  of  a  contract,  is,  in  substance, 
a  bill  of  that  kind.  In  Pomeroy's  Eq.  Jr.,  Sec.  1341,  it  is 
said :  An  injunction  restraining  the  breach  of  a  contract  is 
a  negative  specific  performance  of  that  contract.  The  juris- 
diction of  equity  to  grant  such  injunction  is  substantially 
coincident  with  its  jurisdiction  to  compel  a  specific  per- 
formance." 

Counsel  also  cite  a  number  of  decisions  of  the  Supreme 
Court  of  the  United  States  as  sustaining  their  contention. 

Upon  examination  it  will  be  found  that  no  one  of  them  is 
in  conflict  with  the  rule. 

In  U.  P.  K.  Co.  V.  C,  K.  L  &  P.  R.  Co.,  163  U.  S.  564,  the 


396  Appellate  Courts  of  Illinois. 

Vol.  70.]  Suburban  Construction  Co.  v.  Naugle. 

court  say  in  effect  that  the  facts  take  it  without  the  rule, 
thus :  "  But  it  is  objected  that  equity  will  not  decree  spe- 
cific performance  of  a  contract  requiring  continuous  acts, 
involving  skill,  judgment  and  technical  knowledge,  nor 
enforce  agreements  to  arbitrate,  and  that  this  case  occupies 
that  attitude.  We  do  not  think  so.  The  decree  is  complete 
in  itself,  is  self-operating  and  self-executing,"  etc. 

In  Joy  V.  St.  Louis,  138  U.  S.  1,  the  use  of  the  tracks  of 
one  railroad  by  another  railroad  company  was  involved,  and 
the  court  say :  "  It  is  urged  that  the  court  will  be  called 
upon  to  determine  from  time  to  time  what  are  reasonable 
regulations  to  be  made  by  the  Wabash  company  for  the 
running  of  trains  upon  its  tracks  by  the  Colorado  company. 
But  this  is  no  more  than  a  court  of  equity  is  called  upon  to 
do  whenever  it  takes  charge  of  the  running  of  a  railroad  by 
means  of  a  receiver.  Irrespectively  of  this,  the  decree  is 
complete  in  itself,  and  disposes  of  the  controversy,  etc. 
*  *  *  Considerations  of  the  interests  of  the  public  are 
held  to  be  controlling  upon  a  court  of  equity  when  a  public 
means  of  transportation,  such  as  a  railroad,  comes  into  the 
possession  and  under  the  dominion  of  the  court." 

In  Franklin  Tel.  Co.  v.  Harrison,  145  XJ.  S.  459,  the  con- 
tract was  for  use  by  the  complainant  of  certain  telegraph 
wires.  The  case  turned  upon  questions  of  right  to  termi- 
nate and  hardship  upon  the  parties  in  event  of  enforcement. 
The  questions  herein  considered  were  not  passed  upon  or 
discussed. 

In  Denver  &  R.  G.  Ry.  Co.  v.  Ailing,  99  U.  S.  463,  there 
were  involved  construction  of  certain  acts  granting  Railroads 
right  of  way  through  public  lands  of  the  United  States. 
And  the  court  only  undertakes  to  supervise  the  operation  of 
the  railroad  to  the  extent  of  defining  their  respective  rights 
under  such  grants. 

In  Memphis  &  L.  R.  R.  Co.  v.  Southern  Ex.  Co.,  117  TJ.  S. 
1,  the  questions  involved  were  the  relative  rights  of  rail- 
road and  express  companies,  and  the  interest  of  the  general 
public  therein.  In  no  event  could  the  decision  of  the  court 
there  be  construed  as  sustaining  counsel's  contention. 


First  District — March  Term,  1897.       397 

Suburban  Construction  Co.  v.  Naugle. 

-       _ _  - - T - . 

The  case  of  W.  IT.  Tel.  Co.  r.  U.  P.  Ky.  Co.,  3d  Fed.  Kep. 

m 

428,  also  cited,  presents  peculiar  facts,  as  shown  by  the  opin- 
ion of  the  court.  '*  If  the  contract  were  set  aside  it  would, 
I  think,  leave  the  parties  joint  owners  of  the  property,  and 
a  case  for  equity  jurisdiction,  in  the  adjustment  and  settle- 
ment of  their  respective  interests  would  be  presented." 

So  far  as  the  decision  announces,  the  doctrine  that  the 
court  may  negatively  enforce  specific  performance  by  in- 
junction, where  it  might  not  enforce  such  performance 
affirmatively,  it  rests  solely  upon  the  citation  of  Pomeroy 
on  Spec.  Perf.,  Sees.  24,  25,  310,  311  and  312.  By  exami- 
nation of  these  sections  we  see  that  the  author  does  not 
extend  the  doctrine  announced  beyond  the  cases  applied  to 
actors  and  singers,  based  upon  Lumley  v.  Wagner,  and  the 
enforcement  of  covenants  not  to  do  specific  acts.  And  as  to 
the  latter,  qualifies  thus  (Sec.  25) :  "  But  the  court  will  not 
interfere  to  restrain  the  breach  of  such  a  stipulation  when 
it  is  merely  ancillary  to  a  more  general  contract,  which  can 
not  be  specifically  enforced  in  its  entirety."  And  in  Sec. 
312 :  "  Finally,  contracts  which  by  their  terms  stipulate 
for  a  succession  of  acts,  whose  performance  can  not  become 
consummated  by  one  transaction,  but  will  be  continuous, 
and  require  protracted  supervision  and  direction,  with  the 
exercise  of  special  knowledge,  skill  or  judgment  in  such 
oversight,  such  as  agreements  to  repair  or  to  build,  to  con- 
struct works,  to  build  or  carry  on  railways,  mines,  quarries 
and  other  analogous  undertakings,  are  not,  as  a  general  rule, 
specifically  enforced." 

The  American  courts  seem  to  have  been  loth  to  follow 
the  doctrine  of  Lumley  v.  Wagner,  and  certainly  have  not 
generally  extended  that  doctrine  beyond  the  reasoning  of 
that  case  and  the  class  to  which  it  belongs. 

We  think  it  safe  to  conclude  that  no  case  can  be  found 
(certainly  none  has  been  cited  to  us,  and  we  are  unable  to 
find  any),  in  which  it  is  held  that  a  building  contract 
providing  for  the  construction  and  operation  as  well,  of  a 
railroad,  can  be  specifically  enforced,  either  as  against  the 
contractors  to  build  and  operate,  or  as  against  those  with 


398  Appellate  Courts  of  Illinois. 

Vol.  70.]  Suburban  Construction  Co.  v.  Naugle. 

whom  they  contract,  and  who  are  obligated  to  pay  therefor, 
whether  in  money  or  in  stock  and  bonds. 

The  remaining  contention  of  appellants  is  that  the  writ 
should  not  have  been  issued  without  notice. 

This  court  has  repeatedly  held  that  to  avoid  the  necessity 
of  notice  under  the  statute,  the  complainant  must  show  such 
facts  by  sworn  statement,  either  in  the  bill  or  by  affidavit 
accompanying  the  bill,  as  will  lead  the  court  to  the  conclusion 
that  the  rights  of  complainants  will  be  unduly  prejudiced 
if  notice  be  given  before  the  writ  issues.  Becker  v.  Defen- 
baugh,  66  111.  App.  604,  and  cases  therein  cited. 

No  such  showing  is  here  made.  The  affidavit  refers  to 
the  statements  of  the  bill.    They  are  as  follows : 

"  That  complainants  fear  that  unless  restrained  immedi- 
ately and  without  notice  said  parties  and  pretended  directors 
and  officers  of  the  Suburban  Construction  Company  and 
said  Suburban  Railroad  Company  will  enter  into  some 
contract,  or  make  some  fraudulent  settlements  whereby  the 
interests  of  complainants  and  the  Suburban  Construction 
Company  and  the  Suburban  Railroad  Company  and  the 
value  of  the  bonds  of  the  Suburban  Railroad  Company,  and 
the  beneficial  certificates  of  Shope,  trustee,  will  be  greatly 
diminished  and  injured,  and  your  orators  will  be  unduly 
prejudiced,  and  that  if  a  notice  of  the  application  for  a 
temporary  injunction  herein  were  given  to  them,  that  they 
would  take  such  action  before  the  said  motion  could  be 
heard,  thereby  inflicting  irreparable  injury  to  your  orators, 
and  involving  your  orators  and  their  property  and  contract 
rights  in  litigation,  and  thereby  preventing  the  completion 
of  the  lines  of  said  railroad  on  or  before  the  first  day  of 
July,  1897,  as  required  to  be  done  under  the  ordinances  of 
said  town  of  Cicero." 

What  specific  act  is  it  that  the  defendants,  or  any  of  them, 
threaten  to  do,  or,  are  likely  to  do,  whereby  complainant's 
rights  could  be  prejudiced?  The  statements  of  acts  threat- 
ened, or  likely  to  be  done,  are  too  vague  and  indefinite 
to  warrant  the  court  in  concluding  that  there  was  any 
danger  that  any  specific  thing  would  occur,  prejudicial  to 


First  District — March  Term,  1897.       399 

Gibson  v.  Ackermann. 

complainants,  if  the  issuing  of  the  writ  were  delayed  for 
notice. 

But  the  appeal  is  effectually  disposed  of  by  the  decision 
reached  upon  the  point  first  considered.  Because  the  bill  is 
in  spirit  and  substance  a  bill  for  the  specific  performance  of 
a  portion  of  a  railroad  building  contract,  and  for  the 
rendering  of  personal  services  in  the  operating  of  a  railroad, 
in  considerable  part  unexecuted,  and  hence  not  a  contract 
enforceable  in  equity,  and  because  the  injunction  is  but 
ancillary  to  such  specific  performance,  the  order  is  reversed 
and  the  cause  remanded,  with  direction  to  the  Circuit  Court 
to  dissolve  the  injunction. 


C.  C.  Gibson^  Use^  etc.^  t.  3.  W.  Ackermann  and  Mrs.  J. 

W.  Ackermann. 


JO    399, 
80    163 


70      399 
97     »669 


1.  Refeai^ — By  Implication — The  Ride  as  to^  Stated, — Repeals  hy 
implication  are  not  favored,  and  in  order  to  work  a  repeal,  a  new  law,  if 
it  contains  no  express  words  repealing  the  old  law,  must  be  repugnant  to 
it,  and  the  repugnancy  must  be  clear.  The  new  law  must  fully  embrace 
the  whole  subject  of  the  old  law,  and  as  a  general  rule  such  parts  of  the 
old  law  as  may  be  incorporated  into  the  new  law  consistently  therewith 
must  be  considered  in  force. 

3.  Ceetiorabi— iScc.  75  to  80  of  the  Act  of  1872  in  Regard  to  Justices 
and  Constables  Not  Repealed. — The  act  of  1895,  in  regard  to  justices 
and  constables,  does  not  repeal  sections  75  to  80  of  the  act  of  1872  on  the 
same  subject,  and  the  statutory  right  of  appeal  by  certiorari  stUl  exists 
as  it  did  prior  to  July  I,  1895. 

8.  Same — Facets  to  Be  Shown  by  Petition,— A  petition  for  a  writ  of 
certiorari,  showing  in  detail  that  the  petitioner  was  not  negligent,  that 
the  judgment  is  unjust  and  that  it  was  not  in  his  power  to  appeal  in  the 
ordinary  way,  sets  up  aU  the  essential  facts. 

Petition  for  Certiorari.— Appeal  from  the  Circuit  Court  of  Cook 
County;  the  Hon.  Edmund  W.  Burkb,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.    Affirmed.    Opinion  filed  July  15,  1897. 

Chakles  Pickler,  attorney  for  appellants. 
Where  a  later  act  covers  the  whole  subject-matter  of  an 
earlier  act,  does  not  purport  to  amend  it,  but  plainly  shows 


400  Appellate  Courts  of  Illinois. 

Vol.  70.  J  Gibeon  v.  Ackermann. 

that  it  was  intended  as  a  substitute  for  the  earlier,  it  will 
operate  as  a  repeal  of  the  earlier  act;  it  is  the  only  law 
upon  that  subject,  although  it  contains  no  repealing  clause. 
When  a  statute  is  revised,  or  one  act  formed  from  another, 
some  parts  of  the  former  being  omitted,  the  parts  omitted 
are  not  to  be  revived  by  construction.  The  legislature  is 
Dresuraed  to  have  had  the  former  statutes  before  it  and 
to  have  been  acquainted  with  judicial  construction.  The 
provisions  of  the  earlier  law  not  contained  in  the  later 
will  be  presumed  to  hav^e  been  intentionally  omitted.  And 
the  rule  is  the  same,  although  the  omission  is  caused  by  acci- 
dent— it  belongs  to  the  legislature  to  supply  it.  Culver  v. 
Bank,  64  111.  528;  Andrews  v.  People,  75  111.  606;  Devine 
V.  Cook  County,  84  III.  590;  Eaton  v.  Graham,  11  111.  622; 
III.  &  Mich.  Canal  v.  Chicago,  14  111.  334;  Hunt.  V.Chicago 
&  D.  R.  R.  Co.,  20  111.  App.  2S2;  Steele  v.  Lineberger,  73 
Pa.  241;  In  re  Wheelock  (Sup.  Ct.),  3  N.  Y.  Supp.  890;  In 
re  Alexander  (Sup.  Ct.),  3  N.  Y.  Supp.  892;  Combined  S. 
&  P.  Co.  V.  Flournoy  (Va.  1892),  14  S.  E.  Rep.  976;  Buck 
V.  SpoflFord,  31  Me.  36. 

The  petition  is  insufficient  because  the  act  of  1872  requires 
that  the  petition  shall  set  forth,  (1)  that  the  judgment  was 
not  the  result  of  negligence  in  the  party  praying  the  writ, 
and  that  the  party  was  diligent  in  defending;  (2)  that  the 
judgment  is  unjust  and  erroneous;  (3)  that  it  was  not  in  the 
power  of  the  party  to  take  the  appeal  in  the  ordinary  way; 
and  these  three  facts  must  be  shown  by  the  petition,  not 
merely  alleged  as  conclusions  of  law.  First  N.  Bank  v. 
Beresford,  78  111.  391. 

The  party  desiring  to  appeal  from  the  justice  must  use 
more  than  ordinary  diligence,  and  no  presumptions  are 
indulged  in  favor  of  the  writ.  Cushman  v.  Rice,  1  Scam. 
565;  White  v.  Frye,  2  G-il.  65;  Lord  v.  Burke,  4  GiL  463; 
Town  of  Waverly  v.  Kemper,  88  111.  580. 

The  petition  should  be  taken  most  strongly  against  peti- 
tioner.    O'Hara  v.  O'Brien,  4  Brad.  156. 

Consider  H.  Willbtt,  attorney  for  appellees. 


First  District— March  Term,  1897.       401 

Gibson  V.  Acker mann. 


Repeals  by  implication  are  not  favored  in  law.  People  v. 
Barr,  44  III.  198. 

'*When  the  latter  enactment  is  worded  in  affirmative 
terms  only,  without  any  negative,  expressed  or  implied,  it 
does  not  repeal  the  earlier  law."  23  Am.  &  Eng.  Ency., 
483. 

Where  the  whole  purview  of  the  two  statutes  is  different, 
and  there  is  no  essential  repugnancy  between  them,  they 
will  stand  together  in  the  absence  of  a  repealing  clause, 
even  though  they  refer  to  the  same  object.  In  re  Gannett, 
11  Utah,  289;  Mills  v.  State,  23  Tex.  295. 

Without  repealing  words  in  a  new  statute  which  relates 
to  several  remedies  contained  in  the  old  statute,  which  new 
statute  covers  several  remedies,  but  omits  one  or  more,  as 
certiorari,  such  omitted  remedy  exists  after  the  passage  of 
the  new  statute  without  repealing  words  precisely  as  it 
stood  in  the  old  statute. 

In  the  absence  of  any  repealing  clause,  it  is  necessary  to 
the  implication  of  a  repeal  that  the  object  of  the  statutes, 
as  well  as  the  subject,  be  the  same.  If  they  are  not,  both 
statutes  will  stand,  although  they  refer  to  the  same  subject. 
23  Am.  &  Eng.  Ency.,  482. 

In  People  v.  McAllister,  37  Pac.  Eep.  (Utah),  on  page  580, 
it  is  said :  "  Both  statutes  must  be  construed  together  and 
be  ^iven  effect,  if  possible,  for  a  repeal  by  implication  is  not 
favored  in  law.  Even  where  some  of  the  provisions  of  a 
former  statute  are  inconsistent  with  or  repugnant  to  a  later 
one,  the  repeal  by  implication  will  operate  only  to  the  extent 
of  such  inconsistency  or  repugnancy.  When,  as  in  the  case 
at  bar,  there  is  a  difference  in  the  purview  of  two  statutes, 
though  relating  to  the  same  subject,  the  former  is  not 
repealed  by  the  latter,  in  the  absence  of  a  repealing  clause; 
and  the  legislature,  when  enacting  the  latter  law,  is  pre- 
sumed to  have  knowledge  of  all  former  laws  relating  to  the 
same  subject.  The  doctrine  of  repeal  by  implication  proceeds 
on  the  ground  that  it  was  the  intention  of  the  legislature, 
and  such  intention  must  be  manifest  before  the  repeal  can 
become  eflfectual.'*    People  v.  MoAllistei*,  37  Pac.  Rep.  580; 

Vol.  LXX4 


402  Appellate  Courts  of  Illtnots. 

Vol.  70.]  Gibson  v.  Ackermann. 

Suth.  St.  Const.,  Sees.  l^SS,  160;  U.  8.  v.  Claflin,  97  U.  S. 
546. 

Mb.  JusTroKWiNDES  delivered  the  opinion  of  the  Coubt. 

Appellant,  for  the  use  of  Pickler,  obtained  judgment  in 
trover  by  default  before  a  justice  of  the  peace  for  the 
alleged  value  of  a  certain  trunk  and  contents,  for  which  he 
bad  brought  suit  in  replevin  against  appellees,  the  officer 
havino:  failed  to  find  the  property. 

The  judgment  was  rendered  August  6,  1895,  but  appel- 
lees had  no  knowledge  of  that  fact  until  long  after  the  time 
for  appeal  had  elapsed,  and  as  soon  as  they  learned  of  the 
judgment,  filed  their  petition  for  certiorari  in  the  Circuit 
Court. 

The  trial  court  overruled  a  motion  to  quash  the  writ  of 
certiorari  for  insufficiency  of  the  petition,  and  upon  a  trial, 
a  jury  being  waived,  found  for  appellees  and  rendered  judg- 
ment in  their  favor  for  costs. 

Two  contentions  are  made  on  this  appeal,  viz.: 

1st.  That  the  Circuit  Court  had  no  power  to  grant  an 
appeal  by  certiorari,  since  the  act  of  July  1,  1895,  with 
reference  to  justices  and  constables. 

2d.     That  the  petition  for  certiorari  is  insufficient. 

Chap.  59,  Sees.  72  to  77,  inclusive,  Rev.  Stat.  1845,  under 
title  of  justices  and  constables,  gave  to  the  Circuit  Courts  of 
this  State  the  power  to  grant  writs  of  certiorari  to  remove 
causes  from  justices  of  the  peace;  prescribed  the  prac- 
tice in  the  Circuit  Court  in  such  cases,  what  the  petition 
should  set  forth,  and  provided  that  such  proceedings  should 
be  had  thereon  as  in  cases  of  appeals. 

These  provisions  were  substantially  re-enacted  by  S^cs. 
75  to  80,  inclusive,  of  the  act  of  July  1,  1872,  entitled  "an 
act  to  provide  for  the  election  and  qualification  of  justices 
of  the  peace  and  constables,  and  to  provide  for  the  juris- 
diction and  practice  of  justices  of  the  peace  in  civil  cases, 
and  fix  the  duties  of  constables  and  to  repeal  certain  acts 
therein  named."  Thus  the  law  remained  until  the  act  of 
July  1,  1895,  was  enacted.    It  will  be  seen  from  an  exam- 


First  District — March  Term,  1897.      403 

Gibson  v.  Ackermami. 

ination  of  these  sections,  that  they  relate  solely  to  the  pro- 
ceedings to  be  taken  in  the  Circuit  Court,  and  the  effect  of 
such  proceedings  upon  the  parties  concerned,  justices  of  the 
peace  and  constables. 

The  act  of  July  1, 1895,  is  entitled  "an  act  to  revise  the 
law  in  relation  to  justices  of  the  peace  and  constables,"  but 
does  not  contain  either  of  said  Sees.  75  to  80,  inclusive,  or 
anything  relating  to  the  proceedings  in  the  Circuit  Court, 
nor  as  to  the  method  of  appeal  by  certiorari,  except  that 
Art.  10,  Sec.  116,  provides  that  "one  or  more  of  several 
plaintiffs  or  defendants  may  appeal  or  sue  out  a  certiorari 
without  the  consent  of  the  others,  and  all  further  proceed- 
ings shall  thereupon  be  stayed,  the  same  as  if  all  had  united 
in  such  appeal  or  certiorari;"  Sec.  117  provides  for  a  stay 
of  proceedings  by  the  justice  and  constable  "  as  soon  as  the 
writ  of  certiorari  shall  be  served  on  such  oflBcer,"  until  the 
further  order  of  the  court;  and  Sec.  118  provides  for  the 
issuance  of  execution -on  "judgments  rendered  incases  of 
appeal  and  certiorari." 

The  new  act  contains  no  repealing  clause  of  the  act  of 
1872,  or  any  part  of  it,  but  it  is  contended  that  the  whole 
of  the  old  act  is  repealed,  because  the  act  of  1895  is  a  com- 
plete revision  of  the  whole  law  as  to  justices  of  the  peace 
and  constables  as  it  existed  prior  to  July  1,  1895. 

There  being  no  express  repeal  of  the  old  act,  if  it  is 
repealed,  it  must  be  by  implication,  based  on  the  claim  that 
the  new  act  is  a  complete  revision  of  the  whole  subject- 
matter  of  the  old  act. 

Appellant  relies  on,  among  other  cases.  Culver  v.  Bank, 
64  111.  528,  and  Devine  v.  Cook  County,  84  111.  590,  and  they 
support  the  general  proposition  contended  for,  but  an  exam- 
ination of  these  cases  shows  that  the  later  laws  covered  the 
whole  subject-matter  of  the  old  laws — in  the  Devine  case 
much  more — and  in  each  case  the  later  laws  were  repug- 
nant to  the  old  laws. 

In  the  case  at  bar  the  new  act  does  not  purport  to  revise 
the  old  law,  in  so  far  as  it  contained  provisions  regarding 
the  proceedings  in  the  Circuit  Court,  and  therefore  can  not 


404  Appellate  Courts  of  Illinois. 

Vol.  70.]  Gibson  v.  Ackermann. 

be  said  to  be  a  complete  revision  of  the  whole  subject-matter 
of  the  old  act. 

There  is  also  another  principle  in  the  constmction  of 
statutes  applicable  to  this  case,  which  is  that  repeals  by 
implication  are  not  favored.  Town  of  Ottawa  v.  County  of 
LaSalle,  12  111.  339;  People  v.  Barr,  44  111.  198;  People  v. 
McAllister,  37  Pac.  Eep.  580. 

In  order  to  work  a  repeal,  the  new  law,  if  it  contains  no 
express  words  repealing  the  old,  must  be  repugnant  to  the 
old,  and  the  repugnancy  must  be  clear.  The  new  law  must 
fully  embrace  the  whole  subject  of  the  old  law.  Potter's 
Dwarris  on  Stat.  154  ns.  4  and  5,  and  cases  cited;  Suther- 
land on  Stat.  Const.,  Sees.  158  and  160,  and  cases  cited 
Dugan  V.  Gittings,  3  Gill.  Md.  140-54,  and  cases  cited;  23 
Am.  and  Eng.  Ency.  of  Law,  482. 

As  a  general  rule,  such  parts  of  the  old  law  as  may  be 
incorporated  into  the  new  law  consistently  therewith  must 
be  considered  in  force.  Bruce  v.  Schnyder,  4  Gikn.  221-71; 
Town  of  Ottawa  v.  County  of  LaSalle,  12  111.  339;  23  Am. 
and  Eng.  Ency.  of  Law,  482. 

As  has  been  noted,  Sees.  116,  117,  and  118  of  the  new 
law  all  recognize  a  mode  of  appeal  by  certiorari,  and  evi- 
dently contemplate  the  statutory  writ  of  certiorari  as  it 
had  existed  in  this  State  for  over  fifty  years.  Certainly  the 
legislature  has  expressed  no  intention  to  repeal  the  provis- 
ions of  the  old  law  as  to  appeal  by  certiorari. 

These  sections  are  in  no  way  repugnant  to,  nor  inconsist- 
ant  with,  the  provisions  of  the  new  act.  The  new  act 
does  not  cover  the  whole  subject  of  the  old.  These  sections 
resrardinof  certiorari  mav  be  held  to  be  in  force  without  in 
any  way  conflicting  with  any  express  or  implied  intent  of 
the  legislature.  We  therefore  conclude  that  the  statutory 
right  of  appeal  by  certiorari  still  exists  as  it  did  prior  to 
July  1,  1895. 

It  has  seemed  to  the  court  unnecessary  to  consider  the 
question  raised  on  oral  argument,  as  to  the  history  of  the 
new  act. 

The  motion  of  appellant  in  the  trial  court  to  quash  the 


First  District — March  Term,  1897.       405 


Dickinson  v.  Citizens  Nat.  Bank  of  Franklin. 


writ  of  certiorari  admitted  the  truth  of  all  the  allegations 
of  fact  in  the  petition.  The  petition  shows  all  the  essential 
facts  in  detail  necessary  to  entitle  appellees  to  the  writ  of 
certiorari,  to  wit,  that  appellees  were  not  negligent;  that 
the  judgment  was  unjust,  and  that  it  was  not  in  their 
power  to  appeal  in  the  ordinary  way. 

This  case  is  clearly  analogous  to  Kern  v.  Davis,  7  111. 
App.  407. 

The  judgment  of  the  Circuit  Court  is  affirmed. 


W.  P.  Dickinson  t.  Citizens  National  Bank  of  Franklin, 

Indiana. 

1.  Pleading — FhUure  of  Consideration. — A  failure  or  partial  failure 
of  consideration  of  a  note  sued  on  must  be  specially  pleaded  to  enable  a 
party  to  make  that  defense.  Evidence  of  it  is  not  admissible  under  the 
general  issue. 

Assumpsit,  on  two  promissory  notes.  Appeal  from  the  Superior 
Ck)urt  of  Cook  C!ounty;  the  Hon.  John  Babton  Payne,  Judge,  presid- 
ing. Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion 
filed  July  16,  1897. 

James  L.  Clark,  attorney  for  appellant,  contended  that 
recoupment  mB,y  be  shown  under  a  plea  of  the  general  issue, 
citing  Higgins  v.  Lee,  16  111.  495;  Cooke  v.  Preble,  80  111. 
381;  Babcock  v.  Trice,  18  111.420;  Crabtree  v.  Kile,  21  111. 
180;.  Hears  v.  Nichols,  41  111.  207. 

Parker  &  Pain,  attorneys  for  appellee. 

It  has  been  repeatedly  held  that  want  or  failure  of  con- 
sideration as  a  defense  to  promissory  notes,  must  be 
specially  pleaded  to  be  available.  Kose  v.  Mortimer,  17 
111.  475;  Keith  v.  Mafit,  38  111.  303;  Teuber  v.  Schumacher, 
44  III.  App.  577;  Mann  v.  Smyser,  76  111.  365;  Welch  v.  Hoy  t, 
24  111.  117;  Wilson  v.  King,  83  111.  232. 

It  has  been  held  in  many  cases  that  the  defense  of  breach 


1 


406  Appellate  Courts  of  Illinois. 

Vol.  70.]        Dickinson  v.  Citizens  Nat.  Bank  of  Franklin. 

—    — — ' 

of  warranty  of  chattels  for  which  a  promissory  note  has 
been  given  is  clearly  in  the  nature  of  want  or  failure  of 
consideration,  and  such  defense  must  be  pleaded  or  notice 
of  it  given  under  the  statute.  Beers  v.  Williams,  16  111.  69; 
Owens  v.  Sturges,  67  111.  366;  Crabtree  v.  Kyle,  21  111.  180; 
Watennan  v.  Clark,  76  111.  428;  Leggat  v.  Sands,  60  111.  158. 

Mr.  Pkesidinq  Justiob  Adams  deliyrbed  the  opinion  of 
THE  Court. 

Appellee  sued  appellant  on  two  promissory  notes.  The 
declaration  contains  special  counts  on  the  notes  and  the 
common  counts. 

The  appellant  pleaded  the  general  issue  only.  Appellee 
on  the  trial  introduced  in  evidence  the  notes  sued  on,  and 
proved  the  amount  of  interest  due,  and  rested. 

*'  It  was  admitted  that  the  notes  in  question  were  not  the 
property  of  the  plaintiff,  but  were  the  property  of  one 
John  B.  firickett,  and  the  plaintiff  was  only  interested  as 
an  agent  for  their  collection." 

Appellee  was  the  legal  holder  of  the  notes,  they  having 
been  indorsed  to  it  by  John  R.  Brickett,  the  payee. 

The  foregoing  admission  having  been  made,  the  appellee 
called  as  a  witness,  W.  P.  Dickinson,  the  appellant,  who 
testified  as  follows : 

^'  Q.  What  transaction  did  the  notes,  offered  in  evidence 
in  this  case,  grow  out  of  ? 

A.  Out  of  the  sale  of  certain  horses  to  me  by  John  R. 
Brickett. 

Q.  State  what  the  transaction  was  aiid  the  terms  and 
conditions  of  the  sale  ? " 

To  which  last  question  appellee's  counsel  objected  on  the 
ground  that  the  evidence  was  inadmissible  under  the  gen- 
eral issue,  which  objection  the  court  sustained.  Appellant's 
counsel  then  stated  that  he  sought  to  recoup  against  the 
plaintiff's  claim  for  damages  resulting  from  a  breach  of 
warranty  as  to  the  soundness  and  breeding  of  the  horses; 
that  they  were  purchased  under  a  warranty  that  they  were 
sound  and  standard  bred,  and  subject  to  be  registered  as 


First  District — March  Term,  1897.       407 

Greenebaum  v.  Am.  Trust  &  Savings  Bank. 

sacb;  that  Brickqtt  bad  agreed  to  give  appellant  a  pedigree 
showing  their  breeding  and  entitling  them  to  be  registered, 
when,  in  fact,  they  were  unsound  and  not  standard  bred, 
and  that  Brickett  had  wholly  failed,  etc. 

The  court,  on  appellee's  objection,  excluded  the  evidence, 

and  the  defendant  offering  no  further  evidence,  instructed 

the  jury  to  find  for  the  appellee.     The  appellant  assigns 

this  ruling  of  the  court  as  error,  and  relies  solely  on  this 

.  assignment  for  a  reversal  of  the  judgment. 

Appellant's  oflfer  was  to  prove  a  partial  failure  of  con- 
sideration, and  the  only  question  is  whether  such  proof  was 
admissible  under  a  plea  of  the  general  issue. 

The  law  is  well  settled  by  numerous  adjudications,  that 
proof  of  failure  or  want  of  consideration  can  not  be  made 
under  the  general  issue  pleaded  to  a  declaration  containing 
a  special  count  on  a  promissory  note.  Rose  v.  Mortimer, 
17  111.  475;  Keith  v.  Mafit,  38  111.  303;  Leggat  etal.  v.  Sands 
Brewing  Co.,  60  111.  158;  Waterman  v.  Clark  et  al.,  76  ID. 
428;  Wilson  et  al.  v.  King,  83  111.  232;  Schroer  et  al.  v. 
Wessell,  89  111.  113;  Sheldon  v.  Lewis,  97  111.  640. 

The  decisions  cited  are  strictlv  in  accordance  with  sec- 
tion  9  of  the  statute  entitled  "  Negotiable  Instruments," 
which  provides  that  when  an  action  is  brought  on  a  note, 
failure  of  consideration,  total  or  partial,  may  be  pleaded. 

To  permit  proof  of  such  failure  under  the  general  issue 
to  a  declaration  containing  a  special  count  on  the  note, 
would,  as  the  court  has  well  said  in  Leg^t  et  al.  v.  Sands 
Brewing  Co.,  aupra^  be  virtually  to  repeal  the  statute  which 
permits  the  filing  of  pleas  of  failure  and  partial  failure  of 
consideration. 

The  judgment  is  afSrmed. 


70    407 
76    865 


Henry  Greenebaum  t.  The  American  Trust  and  Savings 

Banli,  Assignee. 

1.  Banks  and  Bankino— CTiecfc*  Pre9ented  After  Insolvency  ofBanh^ 
as  a  Set-off  Against  Debt  to  Bank. — A  debtor  of  an  insolvent  bank,  which 
has  made  an  assignment  for  the  benefit  of  creditors,  can  not  set-off 


70      407 
f99      468 


408  Appellate  Couiits  of  Illinois. 

Vol.  70.]         Greenebaum  v.  Am.  Tinist  &  Savings  Bank. 

against  his  debt  to  the  bank,  a  check  drawn  in  his  favor  by  a  depositor 
of  the  bank,  and  not  presented  for  payment  until  after  the  assignment 

Assompsit,  on  a  promissory  note.  Appeal  from  the  Superior  Court  of 
Cook  County;  the  Hon.  Philip  Stein,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.    Affirmed.     Opinion  filed  July  15,  1897. 

Walker,  Judd  &  Hawley,  attorneys  for  appellant. 
MoEAN,  Kraus  &  Mayer,  attorneys  for  appellee. 

'    Mr.  Justice  Sears  delivered  the  opinion  of  the  Court. 

This  was  an  action  in  assumpsit  commenced  in  the 
Superior  Court  of  Cook  County,  by  appellee,  as  assignee  of 
Herman  Shafifner  &  Company  against  appellant  upon  a 
promissory  note  for  the  sum  of  $750,  executed  and  delivered 
by  appellant  to  Herman  Shafifner  &  Company. 

The  evidence  showed  the  making  of  the  note  in  question 
and  the  amount  due  thereon,  amounting  to  $929.50.  That 
on  June  3,  1893,  Abraham  G.  Becker,  the  sole  surviving 
partner  of  Herman  Shaffner  &  Company,  executed  and 
delivered  upon  behalf  on  Herman  Shaffner  &  Company  a 
deed  of  assignment  for  the  benefit  of  creditors,  to  appellee, 
as  assignee;  that  among  other  assets  of  said  Herman  Shaff- 
ner &  Company  was  the  note  in  question;  that  appellee  at 
the  time  of  trial  was,  and  continuously  from  June  3,  1893, 
had  been,  in  the  discharge  of  such  duties  as  such  assignee. 

It  being  stipulated  that  all  defenses  might  be  introduced 
under  the  general  issue  in  manner  and  form  as  though 
specially  pleaded,  the  defendant  proved  that  the  firm  of  H. 
&  D.  S.  Greenebaum,  for  a  long  time  prior  to  the  assign- 
ment of  Herman  Shaffner  &  Company  had  a  general  deposit 
account  with  the  said  Herman  Shaffner  &  Company  as 
bankers,  upon  which  checks  were  drawn  by  said  H.  &  D.  S. 
Greenebaum  and  paid  by  said  Herman  Shaffner  &  Company 
in  the  course  of  its  general  banking  business;  that  at  the 
date  of  said  assignment  said  Herman  Shaffner  &  Company 
held  as  a  deposit  to  the  credit  of  H.  &  D.  S.  Greenebaum 
the  sum  of  $G58.62;  that  thereafter  at  the  time  of  the  matu- 
rity of  the  note  sued  on  said  H.  &  D.  S.  Greenebaum  drew 


First  District — March  Term,  1897.       409 


Greenobaum  v.  Am.  Trust  &  Savings  Bank. 

its  check  for  the  amoant  of  $658.62  against  said  deposit  on 
said  Herman  Shaff  ner  &  Company  to  the  order  of  appellant; 
that  appellant  then  presented  said  check  to  appellee  and  to 
said  Abraham  G.  Becker,  and  demanded  payment  thereof, 
and  in  default  thereof  tendered  said  check,  too^ether  with  the 
difference  between  the  amount  thereof  and  the  amount  due 
on  said  note,  to  appellee  and  Abraham  G.  Becker  in  payment 
of  said  note;  that  said  tender  was  refused. 

Appellant  claimed  the  right  to  set  off  the  amount  due 
under  said  check  against  the  amount  due  upon  said  note. 

Upon  the  conclusion  of  all  the  testimony  the  court  excluded 
this  evidence,  which  was  all  of  the  evidence  of  the  defend- 
ant, and  instructed!  the  jury  to  And  a  verdict  for  the  plaintiff 
for  $929.50. 

Appellant  contends  that  the  set-off  should  have  been 
allowed,  and  that  the  check  offered  in  evidence  thereof  was 
improperly  excluded.     No  other  error  is  suggested. 

Although  counsel  for  appellant  do  not  so  present  their 
contention,  yet  is  it  true  that  their  contention  could  only 
be  maintained  upon  one  of  two  theories,  viz.,  either  that 
a  partnership  credit  may  be  set  off  as  against  the  debt  of  an 
individual  partner,  or,  that  the  debtor  of  an  insolvent  estate 
may  purchase  claims  of  third  parties  against  such  estate, 
after  assignment  by  the  insolvent,  and  set  off  such  purchased 
claims  against  his  individual  debt  due  to  the  assignee. 

The  fallacy  of  the  tirst,  as  a  proposition  of  law,  is  obvious, 
and  is  conceded  by  appellant. 

Nor  is  the  second  proposition  maintainable.  The  doctrine 
is  well  settled  that  the  debtor  of  an  insolvent  bank,  which 
has  made  an  assignment  for  the  benefit  of  creditors,  can  not 
set  off  ^.gainst  his  debt  to  the  bank  a  check  drawn  in  his 
favor  by  a  depositor  of  the  bank,  and  not  presented  for  pay- 
ment until  after  the  assignment.  Smith  v.  Hill,  8  Gray, 
572;  Northern  Trust  Co.  v.  Rogers,  60  Minn.  208. 

Counsel  for  appellant  insist  that  the  rights  of  any  subse- 
quent transferee  (appellant)  of  the  depositor  (H.  &  D.  S. 
Greenebaum)  became  fixed  at  the  time  of  the  creation  of  the 
relation  between  depositor  and  banker,  and  hence,  as  such 
relation  was  established  between  H.  &  D.  S.  Greenebaum, 


410  Appellate  Courts  op  Illinois. 

Vol.  70.]        Greenebaum  ▼.  Am.  Trust  &  Savings  Bank. 

as  depositor,  and  Herman  Shaffner  &  Company,  as  bankers, 
long  before  the  assignment,  that  this  deposit  claim,  although 
transferred  in  fact  after  the  assignment,  was,  in  contempla- 
tion qf  law,  transferred  before  the  assignment.  And  in 
support  thereof,  cite  Munn  v.  Burch,  25  111.  35.  The  mis- 
application by  counsel  of  this  authority  results  apparently 
from  the  confusion  of  the  rights  relatively  between  banker 
and  depositor  and  between  banker  and  transferee  of  deposi- 
tor. As  between  banker  and  depositor,  the  rights  do  accrue 
as  of  the  time  of  the  deposit.  As  between  banker  and 
transferee  of  the  deposit,  however,  neither  Munn  v.  Burch, 
or  any  other  authority  cited,  holds  that  any  rights  accrue 
until  presentation  of  the  check. 

"  And  with  the  whole  world  he  (the  banker)  agrees  that 
whoever  shall  become  the  owner  (holder  ?)  of  such  check, 
shall,  upon  presentation,  thereby  become  the  owner  and 
entitled  to  receive  the  amount,  etc.  *  *  *  Surely  every 
sound  lawyer  will  at  once  perceive  a  privity  of  contract 
between  the  banker  and  the  holder  of  the  check,  created  by 
the  implied  promise  held  out  to  the  world  by  the  banker, 
on  the  one  side,  and  the  receiving  of  the  check  for  value 
and  presenting  it,  on  the  other."     Munn  v.  Burch,  %upra, 

"  That  the  giving  of  the  check  works  no  instant  assign- 
ment as  to  the  bank;  that,  as  to  it,  before  demand  for  pay- 
ment no  assignment  exists,  no  obligation  has  been  created, 
no  privity  has  grown  up,"  etc.  Northern  Trust  Co.  v. 
Rogers,  supra. 

The  theory  sought  to  be  drawn  by  counsel  from  the 
language  of  Munn  v.  Burch  is  not  tenable,  viz.,  that  because 
the  banker  impliedly  agrees  at  the  time  of  the  deposit 
"  with  the  whole  world "  as  possible  future  transferees, 
therefore  contractual  relations  are  therebv,  at  the  time  of 
the  deposit,  created  with  any  such  future  transferee. 

Such  privity  begins  as  to  such  transferee  only  upon 
presentation  by  him  of  the  check. 

The  claim  of  set-oflf  was  not  valid.  There  was  no  error 
in  the  action  of  the  trial  court  in  excluding  the  evidence 
proffered,  and  in  directing  a  verdict. 

The  judgment  is  affirmed. 


First  District — March  Term,  1897.       411 

Dom  V.  Geuder. 


Gay  Dorn  v.  Phillip  Geuder  et  al.  \fu  lei 

1.  Dbcbbeb — Upon  Conflicting  Evidence, — Whether  the  interest  note 
due  March  8,  1895,  was  extended  to  a  time  eubeequent  to  the  filing  of 
the  bill,  being  a  question  of  fact  concerning  which  the  evidence  Was 
conflicting,  the  court  declines  to  disturb  the  decree,  based  upon  the 
master's  finding  that  tliere  wa8  no  valid  extension  of  the  time  of  pay- 
ment 

2.  Equity  Pleading— S^a^emen^  of  Default  in  Making  Payments.-^ 
An  allegation  in  a  bill  to  foreclose  a  mortgage,  "  that  default  has  been 
made  in  the  payment  of  the  principal  sum  of  said  note,  together  with  a 
large  amount  of  interest  thereon,"  is  sustained  by  proof  of  default  in 
the  payment  of  interest,  where  there  is  a  clause  in  the  mortgage  sought 
to  be  foreclosed,  giving  the  mortgagee  the  right  to  declare  the  principal 
due  upon  a  failure  to  make  any  interest  payment,  and  an  allegation  of 
the  specific  default  relied  on  is  not  necessary. 

Mortgage  Foreclosure.— Appeal  from  the  Circuit  Court  of  Cook 
County;  the  Hon.  Oltveb  H.  Horton,  Judge,  presiding.  Heard  in  this 
court  at  the  March  term,  1897.    Afiirmed.    Opinion  filed  July  15,  ^897. 

Chablks  Picklei^  attorney  for  appellant. 
Laokneb  &  BuTz,  attorneys  for  appellees. 

Mr.  PjREsiDiNa  Justice  Adams  delivered  the  opinion  of 
THE  Court. 

On  March  3, 1890,  the  appellant  executed  and  delivered  a 
trust  deed  upon  certain  real  estate,  to  secure  his  principal 
note  for  $6,000,  payable  three  years  afterward,  with  inter- 
est, evidenced  by  interest  notes  payable  half  yearly,  said 
$0,000  being  a  part  of  the  purchase  price  for  said  real 
estate.  Ko  question  is  made  but  that  all  of  said  interest 
notes  were  paid. 

As  to  what  occurred  afterward,  the  master  in  chancery, 
to  whom  the  cause  was  referred,  found  and  reported  as 
follows : 

"  That  afterward,  the  time  of  payment  of  said  principal 
note  was  extended  from  the  date  of  its  maturitv,  March  3, 
1893,  by  agreement  of  parties,  to  March  3,  1894,  and  that 
on  maturity  of  extended  time,  by  agreement  of  parties,  the 
principal  sum  was  extended  from   1894  to  1897,  and  six 


412  Appellate  Courts  of  Illinois. 

Vol.  70.]  Dorn  v.  Geuder. 

interest  notes  were  given  to  evidence  the  interest  for  the  last 
extended  period;  of  those  notes,  the  one  maturing  Septem- 
ber 3,  1894,  was  paid,  canceled  and  surrendered,  the  coupon 
note  of  March  3,  1895,  was  not  paid  at  maturity,  nor  was 
any  attempt  made  to  pay  it  until  after  the  commencement 
of  this  suit. 

The  trust  deed  contained  a  provision  that  if  default 
should  be  made  in  payment  of  the  indebtedness  or  interest 
thereon,  the  whole  of  the  principal  and  all  interest  should, 
at  the  option  of  the  legal  holder  of  the  note,  become  immedi- 
ately due  and  payable. 

One  of  appellant's  contentions  is  that  the  bill  was  filed 
prematurely,  because  of  a  claimed  valid  extension  of  the 
time  of  payment  of  the  interest  note,  maturing  March  8, 
1895,  to  a  date  subsequent  to  the  filing  of  the  bill,  but  that 
being  a  question  of  fact  concerning  which  the  evidence  was 
conflicting,  we  would  not  disturb  the  decree,  based  upon 
the  master's  finding  that  there  was  no  valid  extension  of 
the  time  of  payment,  with  which  we  fully  agree. 

The  point  is  made  by  the  appellant  that  the  bDl  does  not 
support  the  real  case,  as  shown  by  the  proofs,  upon  which 
the  appellee  is  entitled  to  relief. 

Appellant's  contention  is  that  the  two  extensions  above 
mentioned  and  the  specific  default  relied  on,  namely,  the 
non-payment  of  the  interest  note  which  fell  due  March  3, 
1895,  should  have  been  stated  in  the  bill,  and  that  this  not 
having  been  done,  there  is  a  variance  between  the  allega- 
tions and  the  proof.  We  can  not  concur  in  this  view.  The 
bill  avers  ^'  that  default  has  been  made  in  the  payment  of 
the  principal  sum  of  said  note,  together  with  a  large  amount 
of  interest  thereon." 

All  the  notes  given  on  the  last  extension,  including  the 
note  due  March  3,  1895,  were  for  interest  on  the  principal 
sum  evidenced  by  the  note  for  $6,000,  of  date  March  3, 
1890.  Appellant  in  his  answer  says  that  "the  interest 
notes  executed  March  3,  1885,  were  given  to  evidence 
the  interest  to  accrue  upon  said  principal  note  during  the 
three  years,  March  3,  1894,  to  March  3,  1897." 

The  default  alleged  being  the  non-paj^ment  of  interest  due 


First  Distrfct — March  Term,  1897.       413 


Lake  St  Elevated  R.  R.  Co.  v.  JohnBon. 


on  the  principal  sum,  and  the  proof  showing  such  non-pay- 
ment, there  is  clearly  no  variance  between  the  allegation 
and  the  proof. 

This  disposes  of  all  the  objections  relied  on  bv  appellant 
in  argument. 

The  decree  is  affirmed. 


Lake  Street  Elevated  B.  B.  Co.  ▼•  Mary  Agnes  Jobnson. 

1.  Damages — $2,500  Excessive  Under  the  Circumstances  of  this 
Case,— The  evidence  in  this  case  fails  to  show  any  basis  for  the  jury's 
assessment  of  damages  except  shock,  a  sprained  wrist,  black  and  bhie 
discolorations  on  the  left  limb,  back  and  sides,  and  pain  resulting  from 
these,  and  for  such  injuries  $2,500  is  excessive  compensation. 

TrespMS  on  the  Case,  for  personal  injuries.  Appeal  from  the  Superior 
Court  of  Cook  County;  the  Hon.  Philip  Stein,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Reversed  and  remanded. 
Opinion  filed  July  15,  1897. 

Knight  &  Brown,  attorneys  for  appellant. 

Case  &  Hog  an,  attorneys  for  appellee. 

•  

Mr.  Justice  Windes  delivered  the  opinion  op  the  Court. 

Appellee  sued  appellant  for  injuries  which  she  alleged 
she  received  by  the  sudden  starting  of  a  train  of  cars  of 
appellant  from  which  she  was  alighting,  whereby  she  was 
thrown  down.  By  answers  to  special  questions  submitted 
to  the  jury,  the  jury  found  that  her  version  of  what  caused 
her  fall  is  true,  and  we  should  be  disposed  to  allow  the 
verdict  to  stand  but  for  the  considerations  hereinafter  stated. 

Counsel  for  appellant  contend  that  the  trial  court  erred 
in  the  giving  of  divers  instructions  for  appellee,  and  also  in 
refusing  eight  of  appellant's  instructions. 

It  would  extend  this  opinion  unduly  to  discuss  the  pro- 
priety of  the  court's  action  in  the  giving  and  refusing  of 
these  instructions,  and  we  deem  it  sufficient  to  say  that  after 
a  full  consideration  of  all  the  instructions  in  the  case  in 
connection  with  the  evidence,  we  are  of  opinion  that  there 
is  no  reversible  error  in  the  case  in  that  regard. 


414  Appellate  Courts  op  Illinois. 

Vol.  70.]  Lake  St.  Elevated  R.  R.  Co.  v.  Johnson. 

The  statement  of  counsel  for  appellee  in  his  argument  to 
the  jury,  that  certain  testimony  given  on  behalf  of  appel- 
lant "is  rotten  perjury"  was  strong  language,  and  the  trial 
court  would,  no  doubt,  have  reprimanded  counsel  had  its 
attention  been  called  to  counsel's  language  by  an  objection. 
This  was  not  done,  so  far  as  the  abstract  of  record  shows, 
counsel  for  appellant  being  content  with  a  statement  that  he 
took  "  exception  to  that  remark.'* 

An  examination  of  the  evidence  as  to  the  injuries  claimed 
to  have  been  sustained  by  appellee  and  the  cause  or  source 
of  such  injuries  shows,  by  a  clear  preponderance,  that  the 
fractured .  coccyx^  growth  of  tumor  in  pelvis  and  goitre 
complained  of  by  appellee,  could  not,  in  all  reasonable  proba- 
bility, have  resulted  from  her  fall  when  alighting  from 
appellant's  train.  At  least  it  is  plain  that  there  is  not  a 
preponderance  of  the  evidence  showing  these  ills  of  appel- 
lee arose  or  grew  out  of  the  injury  alleged  in  her  declaration. 

The  evidence  fails  to  show  any  other  basis  for  the  jury's 
verdict  of  $2,500  except  shock,  a  sprained  wrist,  black  and 
blue  discolorations  on  the  left  limb,  back  and  sides,  and 
pain  resulting  from  these.  Appellee  had  a  physician  for 
two  or  three  weeks,  and  her  injuries  were  not  considered 
serious  by  her  physician.  She  was  injured  August  11, 1894, 
and  to  a  physician  who  examined  her  two  days  later,  he 
testifies,  she  made  no  complaint  of  any  injuries,  except  to 
her  wrist,  left  knee,  and  pain  in  left  side  and  in  the  left  side 
of  her  head,  and  also  that  she  said  she  had  no  others. 

There  is  no  evidence  that  the  shock  to  appellee  was  seri- 
ous, and  it  is  apparent  that  her  injuries,  aside  from  the 
coccyx^  tumor  and  goitre^  were  not  such  as  to  justify  a  judg- 
ment for  $2,600. 

The  judgment  is  therefore  reversed  as  being  excessive, 
and  the  cause  remanded  for  another  trial,  in  which  it  may 
be  made  to  appear  with  more  certainty  that  the  ills  of  ap- 
pellee are  the  result  of  her  fall,  or  that  a  more  reasonable 
assessment  of  damages  may  be  had  for  the  injuries  which 
may  appear  to  have  resulted  from  her  fall.  Beversed  and 
remanded. 


OASES 


IK    THB 


APPELLATE  COURTS  OF  ILLINOIS. 


Fourth  District — February  Term^  1897. 


CleTeland^  C,  C.  &  St.  L.  Bj.  Co.  t.  Charles  Jenkins. 

1.  Conspiracy— ^«  an  Aggravation  of  Damages, — Conspiracy  may 
be  averred  and  proved  in  aggravation  of  damages  in  an  action  on  the 
case,  but  it  is  not  a  material  averment  except  where  the  wrong  com- 
plained of  would  not  have  been  actionable  without  it. 

2.  Case— J^br  Breach  of  a  Duty  Arising  Under  a  Con^rac^- When 
the  relation  of  master  and  servant  exists,  and  under  the  custom  of  the 
business  it  becomes  the  duty  of  the  master,  when  the  relation  is  severed, 
to  give  the  servant  a  letter  or  "clearance  card,"  the  servant  has  the 
right  to  treat  a  breach  of  this  duty  as  tortious  and  sue  in  case. 

8.  pRAcriCB — Motions  in  Arrest  of  Judgment, — A  party  can  not 
move  in  arrest  of  judgment  in  the  trial  court,  after  judgment  of  that 
court  upon  a  demurrer  presenting  the  same  objections. 

4.  Pleading — Defects  Cured  after  Verdict, --A  verdict  will  aid  a 
defective  statement  of  title,  but  will  never  assist  a  statement  of  a  defect- 
ive title  or  cause  of  action.  If  the  issue  joined  be  such  as  necessarily 
required,  on  trial,  proof  of  the  facts  so  defectively  stated  or  omitted  and 
without  which  it  is  not  to  be  presumed  that  the  verdict  would  have  been 
rendered,  such  defect,  imperfection  or  omission  is  cured  by  verdict. 

6,  Master  and  Servant — Bight  of  a  Servant  to  Demand  a  Letter  of 
Becommendation, — A  master  is  under  no  legal  obligation  to  give  a  tes- 
timonial of  character  to  his  servant,  in  the  absence  of  an  agreement  or 
well  recognized  usage,  under  which  an  implied  agreement  to  do  so 
arises.  And  such  a  custom  or  usage  must  be  so  well  known  and  estab- 
lished that  it  becomes  part  of  the  contract  by  implication,  without 
expression. 

6.  Same — Indictment  Against  Servant  in  Suit  for  Failure  to  Oiiie 
Letter  of  Becommendation, —In  a  suit  by  a  servant  against  his  master 

(415) 


70    4I5| 
I74t  308 


416  Appellate  Courts  of  Illinois. 

Vol.  70.]  C,  C,  C.  &  St.  L.  Ry.  Co.  v.  Jenkina. 

for  a  failure  to  furnish  a  letter  of  recommendation,  where  there  is 
nothing  to  show  that  the  defendant  had  any  ground  to  refuse  such 
letter  other  than  the  return  of  an  indictment  against  the  servant,  and 
where  the  evidence  shows  that  the  servant  was  acquitted  and  stood  with 
a  record  of  ten  years  of  faithful  service,  if  the  other  elements  necessary 
to  a  recoveiy  be  present,  the  fact  that  such  indictment  was  returned 
will  not  constitute  a  defense. 

7.  INSTRUCJTIONS— J&rror  Without  Injury  not  Grouiid  for  Reversal,  — 
Although  an  instruction  may  have  contained  an  error,  if  it  appe^ars  that 
the  context  and  the  facts  of  the  case  would  correct  the  error  and  that 
the  jury  were  not  misled  by  it,  it  will  not  be  ground  for  reversal 

Trespass  on  the  Case,  for  a  refusal  by  a  master  to  give  a  letter  of 
recommendation.  Appeal  from  the  Circuit  County  of  Wabash 
County;  the  Hon.  Silas  Z.  Landes,  Judge,  presiding.  Heard  in  this 
court  at' the  February  term,  1897.  Affirmed.  Opinion  filed  June  10, 
1897. 

John  T.  Dye  and  C.  S.  Conger,  attorneys  for  appellant. 

MuNDY  &  Organ  and  Cullop  &  Kessingbr,  attorneys  for 
appellee. 

Mb.  Presiding  Justice  Sample  delivered  the   opinion 
OF  THE  Court. 

This  suit  was  brouo^ht  by  appellee,  a  former  conductor  of 
a  freight  train  on  appellant's  road,  to  recover  damages  on 
a  declaration,  in  eflfact,  charging  that,  although  plaintiff 
had  been  a  faithful  employe  of  defendant  for  ten  years,  as 
a  conductor,  he  was  discharged  without  cause;  that  although 
by  the  regulations  and  customs  of  the  defendant,  a  letter  or 
clearance  card  was  given  to  discharged  employes,  such  as 
plaintiff,  showing  time  of  service,  etc.,  in  order  that  he 
might  secure  employment  on  other  roads,  and  which  was 
essential  for  that  purpose,  yet,  though  he  often  applied  for 
such  paper,  in  order  that  he  might  get  employment  on  other 
roads,  it  was  refused  to  him,  whereby  he  failed  to  secure 
employment  thereon;  that  defendant  and  other  railroad 
companies  had  a  rule  or  custom,  which  is  chargeii  to  be  a 
conspiracy,  not  to  employ  a  discharged  employe  of  another 
road  without  such  letter  or  clearance  card;  that  plaintiff, 


Fourth  District — February  Term,  1897.  417 

C,  C.  C.  &  St.  L.  Ry.  Co.  ▼.  Jenkins. 

^    ■  ■  -■■■■■—■    a^.  P—       ■■  ■  ■■■  ■■■■■  l|  ■■■■■■■!     ■»»■       ■ I  ^■^^■^■^^ 

I 

after  such  discharge,  and  after  failure  on  request  to  receive 
such  card,  applied  to  various  railroad  companies  for  employ- 
ment, but  was  uniformly  refused  employment  because  he 
did  not  have  such  card;  that  he  had  been  receiving  eighty- 
live  dollars  per  month  from  the  defendant  for  his  services, 
and  that  he  was  qualified  and  competent  to  earn  the  same 
wages  on  other  roads,  and  would  have  done  so  had  he 
received  such  card,  as  he  was  entitled  to;  that  he  had  been 
engaged  in  such  service  for  many  years,  and  was  at  the 
time  of  his  discharge  fifty  years  of  age,  and  by  reason  of 
such  failure  and  refusal  on  the  part  of  the  defendant,  he  was 
unable  to  secure  employment,  and  was  compelled  to  quit 
such  line  of  work,  to  his  great  loss  and  damage. 

There  are  some  other  averments  incidental  to  those  men- 
tioned, made,  as  understood,  in  the  way  of  aggravation  of 
damages,  as  that  the  defendant  maliciously  charged  plaintiff 
with  the  crime  of  larceny,  which  was  baseless,  and  caused 
to  be  circulated  the  report  that  he  was  discharged  because 
of  such  crime,  for  the  purpose  of  injuring  him.  It  is  also 
averred  there  was  a  rule  of  defendant  that  if  a  conductor 
was  laid  off  for  any  cause,  then,  within  five  days,  his  case 
should  be  given  full  investigation  and  a  decision  reached 
and  if  he  was  exonerated  then  he  should  receive  full  pay  for 
lost  time.  A  conspiracy  is  averred  on  the  part  of  defend- 
ant and  other  roads;  but  in  civil  actions  this  is  not  a  material 
averment,  except  where  the  wrong  complained  of  would 
not  have  been  actionable  without  it.  Jenner  et  al.  v.  Car- 
son, 111  Ind.  522;  2  Chitty  PL,  498.  In  civil  actions,  except 
as  above  stated,  conspiracy  may  be  averred  and  proved 
merely  in  aggravation  of  damages.  Van  Horn  v.  Van 
Horn,  20  Atl.  Rep.  485.  The  gravamen,  however,  of  the 
charge  is  that  he  was  discharged  and  refused  a  clearance 
card,  to  which  he  was  entitled,  without  which  he  could  not 
and  failed  to  obtain  employment  on  other  roads,  whereby 
be  suffered  damage,  etc. 

This  declaration  avers  a  cause  of  action  in  case,  arising 
out  of  a  contract.  That  is,  it  avers  a  contractual  relation, 
out  of  which,  as  alleged,  arose  the  duty,  when  such  con- 

Vol.  LXX  97 


418  Aj>pellate  Courts  of  Illinois. 

Vol.  .70.]  C,  C,  C.  &  St.  L.  Ry.  Co.  v.  Jenkins. 

tractual  relation  was  severed,  to  give  a  letter  or  clearance 
card  for  the  purpose  stated.  A  breach  of  this  duty  the 
plaintiff  had  a  right  to  treat  as  tortious  in  this  form  of 
action.  Conger  v.  C.  &  R.  I.  R.  R.  Co.,  15  111.  366;  Nevin 
V.  Pullman  Palace  Car  Co.,  106  III.  222. 

The  plaintiff  recovered  a  verdict  and  judgment  below  and 
defendant  presents  this  appeal,  assigning  various  errors  as 
to  the  admission  of  evidence,  the  giving  and  refusing  instruc- 
tions, in  overruling  the  motion  for  a  new  trial,  and  the 
motion  in  arrest  of  judgment.  The  last  motion  was  based 
on  the  ground  the  declaration  was  insufficient  to  support  a 
judgment.  The  record  shows  a  demurrer  was  filed  to  the 
declaration,  raising  the  same  question,  which  was  overruled, 
and  thereafter  the  general  issue  filed. 

It  was  held  in  Stearns  v.  Cope,  109  111.  340,  that  if  a 
declaration  was  fatally  defective  the  defect  may  be  availed 
of  by  a  motion  in  arrest  even  after  a  demurrer  thereto  has 
been  overruled,  but  this  holding  was  overruled  in  the  care- 
fully considered  case  of  C.  &  E.  I.  R.  it.  Co.  v.  Hines,  132 
111.  161.  It  is  there  said :  "  A  party  can  not  move  in  arrest 
of  judgment  in  the  trial  court  after  judgment  of  that  court 
upon  a  demurrer  presenting  the  same  objection,"  citing 
cases.  It  is  further  said :  ^'  There  is  an  Expression  in 
Stearns  v.  Cope,  109  111.  346,  not  in  harmony  with  these 
cases,  but  *  *  *  the  expression  was  unnecessary  and 
inadvertent." 

In  the  Hines  case,  however,  the  court  proceeds  to  consider 
the  question  raised  as  to  the  sufficiency  of  the  declaration, 
and  say:  "  The  rule  is  that  a  verdict  will  aid  a  defective 
statement  of  title,but  will  never  assist  a  statement  of  a  defect- 
ive title  or  cause  of  action.  *  *  ♦  However,  if  the  issue 
joined  be  such  as  necessarily  required,  on  trial,  proof  of  the 
facts  so  defectively  or  imperfectly  stated  or  omitted,  and 
without  which  it  is  not  to  be  presumed  that  either  the  judge 
would  direct  the  jury  to  give,  or  the  jury  would  have  given 
the  verdict,  such  defect,  imperfection  or  omission  is  cured 
by  verdict."  This  answers  the  objection  also  made  of  a 
variance  between  the  proof  and  the  allegations. 


Fourth  District — February  Term,  1897.  419 


C,  C,  C.  &  St  L.  Rj.  Ck>.  y.  Jenkins. 

There  was  no  error  in  overruling  the  motion  in  arrest. 
The  declaration,  in  our  judgment,  states  a  good  cause  of 
action,  though  it  might  have  been  presented  in  better  form- 
There  is  full  proof  by  six  railroad  men,  most  of  them  of 
large  experience,  that  railroad  companies  do  require  such 
clearance  cards  before  they  will  employ  men  coming  from 
other  roads.  Besides,  various  clearance  cards  from  several 
diflferent  roads  were  introduced  in  evidence,  as  evidencing 
the  fact.  There  was  no  substantial  contradiction  of  this 
evidence,  except  by  two  witnesses,  as  to  defendant's  road, 
and  it  was  shown  on  cross-examination  of  one  or  both  of 
these  witnesses  that  such  cards  had  been  given  by  this  road. 
They  denied,  however,  that  it  was  a  custom.  The  full  proof 
of  such  general  custom,  in  fact  uniform  custom  of  long 
standing,  of  other  roads  to  require  such  cards,  together  with 
the  proof  as  to  the  practice  of  defendant  company,  war- 
ranted the  jury  and  court  below  in  finding,  as  a  matter  of 
fact,  that  the  usage  or  custom  to  issue,  on  discharge,  and 
demand  the  presentation  before  employment,  of  such  cards, 
was  general  as  to  all  roads,  including  the  defendant.  It  is 
inconceivable  that  the  defendant  would  be  so  unjust  to  its 
men  as  not  to  join  in  a  usage  so  uniform  of  other  roads,  and 
without  which,  as  this  proof  shows,  employment  could  not 
be  obtained.  This  is  said  without  reference  now  to  the  case 
of  this  plaintiff.    The  point  is,  was  there  such  a  usage  ? 

We  do  not  understand  on  what  ground  the  court  refused 
to  admit  rule  eleven,  agreed  upon,  as  plaintiff  offered  to 
show,  by  the  labor  organizations  of  railroad  men  and  the 
railroad  companies,  including  this  defendant,  that  an  appli- 
cant who  had  been  discharged  from  one  railroad  company 
should  produce  a  clearance  card  when  asking  employment 
with  another  railroad  company.  We  think  it  was  compe- 
tent even  as  rebuttal  evidence  to  that  of  Mr.  Sutton  and  Mr. 
Bayley. 

There  being  such  a  custom,  and  the  proof  clearly  showing 
that  such  cards  were  absolutely  essential,  was  the  duty  laid 
upon  defendant  thereby  violated  in  this  case  ?  The  evidence 
shows  that  plaintiff  had  faithfully  worked  for  defendant 


420  Appellate  Couets  op  Illinois. 

Vol.  70.]  C.  C,  C.  &  St.  L.  Ry.  Co.  v.  JenkiiMk 

for  many  years;  that  be  had  been  in  the  railroad  business 
for  twenty-four  yeai's,  and  had  arrived  at  about  the  age  of 
fifty  years.  The  stipulation  in  the  record  shows  that  he 
was  indicted  for  larceny  November  6,  1893;  for  embezzle- 
ment, November  16,  1893;  for  larceny  as  bailee,  April  4, 
1894r,  two  of  these,  as  understood,  for  the  same  offense.  The 
other  was  for  another  offense.  They  were  procured  on 
the  complaint,  principally,  of  one  Jones,  who  was  under 
indictment  for  the  same  offense  and  was  convicted.  The 
plaintiff  appeared  against  Jones  as  a  witness.  The  plaintiff 
was  tried  on  two  of  the  indictments  and  found  not  guilty; 
on  the  last  one,  January  17, 1895,  when  the  other  indictment 
was  nailed.  There  is  no  evidence  in  this  record  as  to  what 
proof  was  offered  tending  to  show  his  guilt;  so  that  we 
must  assume,  and  do  in  fact  assume,  that  the  plaintiff  was 
unjustly  accused.  There  is  nothing  to  show  the  company 
had  any  other  ground  of  suspicion,  other  than  the  return 
of  the  indictments,  so  that,  as  to  the  company,  we  must 
assume  the  stain  was  removed  by  the  acquittal,  and  that  he 
stood  with  a  good  record  of  ten  years  faithful  service  in  its 
employ.  Ue  often  applied  for  his  clearance  card  before  he 
was  acquitted,  asking  that  the  facts  be  stated,  and  also 
within  a  few  days  after  he  was  acquitted,  but  it  was  always 
refused,  but  not  on  the  ground  that  such  cards  or  letters 
were  not  given,  and  after  persistent  effort  to  get  employ- 
ment of  other  roads,  he  failed  because,  as  be  states,  and  his 
evidence  on  this  point  is  not  contradicted,  of  not  having; 
such  card.  It  is  stated  by  appellant's  counsel  that  a  card 
stating  the  facts  would  not  have  enabled  or  assisted  him  to 
get  employment.  This  position  is  a  mere  assumption,  for 
after  his  acquittal  he  stood  before  the  law  relieved  of  the 
charge  as  entirely  as  if  it  had  never  been  made  and  from 
the  evidence  of  the  State's  attorney,  who  tried  the  case  and 
appeared  as  a  witness  for  the  defendant  below,  it  would 
appear  there  was  no  moral  stain  left.  It  is  not  believed, 
from  what  appears  in  this  record,  that  a  baseless  charge  of 
crime,  as  the  acquittals  show,  would  have  been  a  bar  to 
employment. 


FouETH  District — February  Term,  1897.  421 

C,  C,  C.  &  St.  L.  Ry.  Co.  v.  Jenkins. 

It  is  said,  however,  bjr  apellant's  counsel,  that  the  railroad 
company  had  a  right  to  discharge  him.  This  right  is  not 
questioned  by  the  declarq,tion,  though  it  is  averred  the 
chaise  which  caused  the  discharge  was  false  and  malicious. 
It  is  also  said,  quoting  from  Parsons  on  Contracts,  p.  528: 
"  The  master  is  under  no  legal  obligation  to  give  a  testi- 
monial of  character  to  his  servant."  This  is  well-recognized 
law,  in  the  absence  of  an  agreement,  or  well-recognized 
usage,  under  which  an  implied  agreement  arises,  to  do  so* 
It  is  true  such  custom  or  usage  must  be  so  well  known  and 
established  that  it  becomes  a  part  of  the  contract  in  law  by 
implication,  without  expression.  Turner  v.  Dawson,  50  lU. 
85;  Wilson  v.  Bauman,  80  111.  493.  The  court  so  instructed 
the  jury  in  clear  and  terse  language,  and  yet  the  jury  evi- 
dently found  there  was  such  custom,  which  finding  was 
sustained  by  the  court.  A  careful  examination  of  the  evi- 
dence and  circumstances,  in  our  judgment,  warrants  such 
finding. 

•  In  view  of  these  facts,  if  the  finding  is  otherwise  correct, 
as  we  believe  it  is,  it  is  clear  the  defendant  violated  its  duty 
to  plaintiff  in  failing  and  refusing  to  give  such  card. 

The  damages  allowed  were  not  excessive.  He  was  allowed 
only  the  sum  of  $875  for  being  unlawfully  deprived  of  the 
right  and  opportunity  to  get  work  in  that  line  for  which  he 
had,  by  many  years  of  faithful  service,  prepared  himself, 
and  at  which  he  had  been  earning  the  sum  of  $85  per 
month.  This  is  less  than  his  earnings  for  a  single  year  in 
his  chosen  and  rightful  line  of  work,  of  which  he  was,  by 
the  wrongful  act  of  defendant,  deprived,  so  far  as  appears, 
for  his  future  life.  It  is  not  necessary  to  elaborate  on  the 
helplessness  of  a  man  at  the  age  of  fifty  years,  who  had  for 
twenty-four  years  continuously  been  in  a  certain  line  of 
work,  requiring  skill  and  experience,  being  deprived  of  the 
right  and  opportunity  of  following  that  calling.  It  is 
almost  like  depriving  him  of  the  right  to  earn  a  living  by 
the  pursuit  of  an  honorable  calling;  a  right  inherent,  of 
which  he  can  not  be  deprived  by  any  rule,  regulation  or 
practice  of  employers  of  men.    In  this  connection,  on  the 


422  Appellate  Courts  of  Illinois. 

Vol.  70.]  C,  C,  C.  &  St.  L.  Ry.  Co.  v.  Jenkins. 

question  of  damages,  the  matter  alleged  in  aggravation  need 
not  be  considered  in  order  to  justify  the  amount  of  damages 
allowed.  Though  the  plaintiff  was  pursued  vigorously  on 
the  charges  made  against  him,  yet,  under  the  proof,  it  can 
not  be  said  the  defendant  participated  improperly  or  mali- 
ciously in  the  investigation  or  trials.  The  suspension,  if 
for  the  length  of  time  stated  by  plaintiff,  for  over  a  year, 
against  his  protest,  was  oppressive,  as  it  kept  him  from 
engaging  in  other  regular  work,  and  it  may  be  the  jury 
took  this  fact  into  consideration.  How^ever  that  may  be, 
the  damages  assessed,  if  the  defendant  was  liable,  are  not 
excessive. 

Various  objections  are  made  to  the  ruling  of  the  court  on 
the  introduction  of  evidence,  and  to  giving  and  refusing 
instructions.  It  is  objected  that  the  plaintiff  was  permitted 
to  testify  to  the  contents  of  a  letter  delivered  to  him  by 
the  messenger  of  the  company  discharging  him  from  the 
service. 

Q.  Tell  the  jury  if  you  have  got  that  letter  noto.  A. 
No,  sir;  I  have  not  got  it  now, 

Q.    "What  were  its  contents  ? 

It  would  appear  that  both  counsel  and  court  did  not 
observe  the  word  "  now,"  and  permitted  the  question  to  be 
answered.  The  answer  related,  however,  to  an  admitted 
fact  that  he  was  discharged,  and  therefore  the  error  was 
harmless. 

It  is  also  objected  that  the  court  permitted  plaintiff  and 
others  to  testify  that  officials  of  the  roads  to  whom  they 
applied  for  employment  declared  they  must  produce  clear- 
ance cards.  There  was  no  error  in  this  ruling;  neither  was 
there  error  in  permitting  the  introduction  of  clearance 
cards  or  letters  from  other  roads.  They  were  identified. 
They  tended  to  show  the  usage  of  such  roads  in  that 
respect. 

It  is  also  objected  that  the  court  permitted  the  introduc- 
tion in  evidence  of  a  rule  of  the  company,  averred  in  the 
declaration,  in  regard  to  giving  a  conductor  a  hearing  and 
decision  within  five  days  after  he  was  laid  off  for  any  cause. 


Fourth  District — February  Term,  1897.  423 

C,  C,  C.  &  St.  L.  Ry.  Co.  v.  Jenkins.  ' 

The  important  part  of  the  rule  is,  "  If  a  conductor  is  taken 
off  his  run  for  any  cause,  he  shall  be  granted  a  full  inves- 
tigation, hearing  and  decision,  within  five  days.  *  *  ♦ 
If  exonerated,  he  shall  receive  pay  for  lost  time."  It  is  said 
this  rule  does  not  apply  to  this  case,  and  its  introduction 
tended  to  mislead  the  jury.  It  is  agreed  by  both  sides  that 
plaintiff  was  laid  off  in  the  first  place,  and  that  the  cause 
was  the  indictment.  We  see  no  reason  why  the  rule  does 
not  apply.  True,  the  railroad  officials  could  not  determine 
plaintiff's  guilt  or  innocence  in  law,  but  they  could  in  fact, 
so  far  as  they  were  concerned.  They  could  determine 
whether  the  case  was  of  such  a  nature  that  thev  should 
withdraw  confidence  in  him,  or,  notwithstanding  the  charge, 
still  continue  to  trust  him.  It  was  discretionarv  with  them 
whether  they  would  continue  to  let  him  have  his  run,  sus- 
pend, or  discharge  him;  but,  if  they  suspended  him,  then, 
under  their  rule,  they  were  required  to  give  him  a  hearing. 
As  before  stated,  the  averment  of  this  rule  and  refusal  to 
give  a  hearing  was  not  the  gravamen  of  the  charge.  This 
averment  was  by  way  of  aggravation,  as  showing  the  course 
of  conduct  toward  plaintiff.  There  was  no  error  of  the 
court  in  modifying  defendant's  instruction  on  this  point. 

It  is  said  all  of  appellee's  instructions  ignore  the  conspir- 
acy act  of  1887,  S.  &  C,  Vol.  3,  p.  346,  par.  73,  relating  to 
boycotting  and  blacklisting.  We  do  not  understand  that 
law  applies  to  the  actionable  charge  of  the  declaration  in 
this  case.  This  action  is  not  based  on  that  statute,  for  rea- 
sons heretofore  given.  As  heretofore  stated,  that  averment 
was  in  the  way  of  aggravation. 

Objection  is  made  to  the  first  instruction  given  for  appel- 
lee :  1st,  because  it  refers  hypothetically  in  the  usual  form 
to  "  a  general  understanding  between  defendant  and  other 
railroad  companies  not  to  employ  a  person  discharged  by 
any  railroad  company  without  a  *  clearance  card  or  letter,' 
as  it  is  said  there  is  no  averment  of  that  kind  in  the  declara- 
tion; 2d,  because  it  did  not  define  what  a  clearance  card 
was;  3d,  because,  after  close  of  hypothetical  part,  it  stated, 
"then  you  should  find  for  the  plaintiff  and  fix  bis  damages 


424  Appellate  Courts  op  Illinois. 

Vol.  70.]  C,  0.,  C.  &  St.  L.  Ry.  Ck).  v.  Jenkins. 

at  such  sum  as  you  think  right,  not  exceeding  the  amount 
claimed  in  the  declaration,"  which  was  two  thousand  dol- 
lars. It  is  true,  as  to  the  first  objection,  the  declaration  is 
not  as  specific  as  it  should  be  in  that  averment;  but  we 
think,  outside  of  the  conspiracy  averment,  that  is  the  eflFect 
of  the  averment  made,  in  stating  that  he  could  not  get 
employment  in  the  same  line  with  other  roads,  because  he 
could  not  obtain  such  clearance  card,  which  he  demanded 
in  order  that  he  might  do  so.  There  was  proof  of  such 
understanding,  as  heretofore  stated.  If  the  averment  was 
defective  or  omitted  in  this  regard,  then  it  is  aided,  and  in 
law  supplied,  by  the  verdict,  as  heretofore  shown.  See, 
also,  C,  K.  I.  &  P.  R.  R.  Co.  v.  Clough,  134  111.  586;  L.  S.  & 
M.  S.  Ey.  Co.  V.  O'Connor,  115  111.  254. 

The  second  objection  is  not  well  taken,  for  the  reason  the 
witnesses  had  defined  a  clearance  card,  and  there  were  clear- 
ance cards  or  letters  '^  in  the  hands  of  the  jury,  introduced 
as  exhibits."  The  third  objection  is  well  taken,  but,  as  the 
damages  assessed  are  not  excessive,  it  is  evident  the  jury 
were  not  misled  by  the  error. 

The  objection  is  made  to  the  second  instruction  given  for 
appellee,  that  it  does  not  confine  the  consideration  of  the 
jury  to  the  refusal  of  the  railroad  companies  to  give  work, 
which  were  proven,  or  claimed  to  have  been,  in  the  conspir- 
acy. Conspiracy  was  not  the  gravamen  of  the  charge  made 
in  this  case.  It  may  be  both  plead  and  proven  in  civil  act- 
ions as  aggravating  the  wrong.  Van  Horn  v.  Van  Horn, 
20  Atl.  Eep.  485.  We  understand  it  was  so  averred  in  this 
case,  and  therefore  the  court  was  not  required  to  refer  to  it 
in  this  instruction. 

There  is  a  palpable  error  in  instruction  four,  given  for 
appellee,  in  regard  to  conspiracy,  in  using  the  plural  "de- 
fendants" instead  of  "  defendant  and  other  companies,"  but 
the  case  and  context  would  correct  the  error,  and  it  is  not 
considered  that  the  jury  were  misled  thereby. 

Five  instructions  were  given  for  the  appellee  and  fifteen 
for  the  appellant,  five  of  which  were  modified.  Thirty-two 
instruotions  were    presented  by  appellant,  seventeen  of 


FouiiTH  DisTBicT — Februaby  Term:,  1897.  425 

McCormick  Harvesting  Machine  Co.  v.  Laster. 

which  were  refused.  Instruction  twenty-one  claimed  to  be 
modified,  of  which  serious  complaint  is  made,  appears  to 
have  been  given  as  offered,  as  shown  by  both  the  record 
and  abstract.  Instruction  twenty,  refused,  was  properly 
refused.  Complaint  is  made  of  the  refusal  to  give  other 
instructions,  but  it  appears,  on  examination,  that  the  same 
thought  was  embodied  in  other  instructions  given  for  appel- 
lant. The  instructions  are  too  numerous  to  justify  an 
elaborate  or  particular  analysis  here  of  all  of  them.  Suffice 
it  to  say,  we  see  no  serious  objection  to  the  action  of  the 
court  in  passing  on  the  instructions. 

Under  the  evidence  and  the  law,  as  we  understand  it, 
substantial  justice  has  been  done,  and  therefore  the  judg- 
ment is  affirmed. 


70    425| 
81    317 


McCormick  Harvesting  Macliine  Company  v.  Frank 

Laster  et  al. 

1.  CosffTRUcmos-'Of  Contracts  of  a  Surety.—Tiie  same  rules  are  to 
be  applied  in  ascertainina:  the  msania^  of  the  contract  of  a  surety  which 
are  used  in  ascertaining  the  meaning  of  any  other  contract,  although  when 
the  intention  of  the  parties  has  been  arrived  at  by  the  use  of  those  rules, 
the  liability  of  the  surety  should  not  be  enlarged  or  extended  by  impli- 
cation or  construction. 

2.  Bonds— ro  Cover  the  Performance  of  Future  Contracts, — A 
bDnd  niay  be  made  to  cover  the  faithful  performance  of  contracts  that 
may  be  made  after  the  execution  of  the  bond,  if  the  intention  of  the 
parties  to  that  effect  is  clearly  expressed. 

8.  Same— i4  Bond  Construed. — A.  bond  dated  October  4,  1892,  recited 
that  on  January  18,  1892,  A  entered  into  B's  service  as  an  agent,  **  as 
shown  in  a  contract  hereto  annexed."  The  bond  read  as  follows :  *'  Now, 
therefore,  if  the  said  A  shall  well  and  faithfully  discharge  all  his  duties 
pertaining  to  the  said  service,  as  he  may  be  instructed  from  time  to 
time  by  the  said  B  so  long  as  he  shall  continue  in  his  service,  whether 
under  the  contract  this  day  made,  or  any  subsequent  contract,  and  shall 
remit  promptly,  all  money  collected  or  received  by  virtue  of  said  service, 
and  shall,  whenever  thereunto  required,  make  and  give  a  just  and  true 
account  of  all  moneys,  property  and  other  things  which  shall  have  come 
into  his  possession,  custody  or  charge,  by  virtue  of  said  contract  hereto 


426  Appellate  Courts  of  Illinois. 

■ 

Vol.  70.]      McCormick  Harvesting  Machine  Co.  v.  Laster. 

annexed  and  made  a  part  hereof,  then  this  obligation  to  be  void,  other- 
wise to  remain  in  full  force  and  effect.'^  Held,  that  the  bond  was  a 
security  for  the  faithful  performance  of  all  duties  and  the  remittance 
of  all  money  received  under  the  contract  of  January  18th,  from  the  time 
of  the  execution  of  the  bond,  and  also  under  any  subsequent  contracts 
entered  into  for  the  performance  of  the  same  service. 

Debt,  on  a  bond.  Appeal  from  the  Circuit  Court  of  Hamilton  County; 
the  Hon.  Edmund  D.  Younqblood,  Judge,  presiding.  Heard  in  this 
court  at  the  February  term,  1897.  Reversed  and  remanded.  Opinion 
filed  June  10,  1897. 

C.  S.  OoNGBB  and  T.  M.  Eckley,  attorneys  for  appellant. 

T.  B.  Stelle,  R.  R.  Babxett  and  A.  C.  Babnstt,  attorneys 
for  appellees. 

Mr.  Justioe  Scofield  delivered  the  opinion  of  the 
Court. 

This  is  an  action  on  a  bond  executed  by  Frank  Laster  and 
the  other  appellees  as  his  sureties,  to  insure  the  faithful 
performance  of  the  contract  of  the  said  Laster  as  the  agent 
of  appellant  for  the  sale  of  machinery,  the  appointment  of 
sub^agents,  and  the  collection  of  accounts.  Appellant 
elected  to  stand  by  its  declaration  after  a  demurrer  thereto 
had  been  sustained,  and  a  judgment  was  thereupon  rendered 
in  favor  of  appellees  for  costs. 

Two  principal  questions  are  presented  for  consideration: 
first,  does  the  bond  cover  the  unexpired  term  of  the  contract 
dated  January  18, 1892,  between  appellant  and  Laster,  and, 
second,  does  it  cover  contracts  made  between  appellant  and 
Laster  after  the  execution  and  delivery  of  the  bond  ? 

1.  It  is  contended  that,  inasmuch  as  the  obligation  of  a 
surety  is  to  be  strictly  construed,  the  bond,  which  is  dated 
October  4, 1892,  and  refers  in  one  clause  to  a  contract  this 
day  made  with  appellant,  can  not  be  construed  as  applying 
to  a  contract  made  on  the  18th  day  of  the  preceding  Jan- 
uary. This  might  be  true  if  the  bond  contained  no  other 
reference  to  the  contract. 

But  the  bond  recited  that  Laster,  on  January  18, 1892, 


Fourth  District — February  Term,  1897.  427 

McCormick  Harvesting  Machine  Co.  ▼.  Laster. 

entered  into  appellant's  service  as  agent,  "  as  shown  in  a 
contract  of  appointment  and  conditions  hereto  annexed." 
The  bond  then  reads  as  follows :  "  Now,  therefore,  if  the 
said  Frank  Laster  shall  well  and  faithfully  discharge  all  his 
duties  pertaining  to  the  said  service,  as  he  may  be  instructed 
from  time  to  time  by  the  said  McCormick  Harvesting  Ma- 
chine Company,  so  long  as  he  shall  continue  in  their  service, 
whether  under  the  contract  this  day  made  with  them,  or 
any  subsequent  contract,  and  shall  remit  to  them  promptly 
as  they  may  direct,  all  money  collected  or  received  by  him 
by  virtue  of  said  service,  and  shall,  whenever  thereunto 
required,  make  and  give  a  just  and  true  account  of  all 
moneys,  property  and  other  things  which  shall  have  come 
into  his  possession,  custody,  or  charge,  by  virtue  of  said 
contract,  hereto  annexed  and  made  a  part  hereof,  then  this 
obligation  to  be  void;  otherwise  to  remain  in  full  force  and 
effect." 

Shall  the  words  "  this  day  made  "  prevail  over  the  express 
statement  that  Laster  is  to  account  for  the  moneys,  prop- 
erty and  other  things  coming  to  his  possession  by  virtue 
of  the  contract  dated  January  18th,  which  is  annexed  to 
the  bond,  and  expressly  made  a  part  of  that  instrument  ? 

If  the  rights  of  sureties  were  not  involved,  the  answer 
would  be  an  unhesitating  no.  But  it  seems  to  be  argued 
that  one  construction  of  a  contract  is  to  be  made  for  the 
principal,  and  another  for  the  sureties;  that  by  some  sort 
of  jugglery  with  words,  the  plain  import  of  an  agreement  is 
to  be  made  to  yield  to  a  forced  and  unnatural  construction 
for  the  purpose  of  relieving  sureties  from  their  obligations. 

The  cases  cited  by  counsel  for  appellees  do  not  sustain 
this  position.  The  same  rules  are  to  be  applied  in  ascer- 
taining the  meaning  of  the  contract  of  a  surety  which  are 
used  in  ascertaining  the  meaning  of  any  other  contract;  but 
when  the  intention  of  the  parties  has  been  arrived  at  by  the 
use  of  these  rules,  the  liability  of  the  surety  should  not  be 
enlarged  or  extended  by  implication  or  construction. 

In  Shreffler  v.  Nadelhoffer,  133  111.  636,  where  many 
leading  authorities  are  cited  and  quoted  from,  it  is  said : 


4i8  Appellate  Courts  op  Illinois. 

Vol.  70.]      McCormick  Harvesting  Machine  Co.  v.  Laster. 

"  It  is  not  meant  by  this  rule  (the  rule  of  strict  construction), 
however,  that  the  courts,  in  endeavoring  to  ascertain  the 
precise  terms  of  the  contract  made  by  a  surety,  may  not 
resort  to  the  same  aids,  and  invoke  the  same  canons  of  inter- 
pretation which  apply  in  case  of  other  contracts.  ♦  *  ♦ 
Indeed,  any  other  mode  of  interpretation  would  lead  to  the 
absurd  result  of  giving  to  the  same  set  of  words  in  a  con* 
tract  one  force  and  meaning  when  the  principal  is  defendant, 
and  a  different  force  and  meaning  when  the  suit  happens  to 
be  brought  against  the  surety  or  guarantor.  The  rule  of 
strict  construction,  as  applied  to  the  contracts  of  sureties 
and  guarantors,  in  no  way  interferes  with  the  use  of  ordi- 
nary tests  by  which  the  actual  meaning  and  intention  of 
contracting  parties  are  ordinarily  ascertained,  and  forbids 
any  extension  of  such  liability  by  implication  beyond  the 
strict  letter  of  those  terms." 

Applying  these  rules  to  the  construction  of  the  bond  in 
question,  we  are  forced  to  the  conclusion  that  the  sureties 
are  bound  for  the  faithful  performance  of  the  contract 
dated  January  18th,  from  the  time  of  the  execution  and 
delivery  of  the  bond. 

2.  The  declaration  alleges  that,  after  the  making  of  the 
bond,  other  contracts  were  entered  into  between  appellant 
and  Laster  from  time  to  time,  for  the  continuation  of 
Laster's  agency,  and  the  question  now  arises  whether  or 
not  the  sureties  are  bound  for  the  performance  of  those 
subsequent  contracts.  Undoubtedly  a  bond  may  be  made 
to  cover  future  contracts,  if  the  intention  of  the  parties  to 
that  effect  is  clearly  expressed.  Brandt  on  Suretyship  and 
Guaranty,  Sec.  144. 

There  are  three  clauses  in  the  condition  of  this  bond 
when  the  same  is  subjected  to  analysis,  and  this  suit,  which 
has  been  brought  for  a  failure  to  remit  moneys  collected 
and  received,  is  for  a  breach  of  both  the  first  and  the 
second  of  these  clauses. 

The  first  clause  is  for  the  faithful  performance  of  all 
Taster's  duties  pertaining  to  his  service  under  any  subse- 
quent contract,  as  w^ell  as  under  the  contract  then  existing. 


Fourth  District — February  Term,  1897.  429 


0.,  C,  C.  &  St  L.  Ry.  Co.  v.  Hall. 


The  second  claase  is  for  the  prompt  transmission  of  all 
moneys  collected  or  received  by  virtue  of  said  service;  that 
is,  the  service  under  the  contract  then  existing,  or  any  sub- 
sequent contract,  as  speciiSed  in  the  first  clause,  to  which 
reference  is  undoubtedly  made  by  the  use  of  the  words  said 
service. 

The  third  clause  is  for  the  makiilg  of  a  just  and  true 
account  whenever  required,  of  all  moneys,  property  and 
other  things  held  by  virtue  of  the  contract  annexed  to  the 
bond. 

« 

Does  this  limitation  of  the  third  clause  to  the  contract 
annexed  to  the  bond  have  the  effect  of  expunging  the  words, 
'^  under  any  subsequent  contract,"  from  the  first  clause,  or 
of  breaking  their  connection  with,  or  preventing  their  appli- 
cation to,  the  second  clause  ?  We  think  not.  Even  if  the 
specific  obligation  to  account  is  limited  to  the  one  contract, 
the  obligation  to  faithfully  perform  all  duties,  and  to  remit 
moneys  collected  or  received  applies  not  only  to  the  con- 
tract in  force  when  the  bond  was  made,  but  also  to  any 
subsequent  contract  entered  into  for  the  continuation  of  the 
same  service. 

For  the  error  in  sustaining  the  demurrer  to  the  declara- 
tion, the  judgment  is  reversed  and  the  cause  remanded. 


70      429 
114     *575 


Cleveland^  C.  C.  &  St.  L.  By.  Co.  v.  Marion  M.  Hall. 

1.  Pleadinq  and  Evidence— -4a  to  Negligence.— Jn  a  suit  for  personal 
injuries,  where  the  negligence  charged  is  an  order  in  regard  to  unload- 
ing dmber  from  a  car,  it  is  proper  to  allow  witnesses  to  testify  as  to  the 
proper  method  of  unloading  the  timbers.  Such  evidence  does  not  intro- 
duce a  new  charge  of  negligence,  it  only  illustrates  the  negligence  of  the 
order  given. 

2.  Instructions — Repetitions  in.  Not  Required. — ^Where  the  first 
clause  of  an  instruction  expressly  informs  the  jury  that  their  belief  must 
be  formed  from  the  evidence,  such  instruction  is  not  vitiated  by  the  fact 
that  in  a  subsequent  part  of  the  same  instruction  they  are  told  that  if 
they  believe,  etc. ,  they  will  find,  etc. ,  no  reference  being  made  to  the  fact 
that  such  belief  must  be  founded  on  the  evidence. 


430  Appellate  Courts  of  Illinois. 

Vol.  70.]  C,  C,  C.  &  &t.  L.  Ry.  CJo.  v.  Hall. 

3,  Same — Need  Not  be  Duplioated, — It  is  not  error  to  refuse  to  give 
an  instruction  stating  practically  the  same  proposition  as  that  stated  in 
another  which  is  given. 

4.  Same — Should  Relate  to  Facts  Shown, — ^Where  there  are  no  facts 
in  a  case  on  which  to  base  a  proposed  instruction,  it  should  be  refused. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Ck>urt  of  Saline  County;  the  Hon.  AiiONZoK.  VicasiBBS,  Judge,  presiding. 
Heard  in  this  court  at  the  February  term,  1897.  Affirmed.  Opinion 
filed  June  10,  1897. 

C.  S.  CoNGEBj  attorney  for  appellant. 
Parish  &  Parish,  attorneys  for  appellee. 

Mr.  Presiding  Justice  Sample  delivered  the  opinion  of 
THE  Court. 

The  appellee  brought  this  suit  to  recover  damages  for  a 
personal  injury  caused,  as  alleged,  by  the  negligence  of  one 
Hanson,  foreman  of  a  bridge  gang,  in  which  appellee  was 
working,  in  giving  an  improper  order  while  appellee  and 
the  other  men  were  handling  a  heavy  piece  of  timber.  The 
facts  in  brief  are  that  the  men  were  removing  timbers  from 
a  bridge.  The  method  employed  was  to  load  the  timbers 
on  a  push  car,  some  eight  feet  long,  supplied  with  a  derrick, 
crabs,  leads  and  ropes  for  hoisting  the  timbers  on  the  car. 
This  apparatus  had  a  windlass  and  drum,  around  which 
drum  the  rope  was  placed  several  times,  and  a  man  held  the 
loose  end,  who  pulled  on  or  slackened  the  rope  as  required,  and 
was  called  the  snub  man.  The  other  end  ran  through  a 
pulley  at  the  top  of  the  derrick,  which  was  some  eight  or 
nine  feet  in  hei«;ht,  and  then  was  taken  out  to  and  tied 
around  the  timber  that  was  desired  to  be  raised  and  lowered 
on  the  car.  The  top  of  the  derrick  could  be  given  a  slant. 
The  raising  was  done  by  means  of  the  windlass.  When  such 
lifting  was  being  done  the  car  was  fastened  down  on  the 
opposite  side  by  means  of  a  chain  or  iron  link  fastened  to  the 
iron  rail  of  the  track,  to  prevent  the  car  from  tipping.  Two 
large  timbers  had  been  placed  on  the  car  and  settled  there 
so  they  would  remain.    The  third  timber,  some  thirty  feet 


Fourth  District — February  Term,  1897.  431 

C,  C,  C.  &  St.  L.  Ry.  Ck).  v.  Hall. 

in  length,  sixteen  inches  wide  and  eight  inches  thick,  weigh- 
ing about  1,000  pounds,  was  also  lifted  above  the  car  by  the 
derrick,  but  there  was  not  room  for  it  to  securely  rest  on 
the  car.  Therefore  one  Lawrence  took  hold  of  the  rope  that 
extended  from  the  top  of  the  derrick  down  to  the  timber 
to  which  it  was  tied,  and  pulled  the  timber  in  so  that  the 
timber,  which  was  held  by  the  rope,  would  swing  in  over  the 
car,  instead  of  to  one  side,  as  it  would  otherwise  do,  on  account 
of  the  slant  of  the  derrick  top,  while  one  West  held  the  snub, 
or  other  end  of  the  rope  that  ran  around  the  drum,  so  as  to 
keep  it  taut,  and  Hall,  the  appellee,  who  operated  the 
windlass  and  had  lifted  the  timber,  threw  his  knee  under  the 
windlass  handle,  so  as  to  hold  up  the  timber  by  the  rope. 
When  the  car  was  so  loaded  it  was  released  from  its  attach- 
ment to  the  track,  and  was  being  pushed  by  other  men  of 
the  crew  to  a  place  beyond  the  bridge,  where  the  timbers 
were  to  be  unloaded.  The  foreman,  Hanson,  was  following 
the  car  and  directly  superintending  this  work.  When  the 
car  had  about  reached  the  place  to  unload  Hanson  ordered 
the  car  stopped,  but  while  it  was  still  in  motion  ordered 
Lawrence,  who  held  in  the  timber  over  the  car,  to  let  loose 
and  "  give  a  hand,"  or  words  to  that  effect.  Almost  the 
moment  Lawrence  let  loose  of  the  rope,  and  before  he  could 
get  off  the  car,  the  timber  swung  out,  upset  the  car  and 
threw  both  Lawrence  and  Hall  to  the  ground,  causing  a 
double  fracture  of  the  thigh  bone  of  Hall,  and  resulting  in 
a  permanent  injury.  West,  the  snub  man,  tumbled  off  the 
car  backward,  while  Lawrence,  though  thrown  some 
distance,  escaped  injury. 

There  is  no  claim  that  Hall  was  not  acting  strictly  in  the 
performance  of  his  duty,  or  that  he  was  negligent.  The 
defense  interposed  is,  1,  that  it  was  the  result  of  an  inevi- 
table accident,  in  that,  as  claimed,  the  rope  caught  in  the 
pulley  at  the  top  of  the  derrick,  and  thus  prevented  the 
timber  from  dropping  to  the  side  of  the  car,  which,  as 
insisted,  it  otherwise  would;  or  2,  that  it  was  caused  by  the 
failure  of  West,  the  snub  man,  to  give  slack  to  the  rope,  and 
thus  permit  the  timber  to  so  drop;  and  if  it  was  his  fault, 
then  it  ^^as  clearly  the  negligence  of  a  fellow-servant. 


432  Appellate  Courts  of  Illinois. 

Vol.  70.]  C,  C,  C.  &  St  L.  Ry.  Ck).  v.  HalL 

The  evidence  shows  the  machinery  of  the  car  was  in 
proper  condition.  West  is  the  only  one  who  claims  the 
rope  was  caught  in  the  pulley,  after  the  rope  had  slackened 
about  one  foot.  In  our  judgment,  it  is  clear  the  accident 
occurred  so  suddenly,  after  Lawrence  let  loose  of  the  rope, 
that  West  knew  nothing  about  the  rope  being  caught  in 
the  pulley.  He  did  not  have  time  to  observe  the  fact. 
There  is  no  fact  to  induce  the  belief  that  the  rope  was 
cauo^ht  in  the  pulley,  at  least  until  the  car  had  tipped  over 
so  far  as  to  throw  the  rope  ofif  the  pulley,  which  fact,  if  it 
so  occurred,  in  no  wav  contributed  to  the  accident.  The 
accident  was  not  caused  by  the  negligence  of  West,  the 
snub  man.  He  was  not  notified,  neither  was  it  the  fact 
that  the  car  had  arrived  at  the  spot  or  place  where  the  tim- 
bers were  to  be  unloaded.  He  knew  of  the  order  to  stop 
the  car,  but  he  also  knew  it  had  not  stopped,  and  it  was  not 
his  du)iy  to  lower  away  or  slack  the  rope  until  the  car  had 
stopped.  It  was  not  the  intention  of  any  one  to  lower  the 
timber  while  the  car  was  in  motion.  The  order  given  by 
Hanson  was  thoughtlessly  and  negligently  given,  and  was 
the  cause  of  the  accident.  He  was  the  foreman,  with  full 
power  to  direct,  discharge  and  employ  the  men,  and  there- 
fore the  vice-principal  of  the  appellant,  and  was  acting  in 
that  capacity  when  this  negligent  order  was  given. 

There  was  no  error  committed  in  permitting  witnesses  to 
testify  as  to  the  proper  method  of  unloading  such  timbers, 
by  chaining  down  to  the  iron  rails  the  opposite  side  of  the 
car.  The  gist  of  the  negligence  charged  was  the  order  to 
Lawrence  to  let  go  the  rope,  whereby  the  timber  was  pulled 
in  over  the  car,  and  which  order  resulted  necessarily  in  the 
timber  swinging  out  to  the  side  of  the  car  and  thus  upset- 
ting it.  This  evidence  did  not  introduce  a  new  charge  of 
negligence.  It  only  illustrated  the  negligence  of  the  order 
given.  That  is,  that  before  swinging  such  a  heavy  timber 
off  to  one  side  of  such  a  light  car,  the  car  should  have  been 
stopped  and  chained  to  the  track,  as  was  done  in  this  case 
in  loading,  to  prevent  upsetting.  Herein  this  case  is  dish 
tinguished  from  Ebsery  v.  C.  C.  Eailway  Co.,  164  HI.  518, 


Fourth  District — February  Term,  1897.  433 

C,  C,  a  &  St.  L.  Ry.  Co.  v.  HaU. 

«  .llllll  ■  .1  » 

and  T.  W.  &  W.  Ry.  Co.  v.  Foss,  88  III.  551,  cited  by  the 
learned  counsel  for  appellant. 

Objection  is  made  to  the  sixth  instruction  given  for 
appellee  on  the  ground  that,  while  it  directs,  in  the  first 
part,  that  the  jury  must  "  believe  from  the  evidence,"  in  a 
subsequent  part,  on  a  vital  fact,  it  directs,  if  they  "believe,'' 
etc. 

What  is  said  in  Miller  v.  Ealthasser,  78  111.,  at  p.  305,  is 
applicable  to  this  objection :  *•  The  first  clause  of  the  instruc- 
tion expressly  informs  the  jury  that  their  belief  must  be 
formed  from  the  evidence,  and  while  the  same  is  not  repeated 
in  the  latter  clause,  a  jury  composed  of  sensible  men  could 
not  infer  that  they  had  the  right  to  travel  outside  of  the 
rexjord  in  search  of  proof  upon  which  to  form  a  verdict." 

There  was  no  error  committed  in  refusing  to  give  instruc- 
tion marked  number  one,  refused,  of  defendant,  to  the  effect 
that  if  the  car  was  upset  by  reason  of  the  pulley  in  derrick 
failing  to  work  from  some  unforeseen  cause,  that  could  not 
by  reasonable  diligence  have  been  discovered,  then  the  jury 
should  find  for  the  defendant.  The  thought  of  this  instruc- 
tion was  embodied  in  the  language  of  instruction  number 
nine,  given  for  defendant,  relating  to  an  unforeseen  acci- 
dent. While  the  instruction  does  not  mention  the  pulley 
or  the  rope  failing  to  run  through  it,  j^et  it  could  refer  to 
nothing  else  developed  from  the  evidence  in  the  case. 

Instruction  number  two  offered  by  defendant  was 
properly  refused.  It  related  to  the  doctrine  of  fellow-serv- 
ants. 

There  were  no  facts  in  this  case  on  which  to  base  it,  as 
presented  in  that  instruction. 

The  injury  resulted  from  the  negligent  order,  not  negli- 
gent act,  of  Hanson. 

The  judgment  is  affirmed. 

V0L.LXX» 


434  Appellate  Courts  of  Illinois. 

Vol.  70.]  Mahon  v.  Gaither. 


1  70    4341 

,  ^  5^1  James  Mahon  y.  W.  L.  Gaither. 

1.  Promissory  'Sotes— Assigned  After  Maturity^Want  of  Consid- 
eration  as  a  Defense, — A  person  who  purchases  a  promissory  note  after 
it  is  due  takes  it  subject  to  the  defense  of  a  want  of  consideration,  even 
though  he  gives  full  value. 

2.  Appellate  Court  Practice — Where  Instrtictions  do  not  Appear 
in  the  Abstract. — Where  the  instructions  do  not  appear  in  the  abstract 
this  court  will  decline  to  consider  objections  to  them  made  in  the  briefs. 

Assumpsit,  on  a  promissory  note.  Appeal  from  the  Circuit  Court  of 
Wayne  County;  the  Hon.  Carroll  C.  Boaas,  Judge,  presiding.  Heard 
in  this  court  at  the  February  term,  1897.  Affirmed.  Opinion  filed 
June  10,  1897. 

Lkeds  &  Eahset  and  Hanna  &  Hanna,  attorneys  for 
appellant. 

Cbeiohton,  Kramer  &  Kramer,  attorneys  for  appellee. 

Mr.  Justice  Green  delivered  the  opinion  of  the  Court. 

This  suit  was  brought  by  appellant  to  recover  the 
amount  of  a  note  given  by  appellee  to  E.  A.  &  J.  A.  Ford,  for 
the  sura  of  $65,  with  seven  per  cent  interest,  dated  January 
28,  1892,  payable  six  months  after  date,  and  indorsed,  "  Pay 
to  James  Mahon,  without  recourse.  E.  A.  &  J.  A.  Ford." 
Appellant  claims  to  be  an  assignee  of  this  note  before  ma- 
turity, and  that,  as  such,  he  is  entitled  to  the  benefit  of  the 
last  clause  of  Sec.  9,  Chap.  98,  Rev.  Stat.,  Starr  &  Curtis, 
which  provides,  "that  nothing  in  this  section  contained 
shall  be  constructed  to  aflfect  or  impair  the  right  of  any 
bona  fide  assignee  of  any  instrument  made  assignable  by 
this  act,  when  such  assignment  was  made  before  such 
instrument  became  due." 

This  case  was  once  before  us  on  appeal,  Mahon  v.  Gaither, 
59  111.  App.  583,  and  upon  the  record,  as  it  then  appeared, 
we  held,  and  so  said  in  the  opinion,  "  Appellant  did  pur- 
chase this  note  before  maturity  and  paid  for  it  its  full  value, 
without  notice  of  any  fraud,  or  failure  or  want  of  consider- 


Fourth  District — February  Term,  1897.  435 

Mahon  v.  Oaither. 

ation  as  against  him.  Appellee  can  not  set  up  and  main- 
tain the  defense  that  no  consideration  was  given  for  the 
note  sued  on."  The  evidence  in  that  record  justified  the 
conclusion  so  announced,  but  in  the  record  now  before  us 
the  facts  proven  are  quite  different.  Appellant  alone  testi- 
fied that  he  bought  the  note  of  one  Eisley,  who  was  a  part^ 
ner  of  the  payees;  that  he  thinks  it  was  six  months  before 
the  note  became  due,  and  afterward  says  the  note  was 
fifteen  or  twenty  days  old  when  he  bought  it;  that  the  con- 
sideration he  gave  was  a  credit  which  he  made  on  a  note  he 
held  against  Eisley;  that  Risley  guaranteed  the  payment 
of  the  Gaither  note,  and  without  such  guaranty  he,  Mahon, 
would  not  have  bought  it.  He  further  testified  the  note 
"  was  never  out  of  my  possession  until  I  sent  it  to  Ed.  Bon- 
ham's  bank  for  collection;"  that "  Ed.  McManaman  never  had 
this  note;  if  he  had,  it  was  before  I  bought  it;"  ''  have  no 
recollection  of  either  McManaman  or  Risley  having  this 
note  after  I  bought  it."  U.  S.  Staley  was  the  next  witness 
for  appellant,  and  he  testified  his  bank  "received  note  from 
First  National  Bank,  of  date  July  9th,  from  L.  A.  Goddard, 
cashier,  Mt.  Carmel,  Illinois;  drawer  of  the  note  is  E.  A. 
and  J.  A.  Ford,  payor  is  W.  L.  Gaither,  date  January  28, 
1892;  payable  six  months  after  date,  due  July  28,  '92; 
amount  $65  and  interest;  returned  December  8,  1892." 

William  Bonham,  the  only  other  witness  for  appellant, 
testified  he  got  a  letter  from  Mahon  inclosing  the  note,  in 
January,  1893,  with  directions  to  sue  it.  1  brought  suit  in 
April,  1893;  I  put  in,  "  Pay  to  James  Mahon,"  and  filled  up 
the  blank  indorsement. 

Crews,  for  defendant,  testified  that  in  April,  1892,  Risley 
had  the  note  and  tried  to  sell  it  to  him;  Powell,  for  defend- 
ant, testified  Risley  came  to  his  place  of  business  and  offered 
to  trade  a  note  on  Gaither  for  harness,  in  March  or  April, 
1892.  Gillison,  for  defendant,  testified  that  about  March 
3, 1892,  he  was  present  when  a  chattel  mortgage  was  given 
and  a  settlement  was  made  between  the  Ford  bovB  and 
Gaither,  and  two  notes  were  delivered  to  Gaither;  there 
were  three  notes  spoken  of;  that  he  afterward,  about  the 
last  of  April,  or  first  of  May,  saw  a  note,  similar  to  the  two 


43t>  Appellate  Courts  of  Illiistots. 

Vol.  70.]  Mahon  v.  Gaither. 

which  had  been  delivered,  which  was  for  $65,  payable  to 
the  Ford  boys  in  six  months  after  date,  signed  by  W.  L. 
Gaither,  in  the  possession  of  Ridley.  Petty,  for  defendant, 
testified  he  saw  the  note,  at  the  same  time  witnesses  Crews 
and  Powell  spoke  of,  in  the  possession  of  Risley,  who 
claimed  to  own  the  note,  and  wanted  to  trade  it  to  witness. 
Moore,  for  defendant,  testified  he  saw  Ed.  McManaman  at 
Gaither's  house  in  December,  or  first  of  January,  but  thinks 
it  was  in  December,  1892,  that  McManaman  had  a  note  for 
$65,  signed  by  W.  L.  Gaither,  payable  to  the  Ford  boys, 
six  months  after  date;  that  he  wanted  to  sell  it  to  Gaither, 
who  declined  to  buy  it,  and  offered  to  sell  it  to  witness. 
Forbes,  for  defendant,  testified  that  in  December,  1892, 
Eislej^  came  to  him  and  had  a  note  for  $65,  signed  by 
Gaither,  payable  to  the  Ford  boys;  he  offered  to  trade  me 
note  for  a  horse  I  was  trying  to  trade  off. 

This  evidence,  introduced  on  behalf  of  defendant,  and  the 
evidence  of  Staley  and  Bonham,  given  on  behalf  of  appellant, 
directly  contradicts  the  testimony  of  the  latter  on  the 
material  questions  at  issue.  If  these  witnesses  for  defend- 
ant were  entitled  to  credit,  the  note  in  question  was  not  in 
the  possession  of  appellant  in  March,  April,  May  and  Decem- 
ber, 1892,  but  Risley  then  had  it  and  was  trying  to  sell  it 
or  trade  it  off;  and  in  December,  1892,  or  January,  1893, 
McManaman  had  the  note  and  offered  it  for  sale.  More- 
over, Staley  testified  that  on  July  9th  his  bank  received  this 
note  from  L.  A.  Goddard,  cashier  First  National  Bank,  Mt.  - 
Garmel,  for  collection,  and  returned  it  December  8,  1892; 
and  Bonham  testified  he  put  in  the  blank  indorsement, 
"  Pay  to  James  Mahon,"  after  he  received  the  note  from 
Mahon  for  collection,  in  January,  1893.  From  all  this  evi- 
dence the  jury  were  warranted  in  their  conclusion  that 
appellant  was  not  the  "  honafide  "  assignee  of  the  note  before 
it  came  due,  and  took  it  subject  to  the  defense  of  a  want  of 
consideration,  which  the  evidence  clearlv  established. 

No  instructions  appear  in  the  abstract,  hence  we  decline 
to  consider  the  objections  made  to  name  in  the  brief. 

No  good  reason  appearing  for  the  reversal  of  the  judg- 
ment^ it  is  afiirmed. 


a 


Fourth  District — February  Term,  1897.  437 

German  Insurance  Co.  v.  Denny. 


German  Insurance  Go.  of  Freeport^  IlL^  v.  Joseph 

L.  Denny. 

1.  Insurance— For/ei^u re  of  Policy  for  Non-Payment— Partial  Pay- 
mznts  After  Forfeiture, — Where  a  contract  of  insurance  against  loss  by 
fire  or  wind  provides  that  failure  to  pay  a  premium  note  shall  work  a 
forfeiture  of  the  policy,  but  that  after  such  failure  the  insured  shall  have 
the  right  to  make  payment  and  revive  the  policy,  the  acceptance  of 
partial  payment  waives  nothing,  and  if  a  loss  occurs  before  full  pay- 
ment the  insured  can  not  recover. 

Assumpsit,  on  an  insurance  policy.  Appeal  from  the  Circuit  Court  of 
Hamilton  County;  the  Hon.  Edmund  D.  Youngblood,  Judge,  presiding. 
Haard  in  this  court  at  the  February  term,  1897.  Reversed  without  re- 
manding.   Opinion  filed  June  10,  1897. 

J.  Wilson  Jones,  attorney  for  appellant. 
Webb  &  Lake,  attorneys  for  appellee. 

Mr.  Presidino  Justice  Sample  delivered  the  opinion  of 
THE  Court. 

On  December  18,  1893,  appellant  issued  its  policy  of 
insurance  to  appellee  to  cover  any  loss  happening  by  fire  or 
wind  storms,  to  the  extent  of  $600.  The  sum  of  $300  of 
insurance  was  placed  on  a  dwelling  house,  which,  on  May 
27,  1896,  was  damaged  by  a  wind  storm  to  the  extent  of 
$57.10.  The  policy  did  not  expire  until  December  15, 1898. 
At  the  time  the  application  was  signed  by  appellee  he  also 
signed  a  note,  payable  to  the  company,  for  the  sum  of  $18, 
due  January  1,  1895,  which  note  and  policy  contained  the 
following  clause  :  "  If  this  note  is  not  paid  at  maturity. 
Slid  policy  shall  then  cease  and  determine  and  be  null  and 
void,  and  so  remain  until  this  note  shall  be  fully  paid  and 
received  and  accepted  by  the  company  as  provided  in  said 
policy."  The  policy  itself  further  provides  that  "  no  legal 
action  on  the  part  of  this  company  to  enforce  payment  shall 
be  construed  as  reviving  the  policy.  The  payment  of  the 
premium,  however,  revives  the  policy  and  makes  it  good  for 


438  Appellate  Courts  of  Illinois. 

Vol.  70.]  German  Insurance  Co.  v.  Denny. 

the  balance  of  its  term."  The  note  was  not  paid  when  due, 
and  not  paid  in  full  until  the  daj'  after  the  loss,  which 
occurred  on  May  27, 1896.  The  sum  of  $10  was  paid  on  the 
note  November  10,  1895,  and  the  agent  of  the  company  at 
that  time,  by  indorsement  on  the  note,  extended  payment 
until  December  1,  1895.  There  was  no  other  definite  exten- 
sion of  the  time.  In  fact  there  was  no  other  extension.  The 
appellee  claims  that  the  agent  stated  to  him  that  he  would 
extend  the  time,  without  stating  how  long,  if  appellee  would 
aid  the  agent  in  some  canvass  he  was  making  for  a  county 
office.  But  of  course  appellee  must  have  known  that  the 
agent  had  no  legal  or  moral  right  to  grant  an  extension  on 
such  grounds,  if,  in  fact,  he  had  any  authority  to  grant  any 
extension.  At  the  time  the  balance  of  the  note  was  paid, 
the  day  after  the  loss,  appellee  did  not  at  the  time  inform 
the  agent  of  his  loss.  If  he  had  it  would  have  been  imma- 
terial, for  the  only  effect  of  the  payment,  by  the  terms  of 
the  note  and  the  policy,  was  to  revive  the  policy  from  the 
time  of  payment  "  for  the  balance  of  its  term." 

The  case  of  Carlock  v.  Phoenix  Ins.  Co.,  138  111.  210,  is, 
in  its  facts,  as  to  the  point  under  consideration,  much  like 
the  one  in  hand.  There  a  distinction  is  made  between  a 
policy  where  a  forfeiture  is  worked  by  failure  to  pay  the 
premium  note,  without  any  right  of  revival  by  subsequent 
payment,  and  a  policy  like  the  one  here  in  suit.  In  the 
former  case  payment  after  forfeiture,  and  retention  of  the 
money,  works  an  estoppel  to  claim  any  forfeiture,  while 
under  policies  like  this  the  person  insured  has  the  right  to 
revive  the  policy  by  payment,  from  the  time  of  payment, 
which  payment  it  is  the  duty  of  the  company  to  receive. 
As  in  the  Carlock  case  is  stated,  "  The  receipt  of  partial 
payment  of  the  note  waived  nothing."  The  only  effect  of 
full  payment  was  to  revive  the  policy  for  the  residue  of  the 
term. 

In  view  of  what  has  been  said,  it  is  unnecessary  to  con- 
sider the  errors  assigned.  There  can  be  no  recoverv  in  this 
case,  and  therefore  the  judgment  is  reversed,  without 
remanding. 


Fourth  DisTRrcT — February  Term,  1897.  439 

Durbin  v.  Durbin. 


John  W.  Durbin  y.  Lillie  Dnrbin. 

1.  Verdicts — Not  Sustained  by  the  Evidence, — Much  as  a  court  of 
appeal  may  dislike  to  reverse  a  decree  upon  the  ground  of  want  of 
evidence  to  support  the  verdict  upon  which  it  is  based,  they  will  feel 
constrained  to  do  so  where,  as  in  this  case,  the  verdict  is  opposed  to  a 
clear  preponderance  of  the  evidence. 

Bill  for  DiYorce. — Appeal  from  the  Circuit  Court  of  Fayette  County; 
the  Hon.  R.  B.  Shirley,  Judge,  presiding.  Heard  in  this  court  at  the 
February  term,  1897.  Reversed  and  remanded.  Opinion  filed  June  10, 
1897. 

F.  M.  GuiNN,  attorney  for  appellant. 

Albert,  Webb  &  Spurgeon,  attorneys  for  appellee. 

Mr.  Justice  Green  delivered  the  opinion  of  the  Court. 

Appellant  filed  his  bill  for  divorce  against  appellee, 
charging  her  with  adultery,  since  their  marriage,  with  one 
Edward  Montgomery  and  with  one  Grant  Bethards;  alleging 
the  marriage  took  place  January  16,  1894,  and  the  parties 
lived  together  until  about  December  1, 1895;  that  defendant 
left  him  on  said  date,  and  about  twent}'^  daj's  prior  to  the 
first  day  of  the  last  term  of  this  court,  she  instituted  a  suit 
for  separate  maintenance,  and  upon  the  trial  thereof  it  was 
decreed  by  the  court  that  he  should  pay  her  $10  per  month, 
which  he  has  done;  that  the  fact  she  had  committed 
adultery,  as  charged,  was  unknown  to  complainant  at  the 
last  term  of  this  court;  prays  for  divorce  and  to  set  aside 
decree  for  separate  maintenance.  Answer  and  replication 
were  filed,  and  the  issue  of  fact  was  tried  by  a  jury.  They 
returned  a  verdict  finding  defendant  not  guilty,  and  com- 
plainant's  motion  for  a  new  trial  was  overruled  and  a  decree 
was  thereupon  entered  dismissing  the  bill  and  awarding  all 
the  costs  against  complainant.  He  took  this  appeal  and 
asks  that  said  decree  be  reversed. 

We  think  the  court  erred  in  denying  the  complainant's 


440  Appellate  Couuts  op  Illinois. 

Vol.  70.]  Mann  v.  Jobusch. 

right  to  ask  defendant  certain  questions  on  cross-examina- 
tion, but  are  further  of  the  opinion  that  the  verdict  was  not 
supported  by  the  evidence.  Grant  Bethards  was  the  uncle 
of  defendant,  and  testified  to  several  acts  of  illicit  inter, 
course  with  defendant,  since  her  marriage  with  complainant, 
and  Logan  Bethards  testified  to  having  seen  Grant  and 
defendant  in  the  act  of  carnal  intercourse.  Whatever  the 
jury  might  have  thought  of  the  conduct  of  Grant,  leading 
them  to  doubt  his  testimony,  nothing  appears  to  justify 
them  in  disregarding  the  testimony  of  Logan  Bethards! 
Edward  Montgomery  testified  to  having  had  carnal  connec- 
tion with  defendant  several  times  since  her  marriage,  and 
Finies  Akeman  testified  he  had  seen  Montgomery  and 
defendant  in  the  very  act  of  sexual  intercourse.  As  a^gainst 
the  evidence  of  these  four  witnesses,  showing  repeated  acts 
of  adultery  by  defendant,  she,  by  her  own  testimony  alone, 
contradicts  them.  Hence,  much  as  we  regret  to  reverse  a 
decree  upon  the  ground  of  a  want  of  evidence  to  support 
the  verdict  on  which  it  is  based,  we  are  constrained  in  this 
case  to  do  so,  holding  the  charge  of  adultery  was  proved  by 
a  clear  preponderance  of  the  evidence,  that  appellant  did 
not  learn  of  such  adultery  until  after  the  suit  for  separate 
maintenance  was  decided,  and  the  court  erred  in  denying 
the  motion  for  a  new  trial. 
The  decree  is  reversed  and  the  cause  remanded. 


Henry  Mann  and  Isabella  Mann  r*  Elizabeth 

Jobusch  et  aL 

1.  Mortgages— ITTicri  Deeds,  Apparently  Ahsolutey  Will  be  Hdd  to 
Be.— A  deed,  once  a  mortgage  is  always  a  mortgage,  and  the  true  test  in 
determining  whether  a  deed  absolute  on  its  face  wiU  be  held  to  be  a 
mortgage  is,  what  was  the  real  intention  of  the  parties?  Parol  evidence 
may  be  resorted  to  to  determine  the  real  intention,  and  courts  will 
look  into  the  whole  transaction  and  consider  all  the  attending  circum- 
stances to  determine  the  intent. 

2.  ^AJSR—Presamptiona  Regarding  Deeds  Appai^ently  Absolute^—A 


Fourth  District — February  Teem,  1897.  441 

Mann  v.  JobuBch. 

deed  absolute  in  form  is,  in  law,  presumed  to  be  a  deed  until  clearly 
proved  to  be  a  mortgage;  ^nd  where  a  deed  is  given  by  a  mortgagor  to 
the  mortgagee,  the  fact  that  the  debt  is  canceled  and  the  mortgage 
released,  and  at  the  same  time  a  contract  for  a  reconveyance  executed 
by  the  mortgagee,  is  evidence  tending  strongly  to  show  that  the  deed  was 
not  intended  as  a  new  mortgage. 

8.  Saxe^How  Presumption  that  Deed  wa8  Intended  as  a  Mortgage 
May  he  Rebutted. — Where  a  deed  has  been  given  by  a  mortgagor  to  a 
mortgagee,  and  at  the  same  time  a  contract  for  recoveyance  executed, 
any  presumption  that  may  arise  that  the  transaction  amoimts  to  a  mort- 
gage may  be  rebutted  by  facts  showing  that  the  debt  was  smTendered 
fmd  canceled  at  the  time  of.  the  conveyance. 

4.  Laches — As  a  Bar  to  Equitable  Relief, — A  deeded  certain  land  to 
B,  who  sold  it  to  C,  C  took  possession  and  made  improvement?  without 
any  notice  of  a  claim  by  A  that  the  deed  was  a  mortgage.  A  allowed 
him  to  rest  under  the  belief  of  the  bona  fide  of  his  purchase  for  over 
five  years  without  taking  any  steps  to  enforce  such  claim.  Held,  that 
under  the  circumstances  of  the  case  this  delay  was  unreasonable  and 
that  A  was  not  entitled  to  relief. 

Billf  to  redeem  from  an  alleged  mortgage.  Appeal  from  the  Circuit 
Court  of  Perry  County;  the  Hon.  Benjamin  R.  Burbouohs,  Judge,  pre- 
siding. Heard  in  this  court  at  the  February  term,  1897.  Affirmed. 
Opinion  filed  June  10,  1897. 

Benjamin  W.  Pope,  attorney  for  appellants. 
Joseph  W.  Kickebt,  attorney  for  appellees. 

■ 

Mr.  Presidino  Justice  Sample  delivered  the  opinion  of 
THE  Court. 

The  appellants,  in  April,  1895,  filed  their  bill  to  redeem 
certain  lands  from  an  alleged  mortgage.  In  1875  Xh^y  had 
made  a  mortgrage  to  one  Feltmeyer  on  this  land,  which 
mortgage,  with  the  note,  had  been  sold  and  assigned  to 
Elizabeth  Jobusch.  The  mortgage  not  being  paid  when 
due,  on  the  16th  day  of  March,  1888,  appellants  made  a 
deed  to  Elizabeth  Jobusch  the  note  representing  the 
indebtedness  held  by  her  was  surrendered,  the  mortgage 
released  and  a  contract  for  a  deed  was  made  by  Elizabeth 
Jobusch  to  Henry  Mann,  to  be  executed  March  1,  1890, 
when  the  sum  of  $1,400,  with  eight  per  cent  interest,  was 
to  be  paid  by  Henry  Mann  to  Elizabeth  Jobusch,  which 


442  Appellate  Courts  of  Illinois. 

Vol.  70.]  Mann  v.  Jobusch. 

contract  was  unilateral  and  not  signed  by  Henry  Mann. 
Time  was  made  the  essence  of  the  contract.  The  sum  of  $9u 
was  paid  as  interest  the  first  year  of  the  running  of  said  con- 
tract, and  thereafter  there  was  default.  On  the  6th  dav  of 
June,  1890,  Elizabeth  Jobusch  made  a  deed  of  said  land  to 
Ernest  Mann,  in  consideration  of  the  sum  of  $1,400.  Henry 
Mann  and  wife  lived  on  the  land  at  the  time  of  all  these 
transactions,  but  on  September  17,  1890,  moved  to  the 
city  of  DuQuoin,  and  rented  the  land  to  one  Williams 
until  March  1, 1891,  who  went  into  possession  and  remained 
there  until  in  February,  1891,  when  he  moved  away,  and 
Ernest  Mann  then  moved  in  and  has  been  in  possession 
since  that  time. 

The  appellants  claim  that  the  deed  made  by  them  to 
Jobusch  was  in  the  nature  of  a  mortgage,  and  that  it  was  so 
understood.  They  also  claim  that  the  grantee  so  recog- 
nized it  by  subsequent  declarations  and  acts,  which  are 
denied  by  appellee.  Soon  after  June  6,  1890,  Jobusch 
notified  Henry  Mann  of  the  sale  to  Ernest  Mann  and  that 
he  must  give  up  possession  March  1,  1891.  He  went  to 
see  Mrs.  Jobusch  and  tried  to  get  her  to  cancel  the  sale,  but 
she  replied  that  the  deed  whs  made  and  that  it  was  too  late. 
The  evidence  shows  there  were  ninetv  acres  of  land  in  the 
tract,  and  that  sixty-two  acres  of  it  were  in  cultivation,  and 
the  residue  in  timber.  The  value  of  the  land  is  variously 
estimated  by  different  witnesses,  those  for  the  appellants 
estimating  it  from  $25  to  $35  per  acre,  while  those  for  the 
appellee  fixed  the  value  at  from  $15  to  $20  per  acre  for  the 
improved  part  and  $10  per  acre  for  the  unimproved.  The 
evidence  is  uncontradicted  that  Ernest  Mann  had  no  personal 
knowledge  of  the  claim  of  Henry  Mann,  that  the  deed  hy 
him  to  Jobusch  was  a  mortgage,  until  the  bill  in  this  case  was 
filed  in  April,  1895.  The  tender  of  the  money  for  redemp- 
tion— $2,280 — was  not  made  until  March  or  April,  1895. 

It  is  the  law,  as  claimed  by  appellant's  counsel,  that  a 
deed,  "once  a  mortgage  is  always  a  mortgage,"  and  the  true 
test  is,  what  was  the  intention  of  the  parties  ?  that  parol 
evidence  may  be  resorted  to  to  determine  the  real  intention. 


FoiTETH  Djstrict-^February  Term,  1897.  443 

Mann  y.  Jobu8(^ 

notwithstanding  the  form  of  the  instrument;  that  courts 
will  look  into  the  whole  transaction  and  consider  all  the 
attending  circumstancyes  to  determine  the  intent.  These 
are  familiar  principles,  and  no  citation  of  authorities  is 
required  in  their  support.  It  is  also  the  law,  as  claimed  by 
appellees'  counsel,  that  a  deed  absolute  in  form  is,  in  law, 
presumed  to  be  a  deed  until  clearly  proved  to  be  a  mortgage, 
and  the  fact  that  a  deed  is  given  by  a  mortgagor  to  the 
mortgagee,  the  debt  canceled,  and  the  mortgage  released; 
and  at  same  time  a  contract  of  sale  given  is  evidence  tending 
strongly  to  show  an  actual  repurchase.  Bears  et  al.  v. 
Ford,^108  111.  17.  In  fact,  in  Kue  v.  Dale  et  al.,  107  111.  282, 
quoting  with  approval  Jones  on  Mortgages,  it  is  said  : 

"  If  the  conveyance  extinguishes  the  debt,  and  the  parties 
so  intended,  so  that  a  plea  of  payment  would  bar  an  action 
thereon,  the  transaction  would  be  an  absolute  sale,  notwith- 
standing the  contemporaneous  contract  to  recovery  on 
being  reimbursed,  within  an  agreed  period,  an  amount  equal 
to  the  debt  and  the  interest  thereon."  Citing  another  section 
from  the  same  author,  it  is  said,  "that  whatever  presump- 
tion may  arise  that  the  transaction  is  a  mortgage,  where  a 
deed  has  been  given,  and  at  same  time  a  contract  for 
reconveyance  once  executed,  may  be  repelled  by  any  facts 
showing  that  the  debt  was  surrendered  and  canceled  at  the 
time  of  the  conveyance." 

It  will  be  observed  in  this  connection  that  Henry  Mann 
did  not  sign  the  contract  under  which  Elizabeth  Jobusch 
agreed  to  make  a  deed  in  the  payment  of  $1,400,  so  that  the 
contract  did  not  revive  the  original  debt,  but  it  was  in  the 
nature  of  the  agreement  referred  to  in  the  Dale  case,  supi^a^ 
that  is,  to  make  the  deed  on  being  reimbursed,  within  an 
agreed  period,  an  amount  equal  to  the  debt  and  interest. 

In  addition  to  this  view,  the  proof  is  that  Ernest  Mann 
went  into  possession  and  made  improvements  on  the  land 
without  any  actual  notice  of  the  claim  that  the  deed  was  a 
mortgage;  and  Henry  Mann  allowed  him  to  rest  under  the 
belief  of  the  hona  fide  of  his  purchase  from  1890  to  1895, 
without  taking  any  steps  to  enforce  such  claim,  or  to  notify 


444  Appellate  Courts  op  Illinois. 

Vol.  70.]  Perry  County  Coal  Mining  Co.  v.  Maclin. 

hira  of  such  claim.  Under  the  circumstances  of  this  case 
this  delay  was  unreasonable.  Turner  v.  Littlefield,  46  111. 
App.  169;  McHany  v.  Schenk,  88  111.  357;  Breit  v.  Teaton, 
101  111.  271.  '  As  is  said  in  one  of  the  cases,  a  man  can  not 
lay  by  and  speculate  on  the  appreciation  of  values  in  that 
way.  All  know  that  land  values  increased  greatly  between 
1890  and  the  early  part  of  1895. 

Our  conclusion  is  that  the  papers  on  their  face  showed  a 
conveyance  by  Henry  Mann  to  Elizabeth  Jobusch,  in  satis- 
faction of  the  mortgage  debt;  that  the,  contract  back  to 
Henry  Mann  was  not  a  revival  of  the  debt,  but  an  agree- 
ment to  reconvey  on  payment  of  an  amount  equal  to  that 
debt  by  Henry  Mann,  but  which  amount  he  did  not  obligate 
himself  to  pay  by  said  instrument;  that  Mann  was  guilty  of 
Idclies  by  his  long  delay  in  making  this  claim  known,  after 
notice  in  June  or  July,  1890,  that  Ernest  Mann  had  pur- 
chased the  land;  that  by  moving  oflf  the  place  in  September, 
1890,  and  renting  it  to  Williams  only  until  March  1,  1891, 
and  then  paying  no  more  attention  to  his  interests,  if  he  had 
any,  might  well,  with  the  other  evidence  in  the  case,  have 
induced  the  court  below  to  find,  as  a  matter  of  fact,  that 
the  deed  was  absolute,  or  that  as  to  Ernest  Mann  he  was 
guilty  of  such  laches  as  would  bar  him  of  relief. 

The  decree  is  affirmed. 


Perry  County  Coal  Mining  Company  j.  J.  D.  Maelin. 

1.  Verdicts— Stwrfaiwcd  by  the  Evidence. — The  court  holds  in  this 
case  that  the  evidence  in  the  record  shows  that  the  plaintiff  proved  by  a 
preponderance  of  the  evidence,  all  the  material  facts  necessary  to  entitle 
him  to  recover,  and  that  the  verdict  of  the  jury  must  stand. 

Trespass,  for  undermining  land.  Appeal  from  the  Circuit  Ck>urt  of 
Perry  County;  the  Hon.  Benjamin  R.  Burroughs,  Judge,  presiding. 
Heard  in  this  court  at  the  February  term,  1897.  Affirmed.  Opinion 
filed  June  10, 1897. 

K.  W.  S.  Wheatlet,  attorney  for  appellant 
Benjamin  W.  Pope,  attorney  for  appellee. 


Fourth  District — February  Term,  1897.  445 

Parks  V.  Rector. 

Mr.  Justiob  Grbbn  delivered  the  opinion  of  tub  Court. 

Appellee  brought  this  suit  in  trespass  against  appellant  to 
recover  damages  for  injury  to  his  land  by  undermining  the 
surface  thereof  so  that  it  became  and  was  broken,  fallen  and 
sunken  in  many  places,  to  the  great  injury  of  said  land. 
The  jury  returned  a  verdict  finding  defendant  guilty,  and 
assessing  plaintiff's  damages  at  $25.  Defendant's  motion 
for  a  new  trial  was  overruled  and  judgment  was  entered  for 
plaintiff  on  the  verdict.  Defendant  took  this  appeal.  The 
rulings  of  the  court, objected  to  relate  to  the  admission  of 
evidence,  and  we  find  no  error  in  this  regard.  But  no  objec- 
tion is  made  to  the  instructions,  and  the  only  other  point 
relied  on  for  reversal  is  that  the  evidence  does  not  sustain 
the  verdict. 

We  have  carefully  examined  all  the  evidence  in  the  record, 
and  find  the  plaintiff  proved,  by  a  preponderance  thereof,  all 
the  material  facts  necessary  to  entitle  him  to  recover,  viz., 
that  plaintiff  owned  and  was  in  possession  of  the  land 
described  in  the  declaration,  and  defendant  owned  the  coal 
under  the  surface,  with  the  right  to  mine  and  remove  the 
same;  that  in  mining  and  removing  said  coal,  it  undermined 
and  caused  to  fall  and  sink  at  least  three-quarters  of  an  acre 
of  the  surface,  by  reason  of  taking  out  all  the  coal,  leaving 
no  pillars  or  supports  to  prevent  such  sinking,  and  the 
damage  to  plaintiff  for  the  injury  so  occasioned  was  at  least 
the  amount  recovered. 

The  judgment  is  affirmed. 


H.  M.  Parks  y.  J.  B.  Rector  and  Harriet  Mayer. 

1.  Verdicts — On  Conflicting  Evidence, — The  evidence,  on  all  the 
material  questions  of  fact  involved  in  this  case,  was  conflicting,  and 
the  verdict  of  the  jury  is  conclusive  of  the  controversy. 

Trespass,  for  a  wrongful  levy.  Appeal  from  the  Circuit  Court  of 
Williamson  County;  the  Hon.  Oliver  A.  Harker,  Judge,  presiding. 
Heard  in  this  court  at  the  February  term,  1897.  Affirmed.  Opinion 
filed  June  10,  1897. 


446  Appellate  Courts  op  Illinois. 

Vol.  70.]  Parks  v.  Rector. 

Cl?:mbns  &  Warder,  attorneys  for  appellant. 
W.  W.  Duncan,  attorney  for  appellees. 

Mr.  Justice  Scofield  delivered  the  opinion  of  the 
Court. 

By  virtue  of  an  execution  issued  on  a  judgment  in  favor 
of  Scudder  &  Co.  against  J.  A.,  J.  V.  and  J.  L.  Mayer,  the 
appellant,  who  was  sheriflf  of  Williamson  county,  levied 
on  the  interest  of  Harriet  E.  Mayer,  wife  of  J.  N.  Mayer, 
in  a  restaurant  stock  owned  bv  her  and  one  Rector,  the 
appellees  herein,  who  were  doing  business  under  the  firm 
name  of  Rector  &  Co. 

This  action  was  brought  by  appellees  to  recover  damages 
for  injury  to  the  stock  while  in  the  sherifiPs  hands.  The 
damages  were  assessed  by  the  jury  at  $150. 

Appellant  contends  that  the  interest  of  Harriet  E.  Mayer 
in  the  stock  of  goods  came  to  her  as  the  result  of  fraudulent 
transfers  made  for  the  purpose  of  hindering  and  delaying 
her  husband's  creditors;  also  that  her  interest  in  the 
stock  was  not  purchased  with  her  sepamte  property;  also 
that  her  husband  had  control  of  the  property  and  mingled 
his  earnings  and  labor  therewith  so  that  what  was  his  could 
not  be  distinguished  from  what  was  hers;  and  that,  on 
either  of  these  grounds,  the  wife's  interest  in  the  property 
could  be  taken  for  the  husband's  debt. 

The  evidence  on  these  propositions  and  all  other  material 
questions  of  fact  was  conflicting,  and  the  verdict  of  the 
jury  in  favor  of  appellees  is  conclusive  of  the  controversy. 

The  instructions,  though  subject  to  criticism,  announce 
the  laMr  with  substantial  accuracy,  and  the  jury  could  not 
have  been  misled  thereby. 

The  judgment  is  affirmed. 


Fourth  District — February  Term,  1897.  447 

Meguiar,  Yancey  &  Co.  ▼.  Rainey. 


Megniar,  Taneej  &  Co.,  for  Use,  etc.^T.  James  L.  Rainey. 

1 .  Verdicts—  On  Conflicting  Evidence,  — After  a  careful  exam  ination 
of  the  whole  record  in  this  case,  the  court  is  unable  to  say  that  the  ver- 
dict is  wrong,  and  the  judgment  is  therefore  affirmed. 

2.  Promissory  Notes — Given  as  Beceipts  for  Money  to  he  Used  for 
the  Benefit  of  the  Payee. — In  a  suit  on  two  promissory  notes,  the  defend- 
ant filed  a  special  plea,  averring  in  substance  that  the  notes  represented 
moneys  advanced  to  the  defendant  as  the  agent  of  the  plaintiffs,  to  be 
expended  in  purchasing  goods  for  them,  and  that  the  notes  were  given 
merely  as  receipts  for  these  moneys,  which  were  thereafter  expended  by 
defendant  in  purchases  in  accordance  with  the  terms  of  the  agency. 
Heldy  that  the  plea  set  up  a  good  defense. 

Assnnipsit,  on  promissory  notes.  Appeal  from  the  Circuit^  Court  of 
Jackson  Ck>unty ;  the  Hon.  Joseph  P.  Robarts,  Judge,  presiding.  Heard 
in  this  court  at  the  February  term,  1807.  Affirmed.  Opinion  filed 
June  10,  1897. 

R.  J.  McElvain,  attorney  for  appellant 
Hill  &  Martin,  attorneys  for  appellee. 

Mr.  Justice  Scbofield  delivered  the  opinion  of  the 
Court. 

Meguiar,  Yancey  &  Co.,  for  the  nse  of  P.  Meguiar,  sued 
appellee  for  the  balance  alleged  to  be  due  on  two  promissory 
notes  for  the  principal  sums  of  $1,000  and  $500,  dated 
respectively  December  31,  1887,  and  January  14,  1888,  and 
each  payable  four  months  after  the  date  thereof.  Appellee 
pleaded  non  assumpsit^  want  of  consideration,  payment,  and 
a  special  plea  in  which  it  was  averred,  in  substance,  that  the 
notes  represented  moneys  advanced  to  appellee  as  the  agent 
of  Meguiar,  Yancey  &  Co.,  to  be  expended  in  purchasing 
tobacco  for  them,  and  that  the  notes  were  afterward  given 
merely  as  receipts  for  these  moneys,  which  were  thereafter 
fully  expended  by  appellee  in  purchases  and  shipments  of 
tobacco,  in  accordance  with  the  terms  of  the  agency. 

To  the  contention  of  appellants  that  it  was  error  for  the 


448  Appellate  Courts  of  Illinois. 

Vol.  70.]  Meguiar,  Yancey  &  Co.  v.  Rainey. 


court  to  admit  evidence  of  the  facts  set  forth  in  this  special 
plea,  there  are  many  satisfactory  answers,  among  them  the 
fact  that  the  plea  was  not  demurred  to,  but  was  traversed 
by  appellants  and  made  the  basis  of  one  of  the  issues  in  the 
case,  and  the  further  fact  that  the  exceptions  are  not  set  forth 
in  the  record  with  sufficient  definiteness  to  authorize  the 
consideration  of  the  question.  Besides,  we  are  unable  to  see 
why  the  plea  is  not  a  good  one,  as  appellants  admitted  when 
they  traversed  it;  and  we  can  not  concede  that  proof  of  the 
averments  of  the  plea  is  a  violation  of  the  rule  of  law  pro- 
hibiting the  contradiction  of  a  written  contract  by  parol 
evidence. 

The  principal  point  made  by  appellants  is  that  the  verdict 
is  manifestly  against  the  weight  of  the  evidence.  Appellee 
testifed  to  facts  which,  if  true,  sustain  his  special  plea  as  a 
defense  to  the  action.  On  the  other  hand,  appellants  read 
in  evidence  the  depositions  of  four  witnesses,  who  state  that 
appelleei  bought  the  tobacco  on  his  own  account  and  that 
the  money  represented  by  the  notes  was  a  loan. 

When  the  depositions  are  carefully  examined,  however,  it 
appears  that  not  more  than  two  of  the  four  deponents  claim 
to  have  personal  knowledge  of  the  transaction  concerning 
which  they  testify. 

It  is  claimed,  however,  by  appellants,  that  the  contract 
was  consummated  by  letter,  and  that  the  correspondence 
between  the  parties  prior  to  March,  1890,  shows  that  appel- 
lee was  doing  business  for  himself,  and  not  as  appellant's 
agent,  in  making  the  purchases.  It  is  said  that  these  letters 
were  destroyed  by  the  cyclone  in  March,  189u,  and  it  is  not 
claimed  that  appellee  wrote  any  such  letter  after  that  date. 
On  the  other  hand,  appellee  denies  that  he  ever  wrote  any 
such  letter,  or  that  the  contract  was  consummated  by  cor- 
respondence. In  support  of  appellee's  testimony,  it  is 
worthy  of  remark  that  appellants  made  no  request  for  the 
payment  of  the  notes  for  five  years  after  1891;  that  business 
men  would  not  ordinarily  lend  money  to  a  stranger,  twenty- 
three  years  of  age,  with  which  to  embark  in  business,  espe- 
cially when  the  stranger  was  poor  and  offered  no  security; 


Fourth  District — February  Term,  1897.  449 

Fort  Chartres  D.  &  L.  Dist.  v.  Smalkand. 

but  that  they  might  advance  money  to  him  with  which  to 
make  purchases  for  them,  knowing  that  the  property,  when 
purchased,  would  be  theirs. 

These,  and  other  considerations,  doubtless  had  weight  with 
the  jury  in  their  decision  of  the  case.  After  a  careful 
examination  of  the  whole  record,  we  are  unable  to  say  that 
the  verdict  is  clearly  wrong. 

Even  if  the  evidence  as  to  what  the  tobacco  was  worth 
was  improper,  the  error  was  not  prejudicial. 

There  is  no  error  in  the  instructions. 

The  judgment  is  affirmed. 


Fort  Chartres  and  Ivy  Landing  Drainage  and  Levee  Dis- 
trict Number  Five  v.  Alphonse  Smalkand. 

1.  Verdicts— -Agratiw^  the  Weight  of  the  Evidence,— -The  verdict  in 
this  case  is  clearly  against  the  weight  of  the  evidence,  and  the  judg- 
ment rendered  in  pursuance  thereof  must  be  reversed. 

2.  Drainaob  Districts — Power  of  Commissioners, — The  commis- 
sioners of  a  drainage  district  have  limited  and  special  powers  which 
they  can  only  exercise  in  accordance  with  the  drainage  act. 

8.  Same— Assessments, — Before  an  assessment  can  be  made  on  land 
comprising  a  drainage  district,  the  commissioners  must  determine  the 
probable  cost  of  the  proposed  work,  and  present  to  the  court  that 
appointed  them  a  petition  setting  up  their  conclusions,  together  with 
plans,  specifications,  etc.,  when  a  hearing  on  notice  must  be  had. 

4.  Sams — POtoer  to  Contract. — Sections  28  and  36  of  the  drainage 
act  are  to  be  construed  in  connection  with  the  preceding  sections;  they 
do  not  modify  the  preceding  restrictions  upon  the  power  to  contract, 
but  only  grant  the  power  to  contract  in  subordination  to  such  restric- 
tions. 

Assmnpsit,  on  the  common  counts.  Error  to  the  Circuit  Court  of 
Monroe  County;  the  Hon.  Benjamin  R.  Burroughs,  Judge,  presiding. 
Heard  in  this  court  at  the  February  term,  1897.  Reversed  without 
remanding.    Opinion  filed  June  10, 1897. 

Charles  Morrison  and  Travous  &  Warnook,  attorneys 
for  appellant. 

Slate,  Bolungeb  &  Winkleman,  attorneys  for  appellee. 

Vol.  LXX  9 


450  Appellate  Coukts  of  Illinois. 

Vol.  70.]  Fort  Chartres  D.  &  L.  Dist  v.  Smalkand. 

Mr,  Pkesidino  Justice  Sample  deliyebed  the  opinion  of 
THE  Court. 

The  plaintiff  in  error  had  a  contract  with  the  firm  of 
Schilling  &  Hank  to  make  some  large  ditches  with  a  dredge, 
to  cost  several  thousand  dollars.  It  required  a  large  quan- 
tity of  water  to  float  the  dredge  boat,  and  in  order  to  obtain 
it  Schilling  shut  down  a  flood-gate  at  the  mouth  of  "  Mill 
Eace  Ditch,"  without  the  consent  of  the  commissioners. 
High  waters  came,  overflowed  the  lock,  and  damaged  the 
foundation.  Schilling  attempted  to  open  the  gate,  but,  on 
account  of  the  pressure  of  the  water,  or  for  some  other 
cause,  it  could  not  be  raised,  and  thereafter,  in  the  night 
time,  it  was  blown  up  by  dynamite,  by  whom,  the  evidence 
does  not  disclose.  The  firm  agreed  to  restore  the  gate  and 
lock  to  its  former  condition,  and  for  this  purpose  they 
entered  into  a  written  contract  with  the  defendant  in  error, 
drawn  up  by  one  of  the  drainage  commissioners,  and  signed 
by  the  parties — the  firm  and  defendant  in  error — November 
12,  1892,  which  is  too  long  to  set  out  here.  The  effect  of 
the  contract  was,  first,  that  the  work  was  to  be  done  under 
the  supervision  of  the  commissioners,  or  their  superintend- 
ent; second,  that  for  certain  specified  work  defendant  in 
error  was  to  receive  the  sum  of  $975;  third,  he  was,  further, 
"  to  put  in  or  under  or  about  such  lock  a  good  and  sufficient 
concrete  *  ♦  *  and  rock  *  *  «  about  said  lock  as 
said  commissioners  may  require  to  put  said  lock  in  as  good 
condition,  in  their  judgment,  as  it  was  before  the  high  water 
of  1892,"  and  for  such  concrete  work  was  to  receive  $6.50 
per  cubic  yard,  and  was  to  receive  a  reasonable  price  for  all 
the  work.  Then  the  kind  of  material  to  be  used  is  described 
and  how  to  be  prepared,  which  was  to  be  subject  to  the 
inspection  of  the  commissioners.  Fourth,  "And  said  con- 
tractor shall  be  allowed  a  reasonable  price  for  all  extra  work 
not  above  specified;  that  is  to  say,  for  the  extra  work  of 
pumping  water  «  *  *  for  bridge  work  *  *  ♦  and 
for  repairing  the  concrete  foundation  under  the  pillars  or 
abutments,  as  the  case  may  be;  or  for  any  other  extra  work 
said  contractor  may  do  or  cause  to  be  done  under  or  about 


Fourth  District — February  Term,  1897.  451 

Fort  Chartres  D.  &  L.  Dist.  v.  Smalkand. 

said  lock."  The  commissioners  had  paid  Schilling  &  Hank 
over  $1,000  for  work  on  the  ditches,  and  held  back  about 
$2,800  until  they  repaired  the  lock.  It  appears  that  at  the 
time  the  above  contract  was  made  it  could  not  be  definitely 
determined  what  the  condition  of  the  injured  lock  was,  on 
account  of  the  water,  but  when  that  was  pumped  out,  the 
foundation  was  found  to  be  so  injured  that  piling  had 
to  be  driven  and  a  concrete  foundation  made  on  them,  and 
also  it  was  determined  to  deepen  the  foundation  at  one  part 
some  two  feet.  As  Schilling  could  not  be  present,  he 
requested-  Mr.  Hardy,  one  of  the  commissioners,  to  look 
after  his  interests.  The  defendant  in  error  began  work 
under  his  contract  with  Schilling  &  Hank,  but  claims  it 
was  soon  interrupted  by  changes  made  by  verbal  direction 
of  Hardy,  especially  as  to  the  piling,  which  was  not  specifi- 
cally mentioned  in  the  contract.  He  requested  a  written 
order,  as  to  the  piling,  from  the  commissioners.  There- 
upon the  commissioners  entered  of  record  an  order,  of  which 
a  copy  was  given  him,  to  do  said  piling  so  as  to  make  the 
necessary  foundation  '^for  the  new  piers  to  be  built  by 
Alphonse  Smalkand,  under  his  contract  with  Schilling  & 
Hank,  *  *  *  to  repair  said  lock."  He  also  claims  that 
the  deepening  of  the  foundation  some  two  feet  was  extra 
and  outside  the  contract.  The  items,  as  presented  on  his 
bill  for  extra  work,  outside  of  the  contract,  were  $947.70 
for  concrete,  $423.50  for  masonrj\  $34  for  extra  work 
on  rip-rap,  and  $650.50  for  piling,  and  some  other  items, 
making  a  total  of  $2,915.50.  He  also  did  the  sjiecified 
work  in  the  contract,  amounting  to  $075,  which  was 
paid,  making  a  total  of  work  $3,890.50.  On  what  he 
calls  extra  work,  he  received  from  the  district  $2,000  in 
bonds,  which  were  discounted  $200,  which,  as  he  says,  the 
district  was  to  bear,  leaving  a  net  payment  on  the  whole 
extra  work  of  $1,800,  making  still  due  him  $1,115.50.  The 
payments  made  by  the  commissioners  were  made  under  a 
written  order  of  Schilling,  of  date  December  20,  1892,  on 
the  commissioners,  to  pay  Smalkand  in  '^  bonds  of  the  dis- 
trict, on  account  of  repairing  the  Mill  Eace  Lock,  in  such 


452  Appellate  Courts  of  Illinois. 

Vol.  70.]  Fort  Chartres  D.  &  L.  Dist.  v.  Smalkand. 

amount  as  said  board  of  commissioners  may  deem  safe  and 
proper  on  such  work,  and  at  such  time  as  they  may  consider 
proper,  on  my  account."  Under  this  order  the  commis- 
sioners paid  to  Smalkand  $3,000  in  bonds  for  this  work, 
which  was  more  than  the  balance  owing  to  Schilling  &  Hank 
under  the  original  ditch  contract.  Therefore  the  commis- 
sioners refused  to  pay  Smalkand  any  more  bonds,  claiming 
his  contract  was  with  Schilling  &  Hank,  and  not  with  them. 
Hence  this  suit.  , 

There  is  no  claim  that  the  commissioners  made  a  contract 
with  Smalkand,  and  the  fact  is,  no  contract  was  made  by 
them.  The  claim  is  that  Hardy,  one  of  the  commissioners, 
ordered  certain  work  to  be  done,  which  is  called  extra,  and 
that  he,  and  another  commissioner,  verbally  stated  the  dis- 
trict would  pay  for  it.  *  The  commissioners  claim  all  the 
work  was  done  under  the  contract  and  that  they  never 
promised;  verbally  or  otherwise,  to  pay  for  any  of  it,  except 
to  the  extent  of  the  balance  due  Schilling  &  Hank. 

Smalkand  obtained  a  judgment  for  $1,099.50.  The  prin- 
cipal contentions  are  that  the  judgment  is  not  support^  by 
the  evidence;  that  the  verdict  on  which  it  is  based  was 
obtained  by  erroneous  instructions,  which  misled  the  jury; 
that  under  the  law  the  commissioners  had  no  legal  right  to 
create  such  a  debt  in  the  manner  in  which  it  is  claimed  this 
alleged  debt  was  created. 

The  record  has  been  carefully  examined,  and  without 
going  into  an  extensive  analysis  of  the  evidence  in  this 
opinion,  suffice  it  to  say  that  all  the  work  done  by  Smal- 
kand was  under  the  contract  he  had  with  Schilling  &  Hank, 
except  possibly  deepening  a  part  of  the  foundation,  which 
it  is  said,  owing  to  the  customary  way  of  measuring  such 
work,  did  not  add  to  the  cost.  The  terms  of  the  contract 
between  Schilling  &  Hank  and  Smalkand  show  that  the 
concrete  and  masonry  work  was  included,  and  when  the 
water  was  pumped  out,  the  conditions  disclosed  showed 
that  it  was  necessary  to  drive  piling  to  make  a  foundation 
for  the  concrete.  The  written  order  of  the  commissioners 
was  notice  to  Smalkand  that  he  was  doing  that  piling  work 


Fourth  DiSTRtcT — February  Term,  1807.  453 

^ ■ -■!■  ■---- ■_ 

Fort  Chartres  D.  &  L.  Dist.  v.  Smalkand. 

under  the  contract.  The  contract  by  its  terms  covers  all 
extra  work  necessary  to  place  the  lock  in  its  former  con- 
dition, which  was  destroyed  substantially  by  Schilling  & 
Hank.  All  such  work,  which  Smalkand  calls  extra,  is  as 
clearly  covered  by  the  contract  as  the  specified  work, 
amounting  to  $975.  The  reason  that  amount  was  specified 
was  that  it  was  above  the  water  at  that  time,  while  much 
of  the  other  work  was  not,  and  therefore  could  not  be  spe- 
cifically agreed  upon. 

There  is  no  evidence  that  the  commissioners  ever,  at  a 
meeting  or  otherwise,  agreed  to  make  such  repairs  at  their 
expense,  or  had  a  contract  with  Smalkand  to  do  the  work. 
The  contract  referred  to  sufficiently  shows  that  the  district 
was  not  to  pay  for  repairing  the  lock.  We  are  unable  to 
find  a  basis  for  Smalkand's  claim  against  the  district  on  the 
facts. 

In  addition  to  this  conclusion,  if  the  facts  were  that  the 
commissioners  had  made  a  verbal  contract  with  Smalkand 
to  do  the  work,  there  could  not,  in  law,  have  been  a  recov- 
ery, under  the  authority  of  Badger  et  al.  v.  Inlet  Drainage 
District,  141  111.  540.  In  that  case  the  district  was  organ- 
ized and  the  assessments  made  and  confirmed  in  November, 
1879.  Afterward,  on  June  1,  1882,  the  commissioners 
made  a  contract  with  the  firm  of  H.  E.  Badger  &  Son, 
whereby  their  dam  across  Inlet  Creek,  with  the  mason 
work,  etc.,  were  to  be  removed  by  said  firm  for  the  sum  of 
$1,700,  and  to  pay  the  same  the  commissioners  made  an 
assessment  on  the  land  and  also  issued  seventeen  orders  for 
$100  each,  and  delivered  the  same  to  the  firm.  In  that  case 
it  was  held  there  could  be  no  recovery,  for  the  reason  that 
the  commissioners  had  limited  and  special  powers  which 
they  could  only  exercise  in  accordance  with  the  drainage 
act;  that  by  Sec.  9  of  the  said  act,  the  commissioners 
shall  first  determine  the  probable  cost  of  such  work;  by 
Sec.  11,  they  shall  present  to  the  court  that  appointed  them 
a  petition  setting  up  their  conclusions,  together  with  plans, 
specifications,  etc.,  when  a  hearing  or  notice  should  be  given. 

It  is  said :    "  The  statute  will  be  searched  in  vain  for 


454  Appellate  Coubts  of  Illinois. 

Vol.  70.]  Fort  Chartres  D.  &  L.  Dist.  v.  Smalkand. 

authority  for  the  commissioners  to  do  any  act  materially 
affecting  the  character,  extent  or  cost  of  the  improvement, 
as  to  which  there  is  not  provided  that  there  shall  be  notice 
to  the  land  owners  affected,  and  opportunity  for  them  to  be 
heard."  It  is  further  held  that  the  power  to  contract  and 
be  contracted  with,  given  by  Sec.  28,  is  in  subordination  to 
the  restriction  mentioned,  and  the  same  is  held  to  be  true 
of  Sec.  36,  which  gives  the  commissioners  power  to  "  do  any 
and  all  acts  that  may  be  necessary  in  and  about  the  survey- 
ing, laying  out,  constructing^  repairing,  altering  *  *  and 
maintaining  any  drain,  ditch,  levee  or  other  work  for  which 
they  shall  have  been  appointed,  including  all  necessary 
bridges,  *  *  *  dams,  side  drains,  etc.,  an3^may  nseany 
money  in  their  hands  arising  from  assessments  for  that  pur- 
pose." It  is  also  said,  ^'  it  is  still  further  manifest  that  this 
section  (36)  is  but  an  additional  limitation  or  restriction  and 
not  an  enlargement  of  the  powers  intended  to  be  conferred 
by  Sec.  28,  by  the  provisions  which  follow  the  language 
quoted,  regarding  public  lettings  in  certain  cases,  to  the 
lowest  bidder,"  etc. 

Reference  is  also  made  to  the  restrictions  imposed  by  Sec. 
37,  of  the  amendatory  act  of  1885,  Starr  &  Curtis,  Vol.  «^, 
p.  422,  which,  as  will  be  observed,  gives  the  commissioners 
power  to  use  the  money  raised  by  assessment  "  for  the  pur- 
pose of  constructing  or  repairing  *  *  *  any  ditch, 
*  *  levee,  etc.,  *  *  *  within  such  district.  Provided 
that  the  commissioners  shall  use  such  money  under  the 
direction  and  approval  of  the  court;  "  and  that  assessments 
may  be  made  "  when  it  shall  appear  to  the  court"  to  be 
necessary  "  for  the  maintenance  and  repair  "  of  such  work. 
This  section  further  provides,  as  by  Sec.  9  of  the  original 
act,  that  the  commissioners  shall  present  the  matter  by  peti- 
tion to  the  court  with  estimates,  specifications,  etc.,  upon 
w^hich,  after  notice,  a  hearing  shall  be  given.  It  will  be 
observed  the  law  applies  to  repairs,  at  least  w^here  $500 
expenditure  is  involved,  if  not  to  less  amounts,  as  well  as  to 
construction,  so  far  as  petition,  notice  and  hearing  is  con- 
cerned.    In  fact,  amendatory  Sec.  37  seems  to  require  the 


Fourth  District — February  Term,  1897.  455 

Lambe  v.  Heitmeier. 

approval  of  the  court  as  to  the  expenditure  of  all  sums  for 
repair  or  construction.  It  is  evident  the  legislature  intended 
to  surround  the  fund  raised  with  safeguards  to  prevent  its 
loss,  and,  as  indicated  by  the  Badger  case,  the  courts  are  not 
inclined  to  allow  any  laxity  in  the  creation  of  debts  by  the 
commissioners. 

Counsel  for  defendant  in  error  are  mistaken  in  the  posi- 
tion that  the  law  allows  commissioners  to  make  repairs  for 
an  unlimited  amount.  The  restrictions,  as  shown  by  the 
statute  above  quoted,  are  the  same  as  to  repairs  as  to  the 
construction,  so  far  as  the  claimed  liability  in  this  case  is 
concerned.  In  the  Badger  case  it  is  also  held  that  the  doc- 
trine of  estoppel  will  not  apply  where  the  statute  is  not 
followed  in  the  creation  of  the  debt. 

For  these  reasons  the  judgment  is  reversed  and  not 
remanded* 


Robert  G.  Lambe  v.  Fred.  Heitmeier. 

1.  Guaranty — Of  a  Debt  Payable  from  a  Particular  Fund— When 
the  Right  of  Action  Accrues, — ^V^here  one  promises  to  pay  the  debt  of 
another  out  of  the  funds  of  such  other,  or  that  if  he  does  not  get  the 
funds  that  he  wiU  pay  it  anyway,  the  right  of  action  does  not  accrue 
till  the  promisor  receives  the  funds,  or  until  it  becomes  certain  that  he 
viU  not  receive  such  funds. 

Transcript,  from  a  justice  of  the  peace.  Error  to  the  County  Court 
of  Clinton  County;  the  Hon.  Jesse  Jones,  Judge,  presiding.  Heard  in 
this  court  at  the  February  term,  1897,  Reversed  and  remanded.  Opin- 
ion filed  June  10, 1897. 

Hugh  V.  Murray,  attorney  for  plaintiff  in  error. 

Darius  Kinosbury,  attorney  for  defendant  in  error. 

Mr.  Justice  Green  delivered  the  opinion  of  the  Court. 

This  suit  was  commenced  by  Heitmeier  in  justice's  court, 

and  tried  on  appeal  in  the  County  Court,  where,  by  agree- 


466  Appellate  Couets  of  Illinois. 

Vol.  70.]  Lambe  v.  Heitmeier. 

ment  a  jury  was  waived,  and  upon  trial  the  court  found  for 
plaintiff  and  entered  judgment  on  the  finding  for  $32.10 
damages  and  costs  of  suit.  The  subject-matter  of  this  suit 
was  $2.50,  the  price  of  a  pair  of  shoes  ordered  by  Lambe 
for  James  A.  White,  and  deliyered  to  White,  on  such  order, 
by  Heitmeier,  and  a  note  dated  June  19,  1894,  for  $27.50, 
payable  one  day  after  date,  at  five  per  cent,  signed  James  A. 
White.  Lambe  was  employed  by  White  to  represent  him 
and  collect  for  him  monev  due  as  his  share  of  an  estate  in 
Pennsylvania.  It  is  claimed  by  Heitmeier  that  I^mhe 
became  liable  to  pay  said  note,  by  reason  of  a  promise  made 
by  him  to  pay  the  same,  in  consideration  of  the  dismissal 
of  a  former  suit  brought  against  him  by  Heitmeier  for  the 
price  of  the  shoes  and  the  payment  of  costs  of  said  suit, 
and  Lambe  contends  his  promise  was  to  pay  out  of  the  pro- 
ceeds of  White's  share  of  the  said  estate,  wheu  collected, 
and  that  nothing  had  been  yet  collected,  but  the  estate  had 
been  settled  and  White's  share  would  soon  be  collected; 
that  hence  the  suit  was  prematurely  brought,  so  far  as  the 
note  is  concerned.  The  evidence  upon  this  branch  of  the 
defense  was  conflicting,  Heitmeier  alone  testifying  the 
promise  was  unconditional,  and  Lambe  and  the  justice  testi- 
fying that  the  promise  was  to  pay  out  of  said  share  of  White 
when  collected,  and  the  further  fact  was  proved  that  said 
share  would  soon  be  collected. 

The  memorandum  of  the  justice  purporting  to  be  the 
agreement  of  the  parties  as  to  said  promise,  was  erroneously 
admitted  in  evidence.  It  was  not  full  or  correct.  If  the 
promise  to  pay  the  note  had  a  good  and  valuable  considera- 
tion to  support  it,  but  was  upon  the  condition  that  such 
payment  was  to  be  made  out  of  the  money  Lambe  should 
collect  for  White,  and  the  evidence  showed  such  money 
could  be  collected,  the  suit  was  brought  too  soon.  Snell  et 
al.  V.  Cheney,  88  111.  258;  Michaells  v.  Wolf,  136  lU.  71, 
and  the  court  erred  in  refusing  to  hold,  as  requested  by 
defendant,  the  following  proposition  to  be  the  law :  "  Where 
one  promises  to  pay  the  debt  of  another  out  of  the  funds  of 
such  other,  or  if  he  does  not  get  the  funds  that  he  will  pay 


Fourth  District — February  Term,  1897.  457 

Evans  v.  Pierce. 

it  any  way,  the.  right  of  action  does  not  accrue  till  the 
promisor  receives  the  funds,  or  until  it  becomes  certain 
that  he  will  not  receive  such  funds."  For  the  error  in 
refusing  to  hold  this  proposition  to  be  the  law,  the  judg- 
ment is  reversed  and  cause  remanded. 


J.  M.  Evans  t.  J.  M.  Pierce* 

1.  Aqency — The  Law  as  to  the  Existence  of  the  Belationship  of  Prin- 
eipal  and  Agent  Applied. — The  oourt  holds  that  the  registrar  of  the 
Southern  Illinois  Normal  University,  to  whom  was  delivered  a  check  for 
salary  due  appellee,  acted  as  the  agent  of  the  treasurer  of  the  University 
and  not  as  the  agent  of  appellee. 

Mandamus,  against  the  treasurer  of  a  State  institution  to  compel  pay- 
ment of  salary.  Appeal  from  the  Circuit  Ck>urt  of  Jackson  Ck>unty; 
the  Hon.  Alonzo  K.  Viccbrs,  Judge,  presiding.  Heard  in  this  court  at 
the  February  term,  1897.    Affirmed.    Opinion  filed  June  10,  1897. 

F.  M.  YouNGBLooD  aud  W.  A.  Schwartz,  attornevs  for 
appellant. 

R.  J.  McElvain,  attorney  for  appellee. 

Mr.  Presiding  Justice  Sabiplb  delivered  the  opinion  of 
THE  Court. 

This  was  a  proceeding  by  mandamus  on  behalf  of  J.  M. 
Pierce,  a  teacher  in  the  Southern  Illinois  Normal  Univer- 
sity, to  comp3l  J.  M.  Evans,  the  treasurer  of  said  University, 
•to  pay  his  salary  for  the  month  of  July,  1893.  The 
petition  set  out  that  the  petitioner  was  employed  by  the 
trustees  of  said  University,  at  a  yearly  salary  of  $1,200,  pay- 
able in  monthly  installments  of  $100  each;  that  a  registrar 
was  appointed  by  the  trustees,  whose  duty  it  was  to  make 
out  a  pay  roll  for  each  month  of  all  persons  employed, 
which  he  did,  showing  that  $100  was  due  petitioner  for  the 
month  of  July;  that  a  treasurer  was  also  appointed  by  said 
trustees  to  have  custody  of  the  funds  of  said  institution  and 
to  pay  the  same  out  to  such  persons  appearing  on  said  pay 


458  Appellate  Courts  of  Illinois. 

Vol.  70.  J  Evans  v.  Pierce. 

roll,  SO  prepared;  that  the  treasurer  had  funds  to  pay  said 
money  to  petitioner,  but  refused  so  to  do. 

The  answer  set  up  the  defense,  in  effect,  that  the  July 
salary  was  paid  by  check  to  the  registrar,  the  agent  of 
petitioner,  who  delayed  presenting  the  same  to  the  bank  for 
about  thirty  days,  at  the  expiration  of  which  time  said  bank 
failed. 

The  issue,  of  fact  as  to  agency  was  submitted  to  a  jury, 
which,  after  all  the  evidence  was  introduced,  was  directed 
by  the  court  to  find  for  the  petitioner.  The  only  question 
for  determination  is,  was  the  registrar  the  agent  of  peti- 
tioner, or  was  there  any  substantial  evidence  tending  to  so 
show  ?  After  careful  examination  of  the  record,  our  con- 
clusion is,  the  direction  and  judgment  of  the  court  below 
was  right. 

It  would  subserve  no  useful  purpose  to  set  up  the  evi- 
dence at  length  in  the  opinion.  It  will  be  sufficient  to  say 
that  the  treasurer's  predecessor  had,  as  he  testified,  for  his 
convenience,  made  out  and  delivered  the  checks  to  the  reg- 
istrar, who  was  not  to  deliver  them  until  those  entitled  had 
signed  the  pay  roll,  receipting  for  the  same.  This  system 
was  adopted  by  the  present  treasurer,  as  he  testified.  The 
faculty  had  nothing  to  do  with  the  arrangement.  The  sys- 
tem was  adopted  for  the  convenience  of  the  treasurer,  and 
thereby  the  registrar  was  made  his  agent  for  the  distribu- 
tion of  said  checks.  In  this  case  the  registrar  could  not 
deliver  the  check  to  petitioner  because  of  the  petitioner's  ab- 
sence. He  could,  in  no  event,  under  the  plan  adopted,  with 
safety  to  himself,  have  delivered  the  check  until  the  pay  roll 
was  receipted.  This  was  the  evidence  required  by  the  treas- 
urer of  the  payment  of  the  money,  and  served  as  a  voucher,  in 
his  settlement  with  the  State.  The  letter  of  petitioner  to 
the  registrar,  of  date  August  1,  1693,  inquiring  if  it 
would  be  convenient  to  pay  the  July  salary  then,  was  no 
evidence  that  he  had  constituted  the  reo:istrar  his  agrent  to 
collect  it.  The  letter  was  merely  directed  to  him  as  the 
agent  of  the  treasurer,  from  whom  he  had  been  receiving 
the  checks  for  salary,  when  he  signed  the  pay  roll. 

The  judgment  is  affirmed. 


Fourth  District — February  Term,  1897.  459 

Beyhmer  v,  Odel. 


Nathan  Beyhmer  t.  Frances  Odel. 

1,  Timber — Wrongfvl  Cutting  of, — ^The  court  reviews  the  evidence 
and  holds  that  it  makes  out  a  case  under  the  statute  prohibiting  the 
cutting  of  timber  without  the  permi^ion  of  the  owner  of  the  land  on 
which  it  is  situated. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Perry  County;  the  Hon.  Benjamin  R,  Burroughs,  Judge,  pre- 
siding. Heard  in  this  court  at  the  February  term,  1897.  Affirmed. 
Opinion  filed  June  10,  1897. 

R.  W.  S.  Wheatley,  Benjamin  W.  Pope  and  A.  M. 
Elliott,  attorneys  for  appellant. 

Cbbiohton,  Kramer  &  Kramer,  attorneys  for  appellee. 

Mr.  Justice  Green  delivered  the  opinion  of  the 
Court. 

This  suit  was  brought  by  appellee  to  recover  from  appel- 
lant the  statutory  penalty  of  $8  per  tree  for  cutting  trees 
on  her  land  against  her  consent.  The  verdict  was  for 
plaintiff,  and  $40  was  the  amount  assessed.  Defendant's 
motion  for  a  new  trial  was  overruled  and  judgment  was 
entered  for  plaintiff  for  $40  and  costs  of  suit.  To  reverse 
the  judgment  defendant  took  this  appeal. 

The  case  was  twice  before  this  court  and  it  was  held  that 
the  evidence  did  not  show  the  plaintiff  was  owner  in  fee  of 
the  land  on  which  the  trees  were  cut,  and  the  amount  recov- 
ered was  not  a  multiple  of  the  sum  of  $8  per  tree,  which 
was  the  only  sum  that  was  fixed  by  the  statute  as  the 
measure  of  recovery  for  each  tree  so  unlawfully  cut. 
Behymer  v.  Odel,  31  111.  App.  350. 

In  this  record  the  evidence  shows  that  appellee  was  the 
owner  in  fee  of  the  lapd,  when  the  trees  were  cut  thereon 
by  appellant;  that  at  least  five  trees  were  so  cut  without 
permission  of  such  owner,  and  the  amount  recovered  was 
$8  per  tree.    Sees.  1  and  2,  Chap.  136,  pages  3900,  3901 


460  Appellate  Courts  of  Illinois. 

Vol.  70.]  Redden  &  Echols  v.  Slimpert 

Starr  &  Curtis.  This  proof  was  suflScient  to  justify  the 
recovery;  but  appellant  insists  that  he  was  authorized  to 
cut  said  trees  by  a  contract  between  appellee  and  the  firm 
of  Beyhmer  &  Son,  made  on  October  21,  1886,  for  the 
purchase  of  the  whole  oak  timber  on  said  land,  by  the 
terms  whereof  he  was  given  eighteen  months  to  remove 
said  trees.  The  evidence,  however,  shows  this  contract 
was  rescinded  by  mutual  agreement,  and  afterward,  about 
April  7,  1887,  notice  in  writing  to  Behymer  &  Son  was 
served,  not  to  cut  away  any  of  the  timber  on  said  land. 
On  April  9,  1887,  appellant  himself  sent  hands  to  cut  the 
timber  thereon,  and  they,  by  his  order,  cut  the  trees  for 
-which  the  recovery  was  had. 

We  find  no  reversible  error  in  the  rulings  of  the  court  as 
to  instructions  given  and  refused,  and  think  the  verdict  and 
judgment  is  right.    Judgment  is  affirmed. 


Bedden  &  Echols  v.  Lncy  B.  Sllmpert. 

1.  Verdicts— Con/rary  to  the  Evidence, — ^The  evidence  in  this  case 
shows  that  the  lien  of  the  mortgage  sought  to  be  foreclosed  was  dis- 
charged, hence  the  verdict  was  wrong,  and  the  judgment  rendered  in 
pursuance  of  it  must  be  reversed. 

Replevin,  to  recover  goods  taken  under  a  mortigage.  Appeal  from 
the  Circuit  Court  of  Pulaski  County;  the  Hon.  Joseph  P.  Robarts, 
Judge,  presiding.  Heard  in  this  court  at  the  February  term,  1807.  Re- 
versed and  remanded.    Opinion  filed  June  10,  1897. 

.  L.  M.  Bradley,  attorney  for  appellants. 
Boyd,  Wall  &  Bristow,  attorneys  for  appellee. 

Mr.  Justice  Green  delivered  the  opinion  of  the  Court. 

This  suit  in  replevin  was  brought  by  appellee  to  recover 
certain  personal  property,  and  was  tried  under  a  stipulation 
'*  that  any  evidence  that  would  be  competent  under  any  spe- 


Fourth  District — February  Term,  1897.  461 

Redden  &  Echols  ▼.  Slimpert. 

cial  plea  or  replication  may  be  offered  under  plea  of  general 
issue."  The  jury  returned  a  verdict  for  the  plaintiff,  finding 
she  was  entitled  to  the  possession  of  the  property  replevied. 
Appellant's  motion  for  a  new  trial  was  overruled  and  judg- 
ment on  the  verdict  and  for  costs  was  entered  for  plaintiff, 
to  reverse  which  judgment  appellants  took  this  appeal.  The 
plaintiff  offered  in  evidence,  and  relied ,  for  recovery  on,  a 
chattel  mortgage  given  by  appellants,  upon  "  the  entire  stock 
of  goods  and  fixtures  in  store  now  occupied  by  firm  of  Red- 
den &  Echols,"  conditioned  that  the  firm  of  Redden  & 
Echols  pay  the  note  for  $682,  payable  to  appellee  or  order, 
seven  months  after  June  4, 1895,  in  installments  of  $100  per 
month  until  paid..  This  note  and  $300  in  cash  ($982)  were: 
given  to  pay  for  a  stock  of  goods  and  fixtures  bought  by 
appellants  of  one  Will  Slimpert,  and  upon  a  condition  that 
any  mistake  in  the  invoice  was  to  be  corrected,  if  any  was* 
afterward  found  to  have  been  made;  the  invoice  was  deliv- 
ered to  appellants  by  Slimpert,  and  footed  up  $982. 

The  main  defense,  and  the  only  one  necessary  to  notice, 
is,  that  appellants  had  paid  the  whole  amount  really  due  on* 
the  note  secured  by  said  mortgage  when  appellee's  agent, 
demanded  possession,  by  virtue  of  the  mortgage,  of  the 
property  therein  described.  The  invoice  was  delivered  to 
appellants  and  was  not  examined  by  them  until  just  before 
the  last  payment  of  $70  was  made  to  appellee's  agent  and 
credited  upon  said  note.  He  was  then  told  that  there  was 
an  error  in  the  invoice,  and  an  item  of  $125.35  appearing 
therein  was  shown  him,  and,  unlike  every  other  item,  there 
was  nothing  to  show  for  what  that  sum  was  charged.  The 
agent  was  asked  to  correct  the  invoice  by  striking  out  this 
erroneous  charge,  but  declined  to  do  so.  The  evidence 
clearly  proved  that  appellants  had  received  nothing,  and 
that  said  charge  was  without  any  consideration,  and,  in  fair- 
ness and  honesty,  should  have  been  deducted  from  the  sura 
of  $982,  leaving  the  sum  of  $823.65  as  the  real  amount  due 
for  the  stock  and  fixtures  bought  by  appellants.  Of  this 
price,  $300  was  paid  in  cash  when  the  sale  was  made,  and 
the  note  should  have  been  given  for  $556.65,  instead  of  $682, 


462  Appellate  Courts  of  Illinois. 

> , 

Vol.  70.]  Redden  &  Echols  v.  Slimpert. 

for  the  balance  due.  Appellants  paid  in  monthly  install- 
ments the  sum  of  $578.73  before  demand  was  made  or 
the  suit  was  commenced,  which  was  more  than  the  real 
debt  the  mortgage  was  given  to  secure,  and  thus  discharged 
the  lien  thereof.  There  was  a  failure  of  consideration  to 
the  amount  of  the  erroneous  item,  and  under  the  stipulation 
this  was  a  defense  the  appellants  could  interpose  evidence 
to  support. 

Par.  13,  Chap.  93,  p.  2802,  Starr  &  Curtis'  Eev.  Stat.,  pro- 
vides :  "  If  it  shall  appear  consideration  has  failed  in  part, 
the  plaintiff  shall  recover  according  to  the  equity  of  the 
case."  But  the  right  of  a  hona  Jide  assignee  before  matu- 
rity of  a  negotiable  instrument  is  not  affected  by  this 
provision. 

In  this  case,  as  before  stated,  appellee  was  the  payee  of 
the  note  secured,  and  relied  upon  the  mortgage  lien  to  estab- 
lish her  right  to  recover.  The  lien  was  discharged,  as  shown 
by  the  evidence,  and  the  verdict  was  wrong. 

The  court  erred  in  overruling  appellant's  motion  for  a 
new  trial  and  entering  judgment  on  the  verdict.  The  judg- 
ment is  reversed  and  the  cause  is  remanded. 


CASES 


XM  THB 


APPELLATE  COURTS  OF  ILLINOIS. 


Secx)nd  District — May  Term,  1896. 


Elgin,  Joliet  &  Eastern  Railway  Company  v.         

Fred  C.  Reese.  w 

102 

^0~ 

1.  Verdicts— On  Conflicting  Evidence, — Where  the  evidence  is  con-  112  »i 

flicting  it  is  the  province  of  the  jury  to  determine  which  is  the  better 
evidence  and  the  more  worthy  of  belief,  and  unless  a  court  of  appeal 
can  see  that  their  verdict  is  manifestly  against  the  weight  of  the  evi- 
dence, or  the  result  of  passion  and  prejudice,  it  should  not  be  disturbed. 

2.  Eyidencb — As  to  Experiments  and  Witnesses^  Knowledge. — In  an 
action  against  a  railroad  company  to  recover  damages  for  the  killing  of 
stock  at  a  highway  crossing,  it  is  proper  to  admit  the  evidence  of  wit- 
nesses as  to  experiments  made  by  them  to  determine  how  far  the  train 
would  be  seen  coming  to  the  crossing  from  the  highway,  and  to  allow 
the  witnesses  to  say  whether  they  could  have  heard  the  whistle  or  bell 
if  they  had  been  sounded  or  rung. 

3.  Instructions— ISepcftYion  of  the  Same  Proposition,— It  is  not 
error  to  refuse  to  give  instructions  which  are  substantially  embodied  in 
those  already  given. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Lake  County;  the  Hon.  Clark  W.  Upton,  Judge,  presiding. 
Heard  in  this  court  at  the  May  term,  1896.  Affirmed.  Opinion  filed 
December  9,  1896.    Rehearing  denied  May  19, 1897. 

Williams,  Holt  &  Wheeler,  attorneys  for  appellant. 

A.  J.  Redmond,  attorney  for  appellee. 

"  (463) 


464  Appellate  Courts  of  Illinois. 

Vol.  70.]  Elgin,  Joliet  &  Eastern  "Ry,  Co.  v.  Reese. 

Under  conflicting  testimony  it  is  the  province  of  the  jury 
to  find  which  is  the  better  evidence  and  more  worthy  of 
belief,  and  such  finding  Avill  not  be  disturbed  by  an  appellate 
court  except  where  it  becomes  necessary  to  do  so  to  prevent 
palpable  injustice  where  it  is  manifest  the  finding  is  the 
result  of  passion  or  prejudice.  Peoria,  P.  &  J.  Ky.  Co.  v. 
Siltman,  88  111.  531;  Chicago,  B.  &  Q.  Ky.  Co.  v.  Van  Patten, 
64  IH.  610,-  Qreat  W.  Ey.  Co.  v.  Geddis,  33  III.  306. 

Testimony  as  to  experiments  made  by  witnesses  to  deter- 
mine how  far  the  train  could  be  seen  coming  upon  the 
crossing,  the  character  of  the  ground  and  obstructions  of  the 
view  at  the  place  in  question  being  involved,  is  admissible. 
Chicago  &  I.  tly.  Co.  v.  Lane,  130  111.  116;  Chicago  &  A. 
Ry.  Co.  V.  Legg,  32  111.  App.  218;  Illinois  C.  Ry.  Co.  v. 
Burns,  32  111.  App.  196;  Chicago  &  A.  Ry.  Co.  v.  Dillon,  24 
111.  App.  207;  Penn  Co.  v.  -Boylan,  104  111  595. 

If  all  that  is  proper  in  an  instruction  is  contained  in 
another  instruction,  the  court  is  not  bound  to  give  it  a  second 
time.  Chicago  &  A.  Ry.  Co.  v.  Kellam,  92  111.  245;  Peoria 
P.  &  J.  Rv.  Co.  V.  Siltman,  88  111.  529. 

Mb.  Justice  Crabtbeb  delivered  the  opinion  of  the 
Court. 

This  was  an  action  on  the  case  to  recover  damages  for  the 
killing  of  eighteen  head  of  cattle  belonging  to  appellee  by 
one  of  appellant's  trains  of  cars,  at  the  intersection  of  its 
railroad  with  a  public  highway  known  as  Pomeroy's  cross- 
ing, between  the  village  of  Barrington  and  Lake  Zurich,  in 
Lake  county,  in  this  State.  There  was  a  verdict  and  judg- 
ment for  appellee  for  $720. 

The  negligence  charged  in  the  declaration  was  a  failure  to  * 
give  the  statutory  signals;  running  the  train  at  a  high  and 
dangerous  rate  of  speed  and  improper  management  of  the 
train. 

On  the  afternoon  of  July  16,  1895,  Miss  Reese,  a  sister  of 
appellee,  twenty  years  of  age,  was  on.  the  west  side  of  appel- 
lant's railroad  driving  a  herd  of  twenty-six  cattle  from  the 
pasture,  east  along  the  public  highway,  toward  the  farm 


Second  District — May  Term,  1896.        465 

Elgin,  Joliet  &  Eastern  Ry.  Co.  v.  Reese. 

house  of  her  brother,  which  was  some  three-quarters  of  a 
mile  east  of  the  track.  As  the  cattle  were  approaching  the 
railroad  from  the  west  they  were  run  into  by  an  "  extra " 
freight  train  belonging  to  appellants,  and  which  was  run- 
ning at  the  rate  of  from  twenty-five  to  thirty  miles  an  hour, 
from  north  to  south,  down  grade,  and  eighteen  of  the  num- 
ber were  killed.  It  appears,  from  the  evidence,  that  just 
before  reaching  the  highway  the  railroad  runs  through  a 
cut,  and  the  ground,  in  the  angle  to  the  northwest  of  the 
crossing,  between  the  railroad  and  the  highway,  is  high  and 
covered  with  trees,  which,  at  the  time  of  the  accident,  were 
covered  with  foliage,  thus  obstructing  the.  view  of  one 
approaching  from  the  west,  and  rendering  the  crossing 
dangerous.  The  girl  in  charge  of  the  cattle  testifies  that 
she  neither  saw  nor  heard  the  train  until  it  was  close  upon 
the  cattle.  There  was  no  evidence  tending  to  support  the 
charge  of  negligence  in  managing  the  train,  other  than  the 
supposed  high  rate  of  speed.  There  was  the  usual  conflict 
in  the  testimony  of  witnesses  as  to  whether  or  not  the  stat- 
utory signals  were  given,  the  trainmen  and  other  employes 
of  appellant  swearing  that  the  whistle  was  blown  at  about 
eighty  rods  north  of  the  crossing,  and  the  bell  rung  contin- 
uously from  the  time  the  whistle  was  blown  until  the  cattle 
were  struck,  while  on  the  other  hand  a  number  of  witnesses, 
apparently  having  full  opportunities  for  observing  and 
knowing,  testify  directly  to  the  contrary.  Under  this  state 
of  the  evidence  it  was  for  the  jury  to  determine  where  the 
truth  lay,  and  we  can  not  say  their  verdict  was  contrary  to 
the  evidence.    Unless   we  can  see  that  it  is   manifestlv 

t.- 

against  the  evidence,  or  the  result  of  passion  or  prejudice, 
we  ought  not  to  disturb  the  verdict  of  the  jury,  whose  pecu- 
liar province  it  is  to  determine  which  is  the  better  evidence 
and  the  more  worthy  of  belief. 

Appellant  insists  that  appellee's  sister,  in  charge  of  the 
cattle,  was  guilty  of  such  contributory  negligence  as  to  pre- 
clude a  right  of  recovery.  This  was  a  question  of  fact  for 
the  jury,  and  they  having  determined  that  point  against 
appellant  we  do  not  feel  authorized,  upon  the  evidence,  to 

TolLXX  3Q 


486  Appellate  Courts  of  Illinois. 


Vol.  70.]  Elgin.  Joliet  &  Eastern  Ry.  CJo.  v.  Reese. 


disturb  their  finding.  In  fact,  if  her  testimony  is  true,  and 
it  was  for  the  jury  to  say  whether  it  was  or  not,  we  do  not 
see  what  she  could  have  done  more  than  she  did  do  to  avoid 
the  injury.  She  was  in  the  habit  of  driving  these  cattle 
>across  the  track  daily,  for  several  years,  and  had  no  more 
reason  to  apprehend  danger  on  the  day  of  the  accident  than 
on  any  former  occasion.  She  swears  that  she  looked  and 
listened  for  a  train  as  soon  as  she  got  around  the  turn  in  the 
road,  but  discovered  none  approaching  until  it  got  within 
about  ten  rods  of  the  crossing,  and  the  cattle  were  then  on  the 
track.  She  must  necessarily  have  been  some  little  distance 
behind  them,  and  we  fail  to  see  what  more  she  could  have 
done  to  prevent  the  collision.  One  who  has  ever  tried  it, 
knows  what  a  difficult  matter  it  is  to  keep  a  herd  of  twenty- 
six  head  of  cattle  at  all  times  within  entire  control.  To  sa v 
that  appellee  should  have  had  more  |)ersons  in  charge  of  the 
cattle,  one  in  front  of  them  and  one  behind  them,  we  think 
would  be  requiring  the  exercise  of  more  than  ordinary  care. 

There  was  no  error  in  admitting  the  evidence  of  witnesses 
as  to  experiments  made  by  them  to  determine  how  far  the 
train  could  be  seen  coming  to  the  crossing  from  the  high- 
way, nor  in  answering  the  question  as  to  whether  they  could 
have  heard  the  whistle  or  bell  if  they  had  been  sounded  or 
rung.  In  this  State  such  evidence  has  frequently  been  held 
competent.  C.  &  A.  R.  R.  Co.  v.  Dillon,  24  App.  207; 
Penn.  Co.  v.  Boylan,  104  111.  595;  C.  &  A.  R.  R.  Co.  v.  Legg, 
32  App.  218;  I.*^C.  Ry.  Co.  v.  Burns,  lb.  190;  I.  C.  R.  R.  v. 
Swisher,  53  App.  411. 

We  find  no  serious  error  in  the  action  of  the  court  upon 
the  instructions.  The  refused  instructions  were  substantially 
embodied  in  those  already  given,  and  it  was  unnecessary 
that  they  should  be  repeated.  The  judgment  will  be 
affirmed. 


Second  District — May  Term,  1896.        467 

City  of  Keithsburg  v.  Simpson. 


City  of  Keithsburg  y.  Charles  J.  Simpson. 

1.  Easem£NTS — In  Favor  of  Municipal  Corporations. — Tlie  right  to 
have  water  drained  from  its  property  through  the  natural  channel 
exists  in  favor  of  a  municipal  corporation  to  the  same  extent  as  in  favor 
of  a  private  individual. 

2.  Municipal  Corporations  —  Duty  in  Constructing  Drains, — A 
municipal  corporation  which  has  increased  the  flow  of  waterjn  a  certain 
direction  is  only  bound  to  exercise  reasonable  care  in  providing  means 
for  carrying  off  the  surplus  water;  it  is  not  an  insurer  against  unprece- 
dented floods  or  cloud  bursts. 

8.  Measure  op  Damages — Injury  Caused  by  Water,  — A  plaintiff  suin  g 
for  damage  to  his  property  caused  by  water  is  only  entitled  to  recover 
such  a  sum  as  will  put  it  in  as  good  condition  as  it  was  before  the  flood- 
ing, together  with  compensation  for  any  loss  of  use  during  the  time  it 
was  rendered  unfit  for  occupation. 

Trespass  on  the  Case,  for  damage  caused  by  water.  Appeal  from 
the  Circuit  Court  of  Mercer  County;  the  Hon.  John  J.  Glenn,  Judge, 
presiding.  Heard  in  this  coinrt  at  the  May  term,  1896.  Reversed  and 
remanded.  Opinion  filed  December  9,  1896.  Rehearing  denied  May 
19, 1897. 

Pepper  &  Scott,  attorneys  for  appellant. 

The  law  is  that  the  owner  of  a  higher  tract  of  land  has 
the  right,  "  by  ditches  and  drains,  to  drain  his  own  land  into 
the  natural  and  usual  channels  which  nature  has  provided, 
even  if  the  quantity  of  water  in  that  way  thrown  upon  the 
next  adjoining  lower  lands  be  thereby  increased."  Peck  v. 
Harrington,  109  111.  611,  617;  Anderson  v.  Henderson,  124 
111.  164,  170;  Lambert  v.  Alcorn,  144  111.  313,  326. 

It  has  been  held  that  this  doctrine  applies  as  well  to  high- 
ways as  to  private  property.  Graham  v.  Keene,  143  111. 
425,  430;  Commissioners  v.  Whitsitt,  15  App.  318.  And 
while  it  has  not  been  expressly  decided  in  this  State  that 
it  applies  with  equal  force  to  streets  and  alleys,  no  reason 
appears  why  it  should  not  do  so,  and  it  may  be  inferred 
that  it  does,  from  the  cases  of  City  of  Aurora  v.  Love,  93 
IlL  521,  and  Eobb  v.  LaGrange,  158  111.  21,  27. 

Bassett  &  Bassbtt,  attorneys  for  appellee. 


468  Appellate  Courts  of  Illinois. 

Vol.  70.]  City  of  Keitlisburg  v.  Simpson. 

We  contend  that  when  the  municipal  authorities  construct 
gutters,  ditches  and  sewers,  and  undertake  to  collect  and 
conduct  the  water  that  accumulates  in  the  streets  and 
vicinity,  they  are  bound  to  use  reasonable  care  in  construct- 
ing ditches,  gutters  or  drains  sufficient  to  control  the 
water,  and  a  failure  to  do  so  makes  the  citv  liable  for 
damages  to  any  one  whose  property  is  injured  by  such 
negligence,  regardless  of  the  question  of  dominant  or 
serviant  estate. 

We  cite  the  following  authorities  to  sustain-  this  propo- 
sition and  to  controvert  the  contention  of  appellant.  City 
of  Aurora  v.  Reed,  57  111.  34;  City  of  Aurora  v.  Gillett, 
56  111.  135;  City  of  Elgin  v.  Kimball,  90  111.  357;  City  of 
Alton  V.  Hope,  68  111.  169;  City  of  Dixon  v.  Baker,  65  111. 
518;  City  of  Jacksonville  v.  Lambert,  62  111.  520;  Nevins  v. 
City  of  Peoria,  41  111.  502;  City  of  N.  Vernon  v.  Voegler, 
103*^  Ind.  314;  Weis  v.  City  of  Madison,  75  Ind.  241;  Eice 
V.  City  of  Evansville,  108  Ind.  7;  City  of  Terre  Haute  v. 
Hudnot,  112  Ind.  542;  Kranz  v.  City  of  Baltimore,  64  Mary- 
land, 491;  Hitchkins  v.  City  of  Frostburg,  68  Md.  100; 
Gilluly  V.  City  of  Madison,  63  Wis.  518;  Dillon  on  Mun. 
Corp.,' 4th  Edition,  Sec.  1051,  Vol.  2. 

As  to  damages,  the  rule  as  given  by  the  trial  court,  is  laid 
down  by  Freeman  on  Judgments,  Section  241;  Illinois  C. 
R.  R.  Co.  V.  Grabill,  50  111.  241;  City  of  N.  Vernon  v. 
Voegler,  103  Ind.  314. 

Mr.  Justice  Crabtreb  delivered  the  opinion  of  the 
Court. 

This  was  an  action  on  the  case,  brought  by  appellee  to 
recover  damages  caused  to  his  property,  as  he  claims,  by 
reason  of  water  flowing  upon  his  premises  in  consequence 
of  the  failure  of  appellant  to  provide  suitable  ditches, 
sewers  or  drains,  to  carry  oflf  the  water  accumulating  in 
the  street,  near  the  property  in  question.  There  was  a  trial 
by  jury,  verdict  for  $108,  and,  a  motion  for  new  trial  being 
overruled,  there  was  judgment  on  the  verdict  for  that 
amount.     The  evidence  tends  to  show  that  the  premises  of 


Skcond  District — May  Term,  1896.       469 

City  of  Keithsburg  v.  Simpson. 

appellee  were  situated  at  about  the  point  where  the  water 
accumulating  in  that  vicinity  found  its  natural  outlet;  but 
his  contention  is,  that  because  appiellant  had,  before  the 
date  of  the  alleged  injury,  constructed  a  ditch  along  the 
street  in  front  of  his  premises,  for  the  purpose  of  carrj^ing 
off  the  water  to  another  outlet,  it  was  bound  to  so  construct . 
it  as  to  render  it  sufficient  for  the  purpose,  and  its  failure  so 
to  do  was  such  negligence  as  to  render  it  liable  for  damages 
accruing  in  consequence  of  such  failure. 

It  may  be  conceded  that  if  the  municipal  authorities,  by 
grading  the  streets  and  constructing  ditches  and  drains, 
collect  a  larger  body  of  water  than  would  otherwise  reach 
the  natural  outlet,  and  thus  increase  the  flow  to  that  point, 
they  are  bound  to  take  care  of  it,  and  would  be  liable  for 
any  damage  resulting  from  a  failure  to  do  so.  But  in  this 
case  the  evidence  leaves  it  a  matter  of  doubt  whether  the 
city  had  increased  the  volume  and  flow  of  water  to  the  vicin- 
ity of  appellee's  premises,  which  were  its  natural  outlet, 
and  if  it  had  not  done  so,  then  the  mere  fact  that  it  has 
constructed  a  ditch  which  would  carry  off  most  of  the 
water,  except  in  case  of  unusually  heavy  rains,  would  not 
render  it  liable. 

The  doctrine  of  dominant  and  serviant  heritage  applies 
as  well  between  municipal  corporations  and  private  individ- 
uals as  between  private  individuals  alone. 

It  was  for  the  jury  to  say,  under  proper  instruction, 
whether  the  alleged  damage  was  done  in  consequence  of 
the  city  having  wrongfully  increased  the  flow  of  water  to 
appellee's  premises  and  negligently  failed  to  provide  for 
carrying  it  off;  but  the  city  had  the  right  to  have  the  doc- 
trine of  dominant  and  serviant  heritage  recognized,  and  not 
ignored,  as  was  done  in  the  seventh  instruction  given  for 
appellee.  By  this  instruction  the  jury  were  practically 
told  that  it  was  the  duty  of  the  city  to  provide  means  for 
carrying  off  the  water  flowing  to  appellee's  premises, whether 
it  had  anything  to  do  with  bringing  the  water  there  or  not, 
and  wholly  igr4)ring  the  proposition  that  water  in  its  natu- 
ral flow  has  a  right  to  its  natural  outlet.  We  think  the 
giving  of  this  instruction  was  error. 


470  Appellate  Courts  of  Illinois. 

Vol.  70.]  City  of  Keithsburg  v.  Simpsou. 

In  the  same  instruction  the  jury  were  told  that  "it  is  no 
excuse  or  defense  for  the  city  to  show  that  the  flooding  of 
plaintiff's  lot  was  occasioned  by  any  unusually  heavy  rain." 
We  think  this  portion  of  the  instruction  was  improper  to 
be  given  under  the  circumstances  appearing  in  the  evidence 
in  this  case.  As  we  have  seen,  the  evidence  left  it  at  least 
doubtful  whether  anything  done  by  the  city  had  increased 
the  flow  of  water  to  plaintiffs  premises.  But,  conceding 
that  it  had,  then  it  was  only  bound  to  exercise  reasonable 
care  in  providing  means  for  carrying  off  the  surplus  water; 
it  was  not  an  insurer  against  loss  or  damage  by  water  from 
unprecedented  floods  or  cloud-bursts.  The  ditch  in  ques- 
tion had  been  in  existence  for  twelve  years,  without  com- 
plaint as  to  its  sufficiency  prior  to  the  storm  which  caused 
the  damage  sued  for.  Some  of  the  witnesses  speak  of  this 
storm  as  a  "  flood,"  while  others  call  it  a  "  cloud-burst,"  and 
there  can  be  no  doubt  it  was  an  extraordinary  fall  of  water. 
If  the  city  provided  ditches  suflicient  to  carry  off  the  sur- 
face water,  which  it  could  be  reasonably  apprehended  would 
gather  at  the  point  in  question,  it  filled  the  measure  of  its 
duty,  and  was  guilty  of  no  negligence  in  failing  to  antici- 
pate "  cloud-bursts  "  or  extraordinary  floods. 

The  seventh  instruction  asked  by^  appellant  contained  a 
correct  proposition  of  law,  but  as  it  ignored  the  claim 
insisted  upon  by  appellee,  that  appellant  had  increased  the 
flow  of  water  to  his  premises,  it  was  properly  refused.  The 
right  which  appellant  had  to  have  the  water  flow  through 
its  natural  course  over  appellee's  premises  was,  such  water 
as  would  reach  there  in  the  natural  order  of  things,  and 
not  an  increased  flow  and  volume  by  means  of  artificial 
ditches  and  drains. 

We  think  the  court  erred  in  admitting  evidence  as  to  the 
decrease  in  the  market  value  of  the  property  by  reason  of 
the  flood,  for  the  purpose  of  fixing  the  damages,  and  also  in 
giving  the  ninth  instruction  asked  by  appellee.  There  was 
no  claim  nor  proof  that  the  damage  done  was  permanent 
and  irreparable,  and,  if  appellee  was  entitled  to  recover  at 
all,  it  was  only  for  such  a  sum  as  would  put  his  property  in 


Second  District— May  Term,  1896.       471 

Sell  V.  Branen. 

as  good  condition  as  it  was  before  it  was  injured  by  tlie 
flooding,  together  with  compensation  for  anj^  loss  of  use 
during  the  time  it  was  rendered  unlit  for  occupation." 

But  by  the  ninth  instruction  the  court  told  the  jury : 
"  The  measure  of  damages  is  not  what  it  would  require  to 
repair  the  property,  but  what  it  would  be  depreciated  in 
the  market  by  the  flooding,  and  which  the  jury  must  find 
from  the  evidence  in  this  case."  We  are  of  the  opinion  this 
instruction  does  not  announce  the  true  measure  of  damages 
in  a  case  of  this  character,  and  was  therefore  erroneous. 

For  the  errors  indicated,  the  judgment  must  be  reversed 
and  the  cause  remanded. 


Wm.  F.  Sell  et  al.  v.  James  Branen. 

1.  Contracts— In  Restraint  of  Trade.— It  is  well  settled  that  on 
agreement  not  to  transact  business  at  a  specific  place  or  within  a 
limited  distance,  if  based  upon  a  sufficient  consideration,  is  valid. 

2.  Same — In  Restraint  of  Traffic  in  Intoxicating  Liquors. — Con- 
tracts held  void,  because  of  their  being  in  restraint  of  trade,  are  so  held 
upon  the  ground  of  public  policy,  and  a  contract  restricting  the  retail 
traffic  in  intoxicating  liquors  in  a  town  can  not  be  considered  against 
public  policy,  and  is  therefore  valid. 

8.  Forcible  Detainer — Possession  Not  Necessary. — In  this  case,  it 
was  not  necessary  to  the  maintenance  of  an  action  of  forcible  detainer 
that  appellee  should  have  had  possession  of  the  rooms  in  controversy. 
See  R.  S.,  Chap.  57,  Sec.  2,  clause  2. 

Forcible  Detainer.— Appeal  from  the  Circuit  Court  of  De  Kalb 
County;  the  Hon.  Charles  Kellum,  Judge,  presiding.  Heard  in  this 
court  at  the  May  term,  1896.  Affirmed.  Opinion  filed  December  9, 
1896.    Rehearing  denied  May  19,  1897. 

Thos.  M.  &  Jas.  W.  Cliffe,  attorneys  for  appellants. 

"W.  C.  Kelltjm,  attorney  for  appellee. 
The  contract  between  Phelps  and  Branen  is  not  such  a 
contract  as  is  void  by  reason  of  being  in  restraint  of  trade. 


472  Appellate  Couiits  of  Illinois. 

Vol.  70.]  Sell  v.  Branen. ' 

Contracts  entered  into  for  a  sufficient  consideration,  in 
partial  restraint  of  trade,  where  the  limitation  is  reasona- 
ble, will  be  upheld.  Cobbs  v.  Niblo,  6  Brad.  60;  Stewart 
V.  Karasey,  11  Brad.  379;  Brown  v.  Rounsavell,  78  111.  589; 
Linn  v.  Sigsbee,  67  111.  75;  Diamond  Match  Co.  v.  Eoeber, 
106  N.  Y.  473. 

It  is  sufficient  for  the  maintenance  of  this  action  that 
Branen  had  the  right  of  possession;  it  is  not  necessary  that 
he  should  have  ever  been  in  possession  in  order  to  main- 
tain forcible  detainer.  Dunne  v.  Trustees  of  Schools,  39 
111.  578;  Cairo  &  St.  L.  E.  E.  Co.  v.  Wiggins  Ferry  Co.,  82 
HI.  230. 

Mr.  Presiding  Justice  Hareer  delivered  the  opinion  of 
THE  Court. 

On  December  1,  1893,  James  M.  Phelps  while  occupying 
a  certain  hotel  building  in  Sycamore,  Illinois,  known  as 
♦^  Winn's  Hotel,"  under  a  lease  from  testamentary  trustee 
of  Lewis  Winn,  deceased,  entered  into  an  agreement  in  writ- 
inc?  with  appellee  whereby  he  leased  to  appellee  two  front 
rooms  in  the  hotel,  which  had  been  used  for  a  saloon  until 
the  1st  of  November,  1895,  for  $50  per  month.  In  the 
writing  it  was  provided  that  Phelps  should  retain  and  have 
the  use  of  the  rooms  for  any  purpose  excepting  the  retail- 
ing of  intoxicating  liquors.  That  he  should  not,  for  the 
entire  term  of  the  lease,  enter  into  or  be  in  any  wise  inter- 
ested in  the  retail  traffic  of  liquor  within  the  city  of 
Sycamore,  and  that  for  a  violation  of  the  agreement  by 
Phelps  he  should  be  required  to  give  immediate  possession 
of  premises  to  appellee.  Appellee  was  at  the  time  in  the 
saloon  business  at  Svcamore. 

It  is  plain  this  agreement  was  entered  into  for  the  pur- 
pose of  restraining  competition.  After  appellee  had  paid 
rent  under  the  agreement  about  a  year  Phelps  turned  over 
the  lease  which  he  held  to  the  hotel  to  Wm.  F.  Sell  and 
Samuel  Emery,  who  opened  a  saloon  in  rooms  adjoining 
and  opening  into  the  ones  which  appellee  had  leased  from 
Phelps. 


Second  District — May  Term,  1896.       473 

Sell  V.  Branen. 

Phelps  did  not  use  the  two  rooms  for  the  sale  of  liquors 
but  used  them  for  a  restaurant  and  lunch  counter,  which  he 
conducted  for  Sell  and  Emery.  Claiming  that  the  agree- 
ment between  him  and  Phelps  had  been  violated,  appellee 
demanded  possession  of  the  two  rooms,  which  was  refused. 
This  suit  for  forcible  detainer  was  commenced  against 
Phelps,  Sell  and  Emery,  resulting  in  a  judgment  before  a 
justice  of  the  peace,  and  in  the  Circuit  Court  on  appeal  it 
was  affirmed.  The  conduct  of  Phelps  violated  the  spirit  of 
his  agreement  if  not  the  letter. 

Its  very  purpose  was  to  prevent  the  competition  of  a 
saloon  in  the  Winn  Hotel. 

After  reaping  the  fruits  of  his  agreement  for  a  year,  and 
being  allowed  the  exclusive  use  of  the  room  leased,  he 
arranged  with  third  parties  to  open  a  saloon  in  the  build- 
ing and  to  use  these  rooms  as  a  restaurant  and  lunch  counter 
to  be  run  in  connection  with  it. 

The  contention  that  the  contract  is  void  because  in 
restraint  of  trade  can  not  prevail.  In  other  kinds  of  busi- 
ness, and  in  those  where  the  tendency  is  not  immoral,  it  is 
well  settled  that  an  agreement  not  to  transact  business  at 
a  specific  place  or  within  a  limited  distance,  if  based  upon  a 
sufficient  consideration,  is  valid.  Linn  v.  Sigsbee,  67  111. 
75;  Brown  v.  Rounsawell,  78  111.  589.  Contracts  held  void 
because  of  their  being  in  restraint  of  trade  are  so  held  upon 
the  ground  of  public  policy. 

It  is  difficult  for  us  to  see  how  a  contract  restricting:  the 
retail  traffic  of  intoxicating  liquors  in  a  town  can  be 
considered  against  public  policy.  It  was  not  necessary  to 
maintain  an  action  of  forcible  detainer  that  appellee  should 
have  possession  of  the  rooms.  Clause  2,  Chapter  57, 
Hurd's  Statutes. 

The  judgment  was  properly  entered  against  Phelps  and 
the  other  defendants,  because  thej'  were  in  possession  under 
Phelps.    Judgment  affirmed. 


474  Appellate  Courts  op  iLLiNoia 


Vol.  70.]  Swanberg  v.  Tread  well. 


Peter  Swanberg  v.  William  E.  Treadwell. 

1.  Trials  by  the  CJourt — On  Conflicting  Evidence. — A  judge  trying 
a  case  without  a  jury  sees  the  witnesses  when  they  testify,  his  opportu- 
nities for  discoverine  the  truth  are  superior  to  those  possessed  by  a  court 
of  appeal,  and  as  a  rule  his  finding  should  not  be  disturbed. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  County 
Court  of  De  Kalb  County;  the  Hon.  Charles  A.  Bishop.  Judge,  pre- 
siding. Heard  in  this  court  at  the  May  term,  18d6.  Affirmed.  Opinion 
filed  December  9,  1896.    Rehearing  denied  May  19»  1897. 

"W.  C.  Kbllum,  attorney  for  appellant. 

Where  the  trial  is  by  the  court,  as  in  this  case,  the  find- 
ing has  the  force  of  a  verdict,  and  will  be  only  set  aside 
when  a  verdict  would.  Where  the  evidence  is  conflicting, 
as  in  this  case,  the  finding  will  be  sustained  unless  it  is  man- 
ifestly against  the  weight  of  the  evidence,  and  certainly  not 
where  the  evidence  is  conflicting  and  nearly  balanced. 
The  finding  will  not  be  set  aside  as  unwarranted  if  the  evi- 
dence of  the  prevailing  party  is  by  itself  suflicient,  if 
believed,  to  support  it.  This  has  been  uniformly  held  to 
be  the  law  by  our  Supreme  and  Appellate  Courts  in  almost 
every  volume  of  the  reports.  Bush  v.  Kindred,  20  111.  93; 
Tolmas  v.  Race,  36  111.  472;  Forlouf  v.  Bowlin,  29  111.  App. 
471;  Calvert  v.  Carpenter,  96  111.  63;  Buchanan  v.  McLen- 
non,  105  111.  56. 

H.  T.  Smith  and  Thomas  Cliffe,  attorneys  for  appellee. 

Where  the  evidence  at  firat  blush  strikes  the  mind  as 
clearly  insufficient,  or  where  the  verdict  is  against  the  man- 
ifest weight  of  the  evidence,  a  new  trial  should  be  granted. 
Illinois  C.  R.  R.  v.  Alexander,  44  111.  App.  505;  Belden  v. 
Innis,  84  111.  78;  Illinois  C.  R.  R.  v.  Chambers,  71  111.  519; 
City  of  Chicago  v.  Lavelle,  83  111.  482. 

Where  the  parties  waive  a  jury  and  the  cause  is  tried  by 
the  court  sitting  as  a  jury,  the  court  stands  in  the  place  of 
a  jury,  and  the  decision  will  be  reversed  or  affirmed  by  the 


Second  District — May  Term,  1896.       475 

Swanberg  y.  Treadwell. 

same  rules  which  govern  when  the  facts  are  tried  by  a 
jury.  Field  v.  C.  &  R.  I.  R  R.  Co.,  71  111.  458;  Thomas  v. 
Eutledge,  67  111.  2135  Crabtree  v.  Fuquay,  49  111.  520; 
McGregor  v.  McDevitt,  64  111.  261. 

Mb.  PitEsiDiNa  Justice  Harker  delivered  the  opinion 
OF  THE  Court. 

This  suit  was  brought  by  appellee  to  recover  for  medical 
services  rendered  appellant  and  members  of  his  family. 

Upon  the  trial  he  introduced  a  book  account  of  original 
entries  showing  charges  amounting  to  $S9.S5,  and  cash 
credits  to  amount  of  $50. 

The  case  was  tried  by  the  court  without  a  jury,  and  judg- 
ment for  $50  was  rendered  in  favor  of  appellee. 

Appellant  claimed  that  nearly  all  of  the  services  were 
rendered  his  adult  daughter,  who  had  been  living  away 
from  his  home,  and  was  at  the  time  earning  her  own  living, 
and  that  the  account  was  barred  by  the  statute  of  limita- 
tions. 

If  the  court  believed  appellee,  then  he  was  justified  in 
finding  that  the  services  rendered  appellant's  adult  daughter 
were  rendered  at  the  instance  of  appellant  while  the  daughter 
was  at  his  home,  and  under  such  circumstances  as  would 
make  appellant  liable,  and  that  within  five  years  prior  to 
the  commencement  of  the  suit  appellant  promised  to  pay 
the  balance  of  the  account.  So  believing,  the  judgment  was 
righ  t. 

Appellee  was  contradicted  by  appellant  upon  all  the 
material  points  in  issue,  and  upon  some  of  them  by  appel- 
lant's daughter.  But  all  the  witnesses  were  seen  by  the 
court  when  they  testified.  His  opportunities  for  discov- 
ering the  truth  were  superior  to  ours. 

The  case  does  not  justify  a  review  in  detail  of  the  conflict- 
ing points  of  contention  in  the  evidence. 

Judgment  affirmed. 


476  Appellate  Courts  of  Illinois, 

Vol.  70.]  Kingman  &  Co.  v.  Meyer  Bros. 


Kingman  &  Go.  t.  Meyer  Bros. 

1.  Estoppel— JKcccMhon  of  iVofes.— The  signing  of  notes  for  the  pur- 
chase pricef  of  machinery,  under  a  promise  to  put  the  machinery  in 
repair,  does  not  estop  the  payer  of  the^  notes  from  denying  the  accept- 
ance of  the  machinery. 

2.  Sales — Breach  of  Warranty — Becovery  of  Money  Paid. — Where 
machinery  is  purchased  on  a  written  order,  like  the  one  in  evidence  in 
this  case,  but  fails  to  meet  the  requirements  of  the  order,  and  the  pur- 
chaser gives  notice  of  such  failure,  as  required  by  the  terms  of  the  order, 
if  the  seller  fails  to  remedy  the  defects,  and  the  machinery  is  not  after- 
ward accepted  by  the  purchaser,  and  the  warranty  thereby  waived,  he 
may  recover  money  which  he  is  forced  to  pay  on  notes  given  for  the 
amount  of  the  purchase  price  of  the  machinery. 

3.  Contracts — A  Contract  Construed,— The  contract  in  evidence  in 
this  case  did  not  make  it  the  duty  of  the  appellees  to  return  the  machin- 
ery ordered  in  case  they  did  not  accept  it,  but  only  made  them  liable  for 
the  return  freight. 

Assumpsit,  for  breach  of  a  warranty.  Appeal  frond  the  Circuit  Court 
of  Peoria  County;  the  Hon.  Thomas'  M.  Shavit,  Judge,  presiding.  Heard 
in  this  court  at  the  May  term,  1896.  Affirmed.  Opinion  filed  December 
9, 1896.    Rehearing  denied  June  25,  1897. 

Arthur  Keithley,  attorney  for  appellants. 
Louis  F.  Meek,  attorney  for  appellees. 

Mr.  Justice  Laoey  deliverfd  the  opinion  of  the  Court. 

This  was  a  suit  commenced  in  the  Circuit  Court  of  Peoria 
County,  by  appellees  Meyer  Bros.,  a  firm,  consisting  of  C.  J. 
and  C.  E.  Meyer,  against  the  appellant,  a  corporation,  to 
recover  money  paid  by  them  to  the  appellant  on  account  of 
a  self-steering  traction  engine,  second-hand,  purchased  or 
attempted  to  be  purchased  by  appellees,  and  notes  given  on 
account  thereof  to  appellant  and  afterward  paid  by  them 
on  a  judgment  obtained  thereon  by  confession. 

It  appears  from  the  evidence  that  the  appellant  was  a 
resident  of  the  city  of  Peoria,  Illinois,  and  the  appellees  resi- 
dents of  Crescent  City,  Illinois;  that  the  appellees  on  Janu- 


Second  District — May  Term,  1896.       477 

Kingman  A;  Co.  v.  Meyer  Bros. 

ary  4,  1892,  gave  an  order  to  the  appellant  to  furnish  or  ship 
at  once,  in  care  of  Meyer  Bros.,  to  Crescent  City,  Illinois, 
No.  II  of  second-hand  list.  Case  Ten  Horse-Power  Self- 
Steering  Traction  Engine,  with  tools  and  fixtures,  on  which 
order  they  agreed  to  receive  the  engine  subject  to  the  con- 
ditions attached  to  the  order,  and  pay  the  freight  and 
charges  thereon  from  the  factory  and  to  appellant's  order, 
on  delivery,  $400  in  notes,  $200  due  October  1,  1S92,  and 
$200  due  October  1,  1893. 

By  section  four  of  the  conditions  the  articles  were  "  war- 
ranted to  be  of  good  material,  well  made  and  with  proper 
management  capable  of  doing  as  good  work  as  similar  arti- 
cles of  other  manufacturers;  *  *  *  continued  posses- 
sion or  use  of  the  machinery  after  the  expiration  of  time 
named  above  shall  be  conclusive  evidence  that  the  warranty 
is  fulfilled  to  the  satisfaction  of  the  undersigned,  who  agree 
thereafter  to  make  no  further  claim  upon  the  warranty." 

The  fifth  section  provides,  "  It  is  also  agreed  and  distinctly 
understood,  that  in  case  we  for  any  reason  do  not  take  said 
machinery  we  will  pay  you  as  damages  an  amount  equal  to 
the  freight  from  factory  to  the  place  of  delivery  and  back 
to  factory,  cancellation  of  order  being  wholly  optional  with 
you." 

The  cause  was  tried  before  a  jury  and  resulted  in  a  ver- 
dict for  appellees  for  $442,  and  judgment  thereon  was  ren- 
dered against  appellant. 

The  evidence  shows  that  the  machine  was  shipped  to 
Crescent  City  as  ordered  and  there  unloaded  and  taken  to 
the  place  of  business  of  the  appellees.  After  it  arrived  they 
unloaded  it,  put  water  in  it,  fired  it  up  and  tried  to  run  it, 
but  soon  found  it  needed  more  water.  They  found  that  the 
injector  would  not  work,  and  after  experimenting  with  it 
with  a  practical  engineer  and  others  they  failed  to  put  water 
into  it  through  the  natural  channel.  They  then  wrote  to 
Kingman  &  Co.  with  reference  to  it.  They  also  found  the 
levers  out  of  order.  The  flues,  instead  of  being  replaced  by 
new,  were  old  and  leaky,  and  the  fire-boxes  were  badly 
burned  out,  and  the  lubricator,  instead  of  forcing  the  oil 


478  Appellate  Coukts  of  Illinois. 

Vol.  70.]  Kingman  &  Ck).  ▼.  Meyer  Bros. 

M  ■      ■     ,1  l__H__l_-ll  I  II  I  l|-|  ■_--■ . — ^^ 

down  into  the  cj'^linder,  it  would  go  up  the  other  way,  and 
the  cylinder  leaked  steam,  so  that  if  you  wanted  to  start  it 
you  had  to  throw  the  throttle  valve  wide  open  and  the 
engine  would  hardly  pull  itself,  and  the  pumps  and  injector 
would  not  work  at  all,  and  as  C.  J.  Meyer,  one  of  appellees, 
testified,  were  not  made  to  work  by  anybody  that  has 
touched  it  since  that  dav. 

A  short  time  afterwards,  one  Isch,  traveling  salesman  for 
appellant,  arrived  at  appellees'  place  of  business.  They 
claimed  that  neither  the  pumps  nor  injector  worked.  He 
went  there  to  settle  for  it.  They  refused  to  settle  for  the 
engine,  claiming  that  it  was  defective,  and  Isch  reported  to 
appellant  and  shortly  after  they  sent  a  man  by  the  name 
of  Cramer  over  to  fix  it,  who,  as  the  evidence  tended  to 
show,  failed  in  doing  so  and  made  it  worse  that  it  was  be- 
fore, and  broke  the  reverse  link  and  left  the  machine  where 
it  was. 

In  October,  1S93,  a  Mr.  Reed  on  behalf  of  appellant,  went 
to  Crescent  City  to  take  the  notes  for  the  machine,  when  the 
appellees  made  the  same  complaints  to  him  about  the  engine 
as  they  had  to  Isch  and  Cramer.  The  engine  had  never 
been  able  to  pull  a  load,  or  operate  any  more  than  itself,  and 
had  never  been  moved.  Reed  said  that  he  would  see  that 
the  matter  was  straightened  up,  and  upon  that  promise  the 
notes  were  signed,  and  they  proved  to  be  judgment  notes, 
and  afterward  a  judgment  was  rendered  on  them,  execution 
issued  and  appellees  were  forced  to  pay  them. 

Appellant  never  sent  any  one  after  this  to  put  the  engine 
in  repair,  and  the  engine  remains  in  the  same  place  where 
Cramer  left  it. 

The  evidence  tended  to  show  that  the  machine  was  worn 
out  and  worthless. 

The  case  was  tried  upon  the  theory  that  the  machine  had 
never  been  received  by  appellees,  that  the  signing  of  the 
notes  executed  under  promise  of  putting  the  machine  in 
repair  did  not  estop  appellees  from  denying  the  acceptance 
of  the  engine,  and  that  if  the  engine  did  not  meet  the 
requirements  of  the  order  given  for  it,  and  the  appellees 


Second  District — May  Tkrm,  1896.        479 

Kingman  &  Co.  y.  Meyer  Bros. 

performed  their  duty  under  the  order  by  giving  the  notice 
required  by  the  terms  thereof,  and  the  defects  were  not 
remedied  by  the  appellant,  and  without  fault  of  appellees 
the  engine  failed  to  do  the  work  required  of  it,  and  appellees 
had  not  afterward  accepted  the  engine  and  thereby  waived 
the  condition  of  warranty  in  the  order  given,  then  they  had 
a  right  to  recover  for  the  money  paid  on  the  executions. 

Appellee's  instructions  were  given  on  this  basis. 

We  are  of  the  opinion  that  the  verdict  was  supported  by 
the  evidence  on  the  issue  of  fact  there  presented. 

Counsel  for  appellant  claim  that  according  to  the  term3 
of  the  contract  continued  possession  of  the  machine  by 
appellees  was  a  conclusive  waiver  of  the  warranty,  and  also 
the  use  of  it  was  the  same,  but  we  think  the  evidence  justi- 
fied the  jury  in  its  verdict  under  the  instructions  of  the  court 
that  the  machine  was  never  held  in  the  possession  and 
absolutely  accepted  by  appellees,  but  that  they  only  hold  it 
to  be  experimented  upon  by  appellant,  conditioned  upon  its 
being  put  in  order  according  to  the  warranty,  nor  would 
they  be  estopped  even  if  they  allowed  others  to  experiment 
on  it  and  use  it  if  they  could.  They  might  have  been  willing 
if  any  body  could  work  it  to  finally  accept  it,  but  as  the 
appellant  never  fixed  it  and  as  neither  appellees  nor  any  one 
else  could  ever  use  it,  under  the  evidence  in  the  case,  we 
think  the  jury  was  justified  in  its  verdict.  We  do  not  think 
that  it  was  the  duty  of  the  appellees  to  return  the  machine 
to  Peoria  if  they  never  accepted  it. 

By  the  fifth  clause  of  the  contract  it  w^as  provided,  as  will 
be  seen  in  the  copy  which  we  have  given  of  it  above,  that 
in  case  the  appellees  did  not  take  the  machine  they  were  to 
pay  as  damages  an  amount  equal  to  the  freight  from  the 
factory  to  the  place  of  delivery  and  back  to  the  factory,  and 
the  most  that  could  be  said  is  that  the  appellant  might 
recoup  those  expenses;  but  the  appellees  paid  the  freight 
from  Peoria  to  Crescent  City,  and  there  was  no  proof  of 
what  the  freight  would  be  back  and  no  attempt  to  prove  it. 

We  are  of  the  opinion  that  the  verdict  is  not  too  much; 
in  fact,  it  might  have  been  greater  if  interest  had  been  allowed 
on  the  amount  of  the  judgments  paid. 


480  Appellate  Courts  of  Illinois. 

Vol.  70.]  McCarthy  v.  Hetzner. 

The  objection  made  to  the  refusal  of  the  court  to  give 
the  first,  third,  fourth  and  tifth  refused  instructions  of  the 
appellant  was  not  error. 

The  first  was  given  in  the  second  given  instruction  for 
appellant.  The  third  was  erroneous  in  requiring  actual 
notice  to  be  given  appellant  other  than  that  received  by  its 
agents  in  the  transaction  of  its  business. 

The  fourth  refused  instruction  is  covered  by  the  third  and 
fourth  instructions  given  for  appellant  and  the  matter 
attempted  to  be  covered  by  the  fifth  refused  instruction  was 
not  properly  before  the  jury.  The  evidence  was  such  that 
no  such  point  could  be  made. 

Seeing  no  error  in  the  record,  the  judgment  of  the  court 
below  is  affirmed. 


T.  F.  McCarthy  r.  Otto  A.  Hetzner. 

1.  Amendments— 3fay  be  Made  at  any  Time  after  Papers  are  Filed, 
— A  court  has  fuU  jurisdiction  and  control  over  papers  from  the  time 
they  are  filed,  and  can  allow  amendments  at  any  time  upon  the  appli- 
cation of  the  plaintiff . 

2.  Appellate  Court  Practice— As  to  Matters  Not  Abstracted.^ 
Under  its  rules  this  court  is  not  compelled  to  search  the  record  for 
information  in  regard  to  a  controverted  point.  Whatever  \\n  appellant 
desires  to  have  the  court  pass  upon  should  be  fully  abstracted,  and  in 
the  absence  of  an  abstract  upon  any  point  it  will  be  presiuned  that  the 
court  below  held  proi)erly. 

8.  Practice — Objections  Sfwuld  be  Specific . — A  general  objection  to 
a  chattel  mortgage  as  evidence  will  not  reach  an  objection  that  pre- 
sumably might  have  been  obviated  if  specifically  pointed  out.  And  tliis 
rule  will  apply  to  an  objection  that  there  was  no  proof  that  the  justice 
taking  the  acknowledgment  was  a  resident  in  the  precinct  where  the 
property  was  situated. 

4.  Suit— W^^icn  Considered  as  Commenced  as  to  New  Defendants 
Added  by  Amendment, — If  a  new  party  be  made  defendant,  under  the 
practice  act  he  must  necessarily  be  brought  in  by  summons,  and  tliat 
amounts  to  the  commencement  of  a  new  suit,  so  far  as  he  is  concerned. 

5.  Mortgages — Rights  of  Mortgagee  Under  Insecurity  Clause, — 
Under  an  insecurity  clause  of  a  chattel  mortgage,  a  mortgagee  is  justi- 
fied in  feeling  insecure  when  the  property  is  taken  on  a  distresu  warrant. 


Second  District — May  Term,  1896.       481 

McCarthy  y.  Hetzner. 

and  has  a  right  to  immediate  poesession,  otherwise  the  property  might 
be  sold  and  dissipated  and  the  security  lost. 

Bepleyin. — Appeal  from  the  Circuit  Court  of  La  Salle  County;  the 
Hon.  Charles  Blanchard,  Judge,  presiding.  Heard  in  this  court  at 
the  May  term,  1896.  Affirmed.  Opinion  filed  December  9,  1896. 
Rehearing  denied  June  25, 1897. 

Butters,  Cabr  &  Gleim,  attorneys  for  appellant. 

A  mortgagee  can  not  recover  mortgaged  property  levied 
/upon  by  a  third  party  until  condition  broken,  unless  there 
is  an  insecurity  clause  in  his  mortgage.  There  being  none 
of  the  covenants  of  the  mortgage  in  question  violated  by 
the  mortgagor,  the  right  of  the  mortgagee  to  maintain  this 
suit  is  given  him  only  under  the  insecurity  clause  in  this 
mortgage,  and  to  recover  a  verdict  in  his  favor,  he  must 
show  that  he  had  reason  to,  and  did,  feel  himself  unsafe  or 
insecure,  and  that  he  had  made  demand  on  the  person  hold- 
ing the  property  before  he  instituted  this  suit.  Furlong  v. 
Cox,  77  111.  293;  Koy  v.  Goings,  96  111.  361. 

The  interest  of  a  mortgagor  in  mortgaged  property  is 
always  subject  to  execution  and  sale,  provided  there  be  no 
insecurity  clause  in  the  mortgage,  and  although  there  be 
an  insecurity  clause  in  the  mortgage,  where  mortgaged 
property  is  levied  upon,  the  mortgagee  is  not  required  to 
foreclose  his  mortgage;  such  levy,  of  itself,  does  not  at  once 
mature  the  note  or  mortgage,  but  only  gives  a  right  to  the 
mortgagee  to  declare  them  due.  •'  Until  that  aflSrmative 
act  is  done  the  rights,  duties  and  obligations  of  all  par- 
ties remain  precisely  the  same  as  if  the  mortgage  contained 
no  such  provision."  Beach  v.  Derby,  19  111.  622;  Wilson  v. 
Kountree,  72  111.  570. 

The  acknowledgement  does  not  show,  nor  was  proof 
offered  to  show,  that  the  justice  who  took  the  acknowledg- 
ment of  the  mortgage  in  question  was  a  resident  of,  or  held 
his  office  in,  the  township  of  Ottawa,  and  we  submit,  that 
under  the  rule  of  construction  applicable  in  this  case,  no 
presumption  arises  that  will  supply  the  want  of  such  proof, 
to  meet  the  requirements  of  the  statute.  Beach  y.  Darby, 
19  111.  622. 

Vol.  LXXa 


482  Appellate  Courts  of  Illinois. 

Vol.  70.]  McCarthy  v.  Hetzner. 

Hall  &  Haight,  attorneys  for  appellee. 

Mb.  Justice  Lacet  delivered  the  opinion  of  the  Couet. 

This  was  an  action  in  replevin,  by  appellee  against  appel- 
lant, commenced  January  7,  1895,  in  the  first  instance 
against  Mary  Mannix,  and  afterward,  by  leave  of  court,  the 
papers  were  amended  so  as  to  add  appellant,  a  constable, 
who  held  the  property  in  question  under  a  distress  warrant 
issued  by  Mary  Mannix  against  Thomas  W.  Dwyer,  her 
tenant,  and  on  the  15th  day  of  January,  1895,  by  leave  of 
court,  the  papers  and  summons  \vere  amended  so  as  to 
include  appellant  as  defendant. 

This  is  assigned  for  error,  but  we  think  the  court  had  the 
power  to  allow  the  amendment  under  the  statute  and  under 
the  general  powers  of  the  court. 

It  could  be  done  before  the  defendants  were  served,  and 
prior  to  the  time  the  court  acquired  jurisdiction  of  the  per- 
son of  the  defendant  as  well  as  afterward,  and  before  the 
time  arrived  at  which  the  summons  was  made  returnable  or 
the  time  when  the  cause  stood  for  trial. 

The  court  had  full  jurisdiction  and  control  over  the  papers 
from  the  time  thev  were  filed  in  court,  and  could  allow 
amendments  at  any  time  upon  the  application  of  the 
plaintiff. 

The  appellee  claimed  the  property  under  a  chattel  mort- 
gage from  the  same  Thomas  W.  Dwyer,  duly  acknowledged 
and  recordea,  made  long  prior  to  the  issuing  of  the  distress 
warrant. 

One  of  the  main  points  of  appellant's  contention  is  that 
the  mortgage  failed  to  describe  the  property  sufficiently  so 
that  it  might  be  identified  by  the  public  and  the  creditors 
of  Dwyer.    We  think  the  point  is  not  well  taken. 

From  what  is  stated  on  the  argument  on  each  side  we  are 
inclined  to  think  that  it  would  be  held  that  the  property 
\vas  sufficiently  described,  but  the  appellant  has  failed  to 
abstract  the  description  in  the  mortgage,  and  we  are  not 
compelled  by  the  rules  of  this  court  to  search  the  record  to 
see  what  the  description  is. 


Second  District — May  Term,  1896.        483 

McCarthy  v.  Hetzner. 

If  appallant  had  desired  to  have  this  court  pass  upon  its 
sufficiency  he  should  have  abstracted  it.  It  will  be  presumed 
by  us,  in  the  absence  of  any  abstract,  that  the  court  below 
held  properly  in  regard  to  the  sufficiency  in  the  description. 

It  is  also  insisted  that  there  was  no  proof  that  the  justice 
of  the  peace  taking  the  acknowledgement  of  the  grantor 
in  the  mortgage  was  a  resident  in  the  Ottawa  precinct, 
where  the  property  was  situated,  but  when  the  mortgage 
was  offered  in  evidences  there  were  other  objections  made 
to  its  introduction,  but  not  this  one,  and  now  in  this  court 
this  objection  is  made  for  the  first  time. 

We  think  it  comes  too  late.  If  the  justice  of  the  peace 
had  not  really  resided  in  the  precinct  where  the  property 
was  situate,  the  objection  should  have  been  made  in  the 
court  below,  and  thus  ended  the  litigation;  and  if  the  justice 
had  so  resided,  fairness  and  good  faith  would  have  required 
tho  objection  to  have  been  made  there,  thus  enabling  the 
appellee  to  have  made  the  proof  if  he  could. 

Objection  was  made  to  the  introduction  of  the  mortgage 
in  evidence,  but  it  was  only  a  general  objection,  without 
specifying  the  objection  now  urged. 

"We  think  the  objection  now  comes  too  late.  Weber,  for 
use,  etc.,  V.  Mick  et  al.,  131  111.  520. 

In  that  case  it  was  held  that  general  objection  to  an 
introduction  of  a  mortgage  did  not  put  the  party  offering 
it  upon  the  proof  of  the  official  character  of  the  justice  of 
the  peace  taking  the  acknowledgement  of  it,  where,  under 
the  facts  of  the  case,  he  would  have  been  required  to  make 
the  proof  if  such  specific  objection  had  been  made. 

We  see  no  reason  why  so  just  a  rule  should  not  apply  in 
this  case.  The  objection  in  this  case  and  in  that  go  to  the 
authority  of  the  person  taking  the  acknowledgement,  and 
therefore  we  think  the  same  rule  should  apply. 

Another  point  of  objection  made  by  appellant  is  that 
there  was  no  proof  of  demand,  but  we  think  the  proof  was 
sufficient  to  show  that  the  demand  was  made  before  the 
suit  was  commenced,  and  beyond  any  doubt  before  the  sum- 
mons was  served  on  the  appellant  and  the  property  taken. 


484  Appellate  Courts  of  Illinois. 

Vol.  70.]  Peterson  v.  RandalL 

The  appellant  was  not  served  with  summons  prior  to 
January  15,  1895,  and  that  is  the  day  on  which  he  was  made 
a  part}"*.  He  was  made  defendant  on  that  day,  and  demand 
was  made  on  him  for  the  property  before  he  was  made  a 
party  by  being  summoned. 

He  refused  to  give  it  up,  and,  therefore,  the  demand  was 
made  before  the  commencement  of  the  suit  as  to  him. 

"  If  a  new  party  be  made  defendant,  under  the  practice 
act  he  would  necessarily  have  to  be  brought  in  by  summons, 
and  that  would  be  the  commencement  of  a  new  suit,  so  far 
as  he  is  concerned."  U.  S.  Insurance  Co.  v.  Ludwig,  108 
111.  514;  Lusk  v.  Thatcher,  102  111.  60;  Wells  on  Replevin, 
372,  page  210. 

We  have  no  doubt,  under  the  insecurity  clause  of  the 
mortgage,  appellee  was  justified  in  feeling  himself  insecure 
when  the  property  was  taken  on  distress  warrant,  and  that 
he  had  a  right  to  immediate  possession,  otherwise  the  prop- 
erty was  in  danger  of  being  sold  and  dissipated  and  the 
mortgage  security  thereby  lost. 

The  instructions  of  the  court,  given  orally  by  agreement, 
we  think  were  correct. 

There  are  a  few  more  technical  objections,  none  of  which 
we  deem  worthy  of  notice. 

The  judgment  of  the  court  below  is  therefore  a^rmed. 


John  M.  Peterson  v.  George  E.  Randall. 

1.  Instructions— JFrror  Without  Injury.—A  court  of  appeal  will 
not  interfere  with  a  judgment  on  account  of  the  fp^u^g  of  an  erroneous 
instruction,  where  it  is  clear  that  the  instruction  could  not  have  misled 
the  jury. 

2.  Costs — WTiere  a  Judgment  is  Corrected  in  a  Mere  Matter  of  Form. 
—Where  a  judgment  is  corrected  on  appeal  as  to  a  matter  that  could 
have  been  corrected  at  any  time  in  the  trial  court  on  motion,  and  that 
can  be  corrected  in  this  oourt  on  motion,  without  reversal,  the  court 
will  exercise  its  discretion  in  its  award  of  costs. 

BeploTin.— Error  to  the  Circuit  Court  of  E!nox  County;  the  Hon. 
Jom?  J.  Glenn,  Judge,  presiding.    Heard  in  this  court  at  the  December 


Second  District — December  Tjprm,  1896.   485 


Peterson  v.  Randall. 


term,  1896.    Affirmed  in  part  and  corrected.    Opinion  filed  December 
17,  1896.    Rehearing  denied  June  25, 1897. 

J.  A.  MoKenzie,  attorney  for  plaintiff  in  error. 
Dougherty  &  Boutelle,  attorneys  for  defendant  in  error. 

Opinion  per  Curiam. 

The  plaintiff  in  error  Peterson  replevied  from  the  posses- 
sion of  the  defendant  in  error  Randall  a  Jersey  heifer  and 
a  stove  and  pipe,  before  the  justice  of  the  peace,  and  on  ap- 
peal to  the  Circuit  Court  the  defendant  in  error  succeeded 
in  obtaining  a  verdict  from  a  jury  impaneled  to  try  the 
issue,  which  found  the  issue  in  favor  of  plaintiff  in  error  as 
to  the  calf.  By  agreement  in  open  court,  prior  to  the  trial, 
the  stove  and  pipe  were  admitted  to  be  the  property  of  the 
plaintiff  in  error,  and  the  defendant  in  error  disclaimed  any 
ownership  therein. 

The  parties  to  the  suit  had  exchanged  real  estate  in  Gales- 
burg,  belonging  to  defendant  in  error,  for  a  farm  in  the 
country  belonging  to  plaintiff  in  error,  and  as  part  considera- 
tion for  the  city  property  plaintiff  in  error  agreed  to  let 
defendant  in  error  have  ten  calves — or  as  plaintiff  in  error 
claims,  nine — of  which  defendant  in  error  contended  the 
Jersey  heifer  in  dispute  was  one,  and  plaintiff  in  error  that 
it  was  not  included.  CTpon  this  issue  the  jury  found  in 
favor  of  the  former,  and  we  think  such  verdict  was  clearly 
supported  by  the  evidence. 

But  the  court  inadvertently  rendered  judgment  on  the 
verdict  broader  than  the  verdict,  and  pronounced  the  title 
in  the  property  replevied  to  be  in  defendant  in  error,  and 
awarded  a  writ  of  returno  hahendo  for  the  same,  when  it 
should  have  only  rendered  judgment  for  and  ordered  a  re- 
turn of  the  calf  in  accordance  with  the  verdict. 

The  plaintiff  in  error  insists  that  the  court  erred  in  giv- 
ing the  following  instruction  No.  4,  for  defendant  in  error, 
viz.: 

"  4.  The  jury  are  instructed  that  if  you  believe  from  the 
evidence  that  the  calf  in  controversy  was  included  in  the  bill 


486  Appellate  Courts  of  Illinois. 

Vol.  70.]  Peterson  v.  Randall. 

of  sale  from  Peterson  to  Mrs.  Annie  Eandall,  and  that  the 
said  bill  of  sale  was  delivered  to  her,  and  the  said  calf  in  con- 
troversy was  delivered  to  her  on  the  farm  which  she  had 
purchased,  and  was  in  her  possession  at  the  commencement 
of  this  suit,  then  and  in  that  case,  your  verdict  will  be  for 
the  defendant." 

Although  the  witnesses  referred  to  a  bill  of  sale  on  the 
trial,  and  it  was  shown,  at  least,  to  one  witness,  it  was  not 
formally  introduced  in  evidence,  therefore  it  is  insisted  that 
the  instruction  was  erroneous  in  referring  to  it. 

We  do  not  think  that  any  serious  error  was  committed 
in  this. 

The  verbal  testimony  showed  the  calf  was  included  in  the 
bill  of  sale — nominally  ten  calves — and  no  objection  was 
made  to  this  evidence;  besides  the  entire  evidence  over  the 
issue  was  whether  the  heifer  in  question  was  intended  to  be 
included  in  the  sale  of  the  calves  named  in  general  "  nine  or 
ten  calves." 

The  jury  could  not  have  been  misled  whether  the  sale 
be  regarded  as  verbal  or  in  writing. 

The  judgment  finding  the  property  of  the  calf  in  defend- 
ant in  error,  and  in  ordering  a  return  thereof  to  defendant 
in  error,  will  be  sustained  and  affirmed,  and  reversed  as  to 
the  stove  and  pipe,  and  the  ju^lgment  is  ordered  rendered 
in  this  court  as  follows,  after  reciting  the  verdict,  viz. : 

*'  The  court  therefore  finds  the  title  to  the  property  in  the 
calf  in  controversy  in  the  defendant,  and  that  plaintiff  pay 
defendant  the  sum  of  one  cent  damages  for  the  retention 
thereof,  and  defendant  have  a  writ  of  retumo  Iwbendo  for 
the  said  calf,  and  that  defendant  recover  his  reasonable  costs 
in  this  behalf  expended,  and  that  he  have  execution  for  the 
damages  and  costs.  The  error  in  the  court  below  was  one 
that  could  have  been  corrected  at  any  time  in  that  i^ourt  on 
motion,  and  can  be  corrected  here  without  reversal.  This 
court  will  exercise  its  discretion  in  a  case  like  this  in  its 
award  of  costs.     Moore  v.  People,  108  111.  484. 

The  judgment  of  the  Circuit  Court  is  therefore  affirmed 
as  to  the  judgment  awarding  the  calf   in  question  to  de- 


Second  District — December  Term,  1896.  487 

C,  R.  L  &  p.  Ry.  Co.  v.  Ohlsson. 

fendant  in  error,  and  judgment  amended  here  as  above 
indicated,  and  judgment  rendered  against  appellant  for 
costs  of  this  court.  Judgment  in  part  affirmed  and  cor- 
rected. 


Chicago^  R.  L  &  P«  By.  Co.  y.  Josephine  Ohlsson^  by  her 

Next  Friend* 

• 

1.  Ordinaby  Care — Application  of  the  Rule  to  Children,^ A  child 
is  only  required  to  exercise  that  degree  of  caxe  and  caution  which  chil- 
dren of  like  age,  capacity  and  experience  may  reasonably  be  expected  to 
use  under  like  circumstances. 

2.  Same — Of  Children — A  Question  for  the  Jury, — An  instruction 
telling  a  jury  that  the  law  does  not  require  of  an  infant  six  years  of  age, 
or  any  other  age,  the  same  degree  of  care  and  caution  that  it  does  of  an 
adult,  but  only  requires  such  care  and  caution  as  is  ordinarily  exercised 
by  one  of  her  age,  is  erroneous,  because,  whether  a  child  is  of  sufficient 
age  to  exercise  pr#per  care  for  its  safety  under  the  circumstances  is 
always  a  question  of  fact  for  the  jury.  Such  an  instruction  however  is 
not  ground  for  reversal  where  the  age  of  the  infant  was  such  that  no 
harm  could  have  been  done  by  it. 

3.  Railroads — Running  Trains  at  Great  Speed  cut  Negligence.— Con- 
sidering the  great  amount  of  travel  over  the  crossing  where  the  injury 
sued  on  was  inflicted,  the  density  of  the  population  at  that  point,  and 
the  rather  meager  provision  which  had  been  made  by  the  railroad  com- 
pany for  warning  the  public  of  approaching  trains,  the  com-t  concludes 
that  there  was  negligence  in  running  the  train,  which  struck  appellee, 
at  the  rate  of  more  than  twenty  miles  an  hour. 


70    487 I 
83    244 


Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Will  County;  the  Hon.  George  W.  Stipp,  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1896.  Affirmed  in  part. 
Opmion  filed  Junev26,  1807. 

Hill,  Haven  &  Hill  and  W.  T.  Rankin,  attorneys  for 
appellant;  Eobebt  Mather,  of  counsel. 

John  W.  D'Arcy,  attorney  for  appellee. 
It  has  been  held  that  children  of  eighteen  months,  of  two 
years  and  ten  months,  of  four  years,  under  five  j'^ears,  of 


488  Appellate  Courts  op  Illinois. 

Vol,  70.]  C,  R.  L  &  p.  Ry.  Ck).  v.  Ohleson. 

five  years,  of  six  years,  under  seven  years,  and  even  seven 
years  of  age,  are  incapable  of  contributory  negligence. 
Bishop's  Non-Contract  Law,  Sec.  586,  and  authorities  cited. 
This  rule  seems  to  have  been  recognized  in  this  State  with 
more  or  less  distinctness  in  the  following  cases :  Chicago  & 
A.  E.  E.  Co.  V.  Becker,  84  111.  483;  Chicago  &  A.  E.  E.  Co. 
v.  Gregory,  58  Id.  226;  City  of  Chicago  v.  Hesing,  83  Id. 
204;  Gavin  v.  City  of  Chicago,  97  Id.  66;  Toledo,  W.  &  W. 
Ey.  Co.  V.  Grable,  88  Id.  441;  Chicago,  W.  D.  Ey.  Co.  v. 
Eyan,  131  Id.  474;  Chicago,  St.  L.  &  P.  E.  E.  Co.  v.  Welsh, 
118  Id.  572. 

On  the  question  of  negligently  running  a  train  at  a  high 
rate  of  speed  over  a  dangerous  crossing,  we  refer  to  the 
case  of  Chicago  &  A.  E.  Co.  v.  Adler,  28  App.  107;  see  also 
Central  Ey.  Co.  v.  Allmon,  147  111.  471;  East  St.  Louis 
0.  Ey.  Co.  V.  O'Hara,  150  111.  580;  Partlow  v.  I.  C.  E.  Co., 
150  ill.  321;  Lake  Shore  &  M.  S.  E.  v.  Ouska,  151  111.  232; 
Louisville  &  St.  L.  C.  E.  E.  Co.  v.  Gobin,  52  App.  565;  IIU- 
nois  C.  E.  Co.  v.  Murphy,  52  App.  65. 

Mr.  Presiding  Justice  Harker  dslivbred  the  opiiaoN 
OF  THE  Court. 

This  was  an  action  on  the  case  brought  by  appellee,  by 
next  friend,  to  recover  for  injuries  sustained  by  her  while 
attempting  to  cross  appellant's  railroad  track  in  front  of  a 
moving  train.  There  was  a  trial  by  a  jury  which  resulted 
in  a  verdict  and  judgment  in  favor  of  appellee  for  $3,000. 

At  the  time  she  received  the  injuries  complained  of  ap- 
pellee was  a  child  six  years  of  age,  residing  with  her  grand- 
parents, in  the  city  of  Joliet,  a  short  distance  from  the  place 
where  appellant's  railroad  crosses  Collins  street,  the  point 
where  the  accident  occurred.  She  and  several  other  children 
had  been  playing  about  a  small  flat  car,  which  stood  upon 
the  side  track  in  the  street,  when  a  milk  train  approached 
from  the  east.  When  the  train  was  about  fifty  feet  from 
the  crossing,  she  attempted  to  cross  the  main  track,  and  in 
doing  so  was  struck  by  the  train.  The  evidence  shows 
that  the  Collins  street  crossing  is  in  a  thickly  populated 


Second  District — December  Term,  1896.  489 

C,  R.  I.  &  p.  Ry.  Co.  V.  Ohlfison. 

portion  of  the  city.  At  the  time  of  the  injury,  no  gates 
had  been  established  there,  but  the  railroad  company  had 
a  flagmen  stationed  there.  The  train  was  running  at  a 
rapid  rate  of  speed,  considering  the  thickly  populated  dis- 
trict it  was  running  through.  The  flagman  was  at  his 
post  and  had  signaled  to  persons  who  were  wanting  to 
cross.  Appellee  was  evidently  trying  to  reach  another 
girl  who  was  standing  upon  the  sidewalk  on  the  opposite 
side  of  the  track. 

In  view  of  the  tender  years  of  appellee  we  do  not  think 
there  was  such  want  of  ordinary  care  on  her  part  as  would 
preclude  a  recovery  if  appellant  was  guilty  of  negligence 
which  caused  the  injury.  She  was  only  required  to  exer- 
cise that  degree  of  care  and  caution  which  children  of  like 
age,  capacity  and  experience  may  reasonably  be  expected 
to  use  under  like  circumstances.  Such  a  rule  is  distinctly 
recognized  by  the  courts  of  this  State.  Kerr  v.  Forgue, 
54  111.  482;  Chicago  &  A.  R.  R.  Co.  v.  Gregory,  58  111. 
226;  Chicago  &  A.  R.  R.  Co.  v.  Becker,  76  111.  25;  Chicago, 
St.  L.  &  P.  R.  R.  Co.  V.  Welsh,  118  111.  572;  Chicago,  C. 
Ry.  Co.  V.  Wilcox,  138  111.  370.  The  conduct  of  appellee 
on  the  occasion  of  the  accident  was  quite  natural  for  a 
child  of  six  years. 

When  we  consider  the  great  amount  of  travel  over  the 
Collins  street  crossing,  and  the  density  of  the  population 
at  that  part  of  the  city,  and  the  rather  meager  provision 
which  had  been  made  by  the  railroad  company  for  warning 
the  public  of  approaching  trains,  we  are  forced  to  the  con- 
clusion that  there  was  negligence  in  running  the  milk 
train,  which  struck  appellee,  at  the  rate  of  speed  it  was 
running  at  the  time — more  than  twenty  miles  per  hour. 

Upon  the  part  of  appellee,  the  court  gave  the  following 
instruction: 

9.  The  court  instructs  the  jury  that  the  law  does  not 
require  of  an  infant  six  years  of  age  the  same  degree  of  care 
and  caution  that  it  does  of  an  adult,  but  it  only  requires 
such  care  and  caution  as  is  ordinarily  exercised  by  one  of 
her  age,  capacity  and  experience. 


70    490 
78      80 


490  Appellate  Courts  op  Illinois. 

Vol.  70.]  Smith  v.  BelL 

<  .     ■  ' 

The  instruction  is  erroneous  because  it  invades  the  prov- 
ince of  the  jury.  It  is  not  proper  for  the  court  to  tell  the 
jury  that  the  law  does  not  require  of  an  infant  six  years  of 
age,  or  any  other  age,  the  same  decree  of  care  and  caution 
that  it  does  of  an  adult.  It  is  always  a  question  of  fact  to 
bedetermined  by  the  jury  whether  a  child  is  of  sufficient 
age  to  exercise  proper  care  for  its  safety  under  the  circum- 
stances. We  do  not  feel  w^arranted  in  reversing  the  judg- 
ment because  of  this  instruction,  however.  The  age  of 
appellee  was  so  tender  that  no  serious  harm  was  done  appel- 
lant by  the  giving  of  it. 

We  see  nothing  wrong  with  instructions  eight  and 
eleven,  given  for  appellee.  No  error  was  committed  in 
refusing  instructions  offered  by  appellant.  In  the  tenth, 
given  for  appellee,  the  jury  were  told  that  in  the  event  of 
finding  for  her  they  would  have  the  right,  in  assessing  dam- 
ages, to  take  into  consideration  the  expense  incurred  by 
her  in  endeavoring  to  be  cured. 

There  was  no  evidence  that  she  paid  or  incurred  any 
expense  in  endeavoring  to  be  cured.  It  was  improper, 
therefore,  to  give  such  an  instruction,  but  the  remittitur 
entered  in  this  court  cures  that  error. 

When  the  caae  was  first  considered  by  us,  we  were  of  the 
opinion  that  while  there  was  a  right  of  recovery  upon  the 
facts,  the  damages  allowed  by  the  jury  were  excessive. 
Our  view  in  regard  to  the  damages  was  intimated  to 
counsel,  whereupon,  appellee  entered  a  remittitur  of 
$1,200.  We  now  think  the  judgment  should  be  affirmed  as 
to  $1,800.  The  clerk  of  this  court  will  enter  judgment  in 
favor  of  appellee  for  $1,800  and  against  her  for  costs. 
Affirmed  in  part. 


Walter  H.  Smith  t.  J.  H.  Bell,  Adm'r^  etc.,  and  the 

County  of  Livingston, 

1.  Decrees— Form  o/,  WJicn  Bill  is  Without  Eguity,— The  language 
of  the  decree  iu  this  case,  that  the  court  doth  *'  find  that  there  are  no 
equities  in  the  said  petition,  and  that  the  said  demurrer  should  be  8us> 


Second  District — December  Term,  1896.  491 

Smith  V.  Bell. 

tained  and  said  petition  dismissed  for  want  of  equity,'*  is  that  usually 
employed  where  a  demurrer  is  sustained  to  a  bill  or  petition  which 
presents  no  equitable  ground  tor  relief,  and  is  not  subject  to  objection 
on  the  ground  that  it  is  conclusive  of  all  equitable  rights  between  the 
parties  growing  out  of  the  same  contract. 

2.  Mechanics*  Liens— Forwi  of  Petition  Under  Sec.  f  4  of  the  Act  of 
1896. — It  is  not  necessary  that  a  petition  claiming  a  mechanic's  lien 
under  Sec.  24  of  the  Mechanic's  Lien  Act  of  1895,  should  set  out  in 
detail  the  contract  between  the  municipality  and  the  original  contractor; 
an  aUegation  of  the  existence  of  the  contract  is  sufficient. 

8.  Same— W%en  Lien  is  Claimed  Under  Sec  £4,  Notice  Need  Not  be 
Filed  with  the  Circuit  Clerk. — It  is  not  necessary  to  the  validity  of  a  me- 
chanic's lien,  under  Sec.  24  of  the  Mechanic's  Lien  Act  of  1895,  that  a 
notice  of  lien  be  filed  in  the  office  of  the  clerk  of  the  Circuit  Court,  as 
required  by  Sec.  89  of  the  act.  That  requirement  applies  only  where  a 
lien  is  sought  against  real  estate,  and  has  no  reference  to  Sec.  24. 

4.  Same — The  Law  in  Remedial  and  Subject  to  Legislative  Control  as 
to  Past  Contracts. — Remedies  which  the  law  affords  to  enforce  contracts 
constitute  no  part  of  the  contracts  themselves,  and  are  subject  to  such 
changes  as  the  legislature  may  prescribe.  And  a  lien  given  by  statute 
to  mechanics  and  material  men  is  but  a  cumulative  remedy  to  enforce 
their  contracts,  and  is  as  much  within  legislative  control  as  any  other 
remedy  afforded  by  law. 

5.  CoNSTRUcrriON— 0/^cf,  by  Legislature,  is  Binding  on  the  Courts. — 
Where  the  law-making  power  places  a  construction  upon  an  act,  the 
courts  must  adopt  such  construction  unless  it  contravenes  the  Constitu- 
tion or  some  settled  rule  of  public  policy. 

Mechanic's  Lien.  —  Appeal  from  the  Circuit  Court  of  Livingston 
County;  the  Hon.  Charles  R.  Starr,  Judge,  presiding.  Heard  in  this 
court  at  the  December  term,  1896.  Reversed  and  remanded,  with  direc- 
tions.   Opinion  filed  June  26,  1897. 

Torrance  &  Torrance,  attorneys  for  appellant. 

It  is  always  permissible  for  the  legislature  to  change  the 
law  of  remedy,  and  where  a  new  remedy  is  given,  it  is 
enforcible  from  the  taking  effect  of  the  law.  Further, 
where  the  legislature  declares  the  law  to  be  a  remedial 
one,  the  courts  must  give  it  such  a  construction.  This  was 
done  by  the  statute  under  review.  See  act  to  revise  the  law 
in  relation  to  mechanics'  liens.  Laws  189.5. 

Remedial  statutes  are  always  so  constructed  as  to  advance 
the  remedy.     McNulta  v.   Lockridge,  137  111.  270. 

And  they  should  be  liberally  construed  in  order  to  avoid 


492  Appellate  Courts  op  Illinois. 

Vol.  70.]  Smith  v.  BelL 

the  evils  to  be  remedied.  Conkling  v.  Kidgely,  112  III.  36; 
People  V.  Wabash  K.  K.  104  111.  476;  Ball  v.  Chadwiok,  46 
111.  28;  Bowles  v.  Keator  et  al.,  47  111.  App.  98. 

It  is  evident  the  object  of  the  legislature,  by  section  24 
of  this  act,  was  to  provide  a  remedy  that  would  enable  sub- 
contractors to  enforce  payment  by  the  i)riginal  contractor 
for  the  amount  due  them  by  giving  a  lien  on  whatever 
money,  warrants  or  bonds  public  corporations  might  have 
in  their  control  due  to  the  original  contractor.  It  created 
no  liability  ao:ainst  such  corporations  or  officers,  but  simply 
required  them  to  deliver  money,  bonds  and  warrants  to  the 
sub-contractor,  if  any  held  by  them  'and  due  the  original 
contractor  from  them  under  his  contract.  This  being  the 
object  of  the  statute,  courts  should  adopt  such  a  liberal 
construction  as  will  advance  the  remedy,  not  cripple  it. 
Jackson  v.  Warrfen,  32  111.  331;  R.  R.  I.  &  St.  L.  R.  v.  Heflin, 
65  111.  366. 

And  the  remedy  should  not  be  restricted  by  construction. 
Honore  v.  Wilshire,  109  111.  103. 

Stephen  E.  Moore,  attorney  for  appellee  J.  H.  Bell,  ad- 
ministrator. 

> 

C.  0.  Stbawn,  attorney  for  appellee  Livingston  County. 

The  general  rule  is,  that  no  statute,  however  positive  in 
its  terms,  is  to  be  construed  as  designed  to  interfere  with 
existing  contracts  rights  of  action  or  suits — ^and  especially 
vested  rights — unless  the  intention  that  it  shall  so  operate 
is  expressly  declared,  and  courts  will  apply  new  statutes 
only  to  future  cases,  unless  there  is  something  in  the  very 
nature  of  the  case,  or  in  the  language  of  the  new  provision, 

which  shows  that  they  were  intended  to  have  a  retroactive 
operation.  And  although  the  words  of  the  statute  are 
broad  enough  in  their  literal  extent  to  comprehend  existing 
cases,  they  must  j^et  be  construed  as  applicable  only  to 
cases  that  mav  thereafter  arise,  unless  a  contrarv  intention 
is  unequivocally  expressed  therein.  Wood  v.  Oakley,  11 
Paige,  403;  Butler  v.  Palmer,  1  Hill,  325;  Johnson  v.  Bur- 
rell,  2  mil,  238;  Dash  v.  VanKleeck,  7  John.  499j  Berley  v. 


Second  District — December  Term,  1896.  493 

Smith  T.  Bell. 

Rarapacber,  5  Duer,  183;  Calkins  v.  Calkins,  3  Barb.  306; 
Sackett  v.  Andross,  5  Hill,  334;  Vedder  v.  Aiken  brack,  6 
Barb.  328;  People  v.  Supervisors,  etc.,  10  Wend.  362;  Van 
Rensselaer  v.  Livingston,  12  Id.  490;  "Warren  M.  Co.  v. 
JEtna  Ins.  Co.,  2  Paine's  C.  C.  R  517. 

Mr.    PfiBSIDINa  JUSTIOB   HA.RKEB    DBLITEBED    THB  OPINION 

OF  THE  Court. 

Appellant  filed  a  petition  in  the  Circuit  Court  showing 
that  on  the  28th  of  July,  1894,  he  entered  into  a  written 
contract  with  one  William  H.  Hamilton,  who  had  contracted 
with  the  county  of  Livingston  for  the  erection  of  a  county 
poor  house;  that  the  contract  price  with  Hamilton  for 
material,  labor,  etc.,  was  $11,500,  to  be  paid  on  the  com- 
pletion of  the  contract;  that  he  had  complied  with  the 
contract,  and  in  addition  thereto,  at  the  request  of  Hamilton, 
had  furnished  other  material  and  labor  to  amount  of 
$2,753.59;  that  Hamilton  had  paid  him  only  $9,573.28; 
that  the  county  of  Livingston  had  money  and  warrants  due 
Hamilton  on  his  contract,  yet  undelivered,  and  that  he  had 
served  a  written  notice  of  his  claim  of  a  lien  thereon  on 
the  county  officials  having  in  charge  the  construction  of  the 
building.  The  petition  prayed  for  an  accounting  between 
Hamilton  and  appellant,  and  that  a  lien  be  declared  upon 
the  money,  bonds  and  warrants  due  Hamilton  from  the 
county  for  the  satisfaction  of  his  claims. 

After  the  commencement  of  the  suit  Hamilton  died,  and 
J.  H.  Bell,  administrator  of  his  estate,  was  substituted  as 
defendant. 

The  court  sustained  a  demurrer  to  the  petition  and  dis- 
missed it  for  want  of  equity.  From  that  decree  appellant 
prosecutes  this  appeal. 

Wo  see  no  force  in  the  contention  that  the  decree  is 
erroneous,  because  it  is  conclusive  of  all  equitable  rights 
between  appellant  and  appellee  growing  out  of  the  contract, 
when  it  should  have  found  merely  that  the  petition  was 
defective.  The  language  of  the  order,  "  the  court "  doth 
'^  find  that  there  are  no  equities  in  the  said  petition,  and 


494  Appellate  Courts  of  Illinois. 

Vol.  70.]  Smith  v.  Bell. 

that  the  said  demurrer  should  be  sustained  and  said  petition 
dismissed  for  want  of  equity,"  is  that  usually  employed 
where  a  demurrer  is  sustained  to  a  bill  or  petition  which 
presents  no  equitable  ground  for  relief.  There  is  no  valid 
objection  to  the  form  of  the  decree. 

The  claim  of  a  right  of  lien  on  the  money,  bonds  and 
warrants  in  possession  of  the  county,  due  on  the  original 
contract  between  Hamilton  and  the  county,  is  based  upon 
section  24  of  an  act  of  1895  to  revise  the  law  in  relation 
to  mechanics'  liens,  which  reads  as  follows : 

"  Any  person  who  shall  furnish  material,  apparatus,  fixt- 
ures, machinery  or  labor  to  any  contractor  for  a  public 
improvement  in  this  State,  shall  have  a  lien  on  the  money, 
bonds  or  warrants  due  or  to  become  duo  such  contractor  for 
such  improvement;  provided  such  persons  shall,  before  any 
payment  or  delivery  thereof  is  made  to  such  contractor, 
notify  the  officials  of  this  State,  county  or  township,  city 
or  municipality,  whose  duty  it  is  to  pay  such  contractor,  of 
his  claim,  by  a  written  notice,  and  the  full  particulars 
thereof.  It  shall  be  the  dwty  of  officials  so  notified,  to 
withhold  a  sufficient  amount  to  pay  such  claim  until  it  is 
admitted  or  by  law  established,  and  thereupon  to  pay  the 
amount  thereof  to  such  person,  and  such  payment  shall  be 
a  credit  in  the  contract  to  be  paid  to  such  contractor.  Any 
officer  violating  the  duty  hereby  imposed  upon  him  shall 
be  liable  on  his  official  bond  to  the  person  serving  such 
notice  for  the  damages  resulting  from  such  violation,  which 
may  be  recovered  in  an  action  at  law  in  any  court  of  com- 
petent'jurisdiction.  There  shall  be  no  preference  between 
the  persons  serving  such  notice,  but  all  shall  be  paid  pro 
rata  in  proportion  to  the  amount  due  under  their  respective 
contracts." 

It  is  contended  in  behalf  of  appellees  that  the  petition 
should  set  out  in  detail  the  contract  between  the  county  of 
Livingston  and  Hamilton.  That  contention  seems  to  be 
raised  for  the  first  time  in  'this  court,  as  it  is  not  included  in 
either  one  of  the  twenty-six  causes  for  demurrer  assigned  in 
the  Circuit  Court,  and  that  of  itself  is  a  sufficient  reason 


Second  District — December  Term,  1896.  495 

Smith  V.  Bell. 

why  it  should  not  prevail  here.  We  are  of  the  opinion, 
however,  that  the  setting  out  of  -such  contract  in  detail 
was  not  necessary.  The  petition  shows  that  at  the  time 
appellant  entered  into  the  contract  with  Hamilton,  July 
28,  1894,  Hamilton  had  a  contract  with  the  county  for  the 
construction  of  the  building.     That  was  sufficient. 

It  was  not  necessary  for  the  petition  to  show  that  a  notice 
of  lien  had  been  filed  in  the  office  of  the  clerk  of  the  Circuit 
Court,  as  required  in  Section  39  of  the  act.  That  require- 
ment applies  only  when  a  lien  is  sought  against  real  estate, 
and  has  no  reference  to  Section  24,  which  is  entirely  new, 
and  gives  a  lien  to  sub-contractors  upon  money,  bonds  and 
warrants  due  from  a  county,  township  or  municipality  to 
an  original  contractor  for  public  improvements. 

The  most  serious  question  in  the  controversy  is  raised  by 
the  contention  that  the  petitioner  is  not  entitled  to  the  lien 
sought  because  the  act  giving  it  was  not  passed  until  1895, 
while  the  contract  between  him  and  Hamilton  was  entered 
into  nearly  a  year  earlier.  It  is  insisted  that  if  the  act 
be  applied  to  this  case  then  it  affects  the  obligations  of  a 
prior  contract.  We  do  not  entertain  that  view.  An  appli- 
cation of  the  act  does  not  increase,  diminish  or  affect  the 
liability  of  any  of  the  parties  to  the  original  contract,  or 
the  sub-contract  between  Hamilton  and  the  petitioner.  The 
act  simply  provides  a  remedy  for  sub-contractors  upon  public 
buildings  which  did  not  before  exist. 

Remedies  which  the  statute  furnishes  to  enforce  contracts 
constitute  no  part  of  the  contract.  Remedies  for  enforcing 
contracts  are  within  the  control  of  the  legislature,  and  where 
an  act  merely  furnishes  an  additional  one  it  can  in  no  just 
sense  be  regarded  as  impairing  the  obligations  of  contracts. 
A  lien  given  by  statute  to  mechanics  and  material  men  is 
but  a  cumulative  remedy  to  enforce  their  contracts,  and  is 
as  much  within  legislative  control  as  any  other  remedy 
afforded  by  law.  Smith  v.  Bryan,  34  111.  364;  Templeton 
V.  Home,  82  111.  491. 

Again,  the  legislature,  by  the  forty- first  section  of  the  act, 
declared  that  it  is  remedial,  and  should  be  construed  as  such. 


496  Appellate  Courts  of  Illinois. 

Vol.  70.]  Burke  v.  Hindman. 

Where  the  law-making  power  places  a  construction  upon  an 
act  the  courts  must  adopt  it,  unless  such  construction  contra- 
venes the  Constitution  or  some  settled  rule  of  public  policy. 

The  court  erred  in  sustaining  a  demurrer  to  the  peti- 
tion and  dismissing  it  for  want  of  equity. 

The  decree  will  be  reversed,  with  directions  to  the  Circuit 
Court  to  overrule  the  demurrer. 


George  Burke  v.  G.  Hindman. 

1.  TRIA.LS  BY  THE  CoTTRT— Finding  Not  Disturbed,— The  trial  judge 
trying  this  case  without  a  jury  saw  the  witnesses,  and  heard  them  tes- 
tify, and  was  in  a  better  position  to  pass  upon  tlie  credit  to  be  given  to 
their  testimony  than  this  court. 

2.  Costs— W7i«rc  the  Judgment  is  Erroneous  cls  to  Parties  Not  Ap- 
pealing,— The  fact  that  a  judgment  is  erroneous  as  to  a  defendant  not 
appealing,  does  not  entitle  an  appellant,  as  to  whom  the  judgment  is 
affirmed,  to  a  judgment  for  costs. 

Assumpsit,  on  a  promissory  note.  Appeal  from  the  Circuit  Court  of 
Iroquois  County;  the  Hon.  Thomas  F.  Tipton,  Judge,  presiding.  Heard 
in  this  court  at  the  December  term,  1890.  Affirmed«  Opinion  filed 
June  26,  1897. 

Kay  &  Kay,  attorneys  for  appellant. 

Free  P.  Morris  and  Frank  L.  Hooper,  attorneys  for 
appellee, 

Mr,  Presiding  Justice  Harker  delivered  the  opiNroN 
OF  the  Court. 

The  suit  was  begun  by  attachment  to  recover  upon  a 
promissory  note,  executed  by  appellant  and  F.  Peters,  for 
$95.75,  to  appellee,  on  the  31st  of  December,  1892. 

Both  defendants  were  non-residents  and  neither  was 
served  with  process.  The  writ  of  attachment  was  levied 
upon  the  interest  of  Burke  in  certain  real  estate  situated  in 
Iroquois  county,  no  property  of  Peters  being  found.    There 


Second  District — December  Term,  1896.  497 

Burke  v.  Hindman. 

was  no  appearancse  bj^  Peters  or  plea  filed  for  him  by  any 
one.  Burke  appeared  by  counsel  and  filed  a  plea  setting 
up  his  infancy  at  the  time  of  making  the  note. 

Issue  was  taken  upon  that  plea.  A  jury  was  waived  and 
a  trial  had  by  the  court,  resulting  in  a  judgment  in  favor  of 
appellee  and  against  Burke  for  $11 7. 16. 

It  was  contended  upon  the  trial  in  behalf  of  appellant 
that  he  was  born  on  the  first  of  September,  1872,  which 
would  make  him  but  twenty  years  old  at  the  time  he  signed 
the  note. 

Oh  the  part  of  appellee  it  was  contended  that  he  was 
born  on  the  first  of  September,  1871,  and  the  court  so  found 
from  the  evidence.  Whether  the  court  reached  a  proper 
conclusion  upon  that  disputed  question  of  fact  is  the  sole 
point  in  controversy  before  us. 

While  the  testimony  of  two  of  appellant's  brothers  tends 
to  show  that  he  was  born  on  the  first  of  September,  1872, 
there  is  other  testimony  tending  to  show  that  he  was  born 
on  the  first  of  September,  1871.  There  was  evidence  of 
statements  frequently  made  by  him  which,  if  true,  fixed  the 
date  of  his  birth  in  September,  1671. 

Such  statements  were  made  to  two  difiPerent  school  teach- 
ers, to  an  insurance  agent  soliciting  for  life  insurance,  and  to 
parties  inquiring  as  to  his  age  with  a  view  to  accepting  him 
as  the  maker  of  a  note. 

While  appellant  was  not  estopped  by  such  statements 
from  interposing  the  defense  of  infancy,  such  statements 
were  properly  received  as  admissions  bearing  upon  the  dis- 
puted question  of  fact. 

As  the  court  saw  the  witnesses  and  heard  them  testify  he 
was  in  a  better  position  to  pass  upon  the  credit  to  be  given 
to  their  testimony  than  we  are.  We  are  not  disposed  to 
disturb  the  finding  of  the  court  below. 

The  record  shows  that  judgment  was  entered  against  the 
"defendants"  instead  of  against  Burke  alone.  This  was 
perhaps  done  inadvertently.  Of  course  no  judgment. could 
be  legally  rendered  against  Peters,  because  the  court  did  not 
have  jurisdiction  of  his  person. 

vok  Lxx  a 


493  Appellate  Courts  op  Illinois. 

Vol.  70.]  Reed  v.  Kidder. 

Appellant  has  filed  a  motion  in  this  court  to  tax  appellee 
with  the  costs,  and  urges  that  appellee  should  be  required 
to  pay  the  costs,  eveti  if  we  conclude  that  the  judgment 
against  Burke  should  stand.  It  must  be  remembered  that 
this  appeal  is  prosecuted  by  Burke  alone.  He  brought  the 
record  here  for  the  sole  reason  ths^t  the  judgment  against 
him  was  wrong.  The  fact  that  the  clerk,  in  writing  up  the 
judgment,  may  have  written  the  word  '*  defendants ''  instead 
of  ^'  defendant "  does  not  entitle  appellant  to  a  judgment  of 
costs. 

If  the  court  pronounced  judgment  against  both  defendants 
the  matter  could  have  been  connected  there.  Moore  v.  The 
People,  108  111.  484.  The  judgment  against  Burke  will  be 
affirmed  and  the  motion  to  tax  costs  against  appellee  wiU 
be  Overruled. 


Almon  H.  Reed  et  al.  y.  AVvIn  Kidder. 

1.  "WmfESSBa— Competency  of  a  Complainant  When  the  Defendant 
Claims  as  Heir  of  a  Deceased  Person. — The  coraplainant,  in  a  bill  to 
foreclose,  as  a  mortgage,  a  deed  absolute  on  its  face,  can  not  be  allowed 
to  testify  as  to  the  amount  due,  where  the  suit  is  against  the  heira  of 
the  alleged  mortgagor,  upon  the  ground  that  he  is  testifying  in  the 
interest  of  the  defendants  by  showing  that  the  transaction  was  a  mort" 
gage. 

2.  Limitations — As  a  Bar  to  a  Mortgage, — ^The  only  limitation  law 
that  could  be  invoked  under  the  circumstances,  of  this  case  (a  suit  to 
foreclose  a  mortgage)  was  that  of  twenty  years'  adverse  possession. 

Bin,  to  foreclose,  as  a  mortgage,  a  deed  absolute  on  its  face.  Error  to 
the  Circuit  Court  of  Peoria  County;  the  Hon.  Thomas  M.  Shaw.  Judge, 
presiding.  Heard  in  this  court  at  the  December  term,  1896.  Reversed 
and  remanded.    Opinion  filed  June  26,  1897, 

Sheen  &  Gray,  attorneys  for  plaintiffs  in  error. 
Jack  &  Tiohbnob,  attorneys  for  defendant  in  error. 

Mb.  Pbrsiding  Justice  Habkeb  DELnrEBED  the  opinion 
OF  THE  Court. 

On  the  17th  of  June,  1868,  Augustus  Heed  and  his  wife 
executed  and  delivered  to  George  Kidder  a  deed  for  sixty 


Second  District — Deckmber  Term,  1896.  499 

Reed  v.  Kidder. 


acres  of  land  situated  in  Peoria  county.  At  the  same  time, 
and  as  a  part  of  the  same  transaction,  Kidder  executed  to 
Keed  a  lease  for  the  land  for  the  period  of  five  years,  at  a 
stated  rental  of  $120  and  the  payment  of  taxes.  It  was 
further  provided  in  the  lease  that  if  Eeed  should  pay  to 
Kidder  the  sum  of  $1,200,  in  addition  to  the  rents  as  they 
should  become  due,  according  to  the  terms  of  the  lease,  then 
Kidder,  his  heirs  and  assigns,  should  execute  and  deliver  to 
Keed,  his  heirs  and  assigns,  a  warranty  deed  for  the  land, 

Keed  died  in  the  spring  of  1880  and  Kidder  died  in  the 
fall  of  the  same  year,  both  intestate. 

Kegarding  the  transaction  of  1868  as  a  mortgage,  the 
defendant  in  error,  being  the  brother  and  heir  of  George 
Kidder,  on  the  24th  of  March,  1886,  filed  in  the  Circuit 
Court  a  bill  of  foreclosure  against  the  widow  and  ten 
children  of  Augustus  Keed. 

On  the  23d  of  December,  1887,  a  decree  was  entered  by 
the  Circuit  Court.  The  amount  found  due  was  $3,236.34. 
In  the  following  June  a  sale  was  made  which  was  approved 
by  the  court.  This  writ  of  error  is  prosecuted  by  three  of 
the  defendants  in  the  foreclosure  proceedings,  who  assert 
that  they  have  reached  their  majority  within  five  years  l=ast 
past.  They  seek  a  reversal  of  the  decree  for  the  reasons : 
1st,  that  the  evidence  does  not  sustain  it;  2d,  that  the  evi- 
dence was  incompetent;  3d,  that  the  debt  was  outlawed  by 
the  statute  of  limitations;  4th,  that  the  rights  of  the  plaint- 
iffs in  error  to  the  land  were  superior  to  those  of  the  defend- 
ant in  error. 

It  was  not  contended  upon  the  trial  that  the  transaction 
was  not  a  mortgage;  nor  is  there  any  such  contention  here. 
It  is  insisted  that  there  is  no  competent  proof  to  support 
the  finding  that  the  amount  due  was  $3,236.34  however. 
The  only  testimony  by  which  such  conclusion  could  be 
reached  was  that  of  the  complainant.  He  was  not  a  com- 
petent witness  to  prove  the  indebtedness  by. 

It  is  insisted  by  defendant  in  error  that,  as  the  testimony 
given  by  him  was  in  proof  of  the  position  that  the  transac- 
tion was  a  mortgage,  his  testimony  was  in  the  interest  of 
the  plaintiffs  in  error,  and  really  against  his  own  interest. 


600  Appellate  Courts  of  Illinois. 

Vol.  70.]  Griffith  Brothers  v.  HalL 


If  there  had  been  any  question  in  dispute  over  the  aver- 
ment in  the  bill  that  the  transaction  was  a  mortgage,  there 
would  be  some  room  for  such  a  view.  But  there  was  not. 
It  was  contended,  as  appears  from  the  answer,  that  the 
complainant  was  not  entitled  to  the  relief  sought,  because 
the  rate  of  interest  charged  was  usurious,  and  that,  more 
than  sixteen  years  having  elapsed  since  the  accruing  of  the 
action,  the  same  was  barred  by  the  statute  of  limitations. 

When  the  bill  was  filed,  the  defendants  could  admit  that 
the  transaction  was  a  mortgage  (which  it  was  their  inter- 
est to  do,  of  course),  and  insist  upon  competent  proof  as  to 
the  amount  due. 

But  whether  they  did  so  or  not  the  complainant  would 
not — upon  the  ground  that  he  was  testifying  in  the  inter- 
est of  the  defendants,  by  showing  that  the  transaction 
was  a  mortgage — be  permitted  to  testify  as  to  the  amount 
due.  If  he  was,  and  his  evidence  was  all  there  was  upon 
the  subject  of  indebtedness,  the  decree  should  be  reversed. 
That  is  this  case. 

We  think  it  proper  to  reverse  the  decree  and  remand  the 
cause,  that  other  evidence  as  to  amount  due  mav  be  taken. 
We  may  say,  also,  that  the  particular  statute  of  limitation 
invoked  as  a  defense  does  not  apply.  If  the  defendants 
were  in  possession  of  the  land,  the  transaction  being  a  mort- 
gage, they  were  in  possession  as  tenants  at  will.  The  only 
limitation  law  that  could  be  invoked  under  the  circum- 
stances was  that  of  twenty  years'  adverse  possession.  Locke 
et  al.  V.  Caldwell,  91  111.  417.    Reversed  and  remanded. 


Griffith  Brothers  r.  Lewis  0.  HalL 

1.  Joint  jAUBiLnY^Not  Shown  by  the  Evidence— Under  the  facts 
of  this  case,  as  shown  by  the  evidence,  the  appeUeea  have  no  right  of 
action  against  appellant,  and  the  judgment  must  be  reversed. 

Assumpsit,  on  the  common  counts.  Appeal  from  the  County  Court 
of  Peoria  County;  the  Hon.  Robert  H.  Lovett,  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1896.  Kevei-sed  without 
remanding.    Opinion  filed  Jime  26,  1897. 


Second  District — December  Term,  1896.  601 

Griffith  Brothers  v.  HalL 

Ibwin  &  Slemmons,  attorneys  for  appellant. 

Elmer  J.  Slough  and  Albert  B.  Mabston^  attorneys  for 
appellees;  H.  C.  Fuller,  of  counsel. 

Mr,  Presiding  Justice  Habkbb  delivered  the  opinion 
OF  THE  Court. 

This  suit  was  brought  by  appellees,  a  firm  engaged  in 
wholesaling  millinery  goods  at  Indianapolis,  Ind.,  to  recover 
a  balance  of  $105.34  from  Lewis  G.  Hall  and  Sarah  T. 
Hall,  his  wife. 

A  default  was  entered  against  Sarah  T.  Hall,  and  Lewis  G. 
Hall,  by  proper  plea,  denied  his  joint  liability  with  his  wife, 
and  a  trial  by  jury  was  had  upon  that  issue,  resulting  in  a 
verdict  and  judgment  against  him  for  $105.84. 

It  appears  from  the  evidence  that  for  a  number  of  years 
prior  to  the  12th  of  January,  1894,  Mrs.  Hall  had  carried 
on  a  retail  millinery  business  at  307  South  Adams  street, 
Peoria,  under  the  name  of  Mrs.  L.  G.  Hall.  About  that 
date  she  failed  and  the  business  was  resumed  in  a  few 
weeks  in  the  name  of  Lewis  G.  Hall. 

The  goods,  for  the  price  of  which  this  suit  is  brought, 
were  ordered  of  a  traveling  salesman  on  the  14th  of  Febru- 
ary and  the  12th  of  April,  1893.  They  were  shipped  to 
*"  L.  G.  Hall,"  received  at  the  store  by  his  wife  and  disposed 
of  as  other  goods  were  in  the  business.  Hall  denied  that 
he  received  them  or  authorized  any  one  to  receive  them  in 
his  name. 

The  only  evidence  tending  to  show  that  Hall  was  jointly 
liable  with  his  wife  was  that  of  the  traveling  salesman,  who 
testified  that  he  was  present  when  his  wife  made  the  selec- 
tion of  the  goods,  and  that  one  had  as  much  to  do  with  the 
ordering  as  the  other.  He  admitted,  however,  that  at  the 
time  he  knew  the  business  was  being  conducted  by  Mrs. 
Hall  and  in  her  name.  The  greatest  force  that  can  be 
given  to  his  testimony  is  that  he  regarded  the  business  as 
a  family  affair,  from  the  fact  that  Hall  appeared  to  take  an 
active  interest  in  it  and  aided  in  the  selection  of  the  goods. 


70      602' 
896      459 


502  Appellate  Courts  op  Illinois. 

Vol.  70.]  Squires  v.  Adams. 

Against  such  evidence  was  the  testimony  of  Hall,  and  an 
employe  in  the  store  for  several  years,  that  he  was  not 
interested  in  the  business  until  the  last  day  of  March,  1894:, 
when  he  started  it  after  his  wife's  failure;  that  prior  to  that 
date  the  business  was  exclusively  his  wife's,  and  conducted 
as  such. 

It  is  evident  the  appellees  regarded  the  purchase  as  made 
by  Mrs.  Hall,  because  all  statements  rendered,  and  letters 
addressed,  were  addressed  to  her.  They  were  in  no  wise 
misled  as  to  the  ownership  of  the  business.  Upon  the  facts 
they  have  no  right  of  action  against  Hall. 

In  the  view  we  take  of  the  case,  therefore,  it  is  not  nec- 
essary to  consider  in  this  opinion  alleged  errors  upon 
instructions. 

We  find  that  there  is  no  cause  of  action,  and  reverse  the 
judgment  as  to  Lewis  G.  Hall,  but  do  not  remand  the  cause. 


Thomas  Squires  and  Daniel  M.  Graham  v.  Arthur 
Adams  and  Samuel  B.  Adams. 

1.  Verdicts— Upon  Conflicting  Evidence. — It  was  the  peculiar  prov- 
ince of  the  jury  to  decide  the  disputed  questions  of  fact  involved  in 
this  case,  and  the  court  is  not  prepared  to  say  that  they  decided 
them  incorrectly. 

AsMmpsit,  on  a  promissory  note.  Appeal  from  the  Circuit  Court  of 
Carroll  County;  the  Hon.  J.  C.  Garyeb,  Judge,  presiding.  Heard  in 
this  court  at  the  December  term,  1896.  Affirmed.  Opinion  filed  June 
26,  1897. 

Henry  Mackat  and  Douolass  Allemak,  attorneys  for 
appellants. 

Ealph  E.  Eaton  and  W.  H.  A.  Renner,  attorneys  for 
appellees. 

Mb.  Presiding  Justice  Harkee  deuvbred  the   opinion 
OF  THE  Court. 
Appellants  sued  in  assumpsit  to  recover  on  a  promissory 


Second  District — Decembek  Term,  1896,  503 

Squires  ▼.  Adams. 

M — — — ■■■■•■■■ ■  — 

npte  executed  by  appellees  on  the  9th  of  April,  1888,  for 
$333.59  and  interest  at  the  rate  eight  per  cent,  due  one  year 
from  date.  The  defense  interposed  was  that  the  note  had 
been  paid  by  a  new  note  executed  by  Arthur  Adams. 
Andrew  S.  Adams  and  John  Zuck.  Before  a  jury  the 
defense  of  payment  was  successful. 

It  seems  from  the  evidence  that  the  note  sued  on  had  been 
due  for  some  time,  and  that  appellants  had  been  urging 
Samuel  B.  Adams,  the  only  solvent  maker,  to  pay  it.  He 
was  surety  on  the  note  for  Arthur  Adams,  and  had  been 
keeping  the  payees  from  enforcing  collection  by  suit  upon 
representations  that  he  could  get  Arthur  to  turnover  prop- 
erty to  him  to  pay  with.  Finally  it  was  agreed  between 
him  and  the  payees,  he  claims,  that  a  new  note  for  the  full 
amount  of  the  principal  and  interest,  with  Arthur  Adams, , 
Andrew  J.  Adams  and  John  Zuck  as  makers,  due  in  six  or 
seven  months,  would  be  accepted  in  payment.  He  testified 
that  he  procured  a  note  and  delivered  it  to  Squires,  who, 
after  examining  it  accepted  it,  and  then  delivered  to  him 
the  old  note,  which  he  destroved. 

There  was  a  sharp  conflict  between  his  testimony  and 
that  of  Squires  as  to  what  was  said  when  the  new  note 
was  proposed  and  as  to  what  occurred  when  the  new  note 
was  delivered  and  the  old  one  surrendered.  Squires  testi- 
fied in  effect  that  there  was  an  agreement  to  accept  a  new 
note  in  the  place  of  the  old  one,  but  that  Samuel  B.  Adams 
was  to  be  one  of  the  makers  of  such  now  iLote.  He  further 
testified  that  when  the  new  note  was  brought  to  him  he  did 
not  scrutinize  it  closely,  but  accepted  it  with  the  supposi- 
tion that  Samuel  B.  Adams'  name  was  on  it. 

Counsel  for  appellants  invoke  the  aid  of  the  familiar 
rule  of  law  that  the  giving  and  acceptance  of  a  new  note 
in  consideration  of  an  old  one  does  not  discharge  the  old 
obligation.  They  also  contend  that  if  Squires  delivered  up 
the  old  note  to  Samuel  B.  Adams  under  a  misapprehension 
of  the  fact  that  Samuel  B.  Adams  had  not  signed  the  new 
note,  and  Samuel  B.  Adams  was  aware  of  the  fact,  then 
appellants  have  the  right  to  hold  the  old  note  as  a  valid  and 
subsisting  obligation. 


504 


Appellate  Couuts  of  Illinois. 


Vol.  70.] 


Wells  V.  Mathews. 


There  is  no  ropm .  for  cavil  over  the  legal  propositions 
involved  in  this  controversy.  Whether  appellants  accepted 
the  new  note  as  payment  or  as  collateral  does  not  arise. 
Both  parties  agree  that  it  was  understood  that  when  the 
new  note  should  be  accepted  it  would  be  in  discharge  of 
the  old  one.  The  disputed  questions  of  fact  were  whether 
Samuel  B.  Adams'  name  was  to  be  on  the  new  note  and 
whether,  when  it  was  accepted,  Squires  knew  it  was  not.  It 
was  the  peculiar  province  of  the  jury  to  decide  those  ques- 
tions. We  are  not  prepared  to  say  that  they  decided  them 
incorrectly. 

The  instructions  given  for  the  defendants  seem  to  be  in 
harmony  with  the  views  of  this  court,  so  far  as  they  were 
expressed  when  the  case  was  heard  before.  The  same  may 
be  said  of  the  rulings  of  the  court  upon  the  admission  of 
evidence.  Adams  v.  Squires  et  al.,  61  App.  513.  Counsel 
take  issue  with  us  upon  the  views  therein  entertained  upon 
the  testimony  of  John  Zuck.  We  still  think  the  testimony 
of  Zuck  inadmissible. 

We  see  no  reason  for  reversing  the  judgment.  Judg- 
ment affirmed. 


Cbabtbee,  J.,  took  no  part. 


70 

504 
3951 

7B 

70 

504 

106 

»  80 

dioe 

«  H 

H.  W.  Wells  and  Stephen  Martin  v.  Wallace  Mathews. 


1.  Practice — Judgment  in  Excesa  of  Damages  Cflaimed  in  Sum- 
mons.— Rendering  judgment  in  excess  of  the  damages  stated  in  the  sum- 
mons is  not  ground  for  the  reversal  of  a  judgment,  where  the  proper 
amount  is  stated  in  the  praecipe  and  the  declaration,  if  the  objection  is 
first  made  on  appeal. 

2.  Defaults — Plea  on  File. — It  is  error  to  render  judgment  against  a 
defendant  by  default,  when  his  plea  to  the  merits  is  on  file. 


A  ssn  m  psi  t,  on  a  prom  issory  note.  Error  to  the  County  Court  of  PeoriA 
County;  the  Hon.  R.  H.  Lovett,  Judge,  presiding.  Heard  in  this  court 
at  the  December  term,  1896.  Reversed  and  remanded.  Opinion  filed 
June  26, 1897. 


Second  District — December  Term,  1896.  505 

■ — -  -     -  _      __  I  —    — * 

Wells  V.  Mathews. 

1.  0.  PiNKNEY,  attorney  for  plaintiffs  in  error. 

The  judgment  of  the  court  below  was  in  a  sum  greater 
than  the  amount  claimed  in  the  writ.  The  writ  claimed 
two  hundred  dollars,  and  the  judgment  was  for  two  hundred 
and  twenty-one  dollars  and  fifty-five  cents,  twenty-one 
dollars  and  fifty-five  cents  more  than  was  due  the  plaintiff 
by  his  writ.  It  is  insisted  that  this  judgment  was  erroneous. 
Miller  v.  Glass,  11  Brad.  560;  Epley  v.  Eubancks,  11  Brad, 
272. 

The  Supreme  Court  of  this  State  has  more  than  once  held 
that  where  the  assessment  of  damages  is,  on  issue,  joined, 
and  the  jury  is  not  waived,  the  damages  must  be  assessed  by 
a  jury.  Whiteside  v.  Bartleson,  Breese,  71:  Klein  v.  Wells, 
82  111.  201. 

When  issue  is  tendered  the  opposing  party  has  no  right 
to  ignore  it  and  proceed  as  if  no  issue  was  tendered.  Moore 
V.  Little,  11  111.  549;  Weatherford  v.  Wilson,  2  Scam.  253; 
Pana  v.  Humphreys,  39  111.  App.  641;  Barnett  v.  Craig,  38 
111.  App.  96. 

This  honorable  court  has  held  that  a  judgment  by  mistake 
in  such  a  case  can  not  stand.  Faurot  v.  Park  Bank,  37 
App.  322. 

Poster  &  Carlock,  attorneys  for  defendant  in  error. 

It  is  fatal  to  the  position  insisted  upon  by  defendants 
(below)  that  they  took  no  exceptions  to  the  judgment  entered 
against  them.  No  motion  for  a  new  trial  or  in  arrest  of 
judgment  was  made,  nor  did  defendants  save  any  exceptions 
to  the  decision  of  the  court.  Had  they  done  so  by  motion 
for  a  new  trial,  or  in  arrest  of  judgment,  or  by  exception  to 
the  decision  of  the  court,  stating  that  the  finding  of  the 
damages  was  in  excess  of  the  damages  claimed  in  the  sum- 
mons, the  error  could  have  been,  and  no  doubt  would  have 
been,  corrected  at  once.  Utter  et  al.  v.  Jaflfray  &  Co.,  114 
111.  470;  Met.  Ace.  Assn.  v.  Froiland,  161  111.  40;  Cunning- 
ham v.  Alexander,  58  111.  App.  296. 

The  objection  that  the  court  tried  the  case  without  the 
intervention  of  a  jury,  there  being  no  waiver  of  a  jury,  is 
not  well  taken.     ^*  The  statute  gives  the  right  in  such  case 


606  Appellate  Courts  of  Illinois. 

Vol.  70.]  Wells  v.  Mathews. 

to  assign  error  only  where  the  decision  assigned  for  error 
was  excepted  to."     Parsons  v.  Evans,  17  111.  238. 

Opinion  pee  Curiam. 

This  was  an  action  on  assumpsit  to  recover  on  a  promis- 
sory note  for  $200.  The  declaration  contained  a  special 
count  on  the  note  and  the  common  counts.  The  praecipe 
and  declaration  laid  the  damages  at  $500,  while  the  writ 
only  demanded  $200.  The  summons  was  issued  December 
20,  1895,  and  served  December  27,  1895.  On  January  8, 
1896,  the  defendants  filed  the  plea  of  the  general  issue.  On 
January  27,  1896,  the  court,  without  noticing  the  plea,  had 
the  defendants  called  and  defaulted,  and,  without  the  inter- 
vention of  a  jury,  assessed  the  plaintiffs  damages  at  $221.55, 
and  rendered  judgment  against  them  for  that  amount.  It  is 
assigned  for  error  that  the  court  rendered  judgment  for  a 
greater  amount  than  the  damages  claimed  in  the  writ,  but 
as  this  question  was  not  raised  in  the  court  below,  and  no 
exception  was  saved  to  the  action  of  the  court  in  this 
behalf,  we  hold  the  objection  can  not  be  raised  for  the  first 
time  in  this  court.  Had  the  objection  been  made  in  the 
trial  court,  an  opportunity  could  have  been  given  to  amend 
the  writ  so  as  to  correspond  with  the  praecipe  and  decla- 
ration, in  which  the  damages  were  laid  in  a  sum  greater  than 
the  amount  of  the  judgment.  Utter  et  al.  v.  JaflFray  &  Co., 
114  111.  470;  Met.  Ace.  Assn.  v.Froiland,  161  111.  40. 

It  is  also  assigned  for  error  that  the  court  disregarded  the 
plea,  entered  a  default  and  assessed  the  damages  thereon 
while  the  plea  was  on  file  and  undisposed  of.  In  this  we 
think  there  was  manifest  error. 

It  has  been  frequently  held  that  where  a  plea  has  been 
filed,  unless  it  has  been  stricken  from  the  files  or  otherwise 
disposed  of,  the  court  is  powerless  to  enter  the  default  of 
the  defendant.  Mason  v.  Abbott,  83  111.  445;  Parrott  v. 
Goss,  17  111.  App.  110;  Faurot  v.  Park  Bank,  37  111.  App. 
322;  Saramis  v.  Clark,  17  111.  398. 

For  this  error  the  judgment  will  be  reversed  and  the  cause 
remanded. 

Beversed  and  remanded. 


Second  District — December  Term,  1896.  607 

Wright  V.  Avery. 


Angnstine  W.  Wright  et  a1.,  Partners,  etc.,  t.  George 

Avery,  Adm'r,  etc. 

1.  Verdicts— Upon  Conflicting  Evidence. — ^When  there  is  a  serious 
conflict  in  the  evidence,  it  is  the  duty  of  the  jury,  who  see  the  witnesses 
and  hear  them  testify,  to  reconcile  the  contradictory  statements  if  they 
can,  or  if  that  is  impossible,  to  decide  upon  which  side  the  truth  lies. 
To  warrant  a  court  of  appeal  in  disturbing  the  finding  of  the  jury,  it 
should  be  so  manifestly  against  the  weight  of  the  evidence  that  the  court 
can  say  without  hesitation  that  it  ought  not  to  stand.  And  under  this 
rule  the  court,  on  a  careful  examination  of  the  whole  record,  declines  to 
disturb  the  finding  in  this  case. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Will  County;  the  Hon.  Dorrancb  Dibell,  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1896.  Affirmed.  Opinion 
filed  June  26,  1897. 

Hill,  Havkn  &  Hill,  attorneys  for  appellants. 

Keynolds  &  PusKHisEB  and  John  C.  Patterson,  attor- 
neys for  appellee. 

Mr.  Justice  Gsabtree  delivered  the  opinion  of  the 
Court. 

This  was  an  action  on  the  case,  brought  by  appellee  as 
administrator  of  the  estate  of  William  Freeman,  deceased, 
to  recover  damages  for  injury  to  the  means  of  support  of 
the  next  of  kin.  Deceased  was  killed  in  consequence  of 
being  struck  with  a  stone,  thrown  from  a  blast  fired  by  the 
servants  of  appellants,  on  May  4,  1895,  while  working  upon 
the  Sanitary  Drainage  Canal  near  the  city  of  Lockport,  in 
said  Will  county. 

There  was  a  trial  by  jury  and  verdict  for  appellee  for 
$2,500.  A  motion  for  new  trial  being  overruled,  there  was 
judgment  on  the  verdict. 

Appellants  bring  the  case  to  this  court  and  insist  upon  a 
reversal,  mainly  for  the  reason,  as  they  claim,  that  the  ver- 
dict is  against  the  weight  of  the  evidence.    It  does  not 


'  70    607l 
172s  3131 


608  Appellate  Courts  of  Illinois. 

Vol.  70.]  Wright  v.  Avery. 

seem  to  be  very  seriously  urged  that  the  instructions  were 
erroneous,  nor  is  there  any  complaint  that  the  trial  court 
erred  in  admitting  or  rejecting  evidence,  so  that  substan- 
tially the  only  question  for  our  determination  is  one  of  fact. 

It  appears  from  the  evidence  that  on  May  4,  1895,  appel- 
lants were  operating  a  certain  section  fifteen  of  the  Sanitary 
Drainage  Canal,  upon  which  they  were  engaged  in  excavat- 
ing and  removing  from  the  line  of  the  canal,  rock,  gravel 
and  stone,  and  that  in  carrying  on  such  operations  they 
used  dynamite  and  gunpowder  for  blasting  .purposes,  holes 
being  drilled  in  the  rock  and  loaded  with  the  explosives, 
which  were  subsequently  discharged  by  means  of  an  electric 
battery.  That  the  deceased  was  employed  by  one  Dion 
Geraldine  on  section  fourteen  of  the  same  drainage  canal, 
being  the  section  adjoining  and  immediately  north  of  the 
one  operated  by  appellants. 

There  is  no  dispute  as  to  the  fact  that  deceased  was  killed 
by  a  stone  thrown  from  a  blast  fired  by  the  servants  of 
appellants,  and  the  negligence  charged  is,  failing  to  give 
proper  or  necessary  signals  that  the  blast  was  about  to  be 
fired,  so  that  persons  in  the  vicinity  could  get  out  of  the 
way  and  avoid  the  danger.  Whether  or  not  such  signals 
were  given,  was  the  material  question  in  the  case,  it  being 
substantially  conceded  that  a  failure  to  give  them  before 
firing  the  blast  would  be  such  negligence  on  the  part  of 
appellants  as  to  render  them  liable  for  damages  occurring  as 
a  result  of  such  failure.  On  this  subject  there  was  a  serious 
conflict  in  the  evidence,  and  it  was  for  the  Jury,  who  saw 
the  witnesses  and  heard  them  testify,  to  reconcile  the  con- 
tradictory statements  if  they  could,or  if  that  were  impossible, 
then  to  decide  upon  which  side  the  truth  lay. 

As  was  said  in  Corwith  v.  Colter,  82  111.  588,  *'  There  is 
an  irreconcilable  conflict  in  the  material  portions  of  the 
evidence  and  it  was  for  the  jury  to  determine  the  prepon- 
derance, and  we  can  not  interfere.  In  cases  of  such  conflict 
what,  on  paper  may  appear  to  be  slight  circumstances,  when 
seen  and  heard,  may,  and  frequently  do,  have  a  controlling 
influence  in  determining  the  weight  to  be  given  to  the 


Second  District — Decemeer.  Term,  1896.  509 

Wright  V.  Avery. 

evidence.  Many  things  in  a  trial  in  the  court  below 
can  never  be  brought  to  this  court,  and  they  frequently 
properly  control  the  finding  of  a  jury.  They  have  the 
witnesses  before  them,  and  their  manner  of  testifying  can 
not  be  transferred  to  paper,  and  hence,  all  aids  to  the  jury, 
derived  from  that  source,  can  not  be  considered  by  the 
Appellate  Court." 

This  language  is  peculiarly  applicable  to  the  case  at  bar, 
and  even  though  upon  the  face  of  the  record  a  count  of  the 
witnesses  might  show  a  greater  number  testifying  that  the 
signal  was  given  than  to  the  contrary  of  that  proposition, 
yet  that  fact  alone  would  not  authorize  us  to  set  aside  the 
verdict.  To  warrant  us  in  disturbing  the  finding  of  the 
jury,  it  should  be  so  manifestly  against  the  weight  of  the 
evidence  that  we  could  say  without  hesitation  it  ought  not 
to  stand.     This  we  can  not  do  in  the  state  of  the  record. 

The  jury  not  only  found  a  general  verdict  for  appellee, 
but  were  required  to  find  specially  as  to  whether  or  not  any 
signal  was  given  before  the  blast  was  fired.  On  this  ques- 
tion, thus  specifically  called  to  their  attention,  the  jury 
found.against  appellants,  and  the  judge  who  tried  the  cause 
and  heard  the  witnesses  testify,  having  the  same  opportu- 
nities for  observation  that  the  jury  had,  permitted  their 
verdict  to  stand.  The  presumption  is  that  the  judge  who 
tried  the  cause  has  done  his  duty  as  well  as  that  the  jury 
have  done  theirs.  For  anything  that  we  can  know,  it  may 
have  appeared  to  the  court  and  jury  that  the  decided  weigj]  t 
of  the  evidence  was  manifestly  with  the  appellee,  and  we 
must  therefore  leave  the  credibilitv  of  the  witnesses  and 
the  worth  of  the  evidence  to  the  jury,  where  the  law  places 
it.  On  a  careful  examination  of  the  whole  record  we  decline 
to  disturb  the  finding  in  this  case. 

The  instructions  complained  of  are  the  usual  "stock" 
instructions,  almost  invariably  given  in  cases  where  there  is 
a  sharp  conflict  in  the  evidence,  and  only  lay  down  well 
known  rules  regarding  the  credibility  of  the  witnesses  and 
the  preponderance  of  the  evidence.  We  find  in  them  no 
error  of  a  reversible  nature. 

The  judgment  of  the  Circuit  Court  will  be  affirmed. 


510  Appellate  Courts  of  Illinois, 

Vol.  70.]  C.  &  A.  R.  R.  Ck>.  v.  Glenny. 


^0  510       Chicago  &  A.  S.  B.  Go.  t.  John  Olenny  and  Martin 
7u  oio  Glenny. 

175s  238 

1.  Railboads— Proo/  of  Liability  for  Damage  Catued  by  JSne.— 
In  a  suit  to  recover  for  damages  alleged  to  have  been  occasioned  by  fire 
set  by  sparks  from  a  locomotive,  if  it  is  sho^ni  that  such  sparks  set  the 
fire,  a  prima  facie  case  is  established,  and  the  burden  is  thrown  upon 
the  defendant  to  rebut  the  liability. 

2.  Same — Liability  for  Damage  Catued  by  Fire, — In  a  suit  to  recover 
for  damages  alleged  to  have  been  occasioned  by  fire  set  by  sparks 
from  a  locomotive,  if  it  is  shown  that  the  fire  actually  starred  in  the 
railroad  company's  right  of  way,  in  consequence  of  dangerous  combustible 
materials  having  been  negligently  left  thereon,  a  clear  case  of  negligence 
is  made  against  the  company,  without  reference  to  the  condition  of  the 
engine. 

8.  Pleading — Plea  of  General  Issue  Does  Not  Put  in  Issue  IncorporO' 
tion  of  a  Defendant  Company. — In  a  suit  against  a  railroad  company  to 
recover  for  damages  alleged  to  have  been  occasioned  by  fire  set 
by  sparks  from  a  locomotive,  if  the  defendant  plead  only  ^e  general 
issue,  proof  that  it  is  an  incorporated  company  is  not  required. 

Trespass  on  the  €ase,  to  recover  for  damage  caused  by  fire.  Appeal 
from  the  Circuit  Court  of  Will  County;  the  Hon.  Dorrancb  Dibsll, 
Judge,  presiding.  Heard  in  this  court  at  the  December  term,  18M. 
Afiirmed.    Opinion  filed  Jime  26,  1897. 

George  S.  House,  attorney  for  appellant. 

R.  W.  Barger  and  Haley  &  O'Donnell,  attorneys  for 
appellees. 

Mr.  Justice  Crabtreb  delivered  the  ofiniok  of  thb 
Court. 

This  was  an  action  on  the  case,  brought  by  appellees 
against  appellant  to  recover  damages  for  the  destraction  of 
property  by  fire,  alleged  to  have  been  communicated  by  one 
of  appellant's  engines  drawing  a  train  of  cars  on  its  railway, 
running  past  appellees'  premises. 

The  first  trial  of  the  cause  resulted  in  a  disagreement  of 
the  jury,  but  upon  a  second  trial  there  was  a  verdict  in 
favor  of  appellees  for  $7,849.18. 

The  trial  court  required  a  remittitur  of  $1,349. 18,  and 


Second  District — December  Term,  1896.  511 

C.  &  A.  R.  R,  Co,  v.  Glenny, 

that  being  entered,  a  motion  for  a  new  trial  was  overruled 
and  judgment  rendered  for  $6,500,  to  reverse  which  appel- 
lant prosecutes  this  appeal. 

Numerous  errors  are  insisted  upon  as  grounds  of  reversal, 
principal  among  which,  it  is  urged  that  the  evidence  is  not 
sufficient  to  support  a  verdict  under  either  count  of  the  dec- 
laration. It  is  also  claimed  that  there  is  error  in  the 
instructions  and  that  the  damages  are  excessive. 

A  very  careful  examination  of  the  record  satisfies  us  that 
neither  of  those  claims  furnishes  a  sufficient  reason  for 
reversing  the  judgment. 

There  can  be  no  reasonable  question,  under  the  evidence, 
that  the  fire  which  destroyed  appellees'  property,  was  com- 
municated by,  and  started  from,  a  passing  locomotive  engine 
drawing  one  of  appellant's  trains.  Under  the  statute  this 
was  full  prima  facie  evidence  to  charge  appellant  with  neg- 
ligence. Rev.  Stat.  1874,  p.  814;  2  Starr  &  Curtis,  1949, 
par.  104.  Whether  this  prima  facte  case  was  rebutted  by 
appellant,  was  a  question  of  fact  for  the  jury,  and  we  see 
no  sufficient  reascm  for  interfering  with  the  verdict  on  that 
point.  Notwithstanding  appellant's  proofs  as  to  the  proper 
equipment  and  handling  of  the  engine,  the  fact  remains 
that  a  shower  of  sparks  was  seen  to  be  escaping  therefrom 
while  it  was  passing  by  appellees'  premises,  and  by  reason 
thereof  their  property  was  destroyed.  Philip  Hayes,  living 
on  a  farm  adjoining  that  of  appellees,  testified  that  he  saw 
the  train  when  it  p<assed;  that  the  engine  was  throwing  a 
shower  of  sparks  thirty  feet  high,  "  like  a  shower  of  hail 
or  a  thick  snow  fall."  Thomas  Jackson,  another  neighbor- 
ing farmer,  testified  that  '^  as  the  engine  passed  along  there 
was  a  great  quantity  of  sparks  flowing  out."  Jacob  Tal- 
mage,  another  witness,  testifies  to  seeing  the  train  pass,  and 
that  the  engine  was  throwing  sparks,  according  to  his  judg- 
ment, thirty  feet  in  the  air.  To  the  same  effect  is  the  testi- 
mony of  appellees.  Now,  if  the  testimony  of  these 
witnesses  is  true  (and  it  was  for  the  jury  to  say  whether 
it  was  or  not),  then  something  was  wrong,  either  in  the 
equipment  or  the  handling  of  the  engine.    The  expert  wit- 


512  Appellate  Courts  of  Illinois. 

Vol.  70.]  C.  &  A.  R.  R.  Co.  v.  Glenny. 

nesses  who  testified  for  appellant,  say  that  if  the  engine  is 
properly  equipped  and  properly  handled  sparks  will  not 
thus  escape,  and  their  evidence  shows  that  if  the  engine 
allows  a  large  quantity  of  fire  to  escape  from  the  smoke- 
stack and  set  fire  along  the  right  of  way,  it  is  either  out  of 
order  or  else  improperly  handled. 

In  this  state  of  the  evidence  it  was  for  the  jury  to  say 
whether  the  prima  fade  case  made  out  by  the  appellees 
had  been  rebutted  by  appellant.  St.  Louis,  A.  &  T.  H.  Ry. 
Co.  V.  Strotz,  47  111.  App.  342;  Louisville,  etc.,  Ey.  Co.  v. 
Spencer,  149  111.  97;  Lake  Erie  &  Western  Ry.  Co.  v. 
Kirts,  29  App.  l75;  Wabash  R.  E.  Co.  v.  Smith,  42  App. 
527. 

But  there  was  evidence  in  this  case  from  which  the  jury 
were  warranted  in  finding  that  the  fire  actually  started  in 
appellant's  right  of  way,  in  consequense  of  dangerous  com- 
bustible materials  having  been  negligently  left  thereon  by 
appellant,  and  if  it  did,  this  made  a  clear  case  of  negligence 
against  appellant,  without  reference  to  the  condition  of  the 
engine.     C.  &  E.  111.  Ey.  Co.  v.  Goyette,  133  111.  21. 

Objection  is  made  that  there  is  no  proof  appellant  was 
an  incorporated  company,  and  that  therefore  no  case  was 
made  against  it  under  the  statute,  and  because  of  such  want 
of  proof  some  of  the  instructions  are  erroneous.  But  appel- 
lant was  declared  against  as  an  incorporated  company,  and 
appears  to  have  been  served  with  process  as  such.  There 
was  no  plea  of  nul  tiel  corporation  filed,  the  only  plea  of 
appellant  being  the  general  issue.  Nor  does  the  question 
appear  to  have  been  in  any  manner  raised  in  the  court 
below.  Under  the  pleadings  we  do  not  think  it  was  neces- 
sary to  put  in  afiirmative  proof  of  the  incorporation;  but 
at  any  rate  the  question  ought  not  to  be  raised  in  this  court 
for  the  first  time,  and  so  far  as  that  point  is  concerned  we 
hold  the  objection  insufficient  to  warrant  a  reversal.  We 
find  no  substantial  error  in  the  instructions. 

As  to  the  point  that  the  damages  are  excessive,  we  think 
the  remittitur  entered  was  amply  sufficient  to  cover  the 
value  of  any  property  concerning  which  there  might  be  a 
doubt  of  appjlleas'  right  to  recover  for.    It  is  true  the 


Second  District — December  Term,  1896.  613 

Over  V.  Carolus. 

amount  of  the  judgment  is  large,  but  it  is  warranted  by  the 
evidence,  and  we  can  not  say  the  damages  are  excessive. 

The  question  raised  by  appellant  concerning  the  owner- 
ship of  the  property,  as  between  the  heirs  of  the  elder 
Glennys,  and  also  as  to  the  respective  rights  of  appellees 
and  the  insurance  company,  or  the  contract  existing  between 
them,  we  think  are  matters  with  which  appellant  has  no 
concern.  If,  by  its  negligence,  appellant  destroyed  appel- 
lees' property,  it  should  pay  the  damages;  and  so  far  as 
appellant  is  concerned,  it  is  immaterial  whether  the  insur- 
ance company  or  appellees  get  the  money. 

Finding  no  serious  error  in  the  record,  the  judgment  must 
be  affirmed. 


John  Over  v.  J.  K.  Carolns.  uib^HI 


1.  MoRTOAOBS — Deeds  Absolute  in  Farm — Compensation  for  Loss  of 
Equity  of  Redemption. — A  deeded  certain  land  to  B  in  satisfaction  of 
a  debt,  taking  an  agreement  for  a  reconveyance  upon  payment  of  the 
amount  due  within  two  years.  B  sold  the  land  to  C  for  the  amount 
of  the  debt  and  C  traded  it  for  other  property  with  the  advice  and  co-op- 
eration of  A.  At  a  later  date  A  filed  a  bill  alleging  that  the  transac- 
tions between  himself,  Band  C  amounted  to  a  mortgage  of  the  original 
property  to  C,  and  praying  for  a  money  decree  for  the  value  of  his 
alleged  equity  of  redemption.  C  claimed  that  he  had  no  knowledge 
that  the  original  deed  to  B  was  intended  as  a  mortgage,  that  his  own 
deed  was  absolute  and  that  in  the  subsequent  transactions  A  acted  as 
his  agent.  Held,  that  as  the  trades  had  been  made  with  the  consent 
and  acquiescence  of  A,  whatever  equity,  if  any,  he  had  in  the  original 
land  must  be  considered  as  transferred  to  the  property  traded  for,  and 
that  it  would  be  improper  to  charge  C  with  the  money  value  of  such 
equity,  and  to  give  A  the  money,  when,  if  the  original  transaction  was 
a  piortgage,  G  wcmld  be  entitled  to  a  payment  in  money  by  way  of 
redemption. 

Bill,  for  an  accounting.  Error  to  the  Circuit  Court  of  Whiteside 
Coimty:  the  Hon.  J.  C.  Garveb,  Judge,  presiding.  Heard  in  this 
court  at  the  December  term,  1S96.  Alffirmed.  Opinion  filed  June  26, 
1897. 

Vol.  LXX  88 


514  Appellate  Couhts  of  Illoois. 

Vol.  70.]  Over  v.  Carolus. 

0.  L.  Sheldon,  attorney  for  plaintiff  in  error. 

J.  E.  McPherban,  attorney  for  defendant  in  error. 

Mb,  Justice  Cbabtbeb  delivebed    the   opinion  op  the 

COUBT. 

This  was  a  bill  in  equity  brought  by  plaintiff  in  error 
against  defendant  in  error  and  one  Emanuel  Brown,  to 
obtain  an  accounting  as  to  certain  land  deals  and  transac- 
tions originating  in  Whiteside  county  in  this  Stat^.  It 
appears  that  on  February  18,  1887,  Over  was  the  owner  of 
Section  No.  84  in  Hahneman  township  in  said  Whiteside 
county,  which  was  then  subject  to  an  incumbrance  or  mort- 
gage for  the  sum  of  $6,000.  That  Over  was  indebted  to 
Brown  in  the  sum  of  $1,000,  and  to  various  other  parties  to 
the  amount  of  $551.  An  arrangement,  was  entered  into 
between  Over  and  Brown,  on  the  date  above  mentioned, 
whereby  Brown  paid  off  this  indebtedness  of  $551  to  other 
parties,  and  Over  thereupon  conveyed  to  Brown  this  Section 
34,  as  security  for  the  payment  of  $1,551,  and  the  latter 
executed  a  contract  to  Over  to  reconvey  the  land  on  pay- 
ipent  of  said  sum  of  $1,551,  no  reference  being,  made  in  the 
contract  to  the  $6,000  incumbrance  to  which  the  land  was 
subject  when  conveyed  by  Over  to  Brown.  By  its  terms, 
the  contract  for  reconveyance  ran  two  years.  There  is  no 
question  that  thB  transaction  between  plaintiff  in  error  and 
Brown  amounted  in  equity  to  a  mortgage,  from  which  the 
former  would  have  had  the  right  to  redeem  according  to 
the  terms  of  the  contract,  had  the  situation  of  the  parties 
remained  unchanged. 

On  February  19,  1887,  the  next  day  after  these  transac- 
tions between  Over  and  Brown,  the  former  made  a  general 
assignment  for  the  benefit  of  creditors,  and  in  those  proceed- 
ings his  assets  were  shown  to  be  $4,893.60  and  his  liabilities 
$5,739.91.  His  schedule  contained  no  reference  to  any 
interest  in  said  Section  No.  34.  So  far  as  this  fact  has  any 
bearing  upon  the  case  it  will  be  referred  to  hereafter. 

In  August,  1888,  the  evidence  tends  to  show  that  plaintiff 


Second  Distkict — December  Term,  1896.  515 

Over  V.  Carolus. 

in  error  owed  Carolus  the  defendant  in  error  (who  is  his 
brother-in-law)  between  $500  and  $600  and  desired  the  latter 
to  advance  him  more  money  that  he  might  go  to  Omaha  to 
engage  in  business  there.  That  Over  having  failed  to  pay 
Brown  the  $1,551  due  the  latter,  Brown  had  served  notice 
on  him  to  surrender  possession  of  the  land.  At  the  sugges- 
tion and  solicitation  of  Over,  Carolus  paid  Brown  the  amount 
due  him,  and  thereupon  the  latter  executed  a  quit-claim  deed 
of  Sec.  34  to  Carolus,  and  thereafter  Brown  does  not  appear 
to  have  had  anv  connection  whatever  5vith  the  transactions 
between  Over  and  Carolus. 

In  December,  1891,  by  the  consent  and  active  co-opera- 
tion of  plaintiff  in  error,  Carolus  traded  said  Sec.  34  for  a 
certain  flouring  mill,  elevator  and  town  lots  situated  in 
White  Cloud,  Kan.,  in  exchange  for  which  he  deeded  the 
land  in  Whiteside  county  to  one  E.  C.  Nuzum,  for  an  alleged 
consideration  of  $25,400,  subject  to  a  mortgage  of  $6,000, 
which  Nuzum  assumed  and  agreed  to  pay.  The  mill  and 
elevator  property  was  valued  in  the  trade  at  $19,000. 

Carolus  went  to  White  Cloud  and  operated  the  mill  for 
two  or  three  years,  as  he  claims,  at  a  loss  of  $3,000,  at  the 
end  of  which  time,  with  the  consent  and  active  co-opera- 
tion of  plaintiff  in  error,  Carolus  traded  off  the  mill  and 
elevator  property  for  lands  in  Nebraska  and  Missouri,  and 
for  a  store  building  and  lots  in  Nebraska,  the  title  to  which 
he  apparently  still  holds,  and  the  value  of  which  under  the 
evidence,  appears  to  be  a  matter  of  a  good  deal  of  uncertainty. 

The  bill  proceeds  upon  the  theory  that  the  transactions 
between  Carolus,  Over  and  Brown,  in  relation  to  Sec.  34, 
amounted  to  a  mortgage  from  Over  to  Carolus,  from  which 
the  former  would  have  the  right  to  redeem,  and  the  bill 
prays  for  such  right,  or,  in  the  event  that  no  redemption 
can  be  decreed  because  the  land  has  passed  into  the  hands 
of  an  innocent  purchaser,  then  it  asks  for  a  money  decree 
against  Carolus  for  the  value  of  Over's  alleged  equity  in  said 
Sec.  34.  So  far  as  Brown  is  concerned,  he  is  not  brought 
into  this  court  by  the  writ  of  error.  The  bill  sought  to 
charge  him  with  the  payment  of  the  $6,000  incumbrance 


516  Appellate  Courts  op  Illinois. 

Vol.  70.]  Over  ▼.  Carolus. 

on  Sec.  34,  because  by  mistake  he  agreed  to  reconvey  on 
payment  of  $1,551,  but  there  was  clearly  no  equity  in  that 
claim  and  no  honest  reason  why  Over  should  have  made  it 
against  him. 

In  his  answer  defendant  in  error  strenuously  denies  that 
there  Avas  any  intention,  understanding  or  agreement  that 
the  transaction  whereby  the  title  to  Sec.  34  became  vested 
in  him,  was  to  constitute  a  mortgage  between  Over  and 
himself.  He  insists  that  he  purchased  the  land  in  good 
faith,  for  full  value,  and  without  any  knowledge  of  the 
contract  between  Brown  and  Over  for  a  reconveyance  on 
payment  of  the  amount  due  from  the  latter  to  the  former, 
and  without  any  agreement  on  his  own  part  to  reconvey  or 
account  in  any  way  to  Over  for  the  proceeds  of  Sec.  34. 
He  insists  that  in  the  later  transactions,  resulting  in  the 
exchange  for  the  mill  and  elevator  property,  and  in  the 
trade  of  the  latter  property  for  the  lands  in  Nebraska  and 
Missouri,  and  wherein  he  consulted  and  co-operated  with 
Over,  the  latter  was  merely  acting  as  his  agent,  and  not  as 
owner  in  behalf  of  himself.  Upon  this  point  we  are  bound 
to  admit  that  there  is  much  in  the  evidence  which  tends  to 
show  that  Carolus  recognized  Over  as  having  some  equity 
and  interest  in  the  transactions,  and  were  Carolus  still  the 
owner  of  Sec.  34,  we  would  be  inclined  to  hold  that  Over 
had  a  right  to  redeem  and  to  an  accounting;  but,  unfortu- 
nately for  him,  such  is  not  now  the  situation,  for,  by  his 
own  consent  and  co-operation,  the  conditions  are  entirely 
changed.  Counsel  for  defendant  in  error  has  made  a 
lengthy  argument  to  show,  and  urges  with  a  good  deal  of 
force  that,  because  Over  failed  to  schedule  his  alleged  inter- 
est in  Sec.  34  in  the  assignment  proceedings,  he  was  guilty 
of  such  a  fraud  upon  his  creditors  as  now  debars  him  from 
obtaining  any  relief  in  a  court  of  equity,  even  though  the 
evidence  might  show  him  to  be  otherwise  entitled  to  it 
Under  the  view  we  take  of  the  case,  it  is  unnecessary  for 
us  to  discuss  or  pass  upon  the  proposition,  as,  upon  other 
grounds,  we  think  the  plaintiff  in  error  has  failed  to  estab- 
lish the  right  to  a  decree  in  his  favor,  and  the  court  beluw 
was  therefore  right  in  dismissing  the  bill. 


Second  Distkict — Decembeb  Term,  1896,  517 

> 

Over  V.  Carolus. 

* 

It  is  not  now  insisted  that  any  redemption  can  be  decreed 
as  to  Sec.  34,  nor,  indeed,  could  any  such  claim  be  reasona- 
bly urged.  That  the  land  has  passed  into  the  hands  of  an 
innocent  purchaser,  by  the  consent  and  co-operation  of 
plaintiff  in  error,  is  practically  admitted,  and  the  present 
owner  was  not  even  made  a  party  to  this  suit.  The  only 
contention  is  that  plaintiff  in  error  is  entitled  to  a  money 
decree  for  the  value  of  his  supposed  equity,  and  much  testi- 
mony has  been  taken  as  to  the  value  of  Sec.  34,  and  also  as 
to  the  value  of  the  lands  received  by  Carolus  in  exchange 
for  the  mill  and  elevator  property,  and  which,  so  far  as  the 
evidence  shows,  are  still  undisposed  of.  We  regard  the 
evidence  as  being  entirely  too  unsatisfactory  and  specula- 
tive to  form  the  basis  of  a  monev  decree.  The  lands  in 
Nebraska  and  Missouri  received  in  exchange  for  the  mill 
and  elevator  property  were  acquired  by  Carolus  with  the 
entire  consent  and  acquiescence  of  plaintiff  in  error,  and 
whatever  equity,  if  any,  Over  had  in  the  property  traded 
for  these  lands,  must  be  considered  as  transferred  to  them. 
Had  the  lands  been  disposed  of,  and  a  definite  sum  realized 
therefrom,  there  might  be  some  basis  for  an  accounting, 
but  they  are  still  held  by  Carolus,  and  may  or  may  not  be 
salable,  but  to  charge  him  now  with  their  money  value, 
according  to  the  conflicting  opinions  of  the  witnesses,  might 
be  the  means  of  doing  him  great  injustice,  by  loading  him 
up  with  a  lot  of  unsalable  land  and  giving  Over  the  money, 
while,  if  the  original  transaction  in  relation  to  Sec.  34  was 
a  mortgage,  then  Carolus  is  the  one  entitled  to  the  money 
by  way  of  redemption.  In  any  view  we  have  been  able  to 
take  of  this  case,  we  can  not  see  how  plaintiff  in  error  is 
entitled  to  any  relief  under  the  bill  filed  and  the  evidence 
submitted,  and  we  think  the  court  properly  dismissed  the 
biU,  and  its  decree  will  be  affirmed. 


618  Appellate  Courts  of  Illinois. 

Vol.  70.]  C.  «fe  A.  R.  R.  Ck).  v.  Blaul. 


70    518 
1758  183 


Chicago  &  Alton  Ballroad  Company  t.  Elizabeth  Blaul. 

1.  'RAiLBJOADa—Persons  About  to  Cross  Tracks  May  Rely  on  Flag- 
man,—K  person  knowing  that  a  flagman  is  usually  stationed  at  a  rail- 
road crossing  has  a  right  to  presume  that  he  is  at  his  post  and  will  do 
his  duty,  and  in  the  absence  of  any  warning,  or  signal  of  danger,  is  not 
chargeable  with  negligence  in  proceeding  to  cross  the  tracks. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Will  County;  the  Hon.  Dobranoe  Dibell,  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1896.  Affirmed.  Opinion 
filed  June  26, 1807. 

George  S.  House,  attorney  for  appellant. 
DoNAHOE  &  MoNaughton,  attomeys  for  appellee. 

Mb.  Justice  Crabtbee  beliyeked  the  opinion  of  the 
Court. 

This  was  an  action  on  the  case  brought  by  appellee  to 
recover  damages  for  injuries  sustained  by  her,  in  conse- 
quence of  a  collision  with  one  of  appellant's  trains  of  cars, 
which  came  in  contact  with  a  buggy  in  which  appellee  was 
riding,  at  the  intersection  of  appellant's  railway  tracks 
with  Fifth  avenue,  in  the  city  of  Joliet. 

There  was  a  trial  by  jury,  resulting  in  a  verdict  and 
judgment  for  appellee  for  $5,000. 

This  court  is  asked  to  reverse  the  judgment  upon  the  sole 
ground  that  the  evidence  does  not  show  appellee  was  in  the 
exercise  of  ordinary  care  for  her  own  safety  at  the  time  of 
the  accident  which  caused  her  injury. 

It  appears  from  the  evidence  that  on  December  8,  1894, 
appellee  left  her  home  in  Chicago,  in  company  with  her 
husband  and  infant  child,  and  proceeded  to  Joliet  over 
appellant's  railroad.  On  arriving  at  the  station  in  Joliet, 
the  party  were  met  there  by  appellee's  brother,  Dennis  Van 
Garvin,  and  one  William  Smith,  who  had  in  waiting  a 
light  spring  wagon,  for  the  purpose  of  conveying  the  visit- 


Second  District — December  Term,  1896.  619 

0.  &  A.  R.  R.  Co.  V.  BlauL 

ors  to  Van  Garvin^s  home,  about  two  miles  southeast  from 
Joliet. 

Appellant's  railway  at  Joliet  crosses  Fifth  avenue  nearly 
at  right  angles,  and  at  the  street  crossing  it  has  three 
tracks,  the  easterly  track  being  the  south-bound  main,  the 
one  next  west  the  north-bound  main,  and  the  westerly 
track  being  what  was  known  as  a  side  track. 

When  the  party  started  for  Van  Garvin's  home,  there 
were  seated  in  the  light  wagon.  Van  Garvin  and  Smith  upon 
the  front  seat,  the  former  sitting  on  the  right-hand  side  and 
driving,  while  the  rear  seat  was  occupied  by  appellee  with 
her  babe  in  her  arms  and  her  husband,  sitting  beside  her, 
and  a  small  boy  sat  in  the  wagon  box  behind  the  rear  seat. 
Proceeding  in  this  manner,  easterly  along  Fifth  avenue,  the 
party  came  to  the  right  of  way  of  appellant's  railroad,  and, 
as  they  reached  that  point,  a  long  freight  train,  consisting 
of  about  forty  box  cars,  was  then  being  drawn  over  the 
Fifth  avenue  crossing,  in  a  northerly  direction,  along  the 
north-bound  main  track. 

Van  Garvin,  who  was  still  driving,  brought  his  horse  to 
a  stand-still,  and  waited  for  this  freight  train  to  pull  across 
the  street,  and  about  the  time  the  caboose  or  rear  car  reached 
the  north  sidewalk,  seeing  nothing  to  prevent  his  going 
forward,  and  there  being  no  gates  closed  or  flagman  at  the 
crossing  to  give  notice  or  warning  of  danger,  he  started  his 
horse  toward  home,  when,  just  as  he  reached  the  easterly 
or  south-bound  main  track,  and  was  in  the  act  of  crossing, 
a  train  consisting  of  an  engine  and  seven  or  eight  flat  cars 
bore  down  upon  them  at  a  rapid  rate  of  speed  from  the  north, 
striking  the  wagon  in  which  appellee  was. riding,  throwing 
the  occupants  of  the  vehicle  a  distance  of  some  twenty  or 
twenty-five  feet,  and  inflicting  upon  the  person  of  appellee 
serious  injuries. 

It  is  frankly  admitted,  by  counsel  for  appellant,  that  under 
the  ordinances  of  the  city  of  Joliet  it  was  the  duty  of  appel- 
lant to  have  a  flagman  at  the  crossing,  and  that  one  is  usually 
on  duty  there,  but  that  at  the  particular  time  of  this  acci- 
dent, he  had  left  his  post  on  some  other  business,  and  w^as 


520  Appellate  Coukts  of  Illinois. 

Vol.  70.]  C.  &  A.  R.  B.  Co.  v.  Blanl. 

then  absent  from  his  place  of  duty;  and  counsel  concedes 
that  this  was  negligence  on  the  part  of  the  appellant.  But 
he  contends  that,  notwithstanding  this  negligence  of  appel- 
lant, appellee  can  not  recover,  because  she  had  committed 
her  safety  to  Van  Garvin,  the  driver  of  the  vehicle,  and  that 
the  latter  was  guilty  of  negligence  in  not  ascertaining  that 
the  east  track  was  safe  to  cross  before  attempting  to  pass 
over  it.  That  inasmuch  as  the  view  was  obstructed  to  some 
extent  by  the  freight  train  upon  the  north-bound  main  track 
he  should  have  waited  until  he  could  know  with  certainty 
that  it  was  safe  for  him  to  cross.  It  is  argued  that  because 
Van  Garvin  knew  there  was  usually  a  flagman  at  the  cross- 
ing, he  should  have  waited  until  notified  by  the  flagman 
that  it  was  safe  to  cross.  Counsel  says  in  his  argument : 
"  He  (Van  Garvin)  knew  that  at  this  crossing  there  was 
stationed  a  flagman,  whose  duty  it  was  to  notify  persons 
riding  in  vehicles  when  it  was  safe  to  cross."  But  we  think 
this  is  a  misapprehension  of  the  duty  of  a  flagman  under  the 
ordinance  put  in  evidence,  and  is  not  according  to  the  gen- 
eral understanding  of  the  public,  nor  the  almost  universal 
custom  of  flagmen  on  such  duty.  It  is  only  when  there  is 
danger,  caused  by  the  approach  of  trains  that  the  flagman 
displays  any  signal,  or  gives  any  notice  to  the  traveling 
public.  When  it  is  safe  to  cross,  the  flagman  does  nothing, 
as  a  general  rule,  but  when  there  is  danger  he  gives  notice, 
or  should  do  so.  This  being  the  almost  universal  custom, 
we  think  Van  Garvin,  knowing  that  a  flagmaa  was  usually 
stationed  at  this  crossing,  had  a  right  to  rely  on  the  pre- 
sumption that  he  was  at  his  post  and  would  do  his  duty,  and 
that  in  the  absence  of  any  warning  or  signal  of  danger,  he 
was  not  chargeable  with  negligence  in  proceeding  to  cross 
the  tracks.  Had  the  flagman  been  at  his  post  and  given  the 
danger  signal  the  accident  would  not  have  happened. 
While  appellee's  party  were  waiting  for  this  freight  train  to 
go  by,  other  teams  had  gathei*ed  there  also  waiting  to  cross, 
and  all  seem  to  have  started  forward  about  the  same  time, 
the  crossing  appearing  to  be  clear  and  none  of  them  appre* 
bending  danger. 
They  no  doubt  relied  upon  the  presumption   that  the 


Second  District — December  Term,  1896.  521 

C.  &  A.  R.  R.  Co.  V.  Blaul. 

flagman  was  at  his  post,  and  would  do  his  duty,  warning 
theni  of  danger  if  it  existed.  This  presumption  they  had  the 
right  to  indulge  and  to  act  upon. 

"  The  flagman's  duty  is  to  know  of  the  approach  of  trains 
and  to  give  timely  warning  tx)  all  persons  attempting  to 
cross  the  railroad  track,  and  the  public  have  a  right  to  rely 
upon  a  reasonable  performance  of  that  duty."  C,  St.  L.  & 
P.  R  R.  Co.  V.  Hutchinson,  120  111.  5S7. 

Fifth  avenue  was  a  largely  traveled  thoroughfare,  and  it 
was  the  duty  of  appellant  to  keep  a  flagman  in  constant 
attendance  there.  In  his  absence,  to  run  a  train  over  the 
crossing  at  a  dangerous  rate  of  speed,  was  great  negligence, 
and  rendered  ap|>ellant  clearly  liable  for  injury  resulting 
therefrom  to  any  one  in  the  exercise  of  ordinary  care  for 
his  or  her  own  safety.  Whether  appellee  was  in  the  exer- 
cise of  such  care  at  the  time  of  the  accident  was  a  question 
of  fact  for  the  jury,  and  we  can  not  say  their  finding  on 
that  point  was  wrong.  On  the  contrary,  we  think  it  was 
fully  justified  by  the  evidence,  and  we  can  not  reverse  the 
judgment  upon  that  ground. 

It  is  claimed  that  the  damages  are  excessive,  but  we  can 
not  say  that  the  jury  were  not  warranted  in  finding  the 
amount  they  have  awarded. 

From  the  evidence  the  jury  had  a  right  to  believe  that 
appellee  has  sustained  an  injury  to  the  sjMnal  cord,  from 
which  she  is  in  danger  of  permanent  paralysis,  and  if  so, 
C3rtainly  the  damages  are  not  excessive.  We  do  not  need 
the  testimony  of  expert  physicians  to  tell  us  that  injuries 
of  the  character  received  by  appellee  frequently  do  result 
in  paralysis.  The  extent  of  the  injury  may  not  be  at  once 
apparent,  but  the  result  may  be  a  total  wreck  of  the  entire 
system.  The  jury  heard  the  testimony  of  the  witnesses, 
and  the  opinions  of  the  medical  experts  who  had  examined 
appellee,  and  they  saw  and  had  the  opportunity  of  observ- 
ing her  for  themselves,  and  we  are  not  disposed  to  substi- 
tute-our  judgment  for  theirs  under  all  the  circumstances  of 
the  case. 

No  complaint  whatever  is  made  of  the  instructions,  and 
finding  no  error  in  the  record,  the  judgment  will  be  affirmed. 


522  Appellate  Courts  of  Illinois. 


Vol.  70.]  Wheeler  v.  Metzger  Linseed  Oil  Co. 


Charles  B.  Wheeler^  Assignee^  t.  Metzger  Linseed  Oil 

Company. 

1.  Sales— J^or  Future  Delivery— Rights  of  theParties  Where  iheVeri- 
dee  Makes  an  Assignment — A  contracted  with  B  for  six  hundred  barrels 
of  oil,  to  be  delivered  at  such  time  as  A  might  direct  before  a  specified 
date.  Shortly  after  the  sale  A  made  an  assignment  for  the  benefit  of 
creditors  and  thereupon  B  sold  the  oil  at  a  loss  and  filed  a  claim  against 
A*s  assignee  for  the  amount  thereof.  Heldf  that  the  assignment  did  not 
amount  to  a  rescission  of  the  contract,  or  to  a  breach  thereof;  that  the 
assignee  had  the  entire  time  allowed  by  the  contract  to  order  and  pay 
for  the  oil  and  could  not  be  called  upon  for  full  performance  or  placed 
in  default  before  the  expiration  of  that  time,  and-  that  B's  action  gave 
him  no  valid  claim  against  A's  assignee. 

Claim  in  Assignment  Proccedingg.<^Appeal  from  the  County  Court 
of  Peoria  County ;  the  Hon.  Robert  H.  Loyett,  Judge,  presiding.  Heard 
in  this  court  at  the  December  term,  1896.  Reversed.  Opinion  filed  June 
26,  1897. 

WiNSLow  Evans,  attorney  for  appellant. 
Covey  &  Covky,  attorneys  for  appellee. 

Mr.  Justice  Ckabtkee  delivered  the  opinion  of  the 
Court. 

This  appeal  is  prosecuted  from  an  order  of  the  County 
Court  of  Peoria  County,  allowing  a  claim  of  $2,722.33 
against  the  insolvent  corporation  of  Singer  &  Wheeler,  and 
in  favor  of  appellee. 

It  is  admitted  that  $1,460.83  of  this  amount  was  due  to 
appellee  at  the  time  of  filing  the  claim,  for  oil  and  meal  cake 
sold  and  delivered  by  appellee  to  Singer  &  Wheeler  before 
the  assignment;  and  as  to  so  much  of  the  allowance  no 
objection  is  made.  But  the  balance,  or  the  sum  of  $1,361.50, 
was  allowed  for  an  alleged  loss  upon  a  resale  of  600  barrels 
of  oil,  which  Singer  &  Wheeler  contracted  to  purchase 
from  appellee  according  to  the  terms  of  a  written  contract 
which  appears  in  the  evidence,  and  which  was  as  follows : 


Second  District — December  Term,  1896.  523 

Wheeler  v.  Metzger  Linseed  Oil  Co. 

"  We,  the  undersigned,  have  this  day  bought  and  agree  to 
receive  of  The  Metzger  Linseed  Oil  Company,  Chicago,  Illi- 
nois, six  hundred  barrels  pure  linseed  oil  (of  about  fifty 
gall  ons  each)  delivered  in  Peoria,  111.,  at  railroad  depot,  as 
follows : 

As  ordered  out  by  us  between  October  21,  1895,  and 
August  1, 1896,  and  to  be  invoiced  as  follows :  Shipments  in 
month  of  October,  1895,  to  be  39  cents  for  raw;  Novem- 
ber and  December,  39  cents  for  raw;  January,  39J  cents; 
February,  40  cents;  March,  40J  cents;  April,  41  cents;  May, 
41^  cents;  June,  42  cents;  July,  42^  cents.  Boiled  oil,  2 
cents  per  gallon  over  price  of  raw  oil.  Raw  linseed  oil  at 
; ;  boiled  or  bleached,  at  —  per  gallon  of  7J  pounds. 

Terms  of  payment,  thirty  days,  or  less  one  per  cent  if  paid 
in  ten  days  from  invoice  date  on  each  shipment.  Shipments 
to  be  made  as  named  in  this  agreement. 

It  is  understood  that  there  are  no  conditions  relating  to 

this  purchase  other  than  stated  hereon. 

Singer  &  Wheeler. 

P.  S.  Singer,  Treasurer, 
Peoria,  IlL,  Oct.  18,  '95." 

One  car  of  oil  had  been  ordered  by  Singer  <fe  Wheeler 
from  appellee  on  October  17th,  the  day  before  the  date  of 
the  contract,  but  the  shipment  thereof  was  not  made  until 
October  29th.  It  is  a  matter  of  dispute  between  the 
parties  whether  this  car  load  of  oil  should  be  treated  as  a 
part  of  the  600  barrels  contracted  for  on  October  18th,  or 
otherwise,  but  under  the  view  we  take  of  the  case  it  is 
immaterial.  The  allowance  of  $1,460.83  covers  that  car 
load. 

No  other  shipments  of  oil  were  made  by  appellee  to 
Singer  &  Wheeler  under  the  contract,  nor  was  any  "  or- 
dered out"  by  the  latter,  who,  oh  January  10,  1896,  made  a 
general  assignment  to  appellant  for  thel^enefit  of  creditors. 

Appellant  duly  qualified  as  assignee  and  gave  the  proper 
notices  to  creditors,  including  appellee. 

On  receipt  of  this  notice  appellee  sent  to  appellant  a  let- 
ter of  which  the  following  is  a  copy : 


524  Appellate  Courts  op  Illinois. 

Vol.  70.]  Wheeler  v.  Metzger  Linseed  Oil  Co. 

"  Januaby  24,  1896. 

Mr.  Charles  R.  Wheeler,  Assignee,  Peoria,  Illinois. 

Dear  Sir  :    Your  notice  of  being  appointed  assignee  of 

Singer  &  Wheeler  just  received.     In  reply  we  wish  to  say 

that  we  have  a  contract  with  said  Singer  &  Wheeler  for  ten 

cars  of  linseed  oil,  containing  sixty  barrels  in  each  car,  or  a 

total  of  six  hundred  barrels.     Said  oil  to  be  delivered  by 

August  1,  1896.    We  therefore  ask  you  to  kindly  give  us 

what  disposition  you  wish  to  make  of  this  oil,  as  we  are  ready 

to  deliver  same,  according  to  contract    With  a  soon  answer, 

please  oblige, 

Very  truly  yours, 

Metzoeb  Linseed  Oil  Co., 

William  G.  Metzgeb,  Sec'y. 

To  this  communication  appellant  made  no  answer  what- 
ever. 

No  further  correspondence  or  communication  seems  to 
have  been  had  between  the  parties  in  relation  to  this  contract, 
and  on  February  25, 1896,  without  any  notice  to  the  assignee 
or  to  Singer  &  Wheeler,  appellee  sold  600  barrels  of  oil  on 
the  market  in  Chicago,  at  thirty-five  cents  per  gallon,  and 
charged  a  loss  of  $1,714.50  to  the  account  of  Singer  & 
Wheeler,  which  was  included  in  the  claim  filed  against  the 
insolvent  estate  in  the  Countv  Court. 

On  the  hearing  the  court  reduced  the  amount  of  this  item, 
but  allowed  appellee  the  difference  between  thirty-five  cents 
per  gallon,  for  which  they  sold  the  600  barrels  on  February 
25th,  and  forty  cents,  the  contract  price  for  the  month  of 
February,  on  the  600  barrels  of  fifty  gallons  each. 

Appellant  contends  that  the  court  erred  in  allowing  any 
damages  whatever  for  the  alleged  failure  and  refusal  to 
perform  the  contract  and  receive  the  entire  six  hundred 
barrels  of  oil. 

We  think  a  proper  construction  to  be  placed  on  the  con- 
tract is,  that  Singer  &  Wheeler  had  the  entire  time,  includ- 
ing July  31, 1896,  to  order  out  the  oil  and  pay  for  the  same, 
and  could  not  be  called  upon  for  full  performance  or  placed 
in  default  before  that  time. 


Second  District — December  Term,  1896.  525 

I  ■        ■  ■       ■    ■  ^  .!.■  Ill 

Wheeler  v.  Metzger  Linseed  Oil  Co. 

■I     '    i         I    ] 1 1         ,       ■  I .  ■■  I     .111  ■  ..  .  ..        I  I 

The  mere  fact  of  the  assignment  for  the  benefit  of  cred- 
itors did  not  amount  to  a  rescission  of  the  contract,  nor  to  a 
repudiation  or  breach  thereof  on  the  part  of  Singer  & 
Wheeler. 

Counsel  for  appellee  do  not  contend  that  the  mere  fact  of 
insolvency  alone  mil  work  a  breach  of  the  contract,  but  they 
do  insist  that  the  assignment  of  the  vendee,  coupled  with 
other  facts  and  circumstances,  will  justify  the  vendor  in 
presuming  that  the  vendee  and  his  assignee  have  abandoned 
the  contract.  Authorities  are  cited  which  no  doubt  sustain 
this  proposition,  but  we  do  not  regard  them  as  applicable  to 
the  facts  of  this  case.  Here  there  are  no  facts,  and  circum- 
stances shown  by  the  evidence  which  evince  any  intention 
on  the  part  of  Singer  &  Wheeler,  or  the  assignee,  to  abandon 
or  repudiate  the  contract.  They  simply  said  nothing  and 
did  nothing. 

Under  the  contract  and  the  letter  from  appellee  to  the 
assignee,  which  we  have  quoted  above,  we  think  the  latter 
had  the  right  to  assume  that  he  had  until  August  1,  1896, 
to  determine  what  he  would  do  about  performing  the 
contract. 

Had  it  then  been  for  the  best  interests  of  the  insolvent 
estate  the  assignee  might  have  been  authorized  and  directed 
by  the  court  to  perform  the  contract.  Singer  v.  Leavitt, 
83  App.  4:98;  Baker  v.  Singer,  35  111.  App.  271. 

Our  conclusion  on  this  point  is,  that  inasmuch  as  the  con- 
tract gave  the  assignee  until  the  end  of  July  to  perform  it, 
he  was  not  bound  to  determine  what  he  would  do  about  it 
on  January  24th,  the  date  of  appellee's  letter  to  him  on 
that  subject.  His  mere  silence  gave  no  right  to  appellee  to 
consider  the  contract  as  rescinded,  and  no  notice  whatever 
was  given  to  him  after  the  last  mentioned  date. 

There  being  then  no  breach  of  the  contract  on  February 
25, 1896,  when  appellee  resold  the  oil,  such  sale  was  pre- 
mature and  unauthorized  as  against  Singer  &  Wheeler  or 
the  assignee.  It  can  scarcely  be  contended  that  had  Sin- 
ger &  Wheeler,  or  the  assignee,  ordered  the  600  barrels  of 
of  oil  on  March  1, 1896,  and  tendered  the  price,  that  appellee 


52G  Appellate  Courts  of  Illinois. 

Vol.  70.1  Wheeler  v.  Metzger  Linseed  Oil  Co. 

would  not  have  beea  bound  to  deliver  it.  The  contract  did 
not  require  that  oil  should  be  ordered  in  any  particular 
month,  nor  that  any  specific  amount  should  be  ordered  at  a 
certain  time,  but  provided  that  it  should  be  "  ordered  out 
*  *  *  between  October  21,  1895,  and  August  1,  1896." 
Yet,  after  the  sale  of  the  600  barrels  on  February  25th, 
appellee  never  had  any  oil  on  hand  with  which  to  fill  the 
contract  had  Singer  &  Wheeler  or  the  assignee  demanded 
it.  This  is  testified  to  by  Mr.  "William  Q.  Metzger,  the  sec- 
retary of  appellee,  who  further  says  that  they  "did  not  con- 
sider the  contract  at  an  end.  ♦  ♦  *  We  took  it  upon 
ourselves  to  sell  that  much  oil  and  put  it  to  their  credit." 
This  we  think  appellee  had  no  right  to  do  at  that  time. 
The  following  authorities  sustain  our  views  upon  this  ques- 
tion :  Shaw  et  al.  v.  Lady  Ensley  Coal  Co.,  147  III.  526; 
Bagley  v.  Findlay,  82  Ill.'524;  Saladin  v.  Mitchell,  45  111. 
79;  Florence  Mining  Co.  v.  Brown,  124  IT.  S.  385. 

If  the  contract  was  not  at  an  end,  appellee  had  no  right 
to  sell  the  oil  and  charge  the  loss  to  Singer  &  Wheeler,  and 
certainly  no  authority  is  shown  to  make  the  sale  as  their 
agents,  and  when  they  assumed  to  do  so  they  acted  at  their 
peril.  The  mere  fact  the  market  was  declining  would  not 
authorize  a  sale.  From  anything  appearing  in  the  evidence 
to  the  contrary,  the  oil  might  have  been  sold  at  a  profit  in 
July,  the  last  month  in  which  Singer  &  Wheeler  had  the 
right  to  complete  the  contract. 

We  think  the  court  erred  in  refusing  to  hold,  as  the  law 
governing  the  case,  propositions  numbered  1,  2,  3,  4,  6,  7 
and  8,  submitted  by  appellant.  They  correctly  set  forth 
the  law  applicable  to  the  facts  as  shown  by  the  evidence, 
and  should  have  been  so  held. 

The  court  also  erred  in  allowing  any  portion  of  the  claim 
for  breach  of  contract  as  to  the  si5c  hundred  barrels  of  oil  in 
controversy,  and  its  order  must  be  reversed. 


Second  District — December  Term,  1896.  527 

Ribordy  v.  Murray. 


Ferdinand  Ribordy  t.  Bronson  Hnrray  et  aL 

1.  Afpexxjltb  Court  FAAcncE— Enforcement  of  1?mZ^^.— WhUe  the 
filing  of  briefs  by  an  appellee  after  the  time  allowed  is  improper  and 
irregular,  whether  the  strict  terms  of  Uie  rule  applicable  in  such  cases 
are  to  be  enforced  in  any  particular  case,  is  a  matter  within  the  discre- 
tion of  the  court,  and  a  decree  will  not  be  reversed  pro  forma  if  the 
court,  on  an  examination  of  the  record,  deems  it  proper  to  decide  the 
case  upo&  its  merits. 

2.  Equity  Practice— ^ppZica^ioiw  for  Rehearing  in  the  lYial 
Court. — It  is  not  necessary  that  an  application  be  made  for  a  rehearing 
in  the  trial  court  before  an  Appellate  Court  can  entertain  an  appeal 
from  a  decree  in  chancery. 

8.  Drainage— r^  Act  of  1889  Coiw^rued.— The  construction  of 
independent  ditches,  by  owners  of  adjoining  lands,  and  the  connecting 
of  them  together  so  as  to  form  a  continuous  system  of  drainage  across 
the  lands  of  the  several  owners,  by  mere  acquiescence  and  without  any 
special  agreement  or  license,  will  bring  the  case  within  the  drainage  act 
of  June  4,  1889. 

4.  BAMBr-'Right  to  Close  Ditches  Must  he  Clearly  Established.— A. 
person  filing  a  bill  under  the  drainage  act  of  June  4,  1889,  and  asking 
for  an  ordec  approving  and  confirming  his  action  in  closing  up  a  ditch 
which  for  several  years  had  been  carrying  off  water  from  the  land  of 
adjoining  owners,  is  bound  to  show  a  clear  legal  right,  and  if  upon  the 
allegations  and  proofs  upon  hisl)ill  there  be  ^a  reasonable  doubt  of  the 
right,  the  order  should  be  denied. 

5.  Same — Right  of  Oumer  of  Dominant  Heritage, — The  owner  of  the 
dominant  heritage  has  the  right  to  have  the  waters  accumulating  on  his 
land,  flow  therefrom  to  the  serviant  heritage,  as  freely  and  unobstruct- 
edly  as  it  would  do  in  a  state  of  nature. 

6.  Same — Right  of  Oumer  of  Dominant  Heritage  to  Construct 
Ditches.— The  owner  of  the  dominant  heritage  may  make  such  ditches 
or  drains  for  agricultural  purposes  on  his  own  land  as  may  be  required 
by  good  husbandry,  although  by  so  doing  the  flow  of  water  may  be 
increased  in  the  natural  channel  which  carries  the  water  from  the  upper 

« to  the  lower  field. 

7.  Same— JPiZMngf  up  Ditches.— After  water  has  passed  through  a 
channel  for  a  number  of  years,  with  such  force  and  in  such  volume  as 
to  produce  a  large  ditch,  it  becomes  extremely  difiicult,  if  not  impossible, 
to  ascertain  where  the  surface  originally  was,  and  a  court  will  not  sanc- 
tion the  filling  up  of  such  a  ditch  on  the  assumption  that  the  water 
would  thereafter  fiow  as  it  did  in  a  state  of  nature,  where  such  a  pro- 
ceeding would  impede  and  interrupt  the  natural  fiow  of  the  water  and 
throw  it  back  upon  the  dominant  heritage. 

8.  Water  Course— 27i€  Term  Defined.— It  the  conformation  of  land 


70    5SJ7 
177s  134 


528  Appellate  Courts  op  Illinois, 

Vol.  70.]  Ribordy  v.  Murray. 

is  such  as  to  give  the  surface  water  flowing  from  one  tract  to  another  a 
fixed  and  determinate  course  so  that  it  is  uniformly  discharged  upon 
the  scrviant  tract  at  a  fixed  and  definite  point,  the  course  thus  uni- 
formly followed  by  the  water  in  its  flow,  is  a  water  course,  within  tbe 
meaning  of  the  rule  applicable  to  the  subject. 

Bill,  to  confirm  an  alleged  right  to  close  a  ditch,  and  croRS-bill  to 
compel  the  removal  of  obstructions  therefrom.  Appeal  from  the  Circuit 
Court  of  Livingston  County;  the  Hon.  Charles  R.  Starr,  Judge,  pre- 
siding. Heard  in  this  court  at  the  December  term  1896.  Affirmed. 
Opinion  filed  June  26,  1807. 

Torrance  &  Torbanob  and  B.  S.  MgIlduff,  attorneys  for 
appellants. 

0.  0.  &  L.  F.  Stbawn,  attorneys  for  appellees. 

Mr.  Justice  Crabtrbb  delivered  the  opinion  of  thb 
Court. 

This  was  a  bill  in  equity,  filed  by  appellant  June  30, 1890, 
against  appellee  Murray  as  the  owner  of  the  north  half  of 
Sec.  23,  in  township  30  N.,  R.  6  east  in  said  Livingston 
county,  and  also  against  the  commissioners  of  highways  of 
said  township,  as  having  oflSicial  control  and  jurisdiction  of 
the  highways  in  said  township. 

The  proceeding  was  instituted  under  an  act  of  the  legis- 
lature approved  June  4, 1889,  in  force  July  1,  1889,  entitled 
"  An  act  declaring  legal,  drains  heretofore  or  hereafter  con- 
structed by  mutual  license,  consent  or  agreement  by  adja- 
cent or  adjoining  owners  of  land,  and  to  limit  the  time 
within  such  license  or  agreement  heretofore  granted  may 
be  withdrawn."     3  Starr  &  Curtis,  p.  475. 

The  bill  alleges  that  appellant  was  the  owner  of  the  S. 
E.  i  of  the  S.  W.  J,  the  K  i  of  the  S.  W.  i  and  the  W.  i 
of  the  S.  E.  i  of  Sec.  15,  in  said  township  30,  and  that 
immediately  south  of  his  land  there  is  a  public  highveayj 
upon  the  south  side  of  which,  and  within  twenty  years  prior 
to  the  filing  of  the  bill,  said  commissioners  of  highways  had 
constructed  a  ditch,  to  a  bridge  under  a  highway,  connect- 
ing this  ditch  with  an  open  ditch  on  appellant's  land  north 


Second  District — December  Term,  1896.  529 

. \ — . 

Ribordy  v.  Murray. 

—      ■■  ■  — 

of  the  highway;  that  appellee  Murray,  owned  the  land 
south  of  this  highway  and  directly  opposite  that  of  appellee, 
the  land  of  Murray  being  in  section  twenty-two  of  the  same 
town;  that  said  Murray  had  constructed  a  ditch  on  his  land 
to  the  point  directly  opposite  the  bridge  under  the  highway 
and  connecting  with  the  ditch  constructed  by  the  commis- 
sioners along  the  highway;  that  by  means  of  these  ditches 
the  water  falling  on  said  highway  and  the  lands  adjoining, 
and  upon  the.  Murray  land,  or  a  part  thereof,  was  carried 
through  these  several  ditches  and  discharged  into  the  ditch 
on  the  land  of  appellant  with  which  the  highway  ditch  had 
been  connected;  that  neither  of  the  appellees  had  any  writ- 
ten authority  to  discharge  the  waters  from  said  ditches  into 
the  ditch  on  the  land  of  complainant;  that  the  same  had  not 
been  constructed  for  a  period  of  twenty  years  so  as  to  give 
a  prescriptive  right,  and  that  the  ditch  on  the  land  of  com- 
plainant was  not  a  natural  water  course;  that  complainant 
exercising  his  right  under  the  law  had  closed  the  ditch  on 
his  land  opposite  the  said  bridge  under  the  hici:hway,  and 
declared  thereby  a  revocation  of  any  right  to  the  use  of  the 
same  by  appellees.  The  prayer  of  the  bill  is  for  confirma- 
tion of  the  right  of  complainant  to  till  up  the  said  ditoh  on 
his  land. 

The  answer  of  the  defendants  (appalloes)  to  the  bill 
admitted  the  construction  of  the  highway  ditch,  and  that 
on  the  land  of  Murray,  and  their  connection  with  the  ditch 
on  the  land  of  appellant,  and  averred  the  right  to  so  con 
struct  and  connect  the  same,  and  denied  all  the  other 
material  allegations  of  the  bill. 

Appellee  Murray  filed  a  cross-bill,  the  material  part  of 
which  charged  that  by  the  closing  of  the  ditoh  by  Ribordy, 
the  natural  flow  of  the  water  from  his  land  across  Ribordv's 

4/ 

was  obstructed,  and  praying  that  Ribordy  be  compelled  to 
remove  the  obstruction  and  permit  the  waters  to  flow 
through  said  ditch. 

A  supplemental  bill  was  filed  by  appellee  Murray,  alleg- 
ing that  since  the  filing  of  the  original  bill  appellant  had 
filled  up  twenty  rods  or  more  of  the  ditoh  on  his  land  north 

YokLXXtl 


530  Appellate  Courts  of  Illinois. 

Vou  70.]  Ribordy  v.  Murray. 

of  the  first  obstruction,  and  prajnng  that  he  be  required  to 
remove  that,  as  well  as  the  dam  he  had  first  placed  in  said 
ditch. 

A  very  large  amount  of  testimony  was  taken  in  the  case, 
and  upon  a  final  hearing  upon  the  issues  formed  upon  the 
original  bill  and  the  cross-bill  and  supplemental  cross-bill  of 
appellee  Murray,  which  were  all  heard  together  as  one  case, 
the  Circuit  Court  entered  a  decree  dismissing  the  original 
bill  for  want  of  equity,  at  the  costs  of  appellant,  and  decree- 
ing to  appellee  Murray  the  relief  prayed  by  him  in  his 
cross-bill  and  supplemental  cross-bill,  and  perpetually  enjoin- 
ing appellant  from  obstructing  the  ditch  in  question  on  his 
own  land,  and  ordering  him  within  sixty  days  from  the  date  of 
the  decree,  to  remove  the  obstructions  he  had  placed  in  said 
ditch,  or  be  considered  in  contempt  of  court. 

The  decree  also  ordered  all  costs  on  the  cross-bills  to  be 
taxed  against  appellant,  and  he  brings  the  case  to  this  court 
by  appeal. 

A  motion  has  been  entered  by  appellant  for  a  reversal  of 
the  decree  under  Rule  27  of  this  court,  on  the  ground  that 
appellee's  brief  was  not  filed  within  the  time  allowed  by  the 
court  on  their  application  for  an  extension  of  time  in  which 
to  file  the  same.  While  the  filing  of  briefs  after  the  time 
allowed  is  improper  and  irregular,  and  a  practice  not  to  be 
encouraged,  yet,  whether  the  strict  terms  of  the  rule  are  to 
be  enforced  in  any  particular  case,  is  a  matter  within 
the  discretion  of  the  court,  and  the  decree  will  not  be 
reversed  jpr^ybrma  if  the  court,  on  an  examination  of  the 
record,  deems  it  proper  to  decide  the  case  upon  its  merits. 
The  briefs  being  on  file  before  the  case  was  reached  for  con- 
sideration, and  no  motion  having  been  made  to  strike  them 
from  the  files,  we  have  deemed  it  proper  to  consider  the 
case  upon  its  merits,  and  the  motion  will  therefore  be 
denied. 

The  point  is  made  by  appellees  that  no  appeal  lies  in  this 
case,  because  no  application  was  made  to  the  chancellor 
below  for  a  rehearing  of  the  cause.  Ho  authority  is  citetl 
in  support  of  this  proposition,  and  we  know  of  none.    Ger 


I 

\ 

J 


Second  District — December  Teem,  1896.  531 

Ribordy  y.  Murray. 

tainly  no  such  prax^tiue  prevails  in  this  State.  On  the 
contrary,  appeals  innumerable  have  been  allowed  and  enter- 
tained from  decrees  in  chancery,  when  no  application  for 
rehearing  has  been  made  in  the  court  below.  We  think  the 
point  is  not  well  taken. 

A  further  objection  is  raised  by  appellees  that  the  bill 
does  not  show  a  cause  of  action  under  the  statute,  in  pursu- 
ance of  which  the  suit  is  brought,  because  it  does  not  allege 
that  the  ditches  in  question  were  made  and  connected  with 
the  ditch  on  appellant's  land  by  the  mutual  license,  consent 
or  agreement  of  the  owner  or  owners  of  the  adjacent  lands, 
so  as  to  make  a  continuous  line  upon,  over  or  across  the 
lands  of  several  owners,  as  provided  by  the  statute.  But 
the  third  section  of  the  statune  provides  as  follows :  '^  Sec. 
3.  Whenever  drains  have  been  or  shall  be  constructed  in 
accordance  with  this'  act,  none  of  the  parties  interested 
therein  shall,  without  the  consent  of  all  the  parties,  fill  the 
same  up  or  in  any  manner  interfere  with  the  same,  so  as  to 
obstruct  the  flow  of  water  therein;  and  the  license,  consent 
or  agreement  of  the  parties  herein  mentioned  need  not  be 
in  writing,  but  shall  be  as  valid  and  binding  if  in  parol  as 
if  in  writing,  and  may  be  inferred  from  the  acquiescence  of 
the  parties  in  the  construction  of  such  drain." 

We  think  the  evidence  shows  that  for  several  years  prior 
to  the  damming  up  of  the  ditch  on  appellant's  land,  the 
ditches  of  appellees  had  been  connected  therewith,  forming 
a  continuous  line  of  drainage  over  the  lands  of  Murray, 
across  the  highway  and  Over  the  lands  of  appellant,  and  we 
think  the  acquiescence  of  appellant  may  be  inferred  from 
all  the  circumstances  appearing  in  the  evidence,  thus  bring- 
ing the  case  within  the  spirit  of  the  statute,  upon  which  we 
are  not  disposed  to  place  the  narrow  construction  contended 
for  by  appellees.  Leaving  out  of  view  for  the  moment  the 
question  as  to  whether  the  continuous  line  of  ditch  in  con- 
troversy was  constructed  in  a  natural  water  course,  or 
where  the  water  would  flow  in  a  state  of  nature,  and  as- 
suming that  the  ditches  were  constructed  to  carry  water 
where  it  would  not  otherwise  flow,  we  are  inclined  to  hold 


V 


632  Appeltj^.te  Courts  op  Illinois* 

Vol.  70.]  Ribordy  v.  Murraj. 

that  the  construction  of  independent  ditches,  by  adjoining 
owners  of  lands,  and  the  connecting  them  together  so  as  to 
form  a  continuous  system  of  drainage  across  the  lands  of 
the  several  owners,  by  mere  acquiescence  and  without  any 
special  agreement  or  license,  would  bring  the  case  within 
the  statute.  Our  holding  is  that  the  allegations  of  the 
bill,  if  proven,  made  a  cause  of  action  for  appellant  under 
the  statute. 

The  bill  however  alleges  that  the  ditch  on  the  land  of 
appellant  was  not  a  natural  water  course,  and  we  think  it 
was  incumbent  upon  him  to  prove  this  allegation,  to  the 
reasonable  satisfaction  of  ^the  court,  before  he  would  bo 
entitled  to  an  order  approving  or  confirming  his  action  in 
obstructing  and  damming  up  a  ditch  which  for  several 
years  had  been  carrying  oflF  water  from  the  highway  and 
from  the  lands  of  the  adjoining  owner,  Murray.  He  was 
seeking  to  interfere  with  and  break  up  the  order  of  things 
which  had  existed  for  a  number  of  years  prior  thereto,  and 
before  he  was  entitled  to  an  order  or  decree  of  court  con- 
firming or  approving  such  action,  he  was  bound  to  show 
a  clear  legal  right.  It  seems  to  us  the  case  stands  upon 
the  same  footing  as  it  would  if,  instead  of  bringing  this 
suit  after  damming  up  the  ditch,  he  had  filed  a  bill  for  an 
injunction  against  appelliees  to  restrain  them  from  turning 
the  water  from  their  ditches  into  the  one  upon  his  land. 
And  if  upon  the  allegations  and  proofs  upon  such  a  bill 
there  be  a  reasonable  doubt  of  the  right,  the  injunction 
would  be  denied.     Wilson  v.  Bondurant  et  al.,  142  111.  645. 

In  the  case  just  cited  it  was  held  that  the  act  of  18S9, 
under  which  this  suit  was  brought,  does  not  restrict  or 
abridge  the  rights  of  drainage  as  they  existed  at  common 
law,  but  that  its  sole  purpose  and  effect  is  to  enlarge  thosQ 
rights. 

The  real  question  in  controversy  in  this  case,  and  the 
one  upon  which  the  great  mass  of  testimony  was  taken,  is 
as  to  whether  the  ditch  upon  appellant's  land  was  in  the 
natural  course  or  channel  through  which  water,  coming 
though  the  Murray  ditch  and  the  highway  ditch,  would 


i 


Second  District — December  Term,  1896.  533 

<■'  III         .11.  .  I       I   i> 

Ribordj  v.  Murray. 

find  its  natural  outlet,  and  through  which  in  a  state  of 
nature  it  would  and  ought  to  flow.  Upon  this  question 
the  court  below  found  that  the  land  of  appellant  was  the 
serviant  heritage,  and  the  land  of  Murray  the  dominant 
heritage,  and  that  prior  to  the  filling  up  of  the  ditch  by 
appellant,  water  passed  in  a  course  of  nature  from  said  dom- 
inant to  the  serviant  heritage.  The  court  further  finds 
that  so  far  as  the  ditch  in  question  formed  a  continuous 
line  upon,  over  and  across  the  lands  of  Murray,  the  high- 
way and  the  lands  of  appellant,  it  was  but  a  natural  water 
course. 

Notwithstanding  the  labor  involved  in  reading  the  great 
mass  of  testimony  taken  in  the  cause,  we  have  carefully 
done  so,  and  are  unable  to  say  that  upon  the  material 
questions  involved  the  court  below  came  to  a  wrong  con- 
clusion. 

We  do  not  deem  it  necessary  to  discuss  in  detail  the 
evidence  at  length,  as  it  would  probably  serve  no  useful 
purpose,  but  we  think  a  clear  preponderance  of  it  shows, 
that  in  a  state  of  nature,  there  was  a  gradual  flow  of  water 
from  the  lands  of  Murray  on  to  those  of  appellant,  which 
in  times  of  high  water  found  its  outlet  in  a  northeasterly 
direction  across  the  lands  of  appellant,  through  a  swale  or 
series  of  depressions  in  the  ground,  until  it  finally  emptied 
into  Mazon  creek,  some  distance  northeast  of  appellant's 
lands.  It  is  true  there  was  no  well-defined  water  course,  in 
the  sense  in  which  that  term  is  often  used,  having  well- 
defined  banks  and  a  bed,  but  that  was  not  necessary.  If 
the  conformation  of  the  land  was  such  as  to  give  the  surface 
water  fl  owing  from  one  tract  to  another  a  fixed  and  deter- 
minate course,  so  as  to  uniformly  discharge  it  upon  the 
servient  tract  at  a  fixed  and  definite  point,  the  course  thus 
uniformlv  followed  bv  the  water  in  its  natural  flow,  is  a  water 
course,  within  the  meaning  of  the  rule  applicable  to  this 
class  of  cases.     Lambert  et  al.  v.  Alcorn,  144  III.  313. 

We  think  a  preponderance  of  the  evidence  given  by  wit- 
nesses who  knew  the  land  in  a  state  of  nature,  before  it 
was  broken  up  for  cultivation,  shows  that  such  a  water 
course  existed  across  the  lands  of  appellant. 


634  Appellate  Courts  op  iLLiNoia 

Vol.  70.]  Ribordy  v.  Murray. 

Some  of  the  witnesses  call  it  a  slough,  others  a  sag,  others 
a  gash,  still  others  a  swale,  and  some  say  there  was  a  depres- 
sion a  rod  or  a  rod  and  a  half  wide  through  which  the  water 
flowed  on  to  its  outlet.  We  think  the  evidence  shows  that 
th.e  ditch  on  appellant's  land,  and  which  he  has  dammed  up, 
runs  along  in  this  natural  depression  and  in  the  line  of  the 
ancient  water  course.  There  seems  to  be  some  doubt  as  to 
how  this  ditch  was  first  started.  Appellant  testifies  there 
was  no  ditch  there  in  1878  when  he  went  to  the  old  country, 
and  that  on  his  return  he  found  some  one  had  plowed  a 
couple  of  furrows,  some  thirty-six  or  thirty -seven  rods  long, 
connecting  with  the  highway  ditch,  and  he  never  could  find 
out  who  did  it.  That  nothing  has  ever  been  done  to  it 
since,  except  that  by  the  action  of  the  water  and  the  cattle 
it  has  been  deepened  and  widened,  until  it  is  now  a  ditch 
eighteen  feet  wide  and  three  feet  deep.  The  fact  that  the 
ditch  has  been  so  deepened  and  widened  without  human 
agency  would  seem  difficult  of  explanation,  except  upon  the 
theory  that  it  is  a  natural  water  course,  carrying  large 
quantities  of  water.  The  mere  plowing  of  a  couple  of  fur- 
rows upon  land  where  water  does  not  naturally  flow  in 
considerable  volume  and  amount,  could  hardly  be  expected 
to  produce  such  a  result. 

But  appellant  insists  that  even  if  it  be  true  that  the 
ditch  was  located  in  a  natural  water  course,  yet  he  has  the 
right  to  fill  up  to  the  natural  surface  of  the  ground,  and 
this  he  claims  is  all  he  has  done. 

There  is  a  conflict  in  the  evidence  as  to  the  height  of  the 
dam.  The  testimony  of  the  witness  D.  J.  Stanford,  county 
surveyor  is,  that  from  different  levels  taken  by  him  it  is 
shown  that  the  dam  is  from  three  to  five  inches  higher 
than  the  ground  on  each  side.  Other  witnesses  testify  that 
the  dam  is  a  little  higher  than   the  surrounding  ground. 

However  the  fact  may  be,  we  are  unwilling  to  assent  to 
the  proposition  that  if  the  ditch  is  in  a  natural  channel  or 
water  course,  the  party  upon  whose  land  it  is  so  situated 
has  the  right  to  fill  it  up  to  the  level  of  the  ground  on  each 
side.    Such  a  proceeding  would    undoubtedly  have    the 


Second  District — December  Term,  1896.  535 

Ribordy  y.  Murray. 

effect  to  impede  and  interrupt  the  natural  flow  of  the  water, 
and  prevent  its  free  and  natural  passage,  so  that  it  would 
be  thrown  back  upon  the  dominant  heritage. 

After  the  water  has  passed  through  a  channel  for  a  num- 
ber of  years,  with  such  force  and  volume  as  to  produce  a 
ditch  eighteen  feet  wide  and  three  feet  deep,  it  might  be 
extremely  difficult  if  not  impossible,  to  ascertain  what  tlie 
natural  surface  originally  was,  and  hence  it  would  be  very 
dangerous  to  allow  the  ditch  to  be  dammed  up  on  the 
assumption  that  the  water  would  thereafter  flow  as  it  did 
in  a  state  of  nature. 

There  is  evidence  to  show  that  notwithstanding  the  dam, 
the  water  still  forces  its  way  around  it  and  reaches  the  old 
ditch  in  the  field  beyond.  If  this  be  true,  it  is  a  physical 
fact,  tending  very  strongly  to  show  that  the  dam  is  placed 
in  a  natural  water  course,  and  also  that  it  obstructs  the 
natural  flow  of  the  water.  This  appellant  had  no  right  to 
do.  The  proposition  that  the  owner  of  the  dominant  herit- 
age has  the  right  to  have  the  waters  accumulating  on  his 
land  flow  therefrom,  to  the  serviant  heritage,  as  freely  and 
unobstructedlv  as  it  would  do  in  a  state  of  nature,  is  so 
well  recognized  and  understood  that  it  needs  no  citation  of 
authority  in  its  support. 

It  may  be  true,  in  this  case,  that  the  construction  of  the 
highway  ditch,  and  the  ditches  connecting  therewith  from 
the  Murray  land,  have  increased  the  volume  and  flow  of 
water  into  the  ditch  on  appellant's  land,  and  that  it  now 
empties  into  the  same  with  greater  force  than  it  would  in  a 
state  of  nature,  but  this  can  not  be  avoided ;  it  is  one  of  the 
inevitable  results  experienced  in  the  drainage  and  improve-, 
ment  of  land,  which  the  development  of  the  country  can 
not  always  permit  to  remain  in  a  state  of  nature..  It  has 
therefore  frequently  been  held  in  this  State  that  the  owner 
of  the  dominant  heritage  may  make  such  drains  or  ditches 
for  agricultural  purposes  on  his  own  land  as  may  be  required 
by  good  husbandry,  although  by  so  doing  the  flow  of  water 
may  be  increased  in  the  natural  channel  which  carries 
the  water  from  the  upper  to  the  lower  field.    Peck  et  al.  v. 


636  Appellate  Courts  of  Illinois. 

Vol.  70.]  Kibordy  v.  Murray. 

Ilerrington,  109  111.  611;  Davis  et  al,  v.  Commissionerfi, 
etc.,  143  Id.  9 ;  Lambert  et  al.  v.  Alcorn,  144  Id.  313. 

This  proposition  does  not  seem  to  be  denied  by  counsel 
for  appellant,  but  they  insist  that  the  evidence  shows  the 
ditch  in  question  was  not  in  a  natural  water  <K)urse,  and 
that  even  if  it  were,  appellant  had  the  right  to  fill  it  up  to 
the  natu)*al  surface  of  the  ground.  We  have  already  said 
all  we  care  to  say  upon  the  subject  of  filling  up  the  ditch, 
and  we  think  the  evidence  was  suffltjient  to  warrant  the 
court  in  finding  against  appellant  upon  the  question  as  to 
whether  or  not  the  ditch  was  in  a  natural  water  course. 

It  is  true  that  the  bridge  or  culvert  in  the  highway  is  not 
at  the"  same  place  at  which  it  was  originally  constructed 
when  the  highway  was  first  graded.  The  witness  Charles 
Eastman  testified  that  in  1875  he  helped  to  move  the  culvert 
a  few  rods  further  west  than  it  was  originally  built;  that 
appellant  assisted  in  this  work,  and  said  that  the  object  of 
moving  the  culvert  was  to  make  a  straight  course  for  the 
water.  If  this  statement  is  anywhere  denied  by  appellant, 
such  denial  has  escaped  our  observation,  and  if  the  witness 
speaks  truthfully  and  recollects  correctly,  this  would  be  a 
strong  circumstance  tending  to  show  that  appellant  then 
recognized  the  right  of  the  water  to  flow  under  the  high- 
way and  upon  his  land  immediately  north  of  it.  On  a 
careful  examination  of  the  whole  case  we  are  not  prepared 
to  say  the  decree  is  erroneous.  The  appellant  failed  to  estab- 
lish his  right  to  maintain  the  dam  in  question,  and  there- 
fore his  bill  was  properly  dismissed.  Upon  the  cross-bill 
we  think  appellee  Murray  was  entitled  to  the  relief  prayed, 
and  the  court  properly  granted  it.  We  find  no  error  in  the 
decree  upon  the  question  of  costs.  The  decree  will  be 
affirmed. 


Skcond  District — December  Term,  1896.  537 

Milligan  v.  Hinebau^h. 


James  Milligan^  Jr.^  y.  William  H.  Hinebaugh. 

1.  CoNTBACTS — A  Sealed  Instrument  May  he  Abrogated  by  Parol, — 
A  contract  under  seal  may  be  abrogated,  canceled  and  surrendered  by 
an  executed  parol  agreement. 

Covenaiit,  on  a  real  estate  contract.  Appeal  from  the  Circuit  Court 
of  La  Salle  County;  the  Hon.  Charles  Blanchard,  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1896.  Affirmed.  Opinion 
filed  June  26,  1897. 

Brewer  &  Strawn,  attorneys  for  appellant. 

D.  B.  Snow  and  D.  F.  Trainor,  attorneys  for  appellee. 

Mr.  Justice  Crabtree  delivered  the  opinion  of  the 
Court. 

This  was  an  action  of  covenant  to  recover  for  interest 
and  taxes  alleged  to  be  due  from  appellee  to  appellant,  upon 
certain  articles  of  agreement,  under  seal,  dated  April  10, 
1893,  whereby  appellee  agreed  to  purchase  from  appellant 
a  certain  lot  in  Highland  Park,  South  Ottawa,  Illinois. 
The  purchase  price  \Mis  $800,  of  which  $50  was  payable 
May  1,  1893,  the  balance  to  be  paid  on  or  before  ten  years, 
with  interest  at  six  per  cent  per  annum,  payable  annually; 
appellee  to  pay  all  taxes  subsequent  to  1892.  On  April  18, 
1893,appellee  paid  the  $50  which  would  become  due  May  1st. 

About  a  year  afterward  appellee  asked  for  an  extension 
of  time  in  which  to  pay  interest,  and  appellant,  not  needing 
the  money  then,  told  appellee  he  would  let  him  know  when 
he  wanted  it.  Appellee  not  having  paid  the  taxes,  appel- 
lant paid  them,  and  the  amount  was  refunded  to  him  by 
appellee. 

Appellee  claims  that  at  Streator,  at  a  gathering  which 
the  evidence  seems  to  show  was  held  on  June  5, 1894,  appel- 
lant released  him  from  the  further  performance  of  the 
contract,  and  agreed  to  take  back  the  agreement.  This  is 
denied  by  appellant;  but  it  is  not  disputed  that  on  June  11, 
1891,  appellee  sent  to  him  the  written  agreement,  together 


538  Appellate  Courts  of  Illinois. 

Vol.  70.]  Milligan  v.  Hinebaugh. 

with  the  abstract  of  title  to  the  property,  accompanied  by 
a  letter,  of  which  the  following  is  a  copy : 

Ottawa,  111.,  June  tl,  189t 
Mr.  James  Milligan,  Ottawa  111. 

Dejlk  Sib  :  I  herewith  enclose  you  the  contract  and 
abstract  relative  to  lot  one  (1),  in  Highland  Addition.  I 
have  done  my  best  for  months  past  to  sell  the  lot,  without 
success.  I  do  not  feel  able  to  carrv  it  in  connection  with 
the  property  that  I  recently  purchased,  and  feel  that  the 
papers  should  be  turned  over  to  you  in  order  that  you  may 
sell  the  lot  ao^ain,  should  occasion  offer.  I  believe  I  have 
paid  sufficiently  for  my  one  year  option.  Should  like  to 
hold  it,  but  do  not  find  it  possible. 

Tours  respt., 

W.  H.  HlNEBAXrOH. 

Appellant  made  no  reply  to  this  letter,  but  retained  the 
possession  of  the  contract  and  abstract  of  title,  apparently 
without  objection,  until  this  suit  was  brought,  which  appel- 
lee swears  was  the  first  notice  he  had  that  appellant  would 
insist  that  the  agreement  was  still  in  force  and  would  seek 
to  enforce  its  performance. 

There  was  a  trial  by  jury  resulting  in  a  verdict  for  defend- 
ant, and  a  motion  for  new  trial  being  overruled,  there  was 
judgment  in  favor  of  appellee. 

The  case  seems  to  have  been  tried  in  the  court  below  and 
submitted  to  the  jury  upon  the  question  of  fact  as  to 
whether  there  had  been  a  mutual  agreement  between  the 
parties  to  rescind  the  contract.  There  was  a  sharp  contro- 
versy between  the  testimony  of  appellee  and  appellant  upon 
this  question,  which  it  was  for  the  jury  to  reconcile  if  they 
could.  No  doubt  the  fact  that  appellant  received  the  writ- 
ten agreement  and  abstract  of  title  from  appellee,  and 
retained  them  for  more  than  a  year,  without  objection,  and 
without  calling  upon  appellee  for  the  payment  of  interest 
or  taxes,  and  giving  no  notice  whatever  of  a  refusal  to  con- 
sider the  contract  at  an  end  until  he  brought  this  suit,  had 
its  due  weight  with  the  jury,  and  may  have  turned  the  scale 
in  favor  of  appellee  when  they  came  to  weigh  the  evidence. 


Second  JJistrict — December  Teem,  1896.  639 

Wetttchester  Fire  Ins.  Co.  ▼.  Jennings. 

Indeed  the  actions  of  appellant  may  almost  be  said  to 
amoant  to  an  exercise  of  the  option  given  him  in  the  con- 
tract to  declare  a  forfeiture  for  non-performance.  Under 
all  the  circumstances  we  can  not  say  the  jury  were  not  war- 
ranted in  finding  that  the  parties  had  agreed  to  rescind  the 
contract. 

It  is  urged  that,  inasmuch  as  the  contract  was  under  seal, 
it  was  error  for  the  court  to  admit  evidence  of  a  parol  agree- 
ment to  rescind  and  many  authorities  are  cited  in  support 
of  the  proposition  that  it  is  not  competent,  either  at  common 
law  or  under  the  law  of  this  State,  to  modifv  or  chantje 
articles  of  agreement  under  seal  by  proof  of  a  subsequent 
parol  understanding  or  agreement. 

While  fully  admitting  the  existence  of  this  rule,  we  think 
the  authorities  cited  are  not  in  point,  as  applied  to  the  facts 
of  this  case. 

The  proofs  were  not  offered  for  the  purpose  of  showing 
an  alteration,  change  or  modification  of  the  agreement  under 
seal,  but  to  show  an  executed  parol  agreement,  whereby  the 
contract  under  seal  had  become  abrogated,  canceled  and 
surrendered,  and  this  we  understand  it  is  entirely  competent 
to  do.  Whether  or  not  there  has  been  such  a  cancellation 
and  surrender  is  a  question  of  fact  for  the  jury.  Alschuler 
V.  Schiff,  164  111.  300. 

It  is  urged  that  the  court  erred  in  giving,  refusing  and 
modifying  instructions,  but  a  careful  examination  of  the 
record  has  satisfied  us  that  the  jury  were  fairly  and  fully 
instructed  upon  the  law  of  the  case  and  without  discussing 
in  detail  the  various  objections  made  to  the  instructions,  we 
hold  them  substantially  free  from  error,  and  the  judgment 
will  be  affirmed. 


Westchester  Fire  Insurance  Company  v.  John  Jennings^ 

for  Use  of  Solomon  Langman. 

1.  Deeds— 3ftwt  Contain  the  Name  of  a  Orantt:e.—A  deed  which 
does  not  contain  the  name  of  a  grantee  when  it  is  acknowledged  and 
delivered  is  void,  and  conveys  no  interest  whatever  m  the  property 
described  therein. 


540  Appellate  Courts  of  Illinois. 

Vol.  70.]  Westchester  Fire  Ins.  Ck).  v.  Jennings. 

2.  Insurance — Forfeitures  Not  Favored.—The  right  to  insist  upon 
the  forfeiture  of  an  insurance  policy  under  a  clause  prohibiting  changes 
in  the  title  to  the  property  insured,  is  stricti  juris y  and  liberal  intend- 
ments and  enlarged  construction  will  not  be  indulged  in  favor  of  such  a 
forfeiture.  The  objection  must  be  brought  clearly  within  the  forfeiting 
clause  or  it  will  not  avail. 

8.  Amendments — As  to  the  Parties, — It  is  proper  to  order  the  record 
to  be  amended  so  as  to  allow  a  suit  to  be  carried  on  in  the  name  of  the 
plaintiff  for  the  use  of  tlie  real  party  in  interest,  and  this  without  the 
consent  of  the  plaintiff  and  regardless  of  the  objection  of  the  defendant. 

Assninpsit,  on  an  insurance  policy.    Appeal  from  the  City  Court  of 
Elgin;  the  Hon.  Russell  P.  Goodwin,  Judge,  presiding.    Heard  in  this 
.  court  at  the  December  term,  1896.    Affirmed*    Opinion  filed  June  26, 
1897. 

Statement  op  thb  Case. 

On  December  19,  1892,  the  Oakland  Home  Insurance 
Company  issued  its  policy  to  Sol.  Langman,  covering  $1,000 
on  a  dwelling  house  in  the  city  of  Elgin,  said  policy  to  run 
three  years  and  expiring  December  19,  1895. 

On  March  9,  1893,  Sol.  Langman  sold  and  conveyed  the 
property  to  one  B.  F.  Gitchell  and  assigned  the  policy  to 
Gitchell,  and  afterward,  on  October  23,  1893,  Gitchell  sold 
and  conveyed  the  property  to  Victoria  Clancy,  and  assigned 
the  policy  to  her.  In  January,  1894,  appellant  reinsured 
the  risks  of  the  Oakland  Home  Insurance  Company,  includ- 
ing the  policy  in  suit. 

Afterward,  on  March  9,  1894,  Victoria  Clancy  sold  and 
conveyed  the  property  to  John  Jennings  and  assigned  the 
policy  to  him. 

At  the  time  that  Langman  conveyed  the  property  to 
Gitchell,  the  agent  of  the  insurance  company  made  the  fol- 
lowing indorsement  on  the  policy,  viz.:  "Loss,  if  any, 
payable  to  Sol.  Langman,  mortgagee,  as  his  interest  may 
appear."  But  afterward,  and  on  January  15,  1894,  this  loss 
payable  clause  was,  at  Langman's  request,  canceled,  and 
the  following  indorsement  was  made :  "  Loss,  if  any,  pay- 
able to  R.  M.  Ireland,  trustee,  for  the  use  of  holders  of 
notes  secured  by  a  trust  deed,  as  their  interest  may  appear." 
On  March  6,  1896,  therefore,  the  policy  ran  to  John  Jen- 
nings, with  the  above  indorsement  attached  thereto. 


Second  District — December  Term,  1896.  541 

Westchester  Fire  Ins.  Co.  ▼.  Jennings. 

On  April  22,  1894,  Jennings  and  wife  acknowledged 
before  a  notary  public  at  Indianapolis,  Indiana,  the  exe- 
cution of  a  deed,  dated  April  2,  1894,  containing  a  descrip- 
tion of  the  property  in  question,  but  not  having  inserted 
therein  the  name  of  any  grantee,  the  space  for  the  name  of 
the  grantee  being  left  entirely  in  blank.  But  attached  to 
said  deed  is  a  paper  of  which  the  following  is  a  copy : 

Chicago,  III.,  April  7,  1894. 

N.  A.  Burnham  is  hereby  authorized  to  fill  in  the  names 

of  the  grantees  in  the  deed  hereto  attached,  and  to  sign  my 

name  to  the  transfer  of  the  insurance  policy  on  the  property 

conveyed  by  said  deed  to  the  grantee,  so  filled  in. 

(Signed)    John  Jennings. 

The  deed  and  this  paper  were  delivered  to  N.  A.  Burn- 
ham. 

No  assignment  of  the  policy  was  made  to  Burnham.  nor 
was  any  notice  given  to  the  insurance  company  of  any 
change  in  interest  or  ownership. 

On  September  4, 1894,  the  property  was  destroyed  by  fire. 
Burnham  made  claim  upon  appellant  for  payment  of  the 
loss,  exhibited  his  alleged  deed  for  the  property  to  the  com- 
pany, and  claimed  to  be  the  sole  and  unconditional  owner. 
Upon  ascertaining  the  facts  appellant  denied  all  liability  and 
refused  to  pay  the  claim. 

Burnham  then  sold  his  deed  to  Langman  for  $25,  and  the 
latter  procured  Jennings  to  file  proofs  of  loss,  and  upon  the 
appellant  again  denying  liability  and  refusing  to  pay,  Jen- 
nings brought  this  suit  to  recover  for  the  loss. 

Appellant  then  obtained  a  statement  from  Jennings  that 
at  the  time  of  the  fire  he  had  no  interest  whatever  in  the 
property  destroyed,  and  he  stipulated  that  the  suit  might  be 
dismissed.  Langman  thereupon,  against  the  objection  of 
appellant,  obtained  leave  from  the  court  to  so  amend  the 
record,  that  the  suit  should  run  in  the  name  of  Jennings  for 
Langman's  use.  / 

A  clause  in  the  policy  provided  that  if  the  interest  of  the 
insured  in  the  ownership  of  the  property  be  other  than 
unconditional  and  sole,  or  if  any  change  other  than  by  the 


542  Appellate  Courts  op  Illinois. 

Vol.  70.]  Westchester  Fire  Ins.  Co.  v.  Jennings. 

death  of  the  insured  takes  place  in  the  interest,  title  or 
possession  of  the  subject  of  the  insurance  by  legal  process  or 
judgment  or  by  voluntary  act  of  the  insured  or  otherwise, 
the  policy  should  be  void. 

There  was  a  waiver  of  jury,  and  trial  bj'  the  court,  result- 
ing in  a  judgment  in  favor  of  appellee  for  the  use  of  Lang- 
man  for  $944.50  damages,  and  for  costs,  and  appellant 
brings  the  case  to  this  court  by  appeal 

Ba.tb8  &  Habding,  attorneys  for  appellant. 
BoTSFORo,  Waynb  &  BoTSFORD,  attomoys  for  appellee. 
Mr.   Justiob  Crabtrbb  dblivbred  the  opinion  of  thb 

CoiTRT. 

Upon  the  evidence  in  this  case,  which  sustains  the  fore- 
going statement  of  facts,  we  think  the  judgment  of  the 
court  below  was  right  and  must  be  affirmed. 

The  deed  from  Jennings  and  wife  was  a  nullity  and  con- 
veyed no  interest  whatever  in  the  property  insured.  It 
lacked  one  of  the  essentials  to  a  valid  grant,  viz.,  a  grantee, 
and  was  therefore  void.  Chase  v.  Palmer,  29  111.  30(5;  Whit- 
taker  V.  Miller,  83  111.  381. 

Even  the  authority  to  Burnham  to  insert  the  name  of  a 
grantee  was  never  exercised,  but  the  deed  when  offered  in 
evidence  was  without  the  name  of  any  grantee.  It  would 
seem  to  require  no  argument  to  show,  that  such  a  paper 
executed  by  Jennings  and  wife,  did  not  divest  the  title  of 
Jennings,  nor  deprive  him  of  the  ownership  and  right  of 
possession.  Burnham  had  no  contract  in  relation  to  the 
property  which  could  have  been  enforced  in  any  court 
either  at  law  or  in  equity.  There  was,  therefore,  no  legal 
change  of  title  or  interest  and  Jennings  could  at  any  time 
have  recovered  possession  of  the  property.  The  policy  of 
insurance  was  duly  assigned  to  him,  and  under  the  circum- 
stances he  was  the  proper  person  to  make  the  proofs  of  loss 
and  carrv  on  the  suit  for  the  benefit  of  the  holders  of  the 
notes  secured  bv  the  trust  deed.    There  was  no  error  in 


Skcond  District — December  Teem,  1896.  643 

WUey  &  Drake  v.  National  Wall  Paper  Co. 

permitting  an  amendment  of  the  i*ecord  so  as  to  allow  the 
suit  to  be  carried  on  in  the  name  of  Jennings  for  the  use  of 
Langman,  Jennings  was  but  the  nominal  plaintiff,  and  it 
would  have  been  inequitable  to  allow  him  to  dismiss  the 
suit  at  the  solicitation  of  appellant  and  to  the  injury  of 
Langraan.  We  think  the  action  of  the  court  in  this  behalf 
was  entirely  proper,  and  in  accordance  with  well  established 
principles  of  law  and  practice. 

The  defense  sought  to  be  interposed  in  this  case  is,  at 
best  but  technical,  and  forfeitures  of  this  character  will  not 
be  enforced  by  the  courts,  unless  required  by  the  strict  rules 
of  law. 

The  right  to  insist  upon  the  forfeiture  of  a  policy  under 
such  a  prohibitory  clause  as  that  contained  in  the  policy 
under  consideration,  is  stricti  juris,  '^Liberal  intendments 
and  enlarged  construction  will  not  be  indulged  in  favor  of 
such  forfeitures.  The  objection  must  be  brought  clearly 
within  the  forfeiting  clause  or  it  will  not  avail."  Aurora 
Fire  Ins.  Co.  v,  Eddy,  55  111.  213;  Conn.  Ins.  Co.  v.  Spank- 
neble,  62  111.  53. 

We  think  appellant  has  not  shown  a  strict  right  to  insist 
upon  the  forfeiture  in  this  case,  and  the  defense  can  not  avail. 

Finding  no  error  in  the  holdings  of  the  court  upon  prop- 
ositions of  law,  and  being  satisfied  that  justice  has  been 
done,  the  judgment  will  be  affirmed. 


Frank  P.  Wiley  and  John  B.  Drake^  partners  as  Wiley  & 
Drake^  v.  National  Wall  Paper  Co. 

1.  Pleadinq— -4  Plea  of  Avoidance  Must  Oive  CoZor.— Pleadings  in 
avoidance  must  give  color  to  the  opposite  party,  that  is,  give  him  credit 
for  having  an  apparent  or  prima  facie  right  of  action,  independently 
of  the  matter  disclosed  in  the  plea  to  destroy  such  apparent  right. 

2.  Trusts  and  CoNSPniACiKS  Against  Trade— Pleas  Under  the  Stat- 
utes Against — In  an  action  of  assumpsit  for  wall  paper  sold  and  deliv- 
ered the  defendant  filed  pleas  alleging  that  the  plaintiff  company  was 
a  trust  or  combine  organized  for  the  purpose  of  restricting  trade  in,  and 


644  Appellate  Courts  of  Illinois. 

Vol,  70.]         Wiley  &  Drake  v.  National  Wall  Paper  Co. 

limiting  the  production  and  increasing  the  price  of  wall  paper;  the  pleos 
failed  to  show  that  the  sale  counted  on  was  in  furtherance  of,  or  con- 
nected  with,  the  unlawful  combination,  if  any  such  existed,  or  that  the 
8 lie  was  at  unreasonable  prices  produced  by  any  unlawful  combination. 
HM,  that  the  pleas  did  not  set  up  a  good  defense. 

3.  Bills  op  Exceptions-- Jfusi  Show  Facts  Relied  on  for  Reversal.— 
This  case  was  placed  on  **  the  first  trial  calendar  "  of  the  trial  court,  and 
a  motion  to  strike  it  off,  on  the  ground  that  that  action  was  in  violation 
of  a  rule  of  such  court,  was  denied.  The  bill  of  exceptions  did  not  show 
an  exception  to  said  ruling,  nor  contain  any  information  as  to  the  con- 
t3ntB  of  the  rule  alleged  to  have  been  violated.  Held,  that  this  court 
must  presume  that  the  trial  court  decided  properly. 

Asssumpsit,  for  goods  sold  and  delivered.  Appeal  from  the  Counter 
Court  of  Peoria  County:  the  Hon.  Robert  H.  Lovett,  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1898.  Affirmed.  Opinion 
filed  June  26,  1897. 

G.  T.  Gilliam,  attorney  for  appellants. 
Covey  &  Covby,  attorneys  for  appellee. 

Mr.  Justice  Crabtrbe  delivered  the  opinion  op  the 
Court. 

This  was  a  suit  to  recover  for  a  bill  of  wall  paper,  sold 
by  Janeway  &  Carpender,  of  Chicago,  a  branch  of  the 
National  Wall  Paper  Company,  to  appellants,  amounting  to 
$251.11. 

Appellants  defended  upon  the  ground  that  they  never 
dealt  with,  nor  purchased  the  goods  from  appellee,  but  that 
the  bill  of  wall  paper  sued  for  was  purchased  from  Janeway 
&  Carpender.  Appellants  also  filed  seven  special  pleas, 
numbered  from  three  to  nine,  inclusive,  whereby  they  sought 
to  set  up  a  defense  under  the  act  of  June  20, 1S93,  entitled: 
"  Trusts  and  conspiracies  against  trade."  (llurd's  Statutes 
1893,  p.  519.)  The  court  sustained  a  demurrer  to  these 
seven  special  pleas,  and  appellant  abided  by  their  pleas. 
We  think  the  court  did  right  in  sustaining  the  demurrer  to 
these  pleas. 

They  were  pleas  in  avoidance,  and  should  therofore  have 
given  color  to  the  plaintiff,  that  is,  have  given  it  credit  for 


Second  District — December  Term,  1896.  545 

Wiley  &  Drake  ▼.  National  Wall  Paper  Co. 

having  an  apparent  or  prima  facie  right  of  action,  inde- 
pendently of  the  matter  disclosed  in  the  plea  to  destroy  it. 
1  Chitty's  PL  (6th  Ed.),  p.  556;  Andrews'  Stephen's  Plead- 
ings,  266. 

The  pleas  under  consideration  did  not  conform  to  this 
rule  and  were  therefore  demurrable.  Nor  did  they  set  up 
any  facts  from  which  the  court  could  see  that  if  proven  the 
unlawful  trust  or  combination  existed.  Again,  the  pleas 
failed  to  show  that  the  sale  of  the  goods  by  appellee  was 
in  furtherance  of,  or  connected  with,  the  unlawful  combina- 
tion, if  any  such  existed. 

There  was  no  dispute  that  appellants  purchased  and 
received  the  goods,  nor  is  it  alleged  or  claimed  that  they 
were  sold  at  unreasonable  prices  produced  by  any  unlawful 
combination. 

The  defense  appears  to  have  been  an  afterthought  and 
without  merit.  The  amount  due  was  admitted  by  appel- 
lant's letter  asking  an  extension  of  the  time  for  payment, 
and  the  only  excuse  offered  then  for  non-payment  was  hard 
times  and  slow  collections.  We  think  the  verdict  and  judg- 
ment for  $251.11,  the  amount  of  the  bill,  was  right  and 
should  be  affirmed.  We  find  no  error  in  the  action  of  the 
court  in  giving  or  refusing  instructions. 

It  is  insisted  that  the  court  erred  in  placing  the  case  on 
the  first  trial  calendar,  and  refusing  to  strike  it  off  upon 
appellant's  motion,  it  being  claimed  that  this  action  was  in 
violation  of  rule  ten  of  the  court  in  which  the  cause  was 

tried. 

No  exception  seems  to  have  been  saved  to  the  ruling  of 
the  court  on  this  motion,  the  bill  of  exceptions  being  entirely 
silent  on  this  subject.  There  is  no  evidence  as  to  what  rule 
ten  was  beyond  an  alleged  copy  included  in  the  motion,  and 
that  not  being  incorporated  in  the  bill  of  exceptions  is  not 
properly  before  us.  There  is  no  evidence  to  show  on  what 
the  court  based  its  action  in  overruling  the  motion,  and  we 
must  presume  it  decided  properly. 

The  judgment  will  be  affirmed. 

TokLZXaB 


546  Appellate  Coukts  op  Illinois. 

Vol.  70.]  Ballance  v.  City  of  Peoria. 


70    546| 
1808    39 


John  0.  Ballance  t.  City  of  Peoria. 

1.  Former  Decisions— -Approt^ed  and  Followed, — The  court  holds 
that  the  evidence  in  this  case  discloses  substantially  the  same  state  of 
facts  as  appeared  in  the  case  of  City  of  Peoria  v.  Ballance,  61  111.  App. 
869,  and  that  the  principles  announced  in  the  opinion  in  that  case  are 
decisive  of  this. 

Debt,  for  rent  Appeal  from  the  Circuit  Court  of  Peoria  County;  the 
Hon.  Thomas  ^.,  Shaw,  Judge,  presiding.  Heard  in  this  court  at  the 
December  term,  1896.    Affirmed.    Opinion  filed  June  ^,  1897. 

McCuLLocH  &  McCiTLLocH,  James  M.  Eios  End  M.  £, 
BixLBB,  attorneys  for  appellant. 

W.  T.  Irwin,  city  attorney,  for  appellee. 

Mb.  Justicb  Cbabtres  delivered  the  opuoon  of  the 
Court. 

Appellant  brought  his  action  of  debt  against  appellee  to 
recover  rent  alleged  to  be  due  upon  a  lease  for  parts  of  lots 
4  and  5,  in  Bigelow  and  Underhill's  addition  to  Peoria;  the 
premises  consisting  of  water  lots  contiguous  to  the  bridge 
of  appellee,  across  the  Illinois  river,  on  Bridge  street  in  the 
city  of  Peoria. 

A  jury  being  waived,  the  cause  was  tried  by  the  court, 
who  found  the  issues  for  appellee,  and  rendered  judgment 
accordingly. 

The  suit  is  upon  the  same  lease,  and  we  think  the  evi- 
dence in  the  record  discloses  substantially  the  same  state  of 
facts  as  appeared  in  the  case  of  City  of  Peoria  v.  Ballance, 
61  111.  App.  369,  in  which  this  court  reversed  a  judgment 
in  favor  of  appellant,  upon  the  lease  and  evidence  then  in 
the' record. 

Appellant  insists  that  the  facts  now  appearing  in  the 
record,  are  essentially  different  to  what  the  evidence  showed 
them  to  be  when  the  case  was  previously  before  us.  He 
also  insists  that  the  decision  in  that  case  was  made  under  a 
misapprehension  of  the  facts. 


Second  District — Decembeb  Term,  1896.  547 

C'aldwell  v.  Dvorak. 

A  careful  examination  of  the  present  record  fails  to 
satisfy  us  that  the  evidence  in  this  case  is  so  different  to 
what  it  was  upon  the  former  trial,  as  to  require  a  contrary 
holding  to  that  announced  in  our  former  opinion,  and  we 
deem  it  unnecessary  to  here  again  recite  the  facts.  We 
are  satisfied  with  the  principles  announced  in  the  opinion 
referred  to,  and  if  they  are  correct  then  they  are  decisive 
of  the  case  at  bar. 

Much  complaint  is  made  as  to  the  action  of  the  court  in 
passing  upon  propositions  of  law,  but  as  we  are  of  the  opin- 
ion the  trial  court  reached  a  correct  conclusion  in  its  final 
judgment,  we  deem  it  unnecessary  to  examine  in  detail  the 
holdings  upon  the  numerous  propositions  of  law  submitted. 

The  judgment  of  the  Circuit  Court  will  be  affirmed. 


F.  H.  Caldwell  and  F.  C.  Hemenway  y.  Frances  Dvorak. 

1.  WmiESSE»— Credibility  of,  is  for  the  Jury »— The  jury  see  the 
witnesses  an<^  hear  them  testify  and  are  in  a  better  position  to  judge  as 
to  their  truthfuhiess  than  a  court  of  appeal,  and  in  this  case  the  court  is 
unable  to  say  that  they  should  have  disregarded  the  testimony  of  appellee. 

2.  Instructions— (Sf/iottW  be  Construed  Together,  ^Appellant's  instruc- 
tions distinctly  informed  the  jury  that  "  fraud  may  may  be  proved  by 
circumstances  "  and  the  fact  that  this  was  not  stated  in  af^llee's  second 
instruction  could  not  have  misled  the  jury. 

Trespass,  for  a  wrongful  levy.  Appeal  from  the  Circuit  Court  of 
Rock  Island  County;  the  Hon.  John  J.  Glenn,  Judge,  presiding.  Ueard 
in  this  court  at  the  December  term,  1896.  Affirmed*  Opinion  filed 
June  26,  1807. 

Jacksqn  &  Hurst  and  Haeold  A.  Weld,  attorneys  for 
appellants. 

LooNEY  &  Kelly  and  J.  T.  Kenwoethy,  attorneys  for 
appellee. 

Mb.  Justice  Cbabtree  delivered  the  opinion   of  the 

COUBT. 

This  was  an  action  of  trespass  brought  by  appellee  against 


548  Appellate  Courts  op  Illinois. 

Vol.  70.1  Caldwell  v.  Dvorak. 

appellants,  to  recover  the  value  of  certain  property  levied 
npon  and  sold  by  appellant  Hemenway,  as  sherifF,  under  an 
execution  in  favor  of  Caldwell,  and  against  John  Buryanek, 
a  brother  of  appellee- 
Bury  anek  being  indebted  to  Caldwell,  who  is  a  banker, 
the  latter  sued  out  a  writ  of  attachment  which  was  levied 
upon  the  property  in  question,  but  the  levy  was  subse- 
quently released,  after  appellee  had  notified  the  sheriff  that 
she  claimed  the  property  and  demanded  its  possession. 
The  claim  of  appellee  to  the  property  was  based  upon  a 
chattel  mortgage  of  the  same,  executed  to  her  by  Buryanek. 
Five  days  later,  Caldwell  claiming  that  the  chattel  mort- 
gage was  fraudulent,  caused  the  property  to  be  again  levied 
upon  under  the  writ  of  attachment.  Un  the  trial  of  the 
attachment  suit,  the  issue  as  to  whether  the  chattel  mort- 
gage was  hona  fide  or  not,  was  determined  in  favor  of 
appellee,  and  the  attachment  was  dissolved,  but  appellant 
Caldwell  recovered  a  judgment  against  Buryanek,  in  the 
same  suit,  for  $2,352.  An  execution  was  issued  upon  this 
judgment,  which  came  into  the  hands  of  Hemenway,  as 
sheriff,  and  under  which  he  levied  upon  and  sold  the  prop- 
erty in  controversy.  The  sheriff's  return  of  the  sale  shows 
that  the  property  sold  for  the  sum  of  $406.40. 

Before  the  entry  of  the  judgment  against  Buryanek,  but 
after  the  release  of  the  first  levy  under  the  attachment  writ, 
he  made  a  bill  of  sate  of  the  property  to  the  appellee.  His 
claim  and  that  of  appellee  is,  that  this  bill  of  sale  was  made 
because  the  latter  was  about  to  foreclose  her  chattel  mort- 
gage after  the  first  levy,  under  the  insecurity  clause  in  the 
mortgage.  Appellee  claims  that  the  consideration  of  the 
chattel  mortgage,  which  was  for  $1,000,  was  money  loaned 
to  Buryanek  out  of  funds  which  she  brought  with  her  from 
Bohemia  when  she  came  to  this  country  in  June,  1893. 

There  was  a  trial  by  jury  and  verdict  for  appellee  for 
$1,000,  from  which  the  court  ordered  a  remittitur  of  $400, 
and  theji,  after  overruling  a  motion  for  new  trial,  rendered 
judgment  in  her  favor  for  $600,  and  appellants  appeal  to 
this  court. 


Second  District — December  Term,  1896.  549 

Caldwell  v.  Dvorak. 

The  only  controversy  in  the  case  is  as  to  the  bona  fide 
of  the  chattel  mortgage,  because,  if  the  mortgage  was 
given  in  good  faith,  to  secure  an  honest  indebtedness,  there 
would  be  nothing  fraudulent  about  the  bill  of  sale. 
Whether  the  transaction  was  an  honest  one  or  not  was  a 
question  of  fact,  and  if  the  jury  believed  the  testimony  of 
appellee,  they  could  not  do  otherwise  than  find  in  her  favor. 
It  is  insisted  on  the  part  of  appellants  that  the  testimony 
of  appellee  is  so  improbable,  and  that  she  has  contradicted 
herself  to  such  an  extent  on  the  several  occasions  when  she 
has  testified  on  this  matter,  that  no  credence  should  be 
given  to  her  story.  But  the  jury  saw  the  witness  and 
heard  her  testify;  they  had  before  them  all  the  evidence 
which  was  introduced  tending  to  show  that  she  had  made 
different  and  contradictory  statements  on  former  occasions 
when  she  had  been  examined  upon  the  same  subject,  and 
yet  they  seem  to  have  believed  her  testimony,  or  they 
could  not  have  returned  the  verdict  which  they  did.  The 
jury  were  certainly  in  a  much  better  position  to  judge  as 
to  the  truthfulness  of  appellee  than  we  are,  and  we  can  not 
say  they  should  have  disregarded  her  testimony,  especially 
as  it  was  not  contradicted  by  any  one  else,  but  on  the  con- 
trary, was  corroborated  by  Buryanek. 

We  do  not  feel  warranted  in  disturbing  the  verdict  of 
the  jury  upon  the  questions  of  fact  involved. 

It  is  urged  that  the  court  erred  in  giving  the  second  of 
appellee's  instructions,  for  the  reason,  as  is  claimed,  that  it 
substantially  tells  the  jury  that  fraud  can  not  be  proved 
from  circumstances.  We  do  not  think  the  instruction  is 
fairly  open  to  that  criticism.  It  does  announce  the  well 
known  principle  that  fraud  is  not  to  be  presumed  but  must 
be  proved  by  the  party  alleging  it.  As  to  whether  the 
fraud  may  be  inferred  from  the  circumstances  in  evidence, 
or  must  be  established  by  direct  proofs,  the  instruction  is 
whoUy  silent. 

In  the  second  instruction  given  for  appellant  the  jury 
are  distinctly  informed  that "  fraud  may  be  proved  by  cir- 
cumstances shown  by  the  evidence  in  the  suit,"  so  that  the 


550  Appellate  Courts  of  Illinois. 


70    550 
173s  100 


Vql.  70.]  C.  &  A.  R.  R.  CJo.  v.  Claueen. 


jury  could  not  have  been  misled  on  that  subject  by  any- 
thing contained  in  appellee's  second  instruction,  and  we 
think  there  was  no  error  in  giving  it.  We  think  there  was 
no  error  in  refusing  the  twelfth  instruction  asked  by 
appellants.  The  substance  of  it  was  given  in  other  instruc- 
tions, on  behalf  of  both  parties,  and  the  court  was  not 
required  to  repeat,  over  and  over  again,  the  principle  it 
contained. 

Finding  no  error  in  the  record,  the  judgment  will  be 
affirmed. 


Chicago  &  Alton  Bailroad  Co.  v.  Jolm  Clausen. 

1 .  Waiver — Of  Demurrer,  — If  a  party  pleads  over  after  his  demurrer 
is  ovenniled  he  waives  the  demurrer,  and  the  ruling  thereon  can  not  t>e 
assigned  for  error. 

2.  Same — By  Introducing  Evidence^  etc, — A  motion  to  exclude  the 
plaintiflTs  evidence  from  the  jury  is  waived  if  the  defendant  introduces 
evidence  in  his  own  behalf  and  does  not  renew  the  motion  at  the  close 
of  all  tlie  evidence. 

8.  Arrest  op  Judqitent — After  Demurrer  to  Declaration  is  Over- 
ruled.— After  judgment  overruling  a  demun*er  to  a  declaration,  there 
can  be  no  motion  in  arrest  of  judgment  for  any  exception  that  might 
have  been  taken  on  arguing  the  demurrer. 

4.  Variance — How  Presented  as  a  Question  of  Law. — ^Where  a 
motion  to  exclude  the  evidence  was  not  based  upon  the  ground  of  vari- 
ance, and  the  bill  of  exceptions  does  not  show  that  any  evidence  was 
objected  to  by  the  appellant,  because  of  a  variance  between  the  proofs 
offered  and  the  allegations  of  the  declaration,  no  question  of  variance 
arises  that  can  be  availed  of  in  a  court  of  appeal. 

5.  Nequgence  and  Ordinary  Carb— Getting  off  Train  While  it  is  in 
Motion. — In  a  suit  against  a  railroad  company  for  injuries  received  by 
a  passenger  while  attempting  to  alight  from  a  moving  train,  the  jury 
has  a  right  to  take  into  consideration  all  the  circumstances  appearing  in 
evidence  and  from  them  to  determine  the  question  of  negligence  on  the 
one  part  and  due  care  on  the  other.  A  court  of  appeal  can  not  say  that 
it  is  negligence  per  se  for  a  passenger  to  attempt  to  alight  from  a  movins: 
train. 

6.  Evidence — In  Personal  Injury  Cases — Exhibition  of  It^piry  to  the 
Jury.— In  a  suit  for  personal  injuries,  where  the  question  is  as  to  the 


Secx)nd  District — December  Term.   1896.  551 


G.  &  A.  R.  R.  Co.  Y.  Clausen. 


extent  of  the  wound  or  injury  it  is  not  improper  to  allow  the  plaintiff  to 
strip  his  person  and  expose  his  alleged  injury  to  the  jury  that  they  may 
see  for  themselves  its  nature  and  extent.  Matters  of  this  nature  are 
largely  in.  the  discretion  of  the  trial  court. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Livingston  County;  the  Hon.  Charles  R.  Starr,  Judge,  presid- 
ing. Heard  in  this  court  at  the  December  term«  1896.  Affirmed. 
Opinion  filed  June  26,  1897. 

C.  C.  &  L.  F.  Steawn,  attorneys  for  appellant. 

W.  H.  Ketoham  and  E.  S.  McIlduff,  attorneys  for 
appellee. 

A  party  who  does  not  abide  by  his  demurrer,  but  pleads 
over,  thereby  waives  the  objection  which  he  raised  by  his 
demurrer  and  can  not  thereafter  be  heard  to  insist  upon  it, 
either  by  motion  in  arrest  of  judgment  or  on  error.  By 
consenting  to  a  trial  on  the  merits,  the  party  who  inter- 
posed the  demurrer  waives  any  benefit  he  might  otherwise 
have  had  from  his  demurrer.  It  is  an  admission  of  the  suffi- 
ciency of  the  pleading  to  which  he  demurred  and  it  also 
comes  under  the  rule  that  dilatory  matters  can  not  be  inter- 
posed after  pleading  to  the  merits.  1  Shinn's  111.  Plead,  and 
Prac.,  See.  640,  p.  785,  and  cases  cited  in  note  6;  Walker  v. 
Welch,  14  111.  277;  Dunlap  v.  C,  M.  &  St.  P.  Ry.  Co.,  151 
111.  421;  Ambler  v.  Whipple,  139  111.  322;  Gordon  v.  Rey- 
nolds, 114  111.  123;  Sterns  v.  Cope,  109  111.  340;  Gradle  v. 
Hoffman,  105  111.  154. 

If  specific  objection  is  not  made  to  the  admission  of  evi- 
dence in  the  trial  court,  by  demurrer  to  the  evidence,  motion 
for  non-suit  or  motion  to  strike  out,  the  party  will  be 
deemed  to  have  waived  his  objection.  A  general  objection 
on  the  ground  of  variance  to  the  evidence  offered  will  not 
be  sufficient.  The  objection  must  specifically  set  forth 
the  ground  relied  upon  in  order  that  the  party  ofl^ering  it 
may  avoid  the  variance  by  an  amendment  of  his  pleading 
or  that  the  party  raising  the  objection  may  assign  the  same 
for  error  in  his  bill  of  exceptions.  2  Shinn's  111.  Plead  and 
Prac.  Sec.  819,  p.  1003;  the  same,  Sec.  895,  pp.  1068-71;  Har- 


552  Appellate  Courts  op  Illinois. 

Vol.  70.]  C.  <fc  A.  R.  R.  Co.  v.  Clausen. 

ris  V.  Shebeck,  151  III.  287;  Betting  v.  Hobbett,  142  111. 
75;  C.  &  A.  E.  R.  Co.  v.  Byrum,  48  111.  App.  41;  S.  C,  153 
111.  134. 

Where  an  objection  to  evidence  is  such  that  it  might  be 
obviated  by  further  proof  or  amendment  and  the  objection 
is  not  urged  at  the  time  the  evidence  is  offered,  such  objec- 
tion mil  be  deemed  to  have  been  waived.  This  is  because 
the  law  does  not  permit  a  party  to  sit  quietly  by  and  let 
incompetent  evidence  be  given  to  the  jury  without  objection 
and  then  urge  the  same  as  error  in  a  court  of  review.  A 
case  will  not  be  reversed  for  objectionable  evidence  which 
might  have  been  rendered  unobjectionable  had  the  opposite 
party  not  negligently  failed  to  offer  an  objection.  It  is  too 
late  to  object  for  the  first  time  in  a  court  of  review.  2 
Shinn's  111.  Plead,  and  Prac.,  Sec.  895,  p.  1071;  Richelieu 
Hotel  Co.  V.  Mil.  Encamp.  Co.,  140  111.  259;  Lake  Shore  & 
M.  S.  Ry.  Co.  V.  Ward,  135  111.  516;  St.  Clair  County  Bene- 
volent Society  v.  Fietsam,  97  111.  474;  City  of  Chicago  v. 
Moore,  139  111.  209;  Murchie  v.  Peck  Bros.  &  Co.,  160  111. 
178;  Chicago  City  Ry.  Co.  v.  Van  Vleck,  143  III.  483. 

If  the  defendant  moves,  at  the  close  of  the  plaintiflTs  evi- 
dence, that  a  verdict  be  directed  and  the  motion  is  overruled, 
after  which  the  defendant  introduces  evidence  in  defense 
and  thereafter  fails  to  renew  his  motion  or  ask  that  the  evi- 
dence be  excluded  from  the  jury,  the  question  whether,  as  a 
matter  of  law,  there  is  evidence  to  establish  the  plaintiff's 
cause,  will  notarise  on  the  record,  for  the  plaintiff's  case  may 
have  been  strengthened  by  the  evidence  of  the  defendant 
and  that  of  the  plaintiff  in  rebuttal.  2  Shinn's  III.  Plead, 
and  Prac,  Sec.  922,  p.  1091;  Chicago  City  Ry.  Co.  v.  Van 
Vleck,  sitpra;  Harris  v.  Shebek,  svjyra. 

Mb.  Jns'noB  Crabtreb  deuvbbed  thb  opinion  op  the 
Court. 

This  was  an  action  on  the  case  brought  by  appellee 
against  appellant  to  recover  damages  for  injuries  alleged  to 
have  been  received  by  him,  while  attempting  to  alight  from 
one  of  appellant's  passenger  trains  on  which  he  had  been 


Second  District — December  Term,  1896.  553 

C.  &  A.  R.  R.  Co.  ▼.  Clausen. 


riding  at  Gardner,  in  this  State,  in  the  forenoon  of  Novem- 
ber 18,  1895. 

The  declaration  originally  contained  three  counts,  but 
appellee  subsequently  filed  four  additional  counts.  A  de- 
murrer was  sustained  by  the  court  to  all  these  counts,  except 
the  first  count  of  the  original  declaration. 

Appellee  then  filed  five  amended  counts,  to  which  appel- 
lant interposed  a  demurrer,  and  that  being  overruled  by  the 
court,  the  plea  of  not  guilty  was  entered,  and  upon  the  issues 
thus  joined,  there  was  a  trial  by  jury,  resulting  in  a  verdict 
in  favor  of  appellee  for  $3,000.  A  motion  for  new  trial 
being  overruled,  there  was  judgment  on  the  verdict. 

A  considerable  portion  of  the  argument  of  counsel  for 
appellant  is  devoted  to  the  proposition  that  the  court  erred 
in  overruling  the  demurrer  to  the  amended  count.  It  is  an 
elementary  rule,  supported  by  an  abundance  of  authority, 
that  by  pleading  over,  a  party  will  waive  the  right  to  insist 
upon  his  demurrer.  Walker  v.  Welch,  14  111.  277;  Dunlop 
V.  C,  M.  &  St.  P.  Ey.  Co.,  151  111.  421;  Gordon  v.  Keynolds, 
114  111.  123;  Ambler  v.  Whipple,  139  111.  322;  Gardner  v. 
Haynie,  42  111.  292;  City  of  Kock  Falls  v.  Wells,  65  111. 
App.  560. 

Nor,  in  such  a  state  of  the  record  can  the  defendant  pre- 
vail on  a  motion  in  arrest  of  judgment  for  any  exception 
that  might  have  been  taken  on  arguing  the  demurrer.  Ind. 
Order  of  Mutual  Aid  v.  Paine,  122  111.  628,  citing  2  Tidd's 
Prac.  825;  Am.  Express  Co.  v.  Pinckney,  29  111.  405;  Quincy 
Coal  Co.  V.  Hood,  Adm'r,  77  111.  68. 

At  the  close  of  plaintiffs  evidence  appellant  entered  a 
motion  to  exclude  the  evidence  and  direct  a  verdict  for 
defendant.  The  motion  was  overruled  by  the  court,  appel- 
lant excepted,  and  this  action  of  the  court  is  assigned  for 
error. 

But  by  introducing  evidence  in  its  own  behalf,  and  not 
renewing  the  motion  at  the  close  of  all  the  evidence, 
appellant  waived  its  right  to  complain  of  this  action  on  the 
part  of  the  court.  City  of  Rock  Falls  v.  Wells,  65  111.  App. 
557. 


5j4  Appellate  Courts  of  Illinois. 

Vol.  70.]  C.  &  A.  R  R.  Co.  v.  Clausen. 

One  of  appellant's  assignments  of  error  is,  that  there  was 
a  variance  between  the  declaration  and  proofs.  But,  the 
motion  to  exclude  the  evidence,  was  not  based  upon  the 
ground  of  variance,  nor  does  the  bill  of  exceptions  show  that 
any  evidence  was  objected  to  by  appellant  because  of  a 
variance  between  the  proof  oflfered  and  the  allegations  of 
the  declaration.  We  think  therefore  that  no  question  of 
variance  arises  on  the  record  that  can  be  availed  of  in  this 
court.     Harris  v.  Shebeck,  151  111.  287. 

The  principal  difficulty  we  have  had  in  this  case,  has  been 
upon  the  questions  of  fact,  it  being  strongly  insisted  by 
appellant,  that  the  evidence  fails  to  show  negligence  on  its 
part,  and  that  it  does  show  such  a  want  of  due  care  on  the 
part  of  appellee  as  to  preclude  his  right  of  recovery.  To 
these  questions  we  have  given  much  care,  and  have  reached 
the  conclusion  that  it  is  not  our  duty  to  disturb  the  finding 
of  the  jury  upon  these  points.  The  verdict  is  certainly 
not  so  manifestly  against  the  weight  of  the  evidence  as  to 
strike  the  mind  at  fii*st  blush  as  being  clearly  wrong.  There 
was  evidence  from  which  the  jury  may  have  been  warranted 
in  believing  that  the  appellant  negligently  started  its  train 
without  giving  appellee  sufficient  time  to  alight. 

The  evidence  shows  that  the  train  did  not  stop  longer 
than  thirty  seconds,  or- from  that  to  one  minute,  according 
to  the  various  estimates  of  the  witnesses.  Appellee  appears 
to  have  reached  the  door  of  the  car  in  which  he  was  riding 
at  about  the  time  the  train  stopped.  Passengers  immedi- 
ately began  to  get  on  the  car,  coming  up  the  steps  at  which 
appellee  would  naturally  get  off,  and  almost  at  the  same 
instant  that  these  passengers  got  on,  the  train  started,  and 
after  it  got  under  way  appellee  attempted  to  get  off,  and  in 
doing  so,  received  the  injuries  complained  of.  That  he  was 
delayed  for  a  short  time,  by  these  passengers  getting  on  the 
train,  admits  of  no  doubt.  Was  the  act  of  trying  to  get 
off  the  train  after  it  started,  such  negligence  on  his  part  as 
precludes  a  right  of  recover}^  ?  This  was  a  question  of  fact 
for  the  jury.  It  was  for  them  to  say  whether  an  ordinarily 
prudent  person,  under  similar  circumstances,  would  have 


Second  District — December  Term,  1896.  555 

C.  &  A.  R.  R.  Co.  V.  ClauBen. 

been  likely  to  pursue  the  same  course.  The  same  thing  has 
no  doubt  been  done  thousands  of  times  without  accident;  we 
can  not  say  an  ordinarily  prudent  person,  under  similar 
circumstances,  would  not  have  done  the  same  thing,  rather 
than  be  carried  by  his  place  of  destination.  The  jury  had 
the  right  to  take  into  consideration  all  the  circumstances 
appearing  in  the  evidence,  including  the  age  and  experience 
of  appellee,  the  length  of  time  the  train  stopped,  the  speed 
at  which  the  train  was  going  when  appellee  got  off,  and 
from  all  these  things  determine  the  question  of  negligence 
on  the  one  part  and  due  care  on  the  other. 

We  do  not  agree  with  counsel  for  appellant  that  it  is 
negligence  ^er  se  for  a  passenger  to  attempt  to  alight  from 
a  moving  train.  It  might  or  might  not  be  dangerous, 
depending  on  the  circumstances.  As  was  said  by  Mr.  Chief 
Justice  Lawrence  in  the  case  of  I.  C.  R;  E.  Oo.  v.  Able, 
59  111.  131.  "  Cases  might  occur,  however,  in  which  a  rea- 
sonable opportunity  to  alight  has  not  been  given  to  a 
passenger,  and  when  he  attempts  to  do  so  after  the  train 
has  resumed  its  motion,  but  before  the  motion  has  become 
at  all  rapid,  and  the  stepping  from  the  train  would  not  seem 
dangerous  to  a  man  of  ordinary  prudence  and  judgment, 
and  nevertheless  bodily  injury  follows,  in  such  cases  the 
passenger  would  be  entitled  to  recover  damages  for  the 
injury,  because  the  railroad  company  has  committed  a  fla- 
grant breach  of  duty,  and  the  passenger  is  chargeable  with 
no  appreciable  negligence."  So  in  the  case  at  bar,  if  it  be 
true  the  train  did  not  stop  long  enough  to  give  appellee  a 
reasonable  opportunity  to  alight,  under  all  the  circumstances 
of  the  case,  we  can  not  say  his  attempting  to  get  oflf  the 
train  after  it  resumed  its  motion,  was  such  negligence  as 
prevents  a  recovery.  On  the  whole  we  do  not  feel  war- 
ranted in  setting  aside  the  verdict  on  these  grounds. 

One  of  the  injuries  to  appellee  was  a  rupture,  alleged  to 
have  been  received  by  him  in  consequence  of  his  fall  when  he 
attempted  to  alight  from  the  train.  On  the  trial,  the  court, 
over  appellant's  objection,  permitted  appellee  to  strip  his 
person  and  expose  this  alleged  rupture  to  the  jury,  and  this 


556 


Appellate  Coubts  of  Illinois. 


Vol.  70.] 


Schumacher  v.  Edward  P.  Allis  Ck). 


is  complained  of  as  error.  Matters  of  this  nature  are  largely 
within  the  discretion  of  the  trial  court.  When  the  question 
is  as  to  the  extent  of  the  wound  or  injury,  it  is  a  common 
practice  to  exhibit  it  to  the  jury  that  they  may  see  for 
themselves  its  nature  and  extent.  Springer  v.  City  of 
Chicao^o,  135  111.  563;  City  of  Lanark  v.  Dougherty,  153 
111.  165. 

We  think  there  was  no  error  in  this  action  of  the  court. 

It  is  next  insisted  that  the  damages  are  excessive,  and  the 
case  is  argued  as  if  the  rupture  were  the  only  injury  received. 
But  according  to  the  plaintiff's  testimony,  he  was  otherwise 
hurt,  in  his  shoulder,  back,  and  right  arm.  The  jury  heard 
him  testify  and  it  is  peculiarly  within  their  province  to 
ascertain  and  fix  the  compensation  he  should  receive  for  his 
injuries.  The  amount  is  not  so  large  as  to  bear  evidence  of 
its  being  the  result  of  passion  and  prejudice,  and  we  do  not 
think  the  judgment  should  be  reversed  because  the  damages 
are  excessive. 

We  do  not  find  any  reversible  error  in  the  instructions 
given  on  behalf  of  appellee,  and  those  which  the  court 
declined  to  give  at  the  instance  of  appellant  were  properly 
refused. 

Finding  no  serious  error  in  the  record,  the  judgment 
will  be  affirmed. 


70 
f92 


556 

»  78 


Hugo  Schumacher  et  al.^  Assignees^  r.  Edward  P. 

Allis  Company. 


1.  CoKPORATiONS— -4c*  Done  by  Officers  of  a  Corporation  as  Officers 
of  Another  Corporaiion, — Persons  acting  as  the  oflficers  of  two  corpora- 
tions, operated  the  two  as  if  they  were  but  one  company,  and  as  officers 
of  one  company,  contracted  for  machinery  to  be  placed  and  used  in  the 
plant  of  the  other,  and  at  a  later  date  as  officers  of  the  latter  company 
gave  its  notes  for  the  purchase  price  of  the  machinery.  Held,  that  the 
authority  of  the  company  making  the  purchase  to  act  for  the  other 
company  could  not  be  questioned  for  the  purpose  of  avoiding  a  clause  of 
the  contract  authorizing  the  removal  of  the  machinery  in  case  of  non- 
payment. 


.Second  District — December  Term,  1896.  567 


Schumacher  ▼.  Edward  P.  Allis  Co. 


2.  Payment— W]fe«i  a  Note  for  the  Amount  Due  Will  Amount  to. — 
Taking  a  note,  either  of  the  debtor  or  of  a  third  person,  for  a  pre-exist- 
ing debt  18  not  a  payment  of  the  debt  unless  it  be  expressly  agreed  that 
the  note  is  taken  in  absolute  payment,  or  unless  the  creditor  has  parted 
with  the  note  so  as  to  subject  the  debtor  to  double  payment. 

8.  SAME'—Burden  of  Proof  as  to,  When  a  Note  is  Given  for  the  Debt. 
— Except  in  a  case  where  the  evidence  raises  a  positive  inference  of  dis- 
charge the  burden  of  proof  is  on  the  debtor,  to  show  that  a  note  for  a 
pre-existing  debt  was  both  given  and  received  as  absolute  payment. 

4.  Voluntary  Assignmbnts— riite  of  the  AsHgnee.-^TJnder  a  general 
assignment,  the  assignee  takes  as  a  mere  volunteer,  and  the  property 
assigned  is  subject  to  the  same  defects  of  title,  equities  and  liens  as 
when  in  the  hands  of  the  assignor. 

5.  Same — Duty  of  the  Assignee  as  to  the  Rights  of  Mortgagees, — On 
an  appeal  by  an  assignee,  a  court  of  appeal  will  not  interfere  with  a 
finding  of  the  trial  court  in  favor  of  a  person  claiming  property  in  the 
hands  of  such  assignee  on  account  of  the  alleged  rights  of  a  mortgagee. 
It  is  not  for  the  assignee  to  set  up  for  the  mortgagee  rights  which  he 
does  choose  to  assert  for  himself. 

6.  Sai^bb— Clause  Giving  Vendor  Right  to  Seize  Property  for  Non- 
payment.  Valid, — A  clause  in  contract  of  sale  of  machinery  giving  the 
vendor  the  right  to  remove  the  machinery  in  case  of  non-payment  is 
legal  and  binding  between  the  parties  to  the  contract  even  though  the 
machinery  be  attached  to  the  real  estate. 

7.  TcnvREa^  Whether  Real  or  Personal  Pi^operty — Agreements, — 
Things  clearly  i)ersonal  in  their  nature  may  retain  their  character  of  per- 
sonality by  the  express  agreement  of  the  parties,  although  attached  to  the 
realty  in  such  a  manner  that  without  agreement  they  would  lose  that 
character,  provided  they  are  so  attached  that  they  may  be  removed 
without  material  injury  to  the  articles  themselves  or  to  the  freehold. 

8.  Same — Whether  Real  or  Personal  Property — Rights  of  Mortagees, 
—If  chattels  are  sold  to  an  owner  of  real  estate  on  an  agreement,  that 
their  character  as  personal  proi)erty  is  not  to  be  changed,  and  that  the 
title  is  to  remain  in  the  vendor  until  the  purchase  money  is  paid,  a  prior 
mortgagee  of  the  land  C€m  not  claim  them,  although  subsequently 
annexed  to  the  freehold,  if  they  can  be  removed  without  material 
damage  to  the  real  estate  or  to  the  chattels  themselves. 

Petition,  in  assignment  proceedings.  Appeal  from  the  County  Court 
of  La  Salle  County;  the  Hon.  Henry  W.  Johnson,  Judge,  presid- 
ing. Heard  in  this  court  at  the  December  term,  1896.  Affirmed. 
Opinion  filed  June  26, 1897. 

Clarence  Griggs,  attorney  for  appellants. 
Brewer  &  Strawn,  attorneys  for  appellee. 


558    /       Appellate  Courts  of  Illinois. 

Vol.  70.  J  Schumacher  v.  Edward  P.  Allis  CJo. 

The  giving' of  a  negotiable  note  in  consideration  of  a  simple 
contract  debt  does  not  discbarge  the  contract  on  which  the 
debt  was  founded,  unless  it  appears  that  it  was  agreed  that 
the  note  should  be  taken  in  absolute  payment,  or  that  the 
creditor  has  so  parted  with  the  note  as  to  subject  the  debtor 
to  double  payment.  Hercules  Iron  Works  v.  Hummer, 
Assignee,  49  111.  App.  598,  and  authorities  collected  on  page 
600;  Willhelm  v.  Schmidt,  84  111.  183;  Walsh  v.  Lennon,  98 
111.  27;  Cheltenham  Stone  and  Gravel  Company  v.  Gates 
Ironworks,  124111.  623. 

Except  where  the  evidence  raises  a  positive  inference  of 
discharge,  the  burden  of  proof  is  upon  the  debtor  to  show 
that  the  note  was  both  given  and  received  as  an  absolute 
payment.  Hercules  Iron  Works  v.  Hummer,  Assignee,  49 
111.  App.  598;  Johnson  v.  Weed,  9  Johns*  310;  Mitchell  v. 
Hockett,  25  Cal.  538;  Merrick  v.  Boury,  4  Ohio  St.  60; 
Haines  v.  Pearce,  41  Md.  221;  Glenn  v.  Smith,  2  Gill  and  J. 
493;  McMurray  v.  Taylor,  30  Mo.  263. 

With  great  care  should  a  court  reach  the  conclusion  that 
the  evidence  raises  an  inference  of  discharge  when  the  cred- 
itor would  thereby  lose  some  security  which  he  held  before 
taking  the  note.  Hercules  Iron  Works-  v.  Hummer,  As- 
signee, 49  111.  App.  598;  Bond  v.  Liverpool  &  London  Globe 
Ins.  Co.,  106  111.  654;  3  Randolph  on  Commercial  Paper, 
Sees.  1513, 1518;  2  Parsons  on  Notes  and  Bills,  205;  2  Daniel 
on  Neg.  Inst.,  Sec.  1267. 

The  doctrine  of  conditional  sales  has  been  repeatedly 
recognized  in  this  State.  Hooven,  eto.,  Co.  v.  Burdette, 
Assignee,  153  111.  672;  Murch  v.  Wright,  46  111.  487;  Latham 
V.  Sumner,  89  111.  233;  Fairbanks  v.  Malloy,  16  111.  App. 
277;  Fleuryv.  Tufts,  25  111.  App.  101;  Jordan  v.  Easter,  2  111. 
App.  73;  Hercules  Iron  Works  v.  Hummer,  Assignee,  49  111. 
App.  598. 

Heavy  machinery  may  retain  its  character  as  personal 
property  by  agreement  of  the  parties,  when  otherwise  it 
would  become  a  part  of  the  realty.  Hooven,  etc.,  Co,  v. 
Burdette,  Assignee,  153  111.  672;  Hercules  Iron  Works  v. 
Hummer,  Assignee,  49  111.  App.  598;  Ellison  v.  Salem  Coal 


Skcoxd  District — December  Term,  1896.  559 

Schumacher  v.  Edward  P.  Allis  Co. 

and  Mining  Co.,  43  111.  App.  120;  Sword  v.  Low,  122  111. 
487;  Lake  Superior,  etc.,  Co.  v.  McCann,  86  Mich.  109; 
Man  waring  v.  Jenison,  61  Mich.  117;  New  Chester  Water 
Co.  V.  Holly  Mfg.  Co.,  53  Fed.  Eep.  19;  Merchants'  Nat.  Bank 
V.  Stanton,  55  Minn.  211;  S.  C,  59  Minn.  632;  Page  v. 
Edwards,  64  Vt.  124;  Marshall  v.  Bacheldor,  47  Kan.  442. 

When  the  premises  were  mortgaged,  before  the  machinery 
was  put  in  under  a  conditional  contract,  the  lien  of  the 
contract  takes  precedence  of  that  of  the  mortgage,  as  the 
machinery  was  no  part  of  the  security  taken.  Hercules 
Iron  Works  v.  Hummer,  Assignee,  49  111.  App.  598;  Ellison 
V.  Salem  Coal  and  Mining  Co.,  43  111.  App.  120;  Sword  v. 
Low,  122  III.  489;  Tifft  v.  Horton,  53  N.  Y.  377;  Pa^e  v. 
Edwards,  64  Vt.  124;  Man  waring  v.  Jenison,  61  Mich.  117; 
Merchants'  Nat.  Bank  v.  Stanton,  55  Minn.  211. 

Under  a  general  assignment  the  assignee  takes  the  title 
as  a  volunteer,  and  subject  to  all  liens  upon  the  property  to 
which  it  was  subject  in  the  hands  of  the  assignor.  Hooven, 
etc.,  Co.  V.  Burdette,  Assignee,  153  111.  672;  Hercules  Iron 
Works  V.  Hummer,  Assignee,  49  111.  App.  598;  O'Hara  v. 
Jones,  46  111.  289;  Davis,  Cory  &  Co.  v.  Chicago  Dock  Co., 
J 29  111.  180;  Union  Trust  Co.  v.  Trumbull,  137  111.  146;  Jor- 
dan V.  Easter,  2  111.  App.  73,  79;  Paddock  v.  Stout,  121  111. 
57L 

A  conditional  contract  will  be  enforced  as  against  an 
assignee,  there  being  no  judgment  or  attaching  creditors  or 
bonajlde  purchasers  without  notice.  Hercules  Iron  Works 
V.  Hummer,  Assignee,  49  111.  App.  598;  Union  Trust  Co.  v. 
Trumbull,  137  111.  146;  Murch  v.  Wright,  46  111.  487; 
Hooven,  etc.,  Co.  v.  Burdette,  Assignee,  153  111.  672;  Thomas 
Mfg.  Co.  v.  Huff,  62  Mo.  App.  124. 

When  the  officers  and  directors  of  two  corporations  are 
alike,  each  has  notice  of  the  contracts  of  the  other.  New 
Chester  Water  Co.  v.  Holly  Mfg.  Co.,  53  Fed.  R.  19,  27; 
Walker  v.  Grand  Rapids  Flouring  Mill  Co.,  70  Wis.  92. 

Me.  Justice   Cbabtbse  delivered  the  opinion  of  the 

COUBT. 

This  cause  arose  upon  a  petition  filed  by  appellee  for  leave 


5G0  Appellate  Courts  op  Illinois. 

Vol.  70. J  Schumacher  v.  Edward  P.  Allis  Co. 

to  remove  certain  machinery  from  premises  in  the  possession 
of  appellants  as  assignees  of  the  Illinois  Kiver  Paper  Com- 
pany, The  Marseilles  Land  and  Water  Power  Company  and 
Ferdinand  Schumacher. 

Upon  a  hearing  in  the  County  Court,  the  prayer  of  the 
petition  was  granted  and  leave  given  to  remove  the  machin- 
ery in  question,  and  from  such  order  appellants  prosecute 
an  appeal  to  this  court. 

From  the  record  we  gather  the  following  facts:  Some 
time  prior  to  the  year  1895,  one  Ferdinand  Schumacher,  a 
capitalist  of  Akron,  Ohio,  became  the  purchaser  of  the  prop- 
erty and  capital  stock  of  the  Marseilles  Land  and  Water 
Power  Company,  of  Marseilles,  Illinois,  thereby  becoming 
the  owner  of  the  water  power  at  that  place  and  also  a  large 
amount  of  real  estate,  paper  mills  and  other  mill  property 
operated  by  water  power  at  Marseilles.  He  also  acquired 
the  property  and  capital  stock  of  the  Illinois  River  Paper 
Company,  another  corporation  located  at  Marseilles,  and 
thereby  became  the  owner  of  a  larere  paper  mill,  which  he 
afterward  completed  and  equipped  as  a  straw  board  plant, 
having  a  large  capacity  of  production. 

Hugo  Schumacher,  a  nephew  of  said  Ferdinand,  and  one 
of  the  appellants,  appears  to  have  been  the  confidential 
agent  of  the  latter  at  Akron,  O.,  and  Eichard  F.  Knott  was 
the  superintendent  of  the  works  at  Marseilles.  Ferdinand 
Schumacher  was  president  and  Hugo  Schumacher  was  secre- 
tary of  both  said  corporations,  viz.,  the  Illinois  River  Paper 
Company  and  the  Marseilles  Land  and  Water  Power  Com- 
pany, during  the  years  1895  and  1896.  All  the  business 
that  was  done  by  both  companies  appears  to  have  been 
transacted  in  the'  name  of  the  Marseilles  Land  and  Water 
Power  Company,  which  purchased  the  supplies,  manufact- 
ured the  product  and  received  the  proceeds.  But  one  set 
of  books  was  kept,  and  only  one  office  was  maintained,  and 
no  lease  of  its  property  appears  to  have  been  ^iven  by  the 
Paper  Company  to  the  Land  and  Water  Power  Company. 

On  July  17,  1895,  Ferdinand  Schumacher  borrowed,  in 
New  York  City,  $100,000,  for  which  he  executed  his  three 


Second  District — December  Term,  1896.  661 

Schumacher  ▼.  Edward  P.  Allis  Co. 

• 

promissory  notes,  each  for  one-third  of  the  amount,  and 
secured  them  by  a  mortgage  deed  of  that  date  to  Albert  O. 
Beebe,  upon  the  plant  of  the  Illinois  Eiver  Paper  Company, 
at  Marseilles.  This  mortgage  was  filed  for  record  August 
19,  1895. 

In  November,  1895,  upon  the  suggestion  of  Mr.  Knott,  the 
superintendent,  it  was  determined  to  put  into  the  plant  of 
the  Illinois  Eiver  Paper  Company,  a  steam  engine,  boiler  and 
machinery  for  use  in  operating  the  works  in  case  of  a  failure 
in  the  water  power,  and  in  pursuance  of  this  determina- 
tion a  contract  was  entered  into  between  the  Marseilles 
Land  and  Water  Power  Company  and  appellee,  whereby  the 
latter  was  to  sell  and  deliver  to  the  former,  a  Corliss  engine 
and  condenser,  with  the  necessary  equipment,  according  to 
specifications  contained  in  the  contract,  and  upon  the  condi- 
tions therein  named,  for  the  sum  of  $4,874,  payable  one-half 
cash  on  shipment,  balance  sixty  days  after  shipment. 

The  contract  also  contained  the  following  provision: 
"  The  title  and  right  of  possession  to  the  machinery  we  fur- 
nish remains  in  the  Edward  P.  Allis  Company  until  the 
same  has  been  fully  paid  for  in  cash." 

On  behalf  of  the  Marseilles  Land  and  Water  Power  Com- 
pany, this  contract  was  executed  by  Ferdinand  Schumacher, 
its  president.  In  pursuance  of  this  contract,  the  engine  and 
condenser  were  delivered  and  accepted  December  28,  1895, 
and  the  balance  wheel,  on  February  8,  1896,  Mr.  Knott,  as 
such  superintendent,  also  purchased  of  appellee  other  appa- 
ratus to  be  used  in  the  plant,  at  the  agreed  price  of  $1,0(58, 
one-half  to  be  paid  in  cash  and  orie-half  in  sixty  days.  But 
this  was  a  matter  outside  of  the  contract  for  the  purchase 
of  the  engine. 

On  January  13,  1896,  appellee  telegraphed  to  Hugo  Schu- 
macher for  the  amount  then  due  on  the  engine,  condenser 
and  wheel.  The  next  day  Ferdinand  Schumacher  replied 
that  they  did  not  have  the  funds  at  present,  but  he  sent  a 
note  for  $2,000,  due  in  sixty  days  from  January  13th,  and 
expressed  the  hope  that  appellee  might  be  able  to  get  it 
cashed.    This  note  not  being  paid  when  due,  the  Illinois 

YoIh  LXX  36 


562  Appellate  Courts  of  Illinois. 

Vol.  70.]  Scliumacher  ▼.  Edward  P.  AUis  Ck). 

River  Paper  Company,  by  Hugo  Schumacher,  its  secretary 
and  treasurer,  sent  a  new  note  for  $2,000  due  in  sixty  days 
and  also  inclosed  a  check  for  $21  for  interest.  The  old  note 
was  returned  to  Ferdinand  Schumacher. 

On  March  5,  1896,  Ferdinand  Schumacher  sent  a  letter  to 
appellee  inclosing  a  note  for  $3,040.33,  dated  March  5,  189G 
and  due  in  three  months  after  date.  This  note  included  a 
part  of  the  purchase  price  of  the  other  apparatus  bought  of 
appellee  and  not  included  in  the  original  contract.  Noth- 
ing has  ever  been  paid  on  either  of  these  notes,  nor  upon  the 
contract  for  the  engine,  except  the  sum  of  $437,  paid  by 
check  February  30, 1896. 

All  the  balance  of  the  contract  price  for  said  machinery 
is  still  unpaid. 

On  May  9,  1896,  the  Illinois  River  Paper  Company,  the 
Marseilles  Land  and  "Water  Power  Company  and  said  Fer- 
dinand Schumacher  each  made  a  general  assignment  to 
appellants  for  the  benefit  of  creditors. 

On  May  20,  1896,  appellee  filed  its  petition  in  the  County 
Court  of  La  Salle  County,  where  the  assignment  proceedings 
were  pending,  for  leave  to  remove  the  said  engine  and 
machinery  in  question.  The  two  companies  interested  were 
made  parties  defendant,  as  well  as  Albert  O.  Beebe,  the 
mortgagee.  The  only  service  of  notice  upon  Beebe  was  by 
registered  letter,  which  informed  him  of  the  contents  of  the 
petition  and  its  pra}^er,  and  requested  him  to  appear  if  he 
desired  to  contest  the  claims  of  the  petitioner.  We  think 
the  evidence  shows  that  Beebe  received  this  notice  and  also 
that  the  counsel  for  the  corporation  interested  in  the  loan  of 
$100,000,  replied  that  ho  would  give  the  matter  his  atten- 
tion. Appellants,  as  assignees  of  the  two  con^panies  inter- 
ested, appeared  and  defended  against  the  petition,  but 
neither  Beebe,  nor  any  one  interested  in  the  loan,  made  any 
defense  against  the  claims  of  appellee,  and  they  are  in  no 
way  represented  in  this  court,  the  only  parties  complaining 
of  the  action  of  the  court  below  being  appellants  as  assignees 
of  the  Illinois  River  Paper  Company  and  the  Marseilles 
Land  and  Water  Power  Company.  The  court  entered  an 
order  granting  the  prayer  of  the  petition. 


Second  District — December  Teem,  1896.  563 

Schumacher  v.  Edward  P.  AUis  Co. 

There  are  four  specific  assignments,  of  error,  which  we 
will  proceed  to  dispose  of  in  their  order. 

1.  "  The  court  erred  in  finding  that  the  Marseilles  Land 
and  Water  Power  Company  purchased  said  machinery  as 
the  agent  of  the  Illinois  Kiver  Paper  Company." 

Whether  the  one  company  can  be  considered  as  the  agent 
of  the  other  or  not,  it  is  quite  clear  the  same  persons  were 
the  officers  of  both  concerns,  running  and  operating  the  two 
as  if  but  one  company.  Ferdinand  Schumacher,  as  presi- 
dent of  the  Marseilles  Land  and  Water  Power  Company, 
contracted  for  the  machinery  to  be  placed  and  used  in  the 
plant  of  the  Illinois  River  Paper  Company,  of  which  he 
was  also  the  president,  and  he  stood  by  and  saw  it  put  in 
the  plant  of  the  latter  company,  without  objection,  to  be 
used  and  operated,  presumably  for  the  benefit  of  both  com- 
panies. But  not  only  was  the  machinery  set  up  in  the  plant 
of  the  Illinois  River  Paper  Company  with  the  knowledge  and 
consent  of  its  officers,  but  it  gave  its  notes  for  the  purchase 
price  thereof,  one  being  for  $2,000,  dated  March  16,  1896, 
which  was  given  in  extension  of  the  former  note  for  same 
amount,  and  one  dated  March  5,  1896,  which  was  for 
$3,040.32,  and  included  the  balance  of  the  purchase  price 
for  the  machinery.  Under  these  circumstances  we  think 
the  assignees  ought  not  to  be  permitted  to  raise  the  ques- 
tion of  agency  so  as  to  avoid  the  contract  for  the  removal 
of  the  machinery  in  case  of  non-payment.  For  all  practical 
purposes,  so  far  as  running  and  operating  the  plants  were 
concerned,  the  Marseilles  Land  and  Water  Power  Company 
was  the  Illinois  River  Paper  Company.  We  hold  that  this 
assignment  of  error  is  not  well  taken.  (See  53  Fed. 
Rep.  19.) 

2.  "  Th^  court  erred  in  finding  that  no  payment  for  said 
machinery  had  been  made  excepting  the  sum  of  $437,  paid 
February  10,  1896,  and  the  sum  of  $21,  March  16,  1896." 

It  is  not  pretended  that  any  other  payments  were  made 
in  cash,  than  those  mentioned,  but  it  is  argued  that  the  cir- 
cumstances show  the  notes  given  were  received  as  absolute 
payment.    We  are  unable  to  find  in  the  evidence  any  sup- 


564  Appellate  Courts  op  Illinois. 


Vol.  70.]  Schumacher  v.  Edward  P.  Allia  Co. 

port  for  this  contention.  When  appellee  asked  for  cash, 
according  to  the  terms  of  the  contract,  notes  were  sent  to  it 
as  the  mere  voluntary  act  of  Ferdinand  Schumacher, 
because  he  had  no  funds  with  which  to  pay  the  cash.  Ap- 
pellee never  asked  for  the  notes,  and  so  far  as  the  record 
shows,  never  agreed  to  accept  them  in  payment. 

In  Hercules  Iron  Works  v.  Hummer,  49  111.  App.  598,  we 
held  that,  taking  a  note  either  of  the  debtor  or  of  a  third 
person,  for  a  pre-existing  debt  is  not  payment,  unless  it  be 
expressly  agreed  to  take  the  note  in  absolute  payment,  or 
unless  the  creditor  has  parted  with  the  note,  so  as  to  sub- 
ject the  debtor  to  double  payment.  And  that  except  in  a 
case  where  the  evidence  raises  a  positive  inference  of  dis- 
charge, the  burden  of  proof  is  on  the  debtor,  to  show  that 
the  note  was  both  given  and  received  as  absolute  payment 
Many  authorities  were  given  in  support  of  these  proposi- 
tions, and  we  are  satisfied  of  their  correctness.  Hence,  we 
are  of  the  opinion  that,  under  the  evidence,  the  court  held 
correctly  upon  the  question  of  payment. 

3.  "  The  court  erred  in  finding  that  the  machinery  was 
not  subject  to  the  lien  of  the  mortgage  of  Albert  O.  Beebe." 

We  have  serious  doubts  as  to  the  right  of  appellants  to 
be  heard  on  this  proposition.  They  possess  only  such  rights 
as  were  given  them  by  the  assignment.  They  are  mere 
volunteers,  and  the  property  assigned  to  them  is  subject  to 
the  same  defects  in  title,  equities  and  liens  as  when  in  the 
hands  of  the  assignor.  Hercules  Iron  Works  v.  Hummer, 
Bupra^  and  cases  there  cited. 

When  the  property  of  the  Illinois  River  Paper  Company 
was  assigned  to  appellants,  it  was  subject  to  the  lien  of  the 
Beebe  mortgage  and  to  the  equities  of  appellee,  and  we  can 
not  see  how  they  are  legally  interested  in  the  question  as 
to  which  has  the  superior  equity. 

If  the  court  below  had  jurisdiction  to  determine  Beebe's 
rights,  and  he  did  not  choose  to  appeal  from  the  order,  he 
would  be  bound  by  it,  while,  on  the  other  hand,  if  the  court 
had  no  jurisdiction  to  adjudicate  his  rights,  they  remain 
unaffected,  and  it  is  not  for  appellants  to  set  up  rights  for 
him  which  he  does  not  choose  to  assert  for  himself. 


Second  District— December  Term,  1896.  665 

Schumacher  v.  Edward.P.  Allis  Co. 

Whether  or  Dot  he  had  legal  notice  of  the  proceeding,  he 
certainly  had  actual  notice,  and  thus  far  has  set  up  no  claim 
in  opposition  to  that  of  appellee.  From  anything  that 
appears,  he  may  be  entirely  content  with  the  action  of  the 
court  in  authorizing  the  removal  of  the  machinery. 

But  even  if  there  were  no  question  of  that  sort  in  the 
case,  and  were  Beebe  himself  defending  against  the  right  to 
remove  the  machinery,  we  think,  under  the  evidence  and 
the  authorities,  he  could  not  succeed  in  defeating  the  claim 
of  appellee  to  a  right  of  removal.  That  the  contract  giving 
the  right  to  remove  the  machinery  in  case  of  non-payment 
was  legal  and  binding  between  the  parties,  can  not  be  ques- 
tioned. The  cases  are  numerous  in  which  such  contracts 
have  been  upheld.  Hercules  Iron  Works  v.  Hummer, 
supra;  Ellison  v.  Salem  Coal  &  Mining  Co.,  43  111.  App. 
120. 

In  the  case  of  Sword  v.  Law,  122  111.  487,  the  doctrine  is 
fully  recognized,  "that  things  clearly  personal  in  their 
nature  may  retain  their  character  of  personalty  by  the 
express  agreement  of  the  parties,  although  attached  to  the 
realty  in  such  manner  as  that,  without  such  agreement,  they 
would  lose  that  character,  provided  they  are  so  attached 
that  they  may  be  removed  without  material  injury  to  the 
article  itself  or  to  the  freehold." 

It  has  also  been  held  that  when  chattels  are  sold  to  the 
owner  of  the  soil  on  an  agreement  that  their  character  as 
personal  property  is  not  to  be  changed,  and  a  chattel  mort- 
gage is  taken  thereon  to  secure  the  purchase  money,  a  prior 
mortgagee  of  the  land  can  not  claim  them,  although  subse- 
quently annexed  to  the  freehold,  if  they  could  be  removed 
without  doing  material  damage  to  the  real  estate  or  to  the 
chattels  themselves.  TiflFt  v.  Horton,  53  N.  Y.  377;  Voor- 
his  V.  McGinnis,  48  N.  T.  278;  Ellison  v.  Salem  Coal  & 
Mining  Co.,  43  111.  App.  120. 

Many  other  authorities  might  be  cited  to  the  same  effect. 
We  do  not  think  the  cases  cited  by  counsel  for  appellants 
in  support  of  a  contrary  doctrine  are  in  point.  In  the 
absence  of  an  agreement  to  the  contrary,  there  is  no  doubt 


666  Appellate  Courts  op  Illinois. 


Vol.  70.]  Schumacher  v.  Edward  P.  AUis  Co. 

that  the  machinery  in  question,  attached  to  the  real  estate 
as  it  was,  as  between  mortgagor  and  mortgagee,  or  grantor 
and  grantee,  would  be  held  to  pass  as  a  part  of  the  realty, 
but  the  agreement  beinfi:  legal  and  binding  fixed  the  char- 
acter of  the  property,  and  unless  a  removal  would  work 
injury  to  the  freehold  in  consequence  of  its  removal,  injury 
to  some  substantial  and  material  extent,  we  can  perceive 
no  equitable  reason  why  the  mortgagee  should  be  permitted 
to  defeat  the  intention  of  the  parties.  His  loan  was  made 
upon  the  plant  as  it  then  existed,  operated  by  water  power, 
and  he  will  retain  all  the  security  he  had  for  the  money  he 
advanced,  unless  the  removal  of  the  machinery  would  work 
appreciable  injury  to  the  freehold. 

Without  going  into  a  detailed  discussion  of*  the  manner 
in  which  the  engine  and  machinery  were  set  up  in  the  plant, 
we  will  content  ourselves  with  saying  the  evidence  does  not 
satisfy  us  that  any  material  injury  will  be  done  to  the  real 
estate  by  permitting  the  machinery  to  be  removed.  No 
damage  need  be  done  which  can  not  be  repaired  at  a  com- 
paratively trifling  cost.  We  think  the  court  did  not  err  in 
finding  that  the  machinery  was  not  subject  to  the  lien  of 
the  Beebe  mortgage. 

The  fourth  assignment  of  error  is  "  that  the  court  erred 
in  ordering  that  unless  the  defendants  or  some  of  them 
pay,  or  cause  to  be  paid  to  petitioner  within  six  months, 
said  sum  of  $4,416  with  interest,  petitioner  might  go  upon 
the  premises  and  remove  the  machinerj^." 

What  we  have  already  said  substantially  disposes  of  this 
question.  If  the  court  was  right  in  its  other  findings,  and 
we  have  seen  that  it  was,  then  it  logically  followed  that 
appellee  was  entitled  to  the  order  made,  or  one  giving  it 
the  same  rights.  The  six  months'  time  given  was  certainly 
as  liberal  as  could  reasonably  be  asked,  and  we  think  the 
order  was  properly  made. 

The  point  is  made  by  appellants  that  appellee  lost  its 
right  to  remove  under  the  contract,  by  commingling  its 
privileged  claim  with  the  claim  for  machinery  furnished 
outside  of  the  contract,  and  the  case  of  Union  Trust  Co.  v. 


Second  Distkict — December  Term,  1896.  667 

Chicago  Great  Western  Ry.  Co.  v.  Kenyon. 

Trumbull,  137  111.  146,  is  relied  upon  to  support  this  conten- 
tion. We  think  the  authority  cited  is  not  in  point.  The 
facts  of  the  two  cases  are  entirely  dissimilar.  Here  there 
was  no  commingling  of  claims.  When  demand  was  made 
for  payment,  it  was  for  the  separate  items  due  on  each 
account,  and  there  was  no  commingling  on  the  part  of 
appellee.  It  is  true  that  Ferdinand  Schumacher  sent  a  no;be 
which  included  both  accounts,  but  this  was  entirely  unau- 
thorized and  unsolicited.  The  principle  upon  which  a  right 
may  be  lost  by  reason  of  a  commingling  or  confusion  of 
goods  or  claims  is,  that  the  identity  of  the  subject  of  the 
lien  is  lost.  But  here  there  is  no  question  as  to  the  identi- 
fication of  the  engine  and  machinery  which  appellee  claims 
the  right  to  remove,  and  hence  the  principle  has  no  applica- 
tion.   We  think  this  point  is  not  well  taken. 

Finding  no  error  in  the  record,  the  order  of  the  County 
Court  will  be  affirmed* 


Chicago  Great  Western  Railway  Company  t.  John  A. , 

Kenyon^  Adm'r. 

1.  NEGiiiGENCE— ARotcinflf  a  Railroad  Car  to  Obstruct  a  Street  Cross- 
tngr.— Leaving  a  box  car  in  such  a  position  as  to  partially  obstruct  a 
public  highway  crossing  for  a  period  of  five  minutes,  by  a  freight  engine 
engaged  in  switching,  is  not  such  an  act,  in  and  of  itself,  as  to  consti- 
tute n^ligence,  siid  render  the  company  liable  for  injuries  sustained 
by  one  who  undertakes  to  pass,  and  in  doing  so  is  hurt  by  reason  of  his 
horse  becoming  frightened  at  the  car. 

Trespass  on  the  Case— Death  from  negligent  act.  Appeal  from  the 
Circuit  Court  of  Kane  County;  the  Hon.  Henry  B.  Willis,  Judge, 
presiding.  Heard  in  this  court  at  the  December  term,  1896.  Re- 
versed without  remanding.    Opinion  filed  June  26,  1897. 

H.  E.  Gabdkes  and  T.  E.  Eyan,  attorneys  for  appel- 
lant. 

Oscar  Jones  and  Botsfobd,  Waynb  &  Botbford,  attor- 
neys for  appellee. 


568  Appellate  Courts  op  Illinois. 

Vol.  70.]         Chicago  Great  Western  Ry.  Co.  v.  Kenyon. 

Mr.  JasTioE  Cbabtree  drliyebed  the  opinion  of  the 
Court. 

This  was  an  action  on  the  case  brought  by  appellee  as 
adminsitrator  of  the  estate  of  his  daughter,  Adelia  Kenyon, 
deceased,  who  died  from  injuries  alleged  to  have  been 
caused  by  the  negligence  of  appellant. 

There  was  a  trial  by  jury  and  verdict  for  appellee  for 
$085.  The  court  overruled  a  motion  for  new  trial  and 
entered  judgment  on  the  verdict. 

There  are  a  number  of  assignments  of  error,  but  the 
principal  one  is,  that  the  verdict  is  against  the  law  and  the 
evidence.  It  is  earnestly  contended  by  counsel  for  appel- 
lant that  upon  the  facts  appearing  in  the  evidence  there 
can  be  no  recovery. 

As  we  gather  the  facts  from  the  record,  the  circumstances 
under  which  the  deceased  received  the  injuries  which 
caused  her  death,  were  substantially  as  follows: 

On  August  6,  1895,  the  deceased,  a  girl  about  fourteen 
years  of  age,  together  with  her  grandmother,  Mrs.  Kenyon, 
and  her  aunt,  Mrs.  Dove,  with  a  borrowed  horse  and  buggy, 
were  driving  from  St.  Charles,  in  said  Kane  county,  to  the 
camp  meeting  grounds  about  three  miles  west  of  that 
place.  Near  certain  malleable  iron  works  the  highway 
crosses  appellant's  railroad,  where  there  are  two  side  tracks 
connected  by  switches.  The  accident  happened  between 
switch  "  one  "  and  switch  "  two,"  a  little  northerly  from 
the  traveled  way.  As  these  three  persons  (two  grown 
people  and  a  girl  of  fourteen  years,)  approached  the  cross- 
ing or  intersection  of  the  highway  and  all  the  tracks,  all 
seated  in  a  single  buggy,  there  stood  upon  the  track  known 
as  switch  No.  2  a  box  car,  which  projected  partially  into 
the  traveled  portion  of  the  highway,  and  thus  to  some 
extent  obstructed  the  crossing,  leaving  only  a  space  of  about 
eight  feet  of  the  highway  available  for  passing  the  car. 
Mrs.  Dove,  who  was  driving,  started  the  horse  forward  in 
an  attempt  to  pass  the  car,  but  when  they  got  directly 
opposite  the  car  the  horse  "shied"  and  the  heavily  laden 
buggy  was  overturned  into  a  ditch  or  depression  north  of 


Second  District — December  Term,  1896.  669 

Chicago  Great  Western  Ry.  Co.  v.  Kenyon. 

the  car,  and  all  of  the  party  were  more  or  less  hurt,  the  girl 
so  seriously  that  she  died  the  day  following. 

It  appears  from  the  evidence  that  the  box  car  in  question 
had  been  shunted  or  "kicked"  back  upon  this  crossing,  not 
to  exceed  five  minutes  before  the  accident,  by  a  freight 
engine  which  was  then  engaged  in  switching  in  the  yards 
and  setting  out  cars. 

The  declaration  contained  but  one  count,  and  the  negli- 
gence charged  is,  the  leaving  this  box  car  in  such  a  position 
upon  the  highway  as  to  frighten  horses  of  ordinary  gentle- 
ness, and  whereby  the  horse  drawing  the  buggy  in  which 
deceased  was  riding,  became  and  was  frightened,  and  shied 
away  therefrom,  overturning  the  carriage  and  producing 
the  injury  which  caused  her  death.  The  declaration  con- 
tains no  charge  of  any  negligence  on  the  part  of  appellant 
as  to  the  construction  of  the  crossing,  or  the  approaches 
thereto.  The  question  is  thus  presented,  whether  the  fact 
alone,  of  leaving  a  box  car  in  such  a  position  as  to  partially 
obstruct  a  public  highway  crossing  for  a  period  of  five  min- 
utes, by  a  freight  engine  thus  engaged  in  switching  in  the 
yards,  taking  in  and  setting  out  cars,  is  such  an  act,  in  and  of 
itself,  as  to  constitute  negligence  and  render  the  railroad  com- 
pany liable  for  injuries  sustained  by  one  who  undertakes  to 
pass  by  it,  and  in  doing  so  gets  hurt  by  reason  of  his  horse 
becoming  frightened  at  the  car. 

It  is  to  be  observed  that  there  is  nothing  in  the  evidence 
to  show  that  there  was  anything  unusual  in  the  appearance 
of  the  car,  and  as  it  was  standing  still  it  could  have  no 
greater  tendency  to  produce  a  mental  disturbance  in  a 
horse  than  any  other  object  of  like  dimensions.  Harrigan 
V.  C.  &.  I.  K.  *K.  Co.,  53  111.  App.  344. 

There  is  nothing  in  the  sight  of  an  ordinary  box  car 
standing  still,  which  is  more  likely  to  cause  fright  in  an 
ordinarily  gentle  horse,  than  in  a  dozen  other  things  of 
common  and  general  use  on  our  streets,  and  in  public  places 
every  day.  A  street  car,  a  steam  threshing  machine,  or  a 
fire  engine,  might  frighten  some  horses  even  when  standing 
still,  and  yet  they  are  not  regarded  as  nuisances  per  as,  nor 


570  Appellate  Courts  of  Illinois. 

4  .       I     -  I. 

Vol.  70.]         Chicago  Great  Western  Ry.  CJo.  v.  Kenyon. 

— - 

dangerous  to  have  in  common  use,  if  bandied  with  due 
care. 

The  particular  act  complained  of  as  negligence,  was  the 
fact  of  leaving  at  and  upon  the  highway  crossing  a  vehicle 
or  article,  which  would  naturally  frighten  horses  of  ordi- 
nary gentleness.  In  fact  the  right  of  action  was  based  upon 
the  assumption  that  the  car  there  standing  was  a  thing 
which  would  naturally  scare  usually  gentle  horses.  We 
are  not  prepared  to  yield  our  assent  to  such  a  proposition. 
In  the  business  of  the  present  day,  the  transportation  of 
goods  and  passengers  by  railroad,  is  just  as  essential  and 
necessary  as  the  transportation  of  persons  in  vehicles  drawn 
by  horses,  and  the  courts  must  recognize  the  necessity  for 
the  use  of  locomotives  and  cars,  and  the  switching  at  sta- 
tions, having  due  regard,  of  course,  to  the  rights  of  the 
public  in  the  use  of  the  highways  intersected  by  railroads. 
We  hold  therefore  that  the  mere  fact,  standing  alone,  that 
appellant  placed  this  box  car  upon  the  track,  even  though 
it  partially  obstructed  the  highway,  was  not  actionable  neg- 
ligence unless  permitted  to  remain  there  for  an  unreasonable 
length  of  time,  and  not  even  then  upon  the  ground  that  it 
was  an  object  naturally  calculated  to  frighten  ordinarily 
gentle  horses. 

In  this  case  however  the  proofs  show,  the  car  had  not,  at 
the  time  of  the  accident,  obstructed  the  crossing  for  an 
unreasonable  length  of  time.  As  we  have  seen,  it  had  not 
been  there  to  exceed  five  minutes. 

The  statute  upon  this  subject,  which  was  in  force  at  the 
time  of  the  accident,  provides  as  follows :  *'  No  railroad 
company  shall  obstruct  any  public  highway  by  stopping 
any  train  upon  or  by  leaving  any  car  or  locomotive  stand- 
ing on  its  tracks  where  the  same  intersects  or  crosses 
such  public  bigliway,  except  for  the  purpose  of  receiving  or 
discharging  passengers  or  freight,  or  for  taking  in  or  setting 
out  cars,  or  to  receive  necessary  fuel  or  water  and  in  no 
case  to  exceed  ten  minutes  for  each  train,  car  or  locomotive 
engine."     Hurd's  Stat.,  1895,  p.  1202,  Sec.  14. 

The  legislature  recognize  the  necessity  of  obstructing 


Second  Disteict— December  Term,  1896,  571 

Chicago  Great  WeBtem  Ry.  Co.  v.  Kenyon. 

highway  crossings  in  the  business  of  operating  railroads, 
and  it  has  seen  fit  to  allow  such  obstructions  for  a  period  of 
ten  minutes,  in  the  necessary  handling  of  trains,  and  the 
taking  in  and  setting  out  cars.  In  view  of  this  statute,  and 
of  the  fact  that  the  car  in  question  had  just  been  set  out  by 
an  engine  then  engaged  in  setting  out  and  taking  in  cars,  it 
must  be  held  that  the  highway  crossing  had  not  been 
obstructed  for  an  unreasonable  length  of  time.  It  is  argued 
by  counsel  for  appellee,  that  because  there  was  room  on 
either  side  of  the  crossing  for  the  car  to  stand,  it  was  there- 
fore negligence  to  permit  it  to  obstruct  the  crossing.  We 
think  it  would  be  unreasonable  to  so  hold.  In  the  switch- 
ing of  cars,  they  are  frequently  "  kicked  "  or  shunted  upon 
a  side  track,  and  go  only  so  far  as  their  momentum  will 
propel  them,  and  where  the  intention  is,  as  it  was  in  this 
case,  to  go  back  for  the  car  shortly  after,  and  not  leave  it 
there  for  an  indefinite  time,  it  is  not  negligence  unless  the 
car  obstructs  the  crossing  beyond  the  time  allowed  by  the 
statute. 

On  a  careful  consideration  of  the  whole  case,  we  are  con- 
strained to  hold  that  the  charge  of  negligence  against  appel- 
lant has  not  been  established.  Unfortunate  as  was  the 
accident,  we  think  appellant  is  not  to  blame  for  it.  The 
horse  which  Mrs.  Dove  was  driving  was  young  and  just 
taken  out  of  the  pasture.  We  think  the  evidence  shows  she 
was  warned  against  trying  to  drive  it  near  the  cars.  Never- 
theless, although  she  could  see  the  obstruction  and  the  diffi- 
culty in  passing  the  car,  and  the  question  as  to  whether 
they  could  go  by  the  car  or  not  was  a  subject  of  discussion 
by  the  persons  in  the  buggy,  she  undertook  the  risk,  with 
the  consequence  that  the  horse  became  frightened,  over- 
turned the  carriage  in  which  they  were  riding  and  caused 
the  injury.  Had  they  waited  a  very  few  minutes  the  car 
would  have  been  removed  and  they  could  have  passed  in 
safety.  By  the  reasonable  use  of  her  eyesight,  we  think 
Mrs.  Dove  could  have  seen  the  engine  switching  in  the  yard, 
and  she  should  have  waited  a  reasonable  time  at  least  to 
see  whether  the  obstruction  would  be  removed  before 
attempting  to  cross. 


572  Appellate  Courts  op  Illinois. 

Vol.  70.]  Chase  v.  Chase. 

»'  I.I  I  i.a  .1.11  —— ^»^»^»»^^^.^— ^^^ 

But,  holding  as  we  do,  that  the  charge  of  negligence 
against  appellant  is  not  made  out  it  is  unnecessary  to  dis- 
cuss the  question  as  to  the  alleged  contributory  negligenoe 
of  Mrs.  Dove,  in  whose  care  the  intestate  was  riding  at  ,the 
time  of  the  accident,  nor  any  of  the  other  questions  raised 
in  the  argument. 

We  are  of  the  opinion  there  was  no  cause  of  action  against 
appellant,  and  t^e  motion  to  direct  a  verdict  in  its  favor 
should  have  been  sustained. 

The  judgment  will  be  reversed,  but  as  in  our  view  of  the 
case  there  can  be  no  recovery,  it  will  not  be  remanded. 

Finding  of  fact  to  be  made  a  part  of  the  judgment: 

We  find  as  a  question  of  fact  that  the  deceased  did  not 
come  to  her  death  by  reason  of  any  fault,  carelessness  or 
negligence  on  the  part  of  appellant. 


Anna  E.  Chase  v.  George  Chase. 

1.  Infants— Poirer  o/ a  Court  of  Chancery  as  to  the  Custody  of,— 
The  power  of  a  court  of  chancery  as  to  the  custody  of  the  children  of 
divorced  parents  is  not  exhausted  by  the  entry  of  the  original  order  in 
the  divorce  suit,  but  is  continuing  for  the  purpose  at  any  time,  of  mak- 
ing such  alterations  thereof  as  shall  appear  to  the  chancellor,  in  the 
exercise  of  a  sound  discretion,  reasonable  and  proper. 

2.  SxME^Removal  From  the  State  of  Wards  of  the  Court  not 
Favored, — The  custody  of  an  infant  being  in  dispute,  the  mother 
admitted  an  intention  to  take  him  out  of  the  State  and  beyond  the  juris- 
diction of  the  ooiu-t,  where  his  father  and  a  brother  and  sister  would 
have  DO  opportunity  to  visit  or  associate  with  him.  Held^  that  this  was 
against  the  policy  of  the  law  and  ought  not  to  be  permitted. 

Petition,  asking  for  the  custody  of  children.  Appeal  from  the  Circuit 
Court  of  La  Salle  County;  the  Hon.  Charles  Blanchard,  Judge, 
presiding.  Heard  in  this  court  at  the  December  term,  1806.  Affirmed, 
Opinion  filed  June  26,  1897. 


Seth  F.  Ckews,  attorney  for  appellant. 
Samuel  P.  Hall,  attorney  for  appellee. 


Second  District — December  Term,  1896.  573 


Chase  t.  Chase. 


Mr.  Jitstigb  Cbabtrbe  dbliyered  the  opinion  of  the 
Court. 

On  November  13,  1S89,  appellee,  in  the  Circuit  Court  of 
La  Salle  County,  obtained  a  decree  of  divorce  from  appellant 
on  the  ground  of  desertion.  The  parties  had  three  children, 
and  by  the  terms  of  the  decree,  the  care  and  custody  of  the 
two  older  ones  was  given  to  appellee,  the  father,  and  that 
of  the  youngest  one,  Hugh  Merrill  Chase,  then  a  boy  of 
about  six  years  old,  was  given  to  appellant,  the  mother. 
The  decree  also  awarded  to  appellant  $20  per  month  for 
the  support  and  maintenance  of  the  child,  to  be  paid  by 
appellee. 

Appellant  having  remarried  and  being  about  to  leave  the 
State  of  Illinois  with  her  husband  and  the  child  in  question, 
to  reside  in  the  State  of  Iowa,  appellee  filed  a  petition  in 
the  Circuit  Court  of  La  Salle  County,  setting  up  the  facts, 
and  praying  a  modification  of  the  decree  so  as  to  give  him 
the  custody  of  the  boy,  Hugh  Merrill  Chase,  and  relieving 
him  from  the  payment  of  the  $20  per  month  required  by 
the  original  decree. 

Appellee  answered  the  petition,  admitting  the  remarriage 
and  the  intention  to  remove  to  Iowa  with  her  husband  and 
the  child,  but  denying  that  appellee  was  a  proper  person  to 
have  the  care  and  custodv  of  said  Hugh  Merrill  Chase. 

A  hearing  was  had  before  the  court,  and  a  supplemental 
decree  entered  which  provided  that  appellant  should  not 
take  the  boy  beyond  the  jurisdiction  of  the  court.  The 
court  finds  in  the  decree  that  the  interest  of  the  child  will 
be  best  conserved  by  living  where  he  can  have  daily  social 
contact  with  his  brother  and  sister,  and  then  orders  that 
appellee  Gteorge  Chase  be  given  the  custody  of  the  child 
until  the  further  order  of  the  court. 

From  the  supplemental  decree  appellant  prosecutes  her 
appeal  to  this  court. 

The  only  legal  question  presented  is,  as  to  the  power  of 
the  court,  at  a  subsequent  term  to  that  at  which  the  original 
decree  was  entered,  to  modify  or  change  its  terms,  it  being 
insisted  that  said  original  decree  was  binding  upon  the 


574  Appellate  Courts  op  Illinois. 

Vol.  70.]  Chaae  v.  Chase. 

parties,  conclusive  and  final.  Authorities  are  cited  in  sup- 
port of  a  proposition  that  a  final  decree  in  chancery,  can  not 
be  opened,  altered  or  modified,  after  the  expiration  of  the 
term  at  which  it  is  entered,  in  the  absence  of  fraud,  and 
that  if  erroneous,  the  only  remedy  is  by  writ  of  error  or 
appeal. 

We  think  these  authorities  have  no  application  totha  case 
at  bar. 

Our  statute  on  divorces  (Chap.  40,  Sec.  18),  provides  that 
"  When  a  divorce  shall  be  decreed  the  court  may  make  such 
order  touching  the  alimony  and  maintenance  of  the  wife, 
the  care,  custody  and  support  of  the  children,  or  any  of 
them,  as  from  the  circumstances  of  the  parties  and  the  nature 
of  the  case  shall  be  fit,  reasonable  and  just;  *  *  *  and 
the  court  may,  on  application  from  time  to  time,  make  such 
alterations  in  the  allowance  of  alimony  and  maintenance 
and  the  care,  custody  and  support  of  the  children,  as  shall 
appear  reasonable  and  proper."  2  Starr  &  Curtis  Stat. 
892. 

Under  this  statute  it  has  been  held  that  the  power  over 
the  subject-matter  of  alimony  is  not  exhausted  by  the  entiy 
of  the  original  order,  but  is  continuing  for  the  purpose,  at 
any  time  of  making  such  alterations  thereof  as  shall  appear 
to  the  chancellor,  in  the  exercise  of  a  sound  judicial  discre- 
tion, reasonable  and  proper.  Cole  v.  Cole,  142  111.  19;  Foote 
V.  Foote,  22  Id.  425;  Stillman  v.  Stillman,  99  Id.  196;  Len- 
nahan  v.  O'Keefe,  107  Id.  620. 

The  same  rule  must  be  held  to  apply  as  to  further  orders 
concerning  the  care  and  custody  of  the  children. 

There  was  clearly  no  error  on  the  part  of  the  court  in 
entertaining  jurisdiction  of  the  petition  in  this  case,  for  a 
modification  of  the  decree  concerning  the  custody  of  the 
child. 

The  only  remaining  question  is,  did  the  court  exercise  a 
sound  judicial  discretion,  in  granting  the  prayer  of  the  peti- 
tion and  decreeing  the  custody  of  the  child  to  appellee  ?  A 
careful  examination  of  the  record  fails  to  satisfy  us  that  the 
court  committed  any  error  in  this  respect.    The  chancellor. 


Second  District — December  Term,  1896.  575 

Morgan  v.  Grand  Prairie  Seminary. 

who  entered  the  decree  appealed  frotu,  had  the  parties 
before  him,  saw  them,  and  heard  them  testify,  and  there- 
fore had  better  opportunities  than  we  have  of  ascertaining 
and  determining  what  ought  to  be  done  in  the  premises, 
and  what  was  for  the  best  interests  of  the  child. 

We  deem  it  unnecessary  to  detail  the  evidence,  but  we 
think  it  was  amply  sufficient  to  warrant  the  decree.  It 
must  be  remembered  that  the  decree  of  divorce  was  rendered 
for  the  fault  of  the  mother,  to  wit,  desertion.  There  is 
nothing  in  the  record  to  show  that  the  father  has  ever  done 
anything  to  forfeit  his  right  to  the  care  and  custody  of  the 
child,  which  in  law  is  paramount  to  that  of  the  mother.  It 
was  doubtless  awarded  to  her  in  the  original  decree  because 
of  the  tender  years  of  the  child,  it  being  then  only  about 
six  years  old.  The  boy  is  now  about  thirteen  years  old,  and 
beyond  the  age  when  it  is  so  essential  he  should  have  a 
mother's  care.  The  evidence  shows  he  needs  the  guiding 
hand  of  a  father,  and  a  stronger  control  than  that  hereto- 
fore exercised  over  him  by  the  mother.  Besides,  it  is 
admitted  that  the  intention  is  to  take  him  out  of  the  State 
and  beyond  the  jurisdiction  of  the  court,  where  his  father 
and  brother  and  sister  would  have  no  opportunity  of  visiting 
or  associating  with  him.  This  is  against  the  policy  of  our 
law,  and  ought  not  to  be  permitted.  Miner  v.  Miner,  11 
lU.  43. 

Under  the  evidence  and  all  the  facts  and  circumstances 
of  the  case,  we  think  the  decree  was  right  and  it  will  be 
affirmed. 


Decatur  Morgan  et  ah  v.  Grand  Prairie  Seminary. 

1.  Charitable  Uses—The  Statute  of  43  Elix,,  Cfhap.  4,  is  in  Force  in 
this  State, — ^The  statute  of  48  Eliz.,  Chap.  4,  is  in  force  in  this  State,  and 
under  that  statute  a  bequest  for  the  education  of  **  boys  who  reside  in 
the  State  of  Illinois  between  the  ages  of  twelve  and  eighteen  years,  who 
are  unable  to  educate  themselves,"  is  a  valid  bequest  for  a  charitable  use, 
and  not  void  for  uncertainty. 


70  675 
171s  444 
iriB  453 


576  Appellate  Courts  op  Illinois. 

Vou  70.]  Morgan  v.  Grand  Prairie  Seminary. 

2.  Equity — Ha»  Povoer  to  Appoint  Trustees  to  Administer  a  Charity, 
— A  court  of  equity  has  ample  power  to  appoint  trustees,  with  authority 
to  administer  a  charity,  and  carry  out  a  trust  created  by  the  terms  of  a 
will 

8.  Same — Jurisdiction  in  Carrying  into  Effect  CharitcMe  Bequests, 
— Courts  of  equity  take  jurisdiction  in  carrying  into  effect  charitable 
bequests,  however  general  are  the  purposes  and  objects  intended,  if 
sufficiently  certain  to  be  intelligible,  and  without  regard  to  the  fact  of 
the  existence  of  a  trustee  capable  of  holding  the  legal  estate. 

4.  Wills — A  Will  Construed, — Construing  the  will  in  controversy 
Jin  this  case  as  a  whole  and  giving  effect  to  each  part,  it  would  seem  that 

the  duty  of  the  trustees  and  their  coimection  with  the  fund  does  not 
end  with  the  erection  of  the  building,  but  they  are  to  continue  in  the 
management  of  the  fund  and  administration  of  the  charity  as  well  after 
the  building  is  erected  as  before. 

5.  ShXR— Charities-— Intention  of  the  Testator. — It  is  not  the  province 
of  the  courts  to  inquire  into  or  determine  whether  the  plan  and  object  of 
a  charity  are  the  most  judicious.  Unless  some  rule  of  law  is  violated  the 
intention  of  the  testator  must  be  respected  and  his  wishes  carried  out, 
even  though  it  is  clear  that  some  other  plan  or  scheme  would  have  been 
wiser  and  better.  If  the  directions  of  the  testator  can  possibly  be  car- 
ried out  there  is  no  authority  in  the  court  to  construe  tl^em  to  be  void. 

6.  Same — Charities— Insufficiency  of  Bequest. — ^The  insufficiency  of 
the  fund  provided  furnishes  no  reason  for  defeating  a  bequest,  if 
the  intention  of  the  donor  can,  to  some  extent,  be  carried  into  effect; 
and  a  bequest  for  the  establishment  of  a  school,  and  the  payment  of 
teachers  to  be  employed  therein,  is  not  void  because  provision  is  not 
made  for  fuel,  janitor  service  and  repairs. 

7.  SkWSr-Bequest  on  Condition  that  City  Donate  Lot. — A  will  pro- 
vided for  the  establishment  of  a  school,  on  condition  that  the  city  where 
it  was  to  be  located  should  donate  a  suitable  lot.  The  lot  was  furnished, 
but  whether  the  city  used  public  funds  to  purchase  the  lot,  or  whether 
it  was  donated  by  citizens  who  desired  the  condition  complied  with,  did 
not  appear,  on  a  bill  to  declare  the  bequest  void.  Hdd^  that  the  dona- 
tion may  have  been  perfectly  legal,  and  that  the  bequest  ought  not  to  be 
declared  void  because  the  testator  may  have  contemplated  an  act^beyond 
the  power  of  the  city. 

Bill,  for  the  construction  of  a  wilL  Appeal  from  the  Circuit  Court 
of  Iroquois  County;  the  Hon.  Charles  B.  Starr.  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1896.  Reversed  and 
remanded,  with  directions.    Opinion  filed  June  26,  1897. 

Hii^oHEB  &  Goodyear,  attorneys  for  appellants. 
Here  the  benefit  is  to  an  indefinite  class  of  persons,  and 
the  charitable  use  and  the  benefieiaries  are  both  sufficiently 


Second  District — December  Term,  1896.  577 

Morgan  v.  Grand  Prairie  Seminary. 

certain  and  are  suflBciently  described  to  indicate  the  inten; 
tion  of  the  testator.  Neither  is  left  to  the  judgment  of  the 
trustee  or  the  court.  The  bequest,  therefore,  meets  every 
requirement  of  the  law  to  create  a  public  charitable  trust. 
2  Pomeroy's  Eq.  Jur.,  1019  and  1025;  2  Storey's  Eq.  Jur., 
1169et8eq. 

This  will  presents  a  much  stronger  case  of  a  charitable 
bequest  for  educational  purposes  than  many  others  in  which 
such  bequests  have  been  upheld,  as  : 

Gifts  for  the  promotion  of  education,  generally,  or  for  the 
education  of  ,any  designated  class  of  persons  in  a  town, 
district  or  State.    Att'y  Gen.  v.  Parker,  126  Mass.  216. 

For  the  education  and  tuition  of  worthy,  indigent  females. 
Dodge  V.  Williams,  46  Wis.  70. 

Educational  purposes.  Decamp  v.  Dobbins,  29  N.  J.  Eq. 
36. 

A  devise  to  a  county  for  the  education  of  certain  classes 
of  children.     Craig  v.  Secrist,  54  Ind.  419. 

To  defray  the  expense  of  educating  poor  children  in  a 
certain  district.    Birchard  v.  Scott,  39  Conn.  63. 

A  fund  to  be  expended  in  the  education  of  scholara  of 
poor  people  in  a  certain  county.  Clement  v.  Hyde,  50  Vt. 
716. 

Charitable  bequests  are  upheld  and  aided  in  this  State 
by  virtue  of  the  Statute  of  43  Elizabeth,  Ch.  4,  which  is 
held  to  be  in  force  in  this  State,  and  by  reason  of  the  gen- 
eral power  of  a  court  of  equity,  to  extend  its  jurisdiction 
over  such  matters.  Heuser  v.  Harris,  42  111.  425;  Andrews 
V.Andrews,  110  111.  223;  Starkweather  v.  Am.  Bible  Soci- 
ety, 72  111.  50;  Crearar  v.  Williams,  145  111.  647;  Taylor  v. 
Keep,  2  111.  A  pp.  368. 

That  certainty  which  the  law  requires  to  make  a  private 
bequest  good  is  not  required  to  make  a  bequest  to  public 
charity  good.  Elements  of  uncertainty  which  would  cause 
the  one  to  fail  would  not  cause  the  other  to  fail.  This  docr 
trine  has  been  adopted  by  our  Supreme  Court.  Heuser  v. 
Harris,  42  111.  434. 

The  clear  object  of  the  bequest  is  education.    The  bene- 

Vol.  LZXSr 


578  Appellate  Courts  of  Illinois. 

Vol.  70.1  Morgan  v.  Grand  Prairie  Seminary. 

flciaries  are  a  fluctuating  but  definite  class  of  boys.  The 
words  of  the  will  ''for  the  purpose  of  educating  boys 
*  *  *  between  the  ages  of  twelve  and  eighteen 
years,"  define  the  class  and  mean  that  education  suitable  to 
the  class  thus  defined.  The  words  '^  who  reside  in  the  State 
of  Illinois  *  *  *  and  who  are  unable  to  educate 
themselves,"  still  further  define  the  class  of  the  beneficiaries. 
The  bequest,  therefore,  so  far  as  its  objects  and  purposes 
and  its  contemplated  beneficiaries  are  concerned,  meets 
every  essential  requirement  of  certainty  which  a  public 
charitable  bequest  need  have.  2  Pomeroy  Eq.  Jur.,  1019 
to  1025;  Perry  on  Trusts,  720;  Dodge  v.  Williams,  46 
Wis.  70. 

"  In  carrying  into  execution  a  bequest  to  an  individual, 
the  mode  in  which  the  legacy  is  to  take  effect  is  deemed  to 
be  of  the  substance  of  the  legacy;  but  when  the  legacy  is 
to  charity,  the  court  of  chancery  will  consider  charity  as 
the  substance,  and  in  such  cases,  if  the  mode  fail,  it  will 
provide  another  mode  by  which  the  charity  may  take 
effect."  Heusor  v.  Harris,  42  111.  484,  and  cases  there 
cited. 

The  doctrine,  as  we  understand  it  to  be  enforced  in  this 
State,  will  not  permit  a  trust  for  charity,  otherwise  valid, 
to  fail  for  want  of  a  designated  trustee-  When  property  is 
thus  bequeated  to  a  person  incapable  of  taking,  or  to  a  body 
uncertain,  indefinite  and  fluctuating  in  its  members,  or  to  a 
body  not  in  legal  being,  or  even  where  there  is  no  person 
or  body  indicated  as  the  recipient  of  the  legal  title,  but  the 
property  is  merely  directed  to  be  applied  to  some  designated 
charitable  purpose,  it  will  be  upheld.  Pomeroy  Eq.  Jur., 
1026;  Heuser  v.  Harris,  42  111.  425;  Crearar  v.  Williams, 
145  111.  652;  Mills  v.  Newberry,  112  111.  133;  Hunt  v. 
Fowler,  121  111,  279. 

When  the  purpose  of  a  charity  is  clear  and  its  objects  law- 
ful and  its  beneficiaries  designated  so  as  to  be  ascertainable, 
then  the  possibility,  and  not  the  probability,  that  it  may  be 
carried  into  effect  is  the  only  remaining  requisite.  The 
courts  will  not  inquire  whether  the  testator  might  not  have 


Second  District — December  Term,  1896.  579 


Morgan  v.  Grand  Prairie  Seminary. 


disposed  of  his  property  with  greater  wisdom.  "  It  is  not 
the  province  of  the  chancellor  to  inquire  into  or  determine 
whether  the  plan  and  object  of  the  charity  are  the  most 
judicious."     Oilman  v.  Hamilton,  16  111.  230. 

^'  It  is  an  established  maxim  of  interpretation  that  the' 
conrt  is  bound  to  carry  the  gift  into  effect,  if  it  can  see  a 
general  charitable  intention,  consistent  with  the  rules  of  law, 
even  if  the  particular  manner  indicated  by  the  donor  is 
illegal  or  impracticable."  "The  bequest  is  not  void  and 
there  is  no  authority  to  construe  it  to  be  void,  if  by  law  it 
can  possibly  be  made  good."    Perry  on  Trusts,  709. 

In  considering  a  question  very  similar  to  those  raised  in 
the  bill  as  to  the  want  of  provision  in  the  will  for  fuel, 
janitor,  repairs,  etc.,  our  Supreme  Court  has  said  "  we  might 
admit  even  a  conclusion  that  it  (the  trust  propei*ty)  never 
could  become  sufficient,  and  still  it  may  not  show  a  total 
failure  of  the  charity;  others  may  contribute,  other  means 
and  funds  may  be  obtained,  and  the  end  accomplished." 
Oilman  v.  Hamilton,  16  111.  228. 

Stbyens,  Hobton*  &  Abbott  and  Kat  &  Eat,  attorneys 
for  appellee. 

Mb.  Justice  Cbabtbee  deltvebed  the  opiniok  of  the 

COUBT. 

Legrande  L.  Wells,  a  citizen  of  Watseka  in  this  State, 
departed  this  life  in  1883,  leaving  his  last  will  and  testa- 
ment, which  was  duly  filed,-  and  admitted  to  probate  in  the 
County  Court  of  Iroquois  County,  on  October  20,  1883. 
Appellants  were  named  as  executors  and  trustees  in  the 
will,  duly  qualified  and  are  still  acting  as  such.  The  estate 
having  been  practically  settled,  except  as  to  the  disposition 
of  a  fund  of  about  $30,000  provided  for  in  the  will,  appellee 
filed  its  bill  against  appellants  as  such  executors  and 
trustees,  prajung  a  construction  of  the  will,  and  a  direction 
as  to  the  disposition  of  this  fund  of  $30,000,  accumnlated  in 
the  hands  of  the  trustee.  The  latter  portion  of  the  fifth 
clause  of  the  will,  is  the  only  one  in  controversy,  and  is  as 
follows : 


680  Appellate  Coubts  of  Illinois. 

Vol.  70.]  Morgan  v.  Grand  Prairie  Seminary. 

I  further  direct  that  ray  trustees  and  their  successors 
manage  my  estate  until  it  has  accumulated  a  fund  of  at  least 
$30,000,  after  setting  aside  a  sufficient  sum  to  pay  all  specific 
legacies,  debts,  etc.,  which  shall  form  a  fund  known  as  the 
"  Wells  Fund,"  and  shall  be  used  in  the  following  manner, 
to  wit :  If  the  city  of  Watseka  will  donate  a  suitable  lot 
for  such  purpose  within  thirty  days  after  being  notified  by 
said  trustees,  said  trustees  shall  cause  a  building  to  be 
erected  on  said  lot  for  the  purpose  of  educating  boys  who 
reside  in  the  State  of  Illinois,  between  the  ages  of  twelve 
and  eighteen,  and  who  are  unable  to  educate  themselves, 
which  shall  cost  not  exceeding  $5,000,  and  the  balance  of  my 
estate  in  the  hands  of  my  said  trustees,  after  the  payment 
for  said  building,  shall  be  kept  at  interest,  and  the  net 
income,  except  $10  per  year,  set  apart  for  the  purpose  of 
keeping  my  family  burial  lot  in  repair,  shall  be  used  for 
the  purpose  of  paying  teachers  employed  in  said  school;  and 
I  further  direct  my  said  trustees  that  in  case  the  city  of 
Watseka  refuses  or  neglects  for  thirty  days  after  being  noti- 
fied by  the  trustees  that  they  are  ready  to  carry  out  this 
provision  in  said  will  as  to  said  school,  Ihen  they  shall  pay 
the  whole  sum  set  apart  for  this  purpose  over  to  the  finance 
commitee  or  trustees  of  Onarga  Seminary,  located  at  Onarga, 
Illinois,  the  net  income  of  which  shall  be  used  to  carry  on 
said  seminary,  and  shall  be  known  as  the  "  Wells  Fund." 

The  bill  alleges,  and  it  is  admitted  by  appellants,  that 
appellee  is  the  same  institution  and  seminary  designated  in 
the  will  as  "  Onarga  Seminary,  at  Onarga,  Illinois." 

The  bill  further  alleges  that  said  fund  has  reached  upwai  1 
of  $30,000  in  the  hands  of  said  trustees,  exclusive  of  all 
specific  legacies. 

The  bill  then  proceeds  as  follows : 

"  That  complainant  is  informed  and  believes  and  states 
that  within  the  last  thirty  days  and  within  thirty  days  after 
being  notified  that  said  fund  had  reached  $30,000,  the  city 
of  Watseka  caused  to  be  tendered  to  the  trustees  a  deed 
for  lots  situated  in  the  city  of  Watseka;  that  said  lots  were 
purchased  by  the  city  of  Watseka  and  caused  to  be  conveyed 


Second  District — ^December  Term,  1896.  581 

Morgan  v.  Grand  Prairie  Seminary. 

by  the  owners,  from  whom  purchased,  directly  to  the 
trustees  aforesaid.  That  complainant  is  informed  that  said 
trustees  have  signified  the  acceptance  of  the  lots  so  tendered 
as  aforesaid.  Complainant  avers  that  the  said  city  of  Wat- 
sdRa  has  no  power  or  authority  in  law  to  furnish  any  lots 
whereon  to  erect  a  school  of  thje  character  designated  in 
said  will,  and  that  said  trustees  have  no  legal  right,  power 
or  authority  to  receive  or  accept  said  lots  or  expend  any 
money  in  the  erection  of  a  building  thereon,  as  in  said  will 
suggested. 

That  it  is  the  intention  and  purpose  of  said  trustees  to 
S3t  apart  and  expend  |5,000  in  a  building  upon  the  lots  so 
conveyed  to  them. 

Complainant  charges  that  said  trustees  have  no  right, 
power  or  authority  under  said  will  to  expend  any  sum  in  the 
erection  of  a  school  building  upon  lots  so  attempted  to  be 
donated  to  them  by  the  city  of  Watseka,  or  to  take  title  to 
the  lots  as  trustees.  That  no  person  is  designated  by  said  will 
to  hold  the  title  to  said  lots,  nor  is  any  person  designated 
in  said  will  to  i;nanage  and  control  said  fund  after  the  expend- 
iture of  $5,000  in  erection  of  a  school  building.  That  it 
is  not  provided  that  said  fund  shall  remain  in  the  hands  of 
said  trustees  after  the  building  of  said  house,  nor  is  any  dis- 
position attempted  to  be  made  of  the  remainder  of  said 
fund.  That  the  purpose  of  the  remaining  portion  of  said 
fund  is  to  educate  boys  residing  in  Illinois  between  the  ages 
of  twelve  and  eighteen  years,  who  are  unable  to  educate 
themselves.  Complainant  avers  that  as  soon  as  said  build- 
ino"  is  erected  the  offices  of  said  trustees  and  their  connection 
with  the  fund  cease.  That  will  does  not  provide  any  one  to 
determine  what  boys  shall  be  educated  in  said  building,  does 
not  provide  that  any  one  shall  have  control  of  the  property 
or  to  say  what  teachers  shall  be  hired  or  what  their  com- 
pensation shall  be,  does  not  provide  means  for  operating 
the  school  except  to  use  the  interest  to  pay  teachers,  does 
not  provide  for  heating  or  repairing  the  building,  and  does 
not  designate  any  tribunal  for  that  purpose.  It  is  wholly 
uncertain  and  indefinite  and  can  not  be  utilized  unless  the 


582  Appellate  Courts  of  Illinois. 

Vol.  70.]  Morgan  v.  Grand  Prairie  Seminary. 

court  constructs  the  machinery  and  practically  makes  a  will 
for  the  testator.  Complainant  avers  that  said  bequest  for 
a.  school  building  and  a  school  for  the  purposes  named  is  so 
uncertain  as  not  to  be  enforced  or  upheld;  that  to  give  it 
validity  the  court  would  have  to  appoint  trustees,  provide 
for  succession,  and  either  divert  the  purposes  expressed  in 
the  will  for  the  use  of  the  income  to  other  purposes,  or  pro- 
cure in  some  method  the  means  of  carrying  on  the  school; 
to  keep  the  property  in  repair,  to  heat  it  and  to  operate  it 
as  a  school,  also  a  tribunal  to  decide  what  bovs  in  Illinois 
are  unable  to  educate  themselves.  Complainant. charges 
that  the  bequest  for  the  purpose  of  erecting  a  building  is 
so  uncertain  as  to  be  void." 

We  have  thus  quoted  from  the  bill  at  length,  in  order  that 
the  claims  of  appellee  may  be  fully  set  forth. 

It  further  appears  from  the  bill  that  appellee  is  copduct- 
ing  a  school  for  general  educational  purposes  at  Onarga, 
and  has  so  carried  it  on  for  upward  of  thirty  years  in  suc- 
cessful operation.  And  it  is  alleged  that  the  purpose  of  the 
testator  can  be  better  carried  out  by  turning  the  fund  over 
to  appellee  who  has  demanded  of  appellants  that  they  turn 
over  the  fund  to  it. 

The  contentions  of  appellee,  as  we  understand  them,  are : 

1st.     That  the  bequest  is  void  for  uncertainty. 

2d.  That  the  trustees  have  nothing  to  do  with  the  fund 
beyond  the  expenditure  of  $5,000  for  the  erection  of  a  build- 
ing, and  that  no  one  is  designated  to  receive  the  balance  of 
the  fund,  and  manage  it  so  as  to  carry  out  the  objects  of 
the  bequest.  • 

3d.  That  the  court  is  without  power  to  create  the 
machinery  to  carry  out  the  express  intention  of  the  testator 
with  reference  to  the  education  of  the  boys  designated. 

4th.  That  the  bequest  is  wholly  incapable  of  enforce- 
ment or  execution. 

5th.  That  the  will  requires  the  citj^  of  Watseka  to  do, 
as  a  condition  precedent,  that  which  it  has  no  power  to  do. 

There  was  a  demurrer  to  the  bill,  which  being  overruled 
by  the  court,  and  appellants  abiding  by  their  demurrer,  a 


Second  District — Decembeb  Tekm,  1896.  683 

Morgan  v.  Grand  Prairie  Seminary. 

decree  was  entered  in  favor  of  appellee,  according  to  the 
prayer  of  the  bill,  and  appellants  were  ordered  to  pay  the 
fund  over  to  appellee  to  be  invested  and  disposed  of  accord- 
ing to  the  terms  of  the  will  in  case  the  original  bequest 
should  fail. 

Appellants  prosecute  their  appeal  to  this  court. 

We  think  the  court  erred  in  overruling  the  demurrer  to 
the  bill  and  decreeing  that  the  fund  be  paid  to  appellee. 

By  numerous  decisions  of  our  Supreme  Court  the  statute 
of  43  Eliz.,  Chap.  4,  is  held  to  be  in  force  in  this  State. 
Heuser  v.  Harris,  42  III.  425;  Andrews  v.  Andrews,  110  lb. 
223;  Crearar  v.  Williams,  145  lb.  647. 

Under  that  statute  it  is  clear  that  there  was  in  the  will 
under  consideration  a  valid  bequest  for  a  charitable  use,  to 
wit :  the  education  of  "  boys  who  reside  in  the  State  of  Illi- 
nois between  the  ages  of  twelve  and  eighteen  (years)  who 
are  unable  to  educate  themselves."  It  was  not  void  fur 
uncertainty. 

In  the  case  of  Heuser  v.  Harris,  supra,  the  testator  pro- 
vided that  one-half  of  the  interest  on  the  fund  created 
should  be  used  for  the  schooling  of  children  in  a  certain 
school  district,  and  the  other  half  should  go  to  the  support 
of  the  poor' of  Madison  county.  The  bequest  was  sustained 
as  a  valid  bequest  for  charitable  uses.  The  reasoning  of 
the  court  in  that  case  answers  almost  every  objection 
raised  by  appellees  in  the  case  at  bar. 

Many  cases  might  be  cited  where  the  objects  of  the 
charity  were  certainly  as  indefinite  as  those  in  this  case, 
and  yet  they  have  been  upheld.  Att'y  Gen'l  v.  Parker,  126 
Mass.  216;  Dodge  v.  Williams,  46  Wis.  70;  Decamp  v.  Dob- 
bins, 29  N.  J.  Eq.  36;  Birchard  v.  Scott,  39  Conn,  63;  Clem- 
ent v.  Hyde,  50Vt.716. 

As  to  the  second  point,  taking  the  will  as  a  whole,  and 
giving  effect  to  each  part,  it  would  seem  that  the  duty  of 
the  trustees  and  their  connection  with  the  fund  does  not 
end  with  the  erection  of  the  building  but  they  are  to  con- 
tinue in  the  management  of  the  fund  and  administration  of 
the  charity,  as  well  after  the  building  is  erected  as  before, 


584  Appellate  Courts  of  Illinois, 

Vol.  70.]  Morfi;an  v.  Grand  Prairie  Seminary. 

The  third  objection  is  not  well  taken.  It  is  not  necessary 
for  the  court  to  create  the  machinery  to  carry  out  the  inten- 
tion of  the  testator.  He  has  done  that  for  himself.  By 
the  terms  of  the  will  Ave  think  ample  power  is  vested  in 
the  trustees  to  establish  the  school  and  carry  it  on,  so  far 
as  the  means  provided  will  allow  to  effectuate  the  intention 
of  the  testator.  But  even  if  this  were  not  so,  the  bequest 
would  not,  for  that  reason,  necessarily  fail.  There  is  ample 
power  in  a  court  of  equity  to  appoint  trustees,  with  author- 
ity  to  administer  the  charity  and  carry  out  the  trust.  In 
the  leading  case  of  Vidal  v.  Girard,  2  Howard  (LT.  S.),  127, 
it  was  held  that  donations  for  the  establishment  of  colleges, 
schools  and  seminaries  of  learning,  and  especially  such  as 
are  for  the  education  of  orphans  and  poor  scholars,  are 
charities,  in  the  sense  of  the  common  law,  and  that  under 
the  statute,  43  Eliz.,  Chap.  4,  such  charities  are  not  void 
because  the  beneficiaries  thereof  are  uncertain  and  indefi- 
nite, and  a  court  of  equity  has  jurisdiction  to  enforce  the 
charity  for  their  benefit.  Heuser  et  al.  v.  Harris,  42  111. 
433. 

Courts  of  equity  take  jurisdiction  in  carrying  into  effect 
charitable  bequests,  however  general  are  the  purposes  and 
objects  intended,  if  sufficiently  certain  to  be  intelligible,  and 
without  regard  to  the  fact  of  the  existence  of  a  trustee 
capable  of  holding  the  legal  estate.  2  Story's  Eq.  Jur.,  Sec. 
1154,  8th  Edition. 

The  fourth  objection  is  eqhally  untenable.  We  can  not 
say  that  the  charity  is  incapable  of  being  administered,  or 
executed  and  enforced  according  to  the  will  of  the  testator. 
It  certainly  is  not  impossible,  and  if  not,  then  the  court  has 
no  right  to  declare  the  bequest  void. 

The  doctrine  is  that  a  bequest  is  not  void,  and  there  is  no 
authority  in  the  court  to  construe  it  to  be  void,  if  by  law 
it  can  possibly  be  made  good.     Perry  on  Trusts,  709. 

It  may  be  that  the  testator  has  not  adopts  the  wisest 
mode  in  which  to  give  effect  to  his  charitable  intentions. 
It  might  perhaps  have  been  better  had  he  made  the  dona- 
tion unconditionally  to  appellee,  but  he.  did  not  choose  to 
do  so,  and  he  had  a  right  to  do  what  he  would  with  his  own. 


Second  District — December  Term»  1896.  585 


Morgan  v.  Grand  Prairie  Seminary. 


It  is  not  the  province  of  the  courts  to  inquire  into  or  deter- 
mine whether  the  plan  and  object  of  the  charity  are  the 
most  judicious.  Unless  some  rule  of  law  is  violated,  the 
intention  of  the  testator  must  be  respected  and  his  whishes 
carried  out,  even  though  it  is  clear  that  some  other  plan  or 
scheme  would  have  been  wiser  and  better.  Gilman  et  al.  v. 
Hamilton  et  al.,  16  111.  225. 

It  is  urged  that  the  will  makes  no  provision  for  furnish- 
ing fuel  and  janitor  service**;,  or  making  repairs  for  the 
building,  and  that  without  these  things  a  school  could  not 
be  successfully  carried  on.  It  is  true  the  will  provides  that 
the  net  income  from  the  fund  "  shall  be  used  for  the  pur- 
pose of  paying  teachers  employed  in  said  school,"  and  it 
does  not  specifically  provide  for  fuel,  janitor  services  or 
repairs.  But  we  are  not  disposed  to  place  so  narrow  a  con- 
struction upon  the  will,  as  to  defeat  the  bequest  for  these 
reasons,  or  to  hold  it  is  impossible  of  being  made  effective 
because  the  testator  did  not  go  into  minor  details  concern- 
ing the  expenses  of  running  the  school.  It  is  still  not 
impossible  the  school  could  be  carried  on  a  portion  of  the 
year,  when  no  fuel  is  needed,  and  the  cases  have  been 
numerous,  where  scholars  have  done  their  own  janitor  work 
without  expense  to  the  school. 

Questions  similar  in  principle  to  those  presented  here, 
were  raised  in  the  case  of  Gilman  et  al.  v.  Hamilton  et  al., 
supra^  and  it  was  held  that  the  insufficiency  of  the  fund 
provided,  was  no  good  reason  for  defeating  the  bequest,  if 
the  intention  of  the  donor  could,  to  some  extent,  be  carried 
into  effect. 

As  to  the  proposition  that  the  bequest  is  invalid  because 
it  is  based  upon  the  condition  that  the  city  of  Watseka 
shall  donate  a  suitable  lot  upon  which  to  erect  the  school 
building,  we  do  not  agree  with  the  contention  of  appellee. 
Nor  does  it  seem  to  us  that  appellee  has  any  right  to  raise 
that  question.  The  will  does  not  require  the  city  of  Wat- 
seka, in  its  corporate  capacity,  and  by  the  use  of  public 
funds  to  procure  and  donate  the  lot.  If  it  had,  then  the 
j)ower  of  the  city  to  make  such  donation  for  the  purpose  of 


686  Appellate  Courts  op  Illinois. 

Vou  70.]  Catton  v.  Dexter. 

having  a  school  established  in  its  limits,  might  depend  upon 
its  charter,  and  the  authority  ^therein  conferred  upon  the 
municipality,  and  as  to  this  question  there  is  nothing  in  the 
bill  or  the  record  to  show  what  powers  the  city  possessed. 

But  we  think  this  clause  in  the  will  means  nothing  more 
than  if  the  condition  had  been  that  the  citizens  of  Watseka 
should  donate  the  lot.  It  was  not  impossible  for  the  city, 
as  a  muicipality,  to  comply  with  the  condition  without  vio- 
lating any  public  law,  or  using  public  funds  for  the  purpose. 
If  the  citizens  of  Watseka  voluntarily  raised  the  money  to 
purchase  a  suitable  lot  and  conveyed  it  to  the  city  in  trust, 
to  be  donated  for  the  purpose  of  meeting  the  condition  of 
the  will,  we  fail  to  see  wherein  there  would  be  anything 
illegal  in  the  transaction.  It  appears  from  the  record  that 
this  condition  of  the  will  has  been  complied  with,  by  the 
city,  and  the  lot  has  been  donated  and  conveyed  to  the 
trustees.  Whether  or  not  the  city  used  public  funds  to  pur- 
chase the  lot,  or  whether  they  were  donated  by  benevolent 
citizens  who  desired  the  condition  complied  with  does  not 
appear.  The  donation  may  have  been  perfectly  legal,  and 
the  bequest  is  not  to  be  declared  void  because  the  testator 
may  have  ignorantly  contemplated  an  act  beyond  the  power 
of  the  city. 

The  bequest  can  be  made  good,  without  the  doing  of  any 
illegal  act  on  the  part  of  the  city,  and  we  are  not  author- 
ized to  hold  it  void. 

For  the  reasons  given  the  decree  will  be  reversed  and 
the  cause  remanded,  with  directions  to  the  Circuit  Court  to 
dismiss  the  bilL 


W,  S.  Catton  v.  H.  H.  Dexter. 

1.  Verdicts— r7pon  Conflicting  Evidenee,— While  the  evidence  in 
this  case  was  conflicting,  the  court;  can  not  say  that  the  jury  was  not 
warranted  in  finding  as  they  did.  Certainly  the  verdict  is  not  so  mani- 
festly against  the  weight  of  the  evidence  as  to  requu*e  a  reversal  of  the 
judgment  for  that  reason. 


Second  District — December  Term,  1896.  687 

Catton  v.  Dexter. 

2.  Error — Without  Injury,  not  Ground  for  Reversal, — ^The  fact  that 
instructions  as  to  the  measure  of  damages  were  conflicting  and  inhar- 
monious, and  contained  inaccuracies,  furnishes  no  ground  for  complaint 
where  no  damages  were  allowed. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Livingston  County;  the  Hon.  Charlbs  R.  Starr,  Judge,  pre- 
siding. Heard  in  this  court  at  the  December  term,  1896.  Affirmed. 
Opinion  filed  June  26,  1897. 

Herbert  Powell,  attorney  for  appellant. 

C.  F.  H.  CARRrrHERs  and  £.  A.  Aoard,  attorneys  for 
appellee. 

Mr.  Justioe  Crabtrbb  delivered  the  opinion  of  the 
Court. 

Appellee  sued  appellant  before  a  justice  of  the  peace,  to 
reciover  a  balance  of  $30.25  which  he  claimed  to  be  due  him 
upon  a  contract  to  deliver  ice  to  appellant  for  the  season  of 
1894.  A  trial  before  the  justice  resulted  in  a  judgment  in 
favor  of  appellee  for  the  sum  of  $30.25. 

Upon  appeal  to  the  Circuit  Court,  there  was  a  trial  by 
jury,  resulting  in  a  verdict  and  judgment  for  appellee  for 
the  same  amount. 

Appellant  insists  upon  a  reversal  for  two  reasons : 

1.  That  the  verdict  is  not  supported  by  the  evidence, 
and 

2.  That  the  court  gave  erroneous  and  misleading  instruc- 
tions. 

It  appears  from  the  evidence  that  appellant  was  a  butcher 
dealing  in  meat,  and  appellee  was  a  dealer  in  ice.  The 
parties  substantially  agree  that  appellee  contracted  to 
deliver  ice  to  appellant  for  the  season  of  1894  for  $110,  but 
as  to  whether  the  season  was  to  run  longer  that  to  October 
15, 1894,  there  is  some  dispute. 

There  were  mutual  accounts  between  the  parties,  and 
when  they  came  to  settle,  appellant  claimed  that  by  reason 
of  appellee  having  failed  to  deliver  ice  on  October  17, 1894, 
according  to  contract,  he  had  meat  of  the  value  of  $34.30 


588  Appellate  Courts  of  Illinois. 

Vol.  70.]  Catton  v.  Dexter. 

spoiled  foi*  want  of  such  ice,  and  he  demanded  a  deduction 
of  that  amount.  This  was  in  the  latter  part  of  December, 
1894,  or  early  in  January,  1895,  and  was  the  first  time  that 
appellee  had  heard  anything  about  a  claim  for  meat  spoiled 
for  want  of  ice.  This  is  the  only  item  in  dispute,  the  par- 
ties agreeing  as  to  all  other  items  in  the  mutual  accounts. 

There  is  a  controversy  in  the  evidence,  as  to  whether  ice 
was  furnished  on  October  17,  1894  or  not.  The  prepon- 
derance of  the  evidence  seems  to  show  it  was.  Evidentlv 
the  justice  of  the  peace,  as  well  as  the  jury  in  the  Circuit 
Court,  rejected  this  claim  of  appellant  for  damages  for  meat 
spoiled,  and  we  can  not  say  they  were  not  warranted  by  the 
evidence  in  so  doing.  Certainly  the  verdict  is  not  so  mani- 
festly against  the  weight  of  the  evidence  as  to  require  a 
reversal  of  the  judgment  for  that  reason. 

There  is  some  evidence  tending  to  show  that  appellant 
could  have  obtained  ice  from  other  sources,  if  he  had  tried, 
and  if  he  could,  and  did  not  do  so,  then  the  meat  was 
spoiled  through  bis  own  negligence  and  he  could  not 
recover  the  value  thereof  from  appellee.  His  only  claim 
would  have  been  for  the  value  of  the  ice  which  appellee 
failed  to  deliver,  if  he  was  bound,  under  the  contract,  to 
deliver  any  ice  after  October  15th.  But  there  is  no  proof 
whatever,  as  to  the  value  of  the  ice,  and  no  allowance  could 
be  made  therefor,  even  had  the  case  been  tried  upon  that 
theory,  which,  however,  it  was  not. 

It  can  not  be  denied  that  there  are  some  inaccuracies  in 
the  instructions,  but  taken  as  a  whole,  Ave  can  not  say  the 
jury  were  misled  by  them. 

Upon  the  measure  of  damages,  the  instructions  were 
conflicting  and  inharmonious,  but  as  the  jury  rejected  appel- 
lant's whole  claim  for  damages,  and  allowed  nothing  what- 
ever therefor,  these  instructions  could  have  done  no  harm. 
We  see  no  suflicient  reason  for  reversing  the  judgment  on 
account  of  the  instructions. 

Appellant  having  had  two  trials  on  the  questions  involved, 
both  of  which  resulted  against  him,  we  think  he  must  now 
be  satisfied  to  let  the  litigation  end.  Seeing  no  good  reason 
why  the  judgment  should  be  reversed,  it  will  be  affirmed. 


Second  District — December  Term,  1896.  589 

Peoria  Grape  Sugar  Co.  v.  Tumey. 


Peoria  Grape  Sugar  Co.  t.  Henry  D.  Turney  et  al. 

1.  Agency— 7%e  Relation  Found  not  to  Eacist.— The  court  holds  that 
the  person  making  the  warranty  relied  on  by  appellants  was  not  the 
agent  of  appellees,  and  hence  not  authorized  to  make  such  wan*anty. 

2.  Interest — Alloioed  on  Account  of  Unreasonable  and  Vexatious 
Delay  of  Payment. — The  court  holds  in  this  case  that  there  was  such 
vexatious  delay  in  the  payment  of  the  claims  sued  on,  as  the  statute 
contemplates,  and  the  allowance  of  five  per  cent  interest  from  the  ma- 
turity of  the  debt  is  approved. 

Assompsit,  for  goods  sold  and  delivered.  Appeal  from  the  Circuit 
Court  of  Peoria  County;  the  Hon.  Thomas  M.  Shaw,  Judge,  presiding. 
Heard  in  this  court  at  the  December  term,  1896.  Affirmed.  Opinion 
filed  June  26,  1897. 

Paqb,  Wbad  &  PuTEEBAUGHj  attomeys  for  appellant. 
RuNNELLs  &  BuRBT,  attomeys  for  appellees. 

Mb.  Pbesidino  Justicb  IIabkeb  delivbbbd  the  opinion 
of  the  coubt. 

This  was  an  action  of  assumpsit  brought  by  appellees  to 
recover  for  coal  sold  and  delivered  to  appellant  under  a 
parol  contract  in  December,  1893,  and  January,  1894,  and 
under  a  written  contract  in  February,  1894.  A  trial  by 
jury  resulted  in  a  verdict  and  judgment  in  favor  of  appel- 
lees for  $2,396.06. 

There  are  two  grounds  upon  which  appellant  chiefly  relies 
for  a  reversal,  viz.: 

1,  That  the  coal  delivered  was  sold  under  an  express 
warranty  as  to  its  steajpa  producing  qualities,  and  that  there 
was  a  breach  of  that  warranty  by  reason  of  which  appellant 
suffered  great  damage  which  was  not  allowed  it  as  against 
the  purchase  price  of  the  coal. 

2.  The  amount  found  by  the  jury  was  excessive  by  rea- 
son of  their  allowing  interest  to  the  appellees. 

The  evidence  in  the  record  shows  that  D.  H.  Turnev  & 
Co.  are  extensive  dealers  in  coal,  having  a  branch  ofQce  in 


70    589, 
175s  631 


590  Appellate  Courts  op  Illinois. 

Vol.  70.]  Peoria  Grape  Sugar  Co.  v.  Tumey. 

Peoria.  Prior  to  December,  1893,  they  had  contracted  to 
take  the  entire  output  of  the  Reed  City  coal  mines,  mines 
located  about  thirteen  jniles  west  of  Peoria.  In  their  efforts 
to  have  the  coal  from  those  mines  taken  by  large  consumers 
in  Peoria,  appellant,  which  is  a  corporation  operating  a  glu- 
cose plant  in  that  city,  was  induced  to  order  quite  a  number 
of  car  loads,  which  were  delivered  from  time  to  time  during 
the  months  of  December,  1893,  and  January,  1894. 

One  James  Sterritt  was  the  superintendent  of  the  Heed 
City  Coal  Company,  and  was  quite  active  in  assisting  Tur- 
ney  &  Co.  in  their  efforts  to  induce  appellant  and  other 
consumers  to  use  the  coal  from  those  mines.  He  made  cer- 
tain representations  as  to  the  steam  producing  qualities  of 
the  coal,  which  upon  testing  were  shown  to  be  false.  It  is 
contended  that  those  representations  amounted  to  a  war- 
ranty of  Tumey  &  Co. 

It  should  be  observed  that  Sterritt  was  not  in  the  employ 
of  Turnev  &  Co.,  and  was  not  authorized  to  make  a  war- 
ranty.  His  activity  in  the  matter  was  in  the  interest  of 
the  coal  company,  because,  under  its  contract  with  Turney 
&  Co.,  the  more  coal  that  could  be  used  in  Peoria  the  better 
it  would  be  for  that  company.  The  proofs  show  that  appel- 
lant's manager  was  fully  advised  as  to  Sterritt's  position  in 
the  matter.  We  are  clearly  of  the  opinion  that  Sterritt  was 
not  authorized  to  warrant  the  quality  of  the  coal  for  appel- 
lees, and  in  that  view  it  is  not  necessary  to  discuss  the  con- 
flict between  his  testimony  and  that  of  appellant's  manager, 
Rhodehamel. 

After  appellant  had  been  using  the  coal  for  two  montkst 
it  was  sufficiently  satisfied  with  it  to  enter  into  the  foUow- 
in<?  written  contract  in  which  there  is  no  semblance  to  a 
warranty  or  any  representation  as  to  steam  producing 
qualities : 

«' Chicago,  Feb.  1, 1894. 
The  Peoria  Grape  Sugar  Works,  Peoria,  111. 

Gentlemen.  Confirming  our  conversation,  we  desire  to 
submit  the  following  proposition: 

We  will  agree  to  furnish  you  with  your  entire  require- 


Second  District — December  Term,  1896.  591 

Peoria  Grape  Sugar  Co.  v.  Tumey. 

meats  of  coal,  which  we  understand  to  be  from  four  to  eight 
cars  per  day,  of  our  Reed  City  lump  coal  delivered  on  board 
cars  at  your  works,  from  date  to  February  1, 1895,  for  $1.20 
per  net  ton.  Mixed,  nut,  pea  and  slack  made  from  lump 
taken  by  you  at  ten  cents  per  net  ton  at  the  mines.  Mine 
weights  as  taken  at  original  point  of  shipment  to  govern 
settlement,  and  payments  to  be  made  for  coal  on  or  before 
the  20th  of  the  month  next,  following  shipment. 

This  proposition  is  made  subject  to  strikes,  contingencies 
of  transportation  and  other  causes  beyond  our  control* 

Tours  very  truly, 

H.  D.  TURNEY  &  Co., 

Per  Adams  &  O'Gara,  Ag'ts. 

n.  C.  A. 

We  accept  the  above  proposition. 

Peohia  Grape  Sugar  Co., 

By  B.  F.  Rhodehahbl,  Manager." 

If  the  coal  fell  so  far  short  of  Sterritt's  representations,  as 
appellant  would  have  us  believe,  it  seems  to  us  that  appel- 
lant's manager  was  guilty  of  great  oversight  in  not  havino^ 
the  written  contract  contain  some  requirement  as  to  quality. 

All  deliveries  of  coal  after  the  Ist  of  February,  1894,  were 
governed  by  that  contract.  Hence  instructions  one  and  two 
given  for  appellees  were  not  erroneous. 

Entertaining  the  view  as  above  expressed,  that  Staritt 
was  not  the  agent  of  appellees,  the  giving  of  the  eighth 
instruction  was  proper. 

We  see  no  good  cause  for  complaint  as  to  the  giving  or 
modifying  of  instructions  upon  the  question  of  warranty. 

As  to  the  other  ground  urged,  we  are  of  the  opinion  that 
the  allowance  of  interest  was  proper.  There  was  such  vexa- 
tious delay  in  the  payment  of  the  claim  as  the  statute  con- 
templates. Appellees  were  entitled  to  interest  from  the  20th 
of  March,  1894,  the  date  when  appellant's  obligation  to  pay 
matured. 

Hence,  the  giving  of  appellee's  fifth  instruction,  that  if 
the  jury  found  for  the  plaintiffs  and  further  found  from  the 
evidence  that  there  had  been  unreasonable  and  vexatious 


70    602 
70    596 


592  Appellate  Courts  of  Illinois. 

Vol.  70.]  Gilliam  v.  Merchants*  National  Bank. 

delay  in  the  payment  of  the  amount  they  should  allow  jSve 
per  cent  interest  was  proper. 

The  jury  really  fixed  the  damages  at  a  less  amount  than 
appellees  were  entitled  to. 

There  is  no  sufficient  ground  for  a  reversal  of  the  judg- 
ment.   Judgment  affirmed. 


George  T.  Gilliam  t.  Merchants'  National  Bank. 

1.  Banks  and  Banking — Bank* a  Liability  on  Checks,— The  liability 
of  a  bank  on  a  check  only  arises  on  presentation,  and  although  at  the 
time  the  check  was  drawn  there  were  funds  on  deposit  sufficient  to  sat- 
isfy it,  yet  if  they  were  exhausted  before  its  presentation  by  the  payment 
of  checks  subsequently  drawn,  no  liability  attaches  to  the  bank. 

2.  Same — It  is  Not  the  Duty  of  a  Bank  to  Hold  Funds  to  Meet  an 
Outstanding  Check, — When  payment  of  a  check  is  refused  because 
the  drawer  has  no  funds,  there  is  no  presumption  that  the  check  remains 
outstanding  for  payment,  and  no  duty  devolves  on  the  bank  to  reserve 
from  a  future  deposit,  an  amount  sufficient  to  satisfy  it. 

8.  Same— Banfc'«  Liability  on  Checks^Proof  Required  to  Establish. 
— Before  recovery  can  be  had  on  a  check,  the  evidence  must  show  that 
when  the  check  was  presented  there  was  money  in  the  bank  to  pay  it. 

TraBScript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Court  of  Peoria  County;  the  Hon.  Nicholas  E.  WoETmNOTON,  Judge, 
presiding.  Heard  in  this  court  at  the  December  term,  1896.  AjQfirmed. 
Opmion  filed  June  26,  1897. 

G.  T.  Gilliam,  pro  86. 

WiNSLow  Evans,  attorney  for  appellee. 

It  is  no  doubt  the  rule,  that  where  a  party  drawing  a 
check  on  a  bank  has  funds  on  deposit  with  such  bank  equal 
to  or  greater  than  the  amount  of  the  check,  on  presentation 
of  the  check  at  the  bank  for  payment  by  the  drawee,  while 
sufficient  funds  are  on  deposit,  the  bank  becomes-liable  to 
the  holder  of  the  check,  and  if  it  refuses  payment,  the  holder 
of  such  check  mav  maintain  suit  thereon  in  his  own  name 
against  the  bank.     Munn  v.  Burch,  25  III.  21. 

But  checks  drawn  upon  a  bank  not  having  sufficient 


Second  District — December  Term,  1896.  693 

- — 

Gilliam  v.  Merchants*  National  Bank. 

funds  of  the  drawer  on  deposit  for  all,  are  to  be  paid  accord- 
ing to  priority  of  presentment,  and  not  according  to  priority 
of  date  or  execution.  2  Daniels  on  Bills,  16  and  17  A; 
2  Morse  on  Banking,  Sec.  450. 

"  The  rule  with  checks  is,  '  First  come,  first  served.'  If 
payment  is  demanded  at  noon  upon  a  check  which  the 
depositor's  unincumbered  balance  at  that  hour  is  sufficient 
to  pay  in  full,  the  obligation  of  the  bank  to  pay  it  in  full  is 
at  once  mature  and  perfect.  It  is  no  matter  how  many 
checks  may  be  presented  at  later  hours,  nor  how  much  the 
sum  of  all  the  checks  presented  in  the  course  of  the  day 
may  exceed  the  amount  of  the  customer's  balance.  This  is 
no  concern  of  the  bank;  not  even  if  it  has  been  informed 
that  such  checks  have  been  drawn  and  will  be  presented 
for  payment."    2  Morse  on  Banks,  Section  450. 

A  bank  is  not  bound  to  promise  to  receive  funds  of  drawer 
to  pay  at  any  future  day  or  hour.  Its  only  duty  is  to  make 
immediate  payment  when  demanded  if  in  funds.  2  Morse 
on  Banking,  Sec.  453. 

"  The  burden  is  on  the  plaintiffs  to  show  that  at  the  time 
their  check  was  presented  for  payment,  the  bank  had  on 
deposit  to  the  credit  of  the  drawer,  a  sufficient  sum  of 
money  to  pay  it." 

'^  It  is  not  enough  to  show  that  the  drawer  made  adequate 
deposits  on  the  same  day,  as  they  may  have  been  made  sub- 
sequent to  the  presentment  of  the  check."  International 
Bank  v.  Jones  et  al.,  15  111.  App.  594. 

Mr.  Pbbsidino  Justice  Harker  dbliyebbd  the  opinion  of 

THE   OOURT. 

On  December  31,  1896,  Singer  &  Wheeler,  a  corpora- 
tion doing  business  at  Peoria,  Illinois,  drew  a  check  for 
$118.35  in  favor  of  appellant  upon  appellee,  a  bank  with 
which  it  had  been  doing  business  as  a  corporation.  The 
check  was  presented  for  payment  on  January  2,  1896  which 
was  refused  because  Singer  &  Wheeler  had  no  funds  in 
the  bank.  It  was  again  presented  on  January  3d,  and  pay- 
ment refused  for  the  same  reason. 

ToLiiZxas 


594  Appkllate  Couiits  of  Illinois. 

Vol.  to.]  Gillis^m  v.  Merchaatu*  National  Bank. 

»         r      -  -  ■  I     BIIW  ^  MM  ■  ■         _  111    ■    W    ■_     l_^  ■  ■[■■l^  III  ■  M 

On  January  8th  a  deposit  Was  made  of  $8,000  which  was 
all  paid  out  on  checks  and  overdrafts  except  ?933.61  which 
balance  was  on  deposit  when  Sing;er  &  Wheeler  made  a 
deed  of  assignment  for  the  benefit  of  creditors,  June  10, 
1896.  The  deed  of  assignment  was  tiled  for  record  and  the 
assignee  entered  upon  the  discharge  of  his  duties  Janu- 
ary 11th.  On  January  15th  the  check  was  again  presented 
to  the  bank  and  payment  refused. 

This  suit  followed,  resulting  in  a  verdict  and  judgment 
for  the  bank. 

In  seeking  a  reversal  of  the  judgment,  appsllee  urges  an 
application  of  the  rule  of  law  in  this  State  that  the  delivery 
of  a  check  upon  a  bank  where  the  drawer  has  funds  to  sat- 
isfy it,  is  an  assignment  pro  tanto  of  the  deposit  to  the 
payee. 

Under  that  rule,  however,  the  liat^ility  of  the  bank  is 
affected  only  by  a  presentation  of  the  check.  Although  at 
the  time  of  drawing  the  check  there  were  funds  sufficient 
to  satisfy  it,  yet  if  they  were  exhausted  by  the  payment  of 
checks  subsequently  drawn  and  before  its  presentation  no 
liability  would  attach  to  the  bank.  2  Morse  on  Banks,  Sees. 
450,  453;  Coats  v.  Preston,  105  111.  470. 

Appellant  encounters  a  most  serious  obstacle  in  the  fact 
that  when  he  presented  his  check  on  the  2d  and  3d  days  of 
January  there  was  no  deposit  to  draw  against. 

It  is  contended,  however,  that  a  presentation  on  those 
dates  involved  a  duty  upon  the  bank  to  reserve  from  the 
deposit  made  upon  the  8th  of  January  an  amount  sufficient 
to  satisfy  it.  No  authority  is  cited  in  support  of  that  con- 
tention, and  we  do  not  think  a  duty  of  such  character 
devolved*  upon  the  bank.  When  the  payment  of  a  check  is 
refused  because  the  drawer  has  no  funds,  no  such  presump- 
tion should  obtain  as  that  the  check  remains  outstanding: 
for  payment. 

The  natural  course  for  the  payee  to  pursue  in  such  case 
would  be  to  take  immediate  steps  against  the  drawer  to 
make  good  the  dishomored  check. 

The  contention  of  appellee  involves  the  absurd  proposi- 


Second  District — December  Term,  1896.  596 

4  I  I  » 

Tarrant  &  Co.  v.  Merchants'  National  Bank. 

tion  that  a  bank  is  required  to  keep  a  record  of  all  checks 
refused  payment  because  of  lack  of  funds  of  the  drawer, 
and  then  retain  from  any  future  deposit  an  amount  suffi- 
cient to  pay  them. 

Again,  there  is  no  proof  in  the  record  that  when  the 
check  was  presented  on  the  15th  of  January,  there  was 
money  in  the  bank  to  pay  it.  Such  proof  was  necessary  to 
a  recovery,  independent  of  the  fact  that  an  assignment  had 
been  made  for  the  benefit  of  creditors.  International  Bank 
V.  Jones,  15111.  App.  594. 

According  to  the  rule  announced  by  the  Supreme  Court 
of  the  United  States  in  the  case  of  Laclede  Bank  v.  Schuler, 
120  IT.  S.  591,  appellee  was  not  entitled  to  have  his  check 
paid  out  of  the  balance  of  $933.61  when  presented  for  pay- 
ment on  January  15th,  because  four  days  before  that  time 
the  assignee  had  qualified  and  was  entitled  to  the  fund. 

We  do  not  base  our  judgment  upon  that  rule,  however, 
but  affirm  for  the  other  reasons  set  forth  in  this  opinion. 
Judgment  affirmed. 


Tarrant  &  Company  y.  Merchants  National  Bank. 

1.  Former  Decisions— 4pp^^*^  ^^  Fo22oti^.— The  facts  of  this 
case  are  practically  the  same  as  those  recited  in  GilUam  ▼.  Merchants 
National  Bank,  page  592,  this  volume,  and  the  judgment  is  affirmed  for 
the  reasons  set  forth  in  the  opinion  filed  in  that  case. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  Circuit 
Ck>urt  of  Peoria  County;  the  Hon.  Nicholas  K  Worthinoton,  Judge, 
presiding.  Heard  in  this  court  at  the  December  term,  1896.  Affirmed. 
Opmion  filed  June  26,  1897. 

Geobob  T.  Gilliam,  attorney  for  appellant. 
"WiNSLow  Evans,  attorney  for  appellee. 

Mb.  Presiding  Justice  Harkeb  delivered  the  opinion 
OF  the  Court. 
This  is  a  suit  on  a  check  for  $87.65  drawn  by  the  Singer 


696  Appellate  Couiits  of  Illinois, 

Vol.  70.]  Chicago  Opera  House  Co.  v.  Paquin. 

&  Wheeler  corporation  on  appellee  in  favor  of  appellant 
and  presented  for  payment  on  the  3d  and  15th  days  of 
January,  1896.  There  was  a  finding  and  judgment  in  favor 
of  appellee. 

The  facts  are  practically  the  same  as  those  recited  in 
George  T.  Gilliam  v.  Merchants  National  Eank,  supra,  and 
we  afiirm  the  judgment  for  the  reasons  set  forth  in  the 
opinion  filed  in  that  case. 


Cliicago  Opera  House  Company,  for  Use^  etc.^  y. 

Louis  £•  Paquin. 

1.  Res  JxjDiCJLTAr—Parties  Must  Appear  in  Same  Capacity  and  Sub- 
ject-Matter  Must  be  Identical, — A  finding  for  the  defendant  upon  a  plea 
of  former  recovery  can  not  be  Bustained  where  the  parties  to  the  judg- 
ment pleaded  were  not  parties  in  the  same  capacity  as  those  in  the  suit 
in  which  the  plea  is  filed  or  where  the  issues  are  not  identicaL 

2.  SABiB— Sui</or  Rents  After  Recovery  on  Bond  in  Forcible  'Entry 
and  Detainer  Proceedings. — ^The  defendant  in  a  forcible  detainer  suit 
having  been  defeated  took  an  appeal  giving  the  usual  bond.  The  appeal 
was  subsequently  dismissed  and  possession  of  the  premises  surrendered, 
but  in  the  meanwhile  rent  had  accrued  in  excess  of  the  penalty  of  tlie 
bond.  Hddf  that  the  landlord  had  two  separate  causes  of  action  for  rent; 
one  upon  the  appeal  bond  against  the  tenant  and  his  security,  and  the 
other  against  the  tenant  for  rent  due  in  excess  of  the  amount  of  the 
bond  and  that  a  recovery  upon  the  former  demand  was  not  a  bar  to  a 
suit  upon  the  latter. 

Attachinent.^Appeal  from  the  Circuit  Court  of  Kankakee  County; 
the  Hon.  Charles  R.  Starr,  Judge,  presiding.  Heard  in  this  court 
at  the  December  term,  1896.  Reversed  and  remanded.  Opinion  filed 
June  26.  1897. 

Statement  of  the  Case. 

In  April,  1891,  Louis  E.  Paquin  entered  into  possession 
of  rooms  801  and  803,  Chicago  Opera  House  Building,  in 
the  city  of  Chicago,  under  a  written  lease.  By  the  terms 
of  the  lease  he  was  to  pay  thirty-three  dollars  a  month  as 
rent.    He  paid  rent  up  to  and  including  the  month  of  Jan- 


Second  District — December  Term,  1896.  597 

Chicago  Opera  House  Co.  v.  Paquiu. 

uary,  1892,  when  he  made  default  in  his  monthly  payments. 
In  April,  1892,  lessor,  The  Chicago  Opera  House  Company, 
brought  a  suit  for  possession  before  a  justice  of  the  peace 
and  recovered  a  judgment.  Paquin,  the  defendant,  took 
an  appeal  to  the  Circuit  Court  of  Cook  County,  giving  the 
usual  appeal  bond  in  forcible  entry  and  detainer  for  five 
hundred  dollars,  with  one  Gabriel  Franchere  as  security. 
While  the  appeal  was  pending,  Paquin  continued  to  occupy 
the  premises. 

The  appeal  was  dismissed  for  want  of  prosecution  at  the 
April  term  of  court,  1894,  and  Paquin  surrendered  posses- 
sion of  the  premises  the  same  month.  There  was  then  due 
for  rent  $891.  In  March,  1895,  the  Chicago  Opera  House 
Company  brought  suit  against  Louis  E.  Paquin  and  Gabriel 
Franchere,  as  principal  and  surety,  respectively,  on  the 
bond  given  in  the  forcible  entry  and  detainer  suit.  At  the 
April  term  of  court  Franchere  was  defaulted  for  the  want 
of  a  plea  and  judgment  rendered  against  him  for  the  pen- 
alty in  the  bond,  to  wit,  five  hundred  dollars.  Defendant 
Franchere  appealed  the  case  to  the  Appellate  Court  for  the 
First  District,  where  the  appeal  was  dismissed  on  October 
7, 1895.  Franchere  immediately  thereafter  paid  the  judg- 
ment, and  same  was  satisfied  of  record  in  both  Circuit  and 
Appellate  Courts.  On  November  11,  1895,  Gabriel  Fran- 
chere took  an  assignment  of  the  balance  of  rent  due  the 
Chicago  Opera  House  Company  after  recovering  five  hun- 
dred dollars  by  suit  on  the  bond  against  Franchere. 

At  the  December  term,  1895,  of  the  Kankakee  County 
Circuit  Court,  Gabriel  Franchere  brought  two  suits  in 
attachment  against  Louis  F.  Paquin,  one  for  moneys  paid 
out  on  behalf  of  the  said  Paquin  in  satisfaction  of  the  judg- 
ment rendered  against  him  as  surety  on  the  appeal  bond, 
in  which  he  recovered  a  judgment  of  five  hundred  and  fifty- 
one  dollars.  The  other  was  this  suit  brought  in  the  name 
of  the  Chicago  Opera  House  Company  for  the  use  of  Gabriel 
Franchere,  for  the  balance  of  rent  due.  To  the  declaration 
the  defendant  filed  two  pleas,  the  general  issue  and  a  plea  of 
former  recovery. 


69tS  Appellate  Courts  of  Illinois. 


Vol.  70.]  Chicago  Opera  House  Co.  v.  Pa/:iuin. 


In  the  latter  plea  it  was  set  up  that  the  judgment  rendered 
against  Gabriel  Franchere  in  the  Cii'cuit  Court  of  Cook 
County,  on  the  first  day  of  April,  1895,  is  a  bar  to  this 
action. 

Issue  was  taken  upon  the  plea,  a  jury  was  waived,  and  a 
trial  was  had  by  the  court,  resulting  in  a  finding  and  judg- 
ment for  defendant. 

Howard  Ames  and  Gbangeb  &  Davidson,  attorneys  for 
appellant. 

Thos.  p.  Bonfield,  attorney  for  appellee. 

Mr.  Presiding  Justice  Hareer  delivered  the  opinion 
op  thk  Court. 

A  finding  for  defendant  upon  the  plea  of  former  recovery 
was  erroneous.  The  parties  to  the  judgment  pleaded,  were 
not  parties  in  the  same  capacity  as  those  in  this  suit  and 
the  issues  were  not  identical. 

There  were  two  distinct  causes  of  action  against  Paquin; 
one  in  favor  of  Franchere,  by  reason  of  the  recovery  and 
payment  of  the  judgment  against  him  on  the  appeal  bond 
of  Paquin,  and  one  in  favor  of  the  Opera  House  Company 
for  rents  over  and  above  the  amount  of  the  appeal  bond. 
Th^  failure  of  the  Opera  House  Company  to  invoke  the  aid 
of  the  court  to  require  the  defendant  in  the  forcible  detainer 
appeal  suit  to  give  additional  bond,  when  it  became  appar- 
ent that  before  the  case  would  be  reached  for  trial  rents 
would  accrue  which  would  exceed  the  amount  of  the  bond, 
did  not  preclude  the  Opera  House  Company  from  a  right  to 
recover  for  rent  above  the  amount  of  the  bond. 

The  fact  that  the  Opera  House  Company,  in  its  suit  upon 
the  appeal  bond,  recovered  for  rents  up  to  the  amount  of  the 
bond,  $500,  did  not  debar  it  from  recovering  in  a  suit 
against  Paquin  alone  for  the  $391  additional  rent.  It  is 
absurd  to  say  that  having  elected  to  sue  on  the  bond  for 
rents  it  thereby  elected  to  abandon  all  further  claim  against 
Paquin. 


[ 


Second  District — December  Term,  1896.  599 

Crete  Farmers*  Mut.  Township  Ins.  Co.  v.  Miller. 

At  the  time  suit  was  brought  upon  the  aj)peal  bond 
the  Opera  House  Company  had  two  separate  causes  of  action 
for  rent;  one  upon  the  appeal  bond  against  Paquin  and 
his  surety  Franchere,  and  another  against  Paquin  for 
rent  accruing  during  the  pendency  of  the  appeal  suit  above 
the  amount  of  the  bond. 

There  should  have  been  a  recovery  for  appellant.  Ee- 
versed  and  remanded. 


Crete  Farmers'  Mutual  Township  Insurance  Co.  v. 

Simon  Miller. 

1.  Insuranch — Construction  of  Forfeiture  Clauses, — A  provision  in 
an  insurance  policy  that,  under  certain  circumstances,  the  policy  shall 
be  void,  should  be  construed  most  strongly  against  the  insurer. 

2.  Same— -B/fecf  of  Unlauful  Use  of  Property,— The  temporary  use 
of  insured  property  for  purposes  forbidden  by  the  policy  only  sus- 
pends its  operation,  and  when  such  use  ceases  the  policy  revives. 

8.  Same— Questions  Involved  Where  Risk  is  Alleged  to  he  Increased 
by  Alterations, — Under  the  policy  sued  on  in  this  case,  the  first  question 
is,  did  the  building  of  the  shed  and  the  use  of  the  gasoline  enj];ine  in- 
crease the  risk?  And  if  it  be  found  that  the  risk  was  thereby  increased, 
then  the  question  arises  whether  there  was  any  increase  in  the  risk  wlitm 
the  engine  was  not  in  operation,  and  whether  the  fire  was  caused  by 
such  increase. 

4.  Same — Objections  to  Title  of  Insured. — In  a  suit  on  an  insurance 
policy,  the  point  that  the  plaintiff  had  but  a  leasehold  interest  in  the  land 
on  which  the  insured  building  stood,  when  the  contract  required  that  he 
have  title  in  fee  simple,  can  not  be  made  for  the  first  time  on  appeal. 

Assnmpslt,  on  an  insurance  policy.  Appeal  from  the  Circuit  Court  of 
Will  County;  the  Hon.  Dorrance  Dibell,  Judge,  presiding.  Heard  in 
this  court  at  the  December  term,  1896.  Affirmed,  Opinion  filed  June 
26.  1897. 

Haley  &  O'Donnell,  attorneys  for  appellant. 
C.  W.  Brown,  attorney  for  appellee, 

Ms.  Pbestdino  Justice  Harkeb  delivered  the  opinion 

OF    THE    COUET. 

This  was  a  suit  by  appellee  to  recover  on  a  fire  insurance 


600  Appellate  Courts  of  Illinois. 

Vol.  70.]    Crete  Farmers*  Mut.  Township  Ins.  Co.  v.  Miller. 

policy,  coverino^  a  grain  elevator,  which  was  destroyed  by 
jfire  on  the  20th  of  April,  1894.  He  recovered  a  judgment 
for  $2,708.33. 

A  reversal  of  the  judgment  is  urged  for  the  reasons: 

First.  That  the  policy  was  rendered  void  because  of  the 
erection  of  a  shed  and  the  placing  of  a  gasoline  engine 
therein  in  close  proximity  to  the  elevator,  which  increased 
the  risk. 

Second.  That  appellee  had  but  a  leasehold  interest  in  the 
property',  which  rendered  the  policy  void  under  section  four- 
teen of  the  act  of  incorporation  under  which  appellant  did 
business. 

Appellant  is  a  mutual  fire  insurance  company,  and  tha 
policy  was  limited  by  the  provisions  of  its  act  of  incorpora- 
tion and  by-laws. 

Section  16  of  the  act  of  incorporation  reads  as  follows: 

"  If  any  alteration  should  be  made  in  any  house  or  build- 
ing by  the  proprietor  thereof,  after-  insurance  has  been 
made  thereon  with  said  company,  whereby  it  may  be 
exposed  to  greater  risk  or  hazard  from  fire  than  it  was  at 
the  time  it  was  insured,  then,  and  in  every  such  case,  the 
insurance  made  upon  such  house  or  building  shall  be  void, 
unless  an  additional  premium  and  deposit  after  such  altera- 
tion be  settled  with  and  paid  to  the  directors,  but  no  alter- 
ation or  repairs  in  buildings,  not  increasing  such  a  risk  or 
hazard,  shall  in  any  wise  affect  the  insurance  previously 
made  thereon." 

About  two  weeks  before  the  fire  occurred,  George  Miller, 
a  son  of  appellee,  having  in  charge  the  insured  property, 
caused  to  be  built  upon  the  north  end  of  the  elevator  a 
small  shed,  in  which  he  placed  a  gasoline  engine  which  he 
used  for  operating  the  machinery  of  the  elevato^.  The 
machinery  had  before  then  been  operated  by  horse  power. 
The  gasoline  to  run  the  engine  was  stored  in  a  tank,  set  in 
the  ground,  thirty  feet  distant.  The  tank  was  lower  than 
the  engine,  and  the  gasoline  was  pumped  for  consumption 
as  required  when  the  engine  was  running.  There  was  a 
return  pipe  which  allowed  the  gasoline  in  excess  of  con- 


Second  District — December  Teum,  1896.  601 


Crete  Farmers'  Mut.  Township  Ins.  Co.  v.  Miller. 

sumption  to  flow  back  to  the  tank,  or  when  the  engine  was 
closed  down. 

It  is  contended  that  the  erection  of  this  shed,  and  the 
placing  of  this  engine,  etc.,  was  such  an  alteration  that  it 
exposed  the  elevator  to  greater  risk  from  fire  than  it  was  at 
the  time  it  was  insured,  and  therefore  rendered  the  policy 
void.  That  contention  is  insisted  upon  irrespective  of 
whether  the  fire  originated  in  the  shed. 

Our  Supreme  Court  has  long  been  committed  to  the  doc- 
trine that  provisions  in  insurance  policies,  with  reference 
to  what  shall  avoid  a  recovery  in  event  of  loss,  are  con- 
strued most  strongly  against  the  insurer.  Following  in 
the  line  of  that  doctrine,  the  court  has  frequently  held  that 
the  temporary  unauthorized  use  of  property  insured  only 
suspends  the  operation  of  the  policy,  and  that  when  such 
use  ceases  the  policy  revives.  New  England  Fire  Insurance 
Company  v.  Whiteraore  et  al.,  32  111.  244;  Schmidt  v. 
Peoria  Fire  and  Marine  Insurance  Company,  41  111.  295; 
Insurance  Company  of  North  America  et  al.  v.  McDowell 
et  al.,  50  111.  120;  Insurance  Company  of  North  America  v. 
Garland,  108  III.  220;  Germania  Fire  Insurance  Company 
V.  Klewer,  129  111.  599;  Traders'  Insurance  Company  v. 
Catlin,  163  111.  256. 

Whether  the  building  of  the  shed  and  the  placing  of  the 
engine  with  gasoline  tank,  with  appliances  for  operating  it, 
increased  the  risk,  was  a  question  for  the  jury.  If  they  found 
that  it  did  increase  the  risk,  then  the  further  question  for 
their  decision  was  whether  there  was  any  increase  of  risk 
when  the  engine  was  not  in  operation,  and  whether  the  fire 
was  caused  by  such  increase.  We  think  those  questions 
were  fairly  submitted  under  the  instructions  of  the  court. 

It  would  render  this  opinion  too  lengthy  to  review  in 
detail  the  testimony  of  the  witnesses  as  to  the  questions  of 
increased  risk  and  the  origin  of  the  fire.  Much  of  it  is 
speculative.  It  is  sufficient  for  us  to  say  that  the  prepon- 
derance shows  that  the  fire  did  not  have  its  origin  in  or 
about  the  shed  or  gasoline  fixtures,  but  at  the  northwest 
corner  of  the  elevator,  some  thirteen  or  fourteen  feet  from 
the  shed. 


602  Appellate  Courts  op  Illinois. 

Vol.  70.]  Hattenhauer  v.  Adamick. 

To  the  contention  that  the  policy  was  void,  because  appel- 
lee had  but  a  leasehold  interest  in  the  land  on  which  the 
elevator  stood  when  section  fourteen  of  the  original  act  of 
incorporation  required  the  insured  to  have  title  in  fee 
simple  unincumbered,  it  is  sufficient  to  say  that  this  point 
is  now  made  for  the  first  time.  Neither  by  objection  to 
evidence,  motion  to  exclude,  nor  by  instruction,  was  the 
point  brought  to  the  attention  of  the  trial  court.  Had  it 
been  raised  upon  the  trial  appellee  would  have  bad  an 
opportunity  to  show,  if  such  was  the  fact,  that  at  the  time 
the  insurance  was  taken  he  informed  the  officers  of  the 
company,  or  they  knew  of  the  true  condition  of  the  title. 

Situated  as  the  elevator  was,  on  the  right  of  way  of  the 
Illinois  Central  Railroad  Company,  where  it  had  been  for 
years,  and  where  it  had  been  insured  in  this  same  company 
for  twelve  years,  the  officers  were  doubtless  well  acquainted 
with  the  fact  that  appellee  did  not  own  in  fee  simple  the 
land  on  which  the  elevator  was  located. 

It  may  be  said,  also,  that  it  does  not  appear  from  the 
abstract  that  section  fourteen  was  in  evidence,  but  if  it  was, 
the  attention  of  the  court  was  nol  called  to  its  provisions. 

No  error  was  committed  by  the  court  in  the  refusal  of 
offered  instructions.    Judgment  affirmed. 


Robert  C.  Hattenhaner  y.  Oustave  H.  Adamick. 

1.  Partnership— -Eacfc  Partner  is  Presumed  to  Know  the  State  of  the 
Accounts  of  all  the  Partners, — A  partner  having  access  to  the  books  of 
his  firm  is  presumed  to  know  the  state  of  the  account  of  each  partner. 

2.  Same — A  Debt  of  a  Partner  to  the  Fii*m  is  Extinguished  by  a  Sale 
to  the  Other  Partners,  —Where  the  books  of  a  firm  show  that  one  of  tlie 
partners  is  indebted  to  the  firm,  the  purchase  of  his  interest  in  the  part- 
nership by  the  other  partners  extinguishes  the  debt 

Bill,  for  an  accounting.  Appeal  from  the  Circuit  Court  of  La  Salle 
County;  the  Hon.  C'Harles  Blanch ard,  Judge,  presiding.  Heunl  in 
this  court  at  the  December  term,  1896.  Afiirmed.  Opinion  filed  June 
2%,  1897. 


Second  District — December  Term,  1896.  603 

Hattenhauer  v.  Adamick. 

Fr£d  T.  Beers,  attorney  for  appellant. 

WiDMEK  &  WiDMER,  attomeys  for  appellee. 

In  the  absence  of  fraud  or  mutual  mistake,  the  effect  of 
a  sale  of  his  interest  by  one  partner  to  the  others  is  to 
extinguish  the  retiring  partner's  indebtedness,  if  any,  to  the 
firm.  It  implies  that  he  is  to  retain  whatever  he  has 
already  received  from  the  firm,  in  addition  to  the  consider- 
ation paid  for  bis  share  in  th^  assets.  It  is  in  effect  an 
a^eement  that  the  sum  paid  is  a  balance  due  him  after 
deducting  what  he  has  already  received.  Farnsworth  v. 
Whitney,  74  Me.  370;  Norman  v.  Huddleston,  64  111.  11; 
17  Am.  &  Eng.  Ency.,  p.  1,  109. 

That  partners  may  alter  or  modify  their  original  partner- 
ship agreement,  though  it  is  in  writing,  by  a  subsequent 
oral  arrangement,  needs  no  citation  of  authorities  here,  and 
a  change  in  the  original  contract  may  even  be  inferred 
from  a  long  course  of  dealing  inconsistent  with  its  provis- 
ions.   McCall  V.  Moss,  112  111.  493. 

And  such  course  of  dealing  may  be  shown  by  the  part- 
nership books.     Gregg  v.  Hord,  129  111.  618. 

Mr.  Presidino  Justice  Harker  delivered  the  opinion 
OF  THE  Court. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  dis- 
missing upon  fitial  hearing  a  bill  for  an  accounting,  etc.,  filed 
by  appellant  against  appellee. 

The  evidence  in  the  record  shows  that  on  the  1st  of  March, 
1887,  a  partnership  was  formed  between  appellant  and  appel- 
lee, and  a  written  contract  executed  as  follows: 

"  Articles  of  agreement  made  and  entered  into  this  1st  day 
of  March,  A.  D.  1887,  between  Robert  C.  Hattenhauer  and 
Gustave  H.  Adamick,  as  follows : 

The  above  parties  have  agreed  to  become  copartners  in 
the  business  of  dealers  in  drugs,  medicines,  paints,  oils,  includ- 
ing all  articles  usually  kept  in  a  general  drug  store. 

The  business  is  to  be  conducted  at  the  citv  of  La  Salle,  in 
the  building  owned  by  said  Hattenhauer,  also  to  have  no 


604  Appellate  Courts  of  Illinois, 

Vol.  70.]  Hattenhauer  v.  Adamick. 

business  coanection  with  the  business  of  said  Hattenhauer, 
in  Peru. 

To  commence  at  this  date  and  continue  one  year.  The 
said  Adamick  to  employ  his  entire  time,  skill  and  business 
attention  in  the  business.  The  said  Hattenhauer  to  put  in 
his  building  for  the  use  of  said  business  free  of  rent. 

Each  of  said  parties  to  be  and  become  equal  half  owners 
of  said  business,  stock,  claims  and  accounts  due  and  owing 
to  said  business,  and  each  to  be  liable  for  one-half  of  debts 
now  owing  or  hereafter  to  be  incurred  on  account  of  said 
business,  and  all  losses  from  bad  debts  or  otherwise.  All 
help,  in  addition  to  said  Adamick's  services,  which  may  be 
required,  and  all  debts  on  account  of  said  business  to  be  first 
paid. 

All  net  profits  as  ascertained  at  the  end  of  said  term  to  be 

divided  equally. 

RoBT.  0.  Hattenhauer, 

GusTAVB  H.  Adamick.^' 

In  addition  thereto  it  was  orally  agreed  that  Adamick 
should,  from  time  to  time,  draw  from  the  income  of  the  firm 
such  sums  as  his  necessities  might  require,  and  that  he  should 
report  the  amount  so  withdrawn  to  Hattenhauer  monthly, 
so  that  Hattenhauer  could  withdraw  an  equal  amount 
monthly. 

They  continued  in  business  from  March  1,  1887,  until 
March  1,  1893,  when  they  dissolved,  appellant  buying  out 
the  interest  of  appellee  for  $2,000. 

After  the  lapse  of  several  months  appellant  claims  that  he 
discovered  from  the  books  that  appellee  had  withdrawn 
from  the  proceeds  of  the  business,  before  the  dissolution, 
$1,600  more  than  appellant  had  received. 

Hence  he  filed  this  bill  charging  fraudulent  concealment 
of  that  fact  and  asking  an  accounting  as  to  the  $1,600. 

Appellee  admitted  that  he  had  withdrawn  the  $1,600,  but 
claimed  that  he  was  entitled  to  it  by  virtue  of  an  agreement 
in  1890,  that  he  was  to  receive  $100  per  month  as  salary  and 
appellant  $60  per  month  store  rent.  Appellant  denied  that 
there  was  any  such  agreement  made. 


Seconi)  District— December  Term,  1896.  605 

Ensminger  ▼.  Horn. 

If  appellee's  coatention  is  correct  then  he  was  entitled  to 
the  $1,600.  There  was  a  sharp  conflict  in  the  testimony  of 
the  two,  but  the  books  seem  to  corroborate  appellee.  There 
was  no  *' doctoring"  of  the  books  and  nothing  said  or  done 
by  appellee  calculated  to  mislead  appellant  as  to  what  they 
showed.  They  were  open  to  the  inspection  of  appellant.  A 
partner  having  access  to  the  books  of  his  firm  is  presumed 
to  know  what  the  state  of  account  of  each  partner  is. 
2  Bates  on  Partnership,  Sec.  978. 

It  is  not  shown  that  appellant  was  charged  with  anything 
he  did  not  receive,  nor  that  appellee  failed  to  charge  himself 
with  anything  he  had  received.  There  is  no  dispute  over 
any  entry  in  the  books  from  the  beginning  of  the  business 
up  to  the  time  of  the  alleged  arrangement  whereby  appel- 
lant was  to  receive  $60  per  month  rent  for  his  building  and 
appellee  was  to  receive  $100  salary.  From  that  time  on 
appellant  was  credited  in  his  personal  account  monthly  with 
$60  for  rent  and  appellee  was  credited  each  month  with  $100 
as  salary.  Appellant  knew  of  those  entries  or  should  have 
known  them. 

The  charges  of  fraudulent  concealment  made  in  the  bill 
were  not  sustained  by  the  proofs,  and  the  bill  was  properly 
dismissed  for  that  reason. 

If,  as  a  matter  of  fact,  no  such  arrangement  as  that  con- 
tended  for  by  appellee  as  to  rent  and  salary  had  been  agreed 
upon,  and  the  books  show  that  he  had  overdrawn,  then  the 
purchase  by  appellant  of  appellee's  interest  in  the  partner- 
ship for  $2,000  extinguished  appellee's  debt  to  the  firm. 
Korman  v.  Huddleston,  64  111.  11.     Decree  affirmed. 


Alexander  Ensminger  et  al.  y.  H.  J.  Horn  et  al. 

1.  Rewards — Parties  Claiming  Must  Have  Acted  with  Knowledge 
of, — ^To  every  contract  there  must  be  mutual  assent,  and  as  there  can  be 
no  assent  to  that  of  which  a  party  has  never  heard,  there  can  be  no 
claim  to  a  reward  when  the  services  on  which  the  claim  is  founded 
were  rendered  in  ignorance  of  the  reward. 


7U 

6ur) 

04 

389 

94 

391 

606  Appellate  Courts  of  iLLiNoia 

Vol.  70.]  Ensminger  v.  Horn. 

Bill  of  Interpleader.— Appeal  from  the  Circuit  Court  of  Henry 
County;  the  Hon.  Hiram  Biqklow,  Judge,  presiding.  Heard  in  this 
court  at  the  December  term,  1896.    AfSrmed.    Opinion  filed  June  26, 

18»7. 

Statement  of  the  Case. 

On  the  night  preceding  the  4th  day  of  May,  1895,  the 
State  Bank  of  Orion,  Henry  county,  Illinois,  was  burglar- 
ized, and  $4,500  in  cash  stolen.  On  the  morning  of  the  4th 
of  May,  three  men  boarded  the  east  bound  early  passenger 
train  as  it  passed  through  Orion,  upon  theB.  I.  &  P.  R.  R., 
paid  their  fare  to  different  points  up  the  road,  and  when 
they  arrived  in  Galva  all  left  the  train. 

The  appearance  of  the  men,  their  actions  and  conversa- 
tion while  on  the  train,  and  their  leaving  the  train  at  the 
same  place  and  before  they  had  reached  their  destination, 
caused  the  conductor  to  send  to  headquarters  at  Rock  Island 
by  telegram  a  report  of  tte  occurrence. 

The  bank  officials  upon  discovering  the  robbery  obtained 
a  description  of  the  three  men  from  H.J.  Horn,  the  con- 
ductor, and  S.  T.  Murphy,  the  baggageman,  and  offered  a 
reward  for  the  arrest  and  conviction  of  the  robbers,  in  the 
following  words  and  figures  which  were  printed  on  a  postal 
card  and  circulated : 

"Robbery.    $500  Reward. 

Obion,  III.,  May  4, 1896. 

The  State  Bank  of  Orion  was  robbed  by  experts  last 
night,  the  safe  was  blown  open  with  nitro-glycerine  and  all 
the  cash  taken— $1,500  gold;  $650  silver,  and  $2,350  cur- 
rency. 

Three  suspicious  characters  boarded  the  early  morning 
train  on  the  R.  I.  &  P.  One  man  heavy  set,  full  face,  beard 
about  a  week's  growth,  weight  about  186  pounds,  brown 
clothes.  One  man  small  and  slim,  black  moustache,  thin 
face,  weight  about  140  pounds,  blue  clothes.  Third  man 
about  six  feet  two  inches,  dark  moustache,  weight  about 
170  pounds,  wore  soft  fedora  hat,  long  coat,  black  clothes; 
carried  cheap  broken  grip  that  appeared  heavy. 


Skcond  District — Deckmber  Terbi,  1896.  607 

Ensminger  v.  Horn. 

$500  reward  will  be  paid  for  the  arrest  and  conviction  of 
the  robbers,  or  a  porportionate  amount  for  any  one  of  them, 
also  twenty -five  per  cent  of  all  money  found  and  returned. 
By  order  of  the  Board  of  Directors." 

During  the  night  preceding  Sunday,  May  12,  1895, 
Charles  A.  May,  a  policeman,  and  Alexander  Ensminger,  a 
private  watchman,  arrested  tliree  men  who  were  found  in  a 
box  car  at  Taylorville,  Christian  county,  Illinois,  and  con- 
fined them  in  the  city  prison.  On  the  following  morning 
on  going  to  the  prison,  Warren  R.  Eltzroth,  the  chief  of 
police,  found  that  said  prisoners  had  in  their  possession  a 
full  set  of  burglars'  tools. 

Finding  the  burglars'  tools  in  possession  of  the  men  a 
notice  was  sent  to  Chicago  and  St  Louis  daily  papers.  On 
May  13th  the  cashier  read  an  account  of  the  arrest  and 
description  of  the  men  in  the  Chicago  Tribune  and  mailed  one 
of  the  postal  cards  to  the  chief  of  police  of  Taylorville. 
Eltzroth  wired  back  that  he  had  the  men  and  to  send  par- 
ties to  identify  them.  On  the  16th  of  May,  the  sheriff  of 
Henry  county,  with  Horn  and  Murphy,  arrived  in  Taylor- 
ville, and  Horn  and  Murphy  identified  the  prisoners  as  the 
men  who  had  boarded  their  train  at  Orion  on  the  morning 
of  the  4th  of  May. 

Eltzroth,  Ensminger  and  May,  during  the  time  interven- 
ing between  the  arrest  of  the  prisoners  and  the  arrival  of 
Qulnn,  had  sworn  out  warrants  against  the  prisoners  for 
having  burglars'  tools  in  their  possession  in  order  to  detain 
them,  and  had  had  their  photographs  taken. 

Eltzroth  took  with  him  the  kit  of  burglars'  tools  and  the 
photographs  and  returned  with  Quinn  and  accompanied  him 
and  the  state's  attorney  of  Henry  county  to  Orion,  and  upon 
fitting  them  to  the  vault  door  of  the  bank  they  found  that 
the  tools  were  the  same  as  those  with  which  the  job  was 
done  at  Orion. 

At  the  June  term,  A.  D.  1895,  of  Henry  County  Circuit 
Court,  the  parties  arrested  at  Taylorville,  were  indicted 
under  the  names  of  Lawrence  J.  Sullivan,  William  J.  Law- 
rence and  William  Monroe  and  tried,  convicted  and  sen- 


608  Appellate  Courts  of  Illinois. 

Vol.  70.]  Ensmingef:  v.  Horn. 

tenced  for  the  robbery  of  said  bank.  January  27, 1 896,  the 
bill  of  interpleader  was  filed  to  have  determined  who  had 
earned  and  was  entitled  to  said  reward,  and  at  the  October 
term,  A.  D.  1896,  the  court  decreed  that  after  the  payment 
of  the  costs  the  balance  remaining  should  be  equally  divided 
between  said  Eltzroth,  Horn  and  Murphy,  from  which 
decree  Eltzroth,  Ensminger  and  May  prosecute  this  appeal. 

Ha.kd  &  Hakd,  attorneys  for  appellants;  Rioss  &  Ckeioh- 
TON,  of  counseL 

N.  F.  Anderson,  attorney  for  appellees. 

There  can  be  no  claim  f o'r  services  wlien  they  are  rendered 
in  ignorance  of  the  reward.  Chicago  &  A.  R.  R.  Co.  v. 
Sebring,  16  111.  App.  181;  Marvin  v.  Treat,  37  Conn.  96; 
Clark  on  Contracts,  57  and  58. 

*'  To  the  existence  of  a  contract  there  must  be  mutual 
assent,  or  in  another  form  of  offer  and  consent  to  the  offer 
*  *'  *  The  consent  is  vital.  "Without  that,  there  is  no 
contract.  How,  then,  can  there  be  consent  or  assent  to  that 
of  which  the  party  has  never  heard  ? "  Fitch  v.  Snedaker, 
88  N.  Y.  248. 

Mb.  Presiding  Justice  Habker  delivered  the  opinion 
OF  THE  Court. 

Eltzroth  contends  that  he  is  entitled  to  the  entire  reward 
while  Ensmino^er  and  Mav  contend  that  thevare  entitled  to 
share  it  with  him,  and  that  neither  Horn  nor  Murphy  are 
entited  to  any  part  of  it. 

A  careful  examination  of  the  record  satisfies  us  with  the 
judgment  of  the  court  below. 

All  that  was  done  by  Ensminger  and  May  up  to  the  time 
that  Horn  and  Murphy  were  called  upon  to  go  to  Taylor- 
ville  to  identify  the  prisoners,  was  done  in  ignorance  of 
the  reward.  It  is  a  well  settled  doctrine  that  there  can 
be  no  claim  for  services  when  they  are  rendered  in  i|?no- 
ranoe  of  the  reward.  The  reason  of  the  doctrine  is  founded 
upon  the  principle  that  to  the  existence  of  every  contract 


Second  District — December  Term,  1896.  609 

^■■^H^ ■  ■       ■    I • • 

Dunn  T.  O'Mara. 

there  must  be  mutual  assent.  There  can  be  no  assent  to  that 
of  which  the  party  has  never  heard. 

The  arrests  made  by  them  were  in  discharge  of  their 
duties  as  a  police  officer  and  a  watchman.  After  the  identi- 
fication of  the  robbers  there  was  nothing  done  by  them 
toward  securing  their  conviction  other  than  what  could  have 
been  required  of  them  as  witnesses. 

Although  Horn  and  Murphy  did  not  know  of  the  robbery 
'  and  the  reward  when  a  description  of  the  three  suspicious 
looking  men  who  boarded  the  train  was  furnished,  and  would 
not,  therefore,  be  entitled  to  the  reward  for  that  service, 
yet  their  going  voluntarily  to  Taylorville  to  identify  the 
prisoners  and  the  further  assistance  they  gave  Eltzroth  in 
fastening  the  crime  upon  them  were  all  with  the  view  on 
their  part  of  sharing  in  the  reward.  They  co-operated  with 
Eltzroth  and  were  certainly  as  much  entitled  to  the  reward 
as  he  was.    Judgment  affirmed. 


Edward  A.  Dnnn  v.  F.  D.  O'Mara. 

1.  Rkpormation— 0/  Written  Instrument  in  Equity.  —Where  a  court 
of  equity  is  asked  to  reform  a  written  instrument  the  chancellor  will  look 
beyond  the  question  of  whether  the  parties  signing  it  knew  and  under- 
stood the  exact  words  employed,  to  the  true  intention  of  the  parties  when 
they  agreed  upon  the  words,  and  if  the  instrument  does  not  express  the 
true  intention  it  wiU  be  reformed,  although  there  was  no  mistake  in 
merely  writing  the  words  employed.  And  this  rule  will  apply  when 
the  mistake  consisted  solely  of  an  erroneous  mathematical  calculation. 

fiill,  to  reform  a  contract.  Appeal  from  the  Circuit  Court  of  Iroquois 
County;  the  Hon.  Charles  R  Starr,  Judge,  presiding.  Heard  in  this 
court  at  the  December  term,  1896.  Reversed  and  remanded  with  direc- 
tiona.    Opinion  filed  June  26,  1807. 

IsAAO  MiLLBB  HAMILTON,  attomey  for  appellant;  Payson 
&  Kbssler,  of  counsel. 

Correction  of  mistakes  in  any  transaction  is  a  principal 
head  of  equity  jurisdiction.    Pool  v.  Docker,  92  111.  501. 

YoL-LXX  at 


610  Appellate  Courts  of  Illinois, 

Vol.  70.]  Dunn  v.  O'Mara. 

The  power  to  correct  a  mistake  in  a  writing  is  as  much 
within  the  scope  of  the  jurisdiction  of  a  court  of  equity  as 
to  correct  any  other  mistake.  Parol  evidence  may  be 
resorted  to  for  the  purpose  of  proving  what  was  the  real 
contract  made  by  the  parties.  The  contract  may  then  be 
reformed  in  accordance  with  the  intention  of  the  parties. 
Hunter  v.  Bilyeu,  30  111.  228;  McLennan  v.  Johnston,60  111. 
306;  Purvinos  v.  Harrison,  151  111.  219;  Way  et  al.  v.  Roth 
et  al.,159  111.  162;  Clearwater  v.  Kimler,  43  111.  272;  Palmer 
V.  Converse,  60  111.  313. 

On  full  proof  of  a  mistake,  an  equity  arises  in  favor  of 
the  party  affected  by  it,  which  the  court  is  bound  to  pro- 
tect.   Mills  et  al.  v.  Lockwood,  42  111.  111. 

A  court  of  chancery  will  correct  a  written  instrument 
when  clearly  made  to  appear  that  it  was  entered  into  and 
executed  under  mistake.  McClosky  v.  McCormick,  44  111. 
336;  Snell  v.  Snell,  123  111.  403;  Lindsey  v.  Davenport,  18 
111.  375;  Kuchenbeiser  v.  Beckert,  41  111.  172;  Mills  v.  Lock- 
wood,  42  111.  111. 

While  the  rule  in  a  court  of  law  is,  that  the  written  instru- 
ment is  better  evidence  of  the  intention  of  the  parties  than 
can  be  furnished  by  parol  proof ,  and  that  the  writing,  there- 
fore, in  contemplation  of  law,  contains  the  true  agreement 
of  the  parties,  a  court  of  equity  will  if  justice  requires  it,  lool;^ 
beyond  the  writing  and  grant  relief  from  the  effect  of  aeon- 
tract  entered  into  or  founded  in  mistake  or  induced  by 
fraud.     Schwass  v.  Hershey  et  al.,  125  111.  653. 

The  instrument  sought  to  be  reformed  must  have  been  so 
written  as  not  to  state  correctly  the  contract  as  entered  into- 
and  understood  by  the  contracting  parties.    Hamlon  v.  Sul- 
livant,  11  111.  App.  426. 

A  mistake  of  fact  is  a  misapprehension,  not  as  to  a  result, 
but  as  to  a  condition.  2  Pom.  £q.  Jurs.,  838;  20  Am.  and 
Eng.  En.  Law,  p.  714. 

C.  "W.  Raymond,  Free  P.  Morris  and  F.  L.  Hooper,  attor^ 
neys  for  appellee. 
In  order  that  a  mistake  may  come  within  the  cognizance 


) 


Second  District — December  Term,  1896.  611 


Dunn  V.  O^Mfura. 


of  a  court  of  equity  it  must  be  shown  to  have  been  mutual 
or  shared  in  by  both  parties.  Sutherland  v.  Sutherland,  69 
111.  481;  1  Story's  Eq.  Jur.,  Sec.  150;  Fry  on  Spec.  Per.,  Sec. 
505;  Bispham  Prin.  of  Eq.,  Sec.  191;  Emery  v.  Mohler,  69 
111.  221;  Haralon  v.  SuUivant,  11  Brad.  423. 

It  must  have  been  unintentional  on  the  part  of  the 
parties.  15  Am.  &  Eng.  Ency.  of  Law,  bottom  page  631  and 
cases  cited. 

The  party  complaining  must  have  used  ordinary  diligence 
and  acted  at  the  earliest  moment.  Bonney  v.  Stoughton, 
122  111.  543;  1  Story's  Eq.  146. 

The  proof  must  be  clear  and  convincing  to  make  a  con- 
tract difiFerent  from  what  its  words  import  and  to  add  to  it 
and  vary  it  materially. 

The  strongest  and  most  convincing  evidence  will  be 
required  before  the  common  law  rule  will  be  postponed  and 
the  power  of  the  court  exercised.  Hunter,  Adm'r,  v.  Bilyeu, 
30  111.  228;  Shay  v.  Pettes,  35  111.  360;  McDonald  v.  Star- 
key,  42  111.  442;  Miner  v.  Hess,  47  111.  170;  Chapman  v. 
Hurd,  67  111.  234. 

Me.  Presidino  Justice  Harkeb  delivered  the  opinion 
OF  THE  Court. 

This  was  a  bill  in  equity  by  appellant  to  reform  a  contract 
in  writing  whereby  he  agreed  to  pay  to  appellee  $1,150  to 
excavate  and  construct  a  certain  land  drain  or  ditch.  The 
theorv  of  the  bill  was  that  a  mutual  mistake  was  made  bv 
th6  parties  growing  out  of  an  erroneous  computation  of  the 
cost  of  the  work  at  the  rate  of  7^  cents  per  cubic  yard. 

The  case  was  referred  to  the  master  in  chancery  for 
proofs  and  findings.  The  master  found  there  was  no  mistake 
and  the  court  sustained  the  finding  and  dismissed  the  bill. 

A  clear  preponderance  of  the  evidence  shows  that  the  price 
agreed  upon  for  the  construction  of  the  ditch  w^as  7^  cents 
per  yard  and  that  the  whole  number  of  cubic  yards  in  it 
was  7,666. 

In  making  the  computation  appellant  and  appellee  errone- 
ously found  that  the  ditch   would  contain  15,333J  yards. 


612  Appellate  Courts  op  Illinois. 

Vol.  70.]  Dunn  v.  O'Mara. 

The  cost  of  excavating  that  number  of  yards  at  the  rate  of 
7i  cents  per  yard  would  be  $1,150,  and  when  the  contract 
was  drawn  that  amount  was  inserted  as  the  contract  price 
for  construction.  That  a  mistake  was  made,  is  quite  clear, 
not  in  writing  in  the  instrument  the  words  "  one  thousand 
one  hundred  and  fifty  dollars,"  because  both  parties  knew 
the  contract  contained  those  words  at  the  time  of  sififnino^:  1 
but  the  mistake  consisted  in  the  belief  that  15,333J  cubic 
yards  of  dirt  were  to  be  removed  when  in  truth  there  were 
only  7,666  yards  to  be  removed. 

It  matters  not  that  the  parties  knew  they  were  signing 
a  contract  in  which  the  price  was  fixed  at  $1,150.     The 
question  is  not,  did  the  parties  know  what  words  they  used, 
but  rather  do  the  words  used  express  the  real  intention  of  j 
the  parties  ?  "^ 

Where  it  is  sought  in  equity  to  reform  a  written  instru- 
ment the  chancellor  will  look  beyond  the  question  of 
whether  the  parties  signing  it  knew  and  understood  the 
exact  words  employed  to  the  true  intentions  of  the  parties 
when  they  agreed  upon  the  words.  If  the  instrument  does 
not  express  the  true  intention,  although  there  was  no  slip 
of  the  pen  or  mistake  made  in  merely  writing  words,  the 
instrument  will  be  reformed.  The  mistake  here  consisted 
solely  of  an  erroneous  mathematical  calculation,  and  author- 
ity for  correcting  it  is  abundant.  Hunter  v.  Bilyeu,  30  111. 
228;  McClosky  v.  McCormiok,  44  111.  336;  Purvines  v.  Har- 
rison, 151  111.  219. 

The  contention  of  appellee  that  the  two  ditches  were  to 
be  constructed  at  the  price  of  $1,450,  and  that  separate 
written  contracts  were  drawn  at  the  request  of  appellant  is 
not  borne  out  by  the  proofs.  The  testimony  of  appellee  on 
that  point  is  unreasonable  and  unworthy  of  belief. 

The  decree  will  be  reversed  and  the  cause  remanded  with 
directions  to  grant  the  relief  prayed  for  in  the  bill. 


Second  District — December  Term,  1896.  618 

Jackson  v.  Village  of  Mt.  Morris. 


William  H.  Jackson  et  al.  t.  Tillage  of  Mt.  Morris  et  al. 

1.  Appellate  Court  Practice— Brie/«  Must  be  FUed  as  Required 
by  the  Rules. — On  account  of  the  failure  of  the  appellee  to  file  briefs  as 
required  by  the  rules  of  the  court,  the  decree  in  this  case  is  reversed  pro 
forma  under  rule  27,  and  the  cause  remanded  for  a  rehearing.. 

Bill,  for  an  injunction.  Appeal  from  the  Circuit  Court  of  Qgle- 
County;  the  Hon.  J.  C.  Garver,  Judge,  presiding.  Heard  in  this  court 
at  the  December  term,  1896.  Reversed  and  remanded.  Opmion  filed 
June  26,  1897. 

J.  0.  Sbyster  and  H.  G.  Kauffman,  attorneys  for  appel- 
lants. 
Ko  appearance  for  appellees. 

Opinion  per  Curiam. 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  dis- 
missing for  want  of  equity  a  bill  filed  by  appellants  to 
enjoin  the  construction  of  a  water  supply  plant  under  an 
alleged  contract  between  the  president  and  board  of  trust- 
ees of  the  village  and  the  pump  company. 

Appellants  have  filed  briefs  in  compliance  with  the  rules 
of  this  court,  but  appellees  have  failed  to  do  so. 

We  therefore  reverse  the  AecreQ pro  formay  under  rule  27, 
and  remand  the  case  for  a  rehearing. 


Illinois  Central  Ballroad  Company  v.  Artemlse  8. 

Ashline^  Adm'x. 

1.  Verdicts— On  Conflicting  Evidence,— It  is  the  peculiar  province 
of  the  jury  to  decide  disputed  questions  of  fact  on  conflicting  evidence, 
and  in  this  case  the  court  holds  that  the  finding  of  the  jury  is  not  so 
manifestly  against  the  weight  of  the  evidence  as  to  warrant  the  court  in 
saying  they  were  actuated  by  passion  or  prejudice. 

d.    PLRADiNa  Ain>  EviDSNOE— Ordtnancea  of  a  City,— A,  declaration 


70b  6l3j 
171s  314 


614  Appellate  Courts  of  Illinois. 

Vol.  70.]  I.  C.  R.  R.  Co.  v.  Ashline. 

alleged  a  violation  of  an  ordinance  of  the  city.  Sec.  8,  Chap.  9,  approTed 
March  27,  1888,  and  on  the  trial  the  defendant  objected  to  the  introduc- 
tion of  the  ordinance.  Held^  that  the  ordinance  was  admissible  and  that 
defendant  should  have  demurred  if  he  desired  to  raise  the  point  that  the 
ordinance  was  not  set  out  with  sufficient  particularity. 

Trespass  on  the  Case,— Death  from  negligent  act  Appeal  from  the 
Circuit  Court  of  Kankakee  County;  the  Hon.  Charles  R.  Stabr,  Judgp, 
presiding.  Heard  in  this  court  at  the  December  term,  1896.  Affirmed. 
Opinion  filed  June  26,  1897. 

W.  R.  Hunter,  attorney  for  appellant. 
Paddock  &  Cooper,  attorneys  for  appellee. 

Opinion  per  Curiam. 

This  suit  was  commenced  by  appellee  as  administratrix, 
to  recover  damages  for  the  killing  of  her  husband,  Lawrence 
Ashline,  by  a  train  of  appellant  on  September  4, 1892,  in 
the  city  of  Kankakee. 

It  was  before  us  at  the  May  term,  1894,  on  appeal  from  a 
judgment  recovered  by  appellee  and  is  reported  in  56  111. 
App.  475. 

We  then  reversed  the  judgment  because  of  erroneous 
instructions  and  remanded  the  case  for  another  trial.  This 
appeal  is  from  a  judgment  again  recovered  by  appellee,  the 
damages  being  assessed  at  $3,800. 

The  main  contention  of  appellant  is  that  the  verdict  is 
not  supported  by  the  evidence. 

Whether  the  accident  occurred  on  the  Schuyler  avenue 
crossing  of  appellant's  road;  whether  the  bell  on  appellant's 
engine  was  rung  continuously  for  eighty  rods  before  reach- 
ing the  crossing  as  required  by  statute;  whether  the  deceased 
was  at  the  time  in  the  exercise  of  ordinarv  care  for  his  own 
safety,  and  what  was  the  rate  of  speed  of  the  train  were  all 
disputed  questions  of  fact.  It  is  utterly  impossible  to  recon- 
cile the  testimony  of  the  various  witnesses  upon  those  points. 
In  the  conflict  it  was  the  peculiar  province  of  the  jury  to 
decide  those  disputed  questions.  Their  findings  were  not 
so  manifestly  against  the  weight  of  the  evidence  as  to  war- 


Second  District — December  Term,  1896.  615 

I 

Hartford  Fire  Ins.  Co.  v.  McKenzie. 

rant  us  in  saying  that  they  Avere  actuated  by  passion  or 
prejudice  and  that  the  plaintiff  should  not  recover  upon 
some  of  the  counts  in  his  declaration. 

The  third  count  of  the  declaration  charged  negligence  in 
running  the  train  at  a  greater  rate  of  speed  than  that  limited 
by  an  ordinance  of  the  city.  Sec.  3,  Chap.  9.  Approved 
March  27, 1888.  When  the  ordinance  was  introduced  appel- 
lant objected.  That  the  objection  was  overruled  and  the 
ordinance  admitted  to  be  read,  appellant  claims  was  reversi- 
ble error.  We  think  not.  Doubtless  the  court  would  have 
sustained  a  demurrer  to  the  count,  had  one  been  interposed 
upon  the  ground  that  the  ordinance  was  not  set  out  with 
sufficient  particularity,  but  appellant  did  not  see  fit  to  demur 
but  took  issue. 

Objection  is  made  to  the  phraseology  of  certain  instruc- 
tions given  for  appellee.  While  they  may  be  subject  to  some 
criticism,  the  objection  to  them  are  so  slight  as  to  justify  us 
in  saying  that  they  could  not  have  been  seriously  harmful 
to  appellant.    Judgment  affirmed. 


70    615' 
"n    676 

I 


70    615 

Hartford  Fire  Insurance  Co.  v.  W.  L.  McEenzie.         '-^^^-^' 

70      615 
dl08    428 


70      615 
e2088»172 


1.  Inbueance— CawceHafton  of  Policies. — ^Where  an  insurance  policy 
provides  for  its  canceUation  by  the  company  upon  a  fixed  number  of 

days*  notice  to  the  insured,  the  policy  remains  in  force  till  the  company 

gives  the  required  notice,  unless  such  notice  is  waived;  and  if  refunding  70      61^ 
the  premium  or  a  portion  of  it,  be  one  of  the  terms  upon  which  the  111 
company  can  cancel  the  policy,  there  must  be  such  payment,  or  a  tender 
thereof  to  the  assured  or  his  duly  authorized  agent  before  cancellation 
is  ac-complished. 

2.  Sahs — Cancellation  of  Policies — Return  of  Premium, — When  an 
insurance  company  seeks  to  cancel  a  policy  under  such  a  stipulation  as 
the  one  relied  on  in  this  case,  the  insured  does  not  have  to  tender  his 
policy  in  order  to  entitle  him  to  receive  back  the  unearned  premium, 
but  it  is  for  the  company  desiring  cancellation  to  seek  the  assured  and 
tender  the  money  to  him,  and  till  it  does  so  the  cancellation  has  not 
been  effected. 

3.  SAXR^Policies  Can  Not  be  Canceled  Without  iVofice.— The  act  of 
an  insurance  agent  in  cancelling  a  policy  on  his  books,  and  writing  a 


616  Appellate  Courts  op  Illinois. 

Vol.  70.]  Hartford  Fire  Ins.  Co.  v.  McKenzie. 

policy  in  another  company  and  forwarding  it  as  a  proposed  substitute, 
is  ineffectual  to  terminate  the  old  policy  till  notice  is  given  to  the 
assured  or  his  agent. 

4.  Samr— Authority  of  an  Insurance  Agent— It  is  not  within  the 
scope  of  the  authority  ordinarily  conferred  upon  an  insurance  agent  to 
deliver  a  policy  after  the  property  has  been  destroyed  by  fire. 

5.  Same — Cancellation,  aa  Affecting  other  Companies,— In  a  suit  on 
an  insurance  policy  providing  that  it  shall  be  void  if  the  insured  has  any 
other  insurance  on  the  property  covered  by  the  policy,  defended  on  the 
ground  of  the  existence  of  other  insurance,  the  question  is,  what  was 
the  condition  of  such  alleged  insurance  at  the  time  of  the  fire.  After 
the  fire  the  insured  could  not  give  any  consent  or  waive  any  conditions 
so  as  to  make  good  as  to  the  defendant  company,  an  intended  cancelisr 
tion  of  such  insurance  which  had  not  been  carried  into  effect  when  the 
property  was  burned. 

6.  AotESiCY— Contracts  Made  by  an  Agent  Representing  Both  Prin- 
cipals Void  UntU  Ratifted.— Where  a  person  who  is  employed  as  agent 
by  two  principals  makes  a  contract  between  them,  the  contract  is  not 
binding  until  approved  by  both  parties  with  knowledge  of  the  facts. 

Assnmpsit,  on  an  insurance  policy.  Appeal  from  the  Circuit  Court 
of  Whiteside  County;  the  Hon.  J.  C.  Garver,  Judge,  presiding.  Heard 
in  this  court  at  the  December  term,  1896.  Reversed.  Opinion  filed  June 
26, 1897. 

R.  W.  Bargee,  attorney  for  appellant. 

The  plaintiff  only  asked  for  $1,500  insurance,  and  this 
amount  of  insurance  he  had  under  the  Hanover  policy,  which 
was  in  his  possession  for  more  than  three  months  at  the 
date  of  the  loss,  and  which  policy  was  then  in  full  force  and 
effect  and  uncanceled,  and  remained  in  his  possession  really 
until  June  4,  1895.  1  Woods  on  Fire  Insurance,  288,  290, 
291  and  289;  1  May  on  Insurance,  Section  574;  Commercial 
Union  Assur.  Co.  v.  State,  15  N.  E.  Eep.  518,  17  Ins.  Law 
Journal,  333;  HoUings-worth  v.  Germania  Fire  Ins.  Co.,  45 
Georgia,  294,  12  American  Reports,  579;  Poor  v.  Hudson 
Insurance  Co.,  9  Ins.  Law  Jour.  428. 

The  Hartford  policy  was  not  delivered,  nor  asked  for, 
nor  known  of,  until  long  after  the  loss  had  occurred,  and 
was  then  delivered  as  a  substitute,  and  was  therefore  void. 
Wilson  v.  New  Hampshire  Fire  Ins.  Co.,  5  N.  E.  Rep.  818; 
16  Ins.  Law  Jour.  408;  Stebbins  v.  Lancashire  Ins.  Co.,  60 
New  Hampshire,  65;  13  Ins.  Law  Jour.  698;  Lancashire 


Second  District — December  Term,  1896,   617 

Hartford  Fire  Ins.  Co.  v.  McKenzie. 

Fire  Ins.  Co.  v.  Nill  (Penn.),  16  Ins.  Law  Jour.  309;  Massa- 
soit  Steam  Mill  Co.  v.  Western  Assurance  Co.,  125  Mass. 
110,  7  Insurance  Law  Journal,  750;  London  &  Lancashire 
Fire  Ins.  Co.  v.  TurnbuU,  86  Ky.  230,  17  Ins.  Law  Jour.  833. 
Even  if  Mr.  Underwood  was  the  agent  of  Mr.  McKenzie, 
to  procure  him  insurance  and  to  keep  him  insured,  which 
he  was  not,  then  he  was  the  agent  of  both  parties  to  this 
alleged  contract  under  the  Hartford  Fire  Insurance  policy, 
and  he  could  not,  therefore,  make  a  contract  binding  on 
either  without  the  approval  of  both.  Empire  State  Ins.  Co. 
V.  American  Central  Ins.  Co.,  34  N.  E.  Kep.  200;  138  N.  Y. 
446,  22  Ins.  Law  Jour.  626;  N.  T.  Central  Ins.  Co.  v. 
National  Protection  Ins.  Co.,  14  N.  Y.  85;  4  Bennett's  Fire 
Insurance  Cases,  96. 

White  &  Sheldon  and  H.  C.  Ward,  attorneys  for  appel- 
lee. 

Where  an  insurance  agent  is  authorized  by  a  person  to 
write  insurance  upon  his  property,  and  to  keep  it  insured, 
and  such  agent  writes  insurance,  he  may  afterward,  for  the 
assured,  accept  notice  of  cancellation  from  the  company  and 
write  the  insurance  in  another  company;  and  in  case  of  fire 
the  latter  cotnpany  will  be  liable  even  though  the  assured 
has  received  no  notice  of  the  cancellation  before  the  fire 
and  has  the  policy  of  the  first  company  in  his  hands  at  the 
time  of  the  fire.  Buick  v.  Mechanics  Insurance  Co.,  61  N. 
W.  Kep.  337;  Schauer  v.  Queen  Insurance  Co.,  60  N.  W. 
Rep.  994;  Dibble  v.  Northern  Assurance  Co.,  37  N.  W. 
Rep.  704;  Arnfeld  v.  Guardian  Assurance  Co.,  34  Atlantic 
Rep.  580;  Germania  Fire  Insurance  Co.  v.  Shoemaker,  22 
Weekly  Law  Bulletin,  315. 

The  duties  of  such  an  agent  to  the  insurance  company 
and  to  the  insured  are  in  no  sense  repugnant.  Schauer  v. 
Queen  Insurance  Co.,  supra;  Stone  v.  Franklin  Insurance 
Co.,  12  N.  E.  Rep.  45. 

Mb.  Justice  Dibell  delivered  the  opinion  op  the  Court. 

This  was  a  suit  upon  an  insurance  policy  brought  by 

McKenzie  against  the  Hartford  Fire  Insurance  Company 


618  Appellate  C!ourts  of  Illinois. 

Vol.  70.]  Hartford  Fire  Ins.  Co.  v.  McKenzie. 

to  recover  for  the  destruction  by  fire  of  a  mill  and  machin- 
ery therein  at  Tampico,  Whiteside  county.  The  declaration 
contained  a  special  count  on  the  policy  and  the  common 
counts,  and  defendant  pleaded  the  general  issue.  There  was 
a  verdict  and  judgment  for  the  plaintiff,  and  defendant  pros- 
ecutes this  appeal  therefrom. 

The  Hartford  policy  was  dated  April  18,  1895.  The  fire 
occurred  April  19, 1895,  at  seven  o'clock  p.  m.  McKenzie  had 
never  personally  applied  or  paid  for  any  insurance  in  the 
Hartford  company,  and  at  the  time  of  the  fire  he  had  no 
knowledge  that  any  such  application  had  been  made  or  any 
such  policy  made  out.  At  the  time  of  the  fire  the  Hartford 
policy  was  in  the  office  of  Underwood  &  Co.,  insurance 
agents  at  Sterling,  and  in  an  incomplete  condition,  and 
McKenzie  then  held  a  policy  in  the  Hanover  Insurance 
Company,  insuring  the  same  property  from  December  28, 
1894,  to  December  28,  1895,  for  which  he  had  paid  a  pre- 
mium of  $45.  The  amount  insured  by  each  policy  was 
$1,500,  and  McKenzie  had  never  applied  for  more  than 
$1,500  insurance.  He  supposed  he  was  insured  in  the  Han^ 
over,  and  had  never  heard  the  Hartford  mentioned  in  con- 
nection with  his  property  till  the  day  after  the  fire.  The 
Hartford  policy  contained  the  following  stipulation: 
''  This  entire  policy  *  *  *  shall  be  void  if  the  insured 
now  has  *  *  *  any  other  contract  of  insurance, 
whether  valid  or  not,  on  property  covered  in  whole  or  in 
part  by  this  policy."  The  Hartford  company  claims  that 
the  Hanover  policy  was  in  force  at  the  time  of  the  fire,  and 
that  by  reason  of  the  foregoing  stipulation  the  Hartford 
policy  was  void.  It  also  claims  that  the  Hartford  policy 
had  not  been  delivered  when  the  property  burned. 

The  Hanover  policy  had  been  duly  issued  and  paid  for, 
and  was  in  the  possession  of  the  assured,  and  was  relied 
upon  by  him  at  the  time  of  the  fire;  and  it  was  then  in 
force  unless  it  had  been  duly  canceled.  That  policy  con- 
tained this  stipulation :  ^^  This  policy  shall  be  canceled  at 
the  request  of  the  insured,  or  by  the  company,  by  giving 
five  days'  notice  of  such  cancellation.    If  this  policy  shall 


Second  District — December  T|:rm,  1896.  619 

Hartford  Fire  Ins.  Co.  v.  McKenzie. 

be  canceled  as  hereinafter  provided,  or  become  void,  or 
cease,  the  premium  having  been  actually  paid,  the  unearned 
portion  shall  be  returned  on  surrender  of  this  policy  or  last 
renewal,  this  company  retaining  the  customary  short  rate; 
except  that  when  this  policy  is  canceled  by  this  company 
by  giving  notice  it  shall  retain  only  the  pro  rata  premium." 
Where  there  is  in  an  insurance  policy  such  provision  for  the 
cancellation  of  the  policy  by  the  company  upon  a  fixed 
number  of  days'  notice  to  the  insured,  the  policy  remains  in 
force  till  the  company  gives  the  required  notice,  unless  such 
notice  is  waived.  If  refunding  the  premium,  or  a  portion 
of  it,  be  one  of  the  terms  upon  which  the  company  can  can- 
cel the  policy,  there  must  be  such  payment,  or  a  tender 
thereof,  to  the  assured  or  his  duly  authorized  agent  before 
cancellation  is  accomplished.  2  Beach  on  Insurance,  Sec. 
628;  May  on  Insurance,  Sees.  67, 69,  574;  1  Wood  on  Insur- 
ance, Sec.  113;  Mallory  v.  Ohio  Farmers  Ins.  Co.,  90  Mich. 
112.  Where  the  company  seeks  to  cancel  the  contract 
under  such  stipulation  as  is  above  set  out,  the  insured  does 
not  have  to  tender  his  policy  in  order  to  entitle  him  to 
receive  back  the  unearned  premium,  but  it  is  for  the  com- 
pany desiring  cancellation  to  seek  the  assured  and  tender 
the  money  to  him,  and  till  it  does  so  the  cancellation  has 
not  been  effected.  Peoria  M.  &  F.  Ins.  v.  Botto,  47  111. 
516;  ^tna  Ins.  Co.  v.  Maguire,  51  111.  342;  1  Wood  on 
Insurance,  Sec.  113;  2  Beach  on  Insurance,  Sec.  827. 

The  material  inquiry  is  whether,  within  the  rules  above 
stated,  the  Hanover  Insurance  Company  had  canceled  its 
policy  upon  appellee's  property  before  it  was  destroyed  by 
fire.  Underwood  &  Co.,  of  Sterling  were  agents  for  about 
twenty  insurance  companies,  including  the  Hanover  and 
the  Hartford.  They  had  written  the  Hanover  policy  on 
McKenzie's  property.  On  April  17,  1895,  Underwood 
received  notice  from  the  Hanover  company  that  it  desired 
to  cancel  this  policy.  He  took  no  action  thereon  till  the 
evening  of  April  18th,  when  he  noted  on  the  Hanover 
register  in  his  office  that  the  policy  was  canceled,  partially 
made  out  a  daily  report  to  the  Hartford  company,  showing 


620  Appellate  Courts  of  Illinois. 

Vol.  70  ]  Hartford  Fire  Ins.  Co.  v.  McKenzie. 

the  property  insured  in  that  company  for  $1,500  from  April 
18,  1895,  to  April  18,  1896,  stating  amount,  premium  and 
rate,  and  directed  his  clerk  to  complete  the  report  and  mail 
it  to  the  Hartford  oflBce  in  Chicago  next  day.  Underwood 
also  wrote  a  letter  the  evening  of  the  18th  to  Pierce  (who 
solicited  insurance  for  him  at  Tampico,  and  who  had  pro- 
cured this  insurance  for  him),  telling  him  of  the  cancella- 
tion of  the  Hanover  policy  and  of  the  reinsurance  in  the 
Hartford,  and  asking  Pierce  to  get  the  Hanover  policy 
from  McKenzie.  Pierce  received  this  letter  on  the  19th,  a 
short  time  before  the  fire,  and  he  did  not  notify  McKenzie 
of  it  until  the  day  after  the  fire.  Underwood,  also  on  the 
evening  of  the  18th,  signed  a  blank  policy  in  the  Hartford 
(being  the  policy  here  sued  on),  and  directed  his  clerk  to 
fill  that  out  the  next  day  with  the  insurance  for  McKenzie, 
intending  to  complete  and  attend  to  the  policy  himself  on 
the  20th.  Underwood,  also  on  the  evening  of  the  18th, 
credited  the  Hartford  company  with  one  year's  premium 
on  the  policy  as  paid  by  McKenzie,  and  in  the  private 
account  of  McKenzie  with  Underwood  &  Co.  charged  Mc- 
Kenzie with  one  year's  premium  in  the  Hartford  and  cred- 
ited him  with  the  unearned  premium  under  the  Hanover 
policy,  thus,  so  far  as  mere  bookkeeping  could  do  it,  paying 
the  premium  to  the  Hartford  company  and  making  Mc- 
Kenzie the  debtor  of  Underwood  &  Co.,  for  the  difference 
between  the  premium  in  the  Hartford  and  the  unearned 
premium  in  the  Hanover.  Underwood  went  to  Chicago  on 
the  morning  of  the  19th  and  returned  to  Sterling  at  nine 
p.  M.,  the  same  day,  two  hours  after  the  fire.  He  found  the 
new  policy  incomplete  in  not  having  the  gasoline  permit 
attached,  which  was  essential,  as  the  mill  was  operated  by 
a  gasoline  engine,  and  the  agent  knew  it.  On  the  morning 
of  April  20th,  but  before  he  heard  of  the  fire,  he  attached 
that  permit  and  completed  the  policy.  At  the  time  of  the 
fire,  no  notice  had  been  served  upon  McKenzie  that  the 
Hanover  company  had  elected  to  cancel  its  policy,  and  the 
unearned  premium  had  not  been  paid  or  tendered  to  him. 
He  had  not  in  any  way  waived  compliance  by  the  company 


Second  District — December  Term,  1896.  621 

Hartford  Fire  Ins.  Co.  v.  McKenzie. 


with  the  stipulations  of  the  policy  in  regard  to  cancella- 
tion. We  think  it  is  clear  no  cancellation  of  the  Hanover 
policy  was  effected  by  virtue  of  the  facts  above  stated. 

It  is  insisted  McKenzie  had  made  Underwood  his  agent, 
and  that  by  virtue  of  the  authority  McKenzie  had  given  him 
Underwood  could  accept  notice  and  could  waive  notice  of 
the  cancellation,  and  had  authority  to  procure  new  insurance 
for  McKenzie,  and  that  notice  to  Underwood  was  therefore 
notice  to  McKenzie;  that  the  acts  of  Underwood  in  entering 
a  cancellation  of  the  old  policy  on  the  Hanover  register,  in 
issuing  a  new  policy  in  the  Hartford,  and  in  crediting 
McKenzie  with  the  Hartford  policy  as  paid,  were  binding 
upon  McKenzie  as  the  acts  of  his  agent,  and  that  by  those 
acts,  Underwood,  for  McKenzie,  consented  to  immediate 
cancellation,  waived  the  five  days'  notice  and  received  the 
unearned  premium,  and  therefore  the  Hanover  policj^  was 
duly  canceled  on  the  18fch,  and  the  policy  in  the  Hartford 
was  valid.  This  contention  rests  upon  the  conversation 
between  Underwood  and  McKenzie  in  the  presence  of  Pierce 
at  Tampico,  when  McKenzie  first  ordered  insurance  on  this 
property.  These  three  men  were  examined  several  times  at 
the  trial  as  to  what  was  said  on  this  subject  in  that  conver- 
sation. To  here  repeat  their  testimony  would  unduly  extend 
the  limits  of  this  opinion.  We  have  carefully  examined  and 
considered  it,  and  are  of  opinion  it  does  not  warrant  the 
conclusion  that  Underwood  had  any  authority  to  act  for  or 
represent  McKenzie  in  any  respect  in  regard  to  the  cancel- 
lation of  any  policy.  In  this  conversation  at  Tampico, 
Underwood  told  McKenzie  the  risk  was  hazardous  and 
undesirable;  that  many  companies  would  refuse  to  carry  it; 
that  before  he  could  bind  any  company  upon  it  he  would 
have  to  consult  such  company;  that  he  would  submit  the 
application  to  one  company  and  if  it  refused  to  insure  he 
would  submit  it  to  another,  and  so  on  till,  if  possible,  he  got 
some  company  to  carry  it;  and  that  if  he  got  some  company 
to  issue  a  policy  and  that  company  should  afterward  cancel 
it,  as  sometimes  occurred,  then  he  would  try  to  put 
McKenzie  in  another  company.    McKenzie  testifies  he  then 


622  Appellate  Courts  of  Illinois. 

Vol.  70.]  Hartford  Fire  Ins.  Co.  v.  McKenzie. 

told  Underwood  that  if  the  company  which  did  insure  him 
should  cancel  the  policy,  to  write  him  up  in  another  com- 
pany and  he  would  pay  whatever  it  cost.  Underwood  and 
McKenzie  had  never  done  business  with  each  other  before. 
They  were  introduced  to  each  other  at  the  time  of  this  con- 
versation. The}''  had  but  this  one  transaction.  Nothing 
was  said  between  them  to  the  effect  that  if  any  company 
wished  to  cancel  a  policy  on  this  property,  Underwood 
should  or  could  act  for  McKenzie,  or  receive  or  waive  notice. 
The  most  that  can  be  said  is  that  if  a  policy  was  canceled, 
Underwood  had  directions  to  try  to  get  McKenzie  insured 
in  some  other  company.  His  authority  did  not  include  the 
cancellation.  He  was  not  authorized  to  do,  suffer  or  consent 
to  any  act  in  regard  to  cancellation,  but  only  to  act  after 
cancellation  had  been  effected.  In  this  respect  this  case 
differs  from  the  cases  cited  by  appellant.  In  this  case,  there- 
fore, nothing  had  been  done  by  the  Hanover  company  at 
the  time  of  the  fire  toward  cancellation.  The  determinar 
tion  of  officers  of  that  company  at  the  home  office  to  cancel 
the  policy,  accomplished  nothing  toward  that  end.  Their 
.letter  to  their  own  agent  telling  him  they  desired  to  cancel 
the  policy  was  not  a  compliance  with  any  part  of  the  stip- 
ulations relating  to  cancellation  embodied  in  the  policy. 
The  Hanover  company  gave  McKenzie  no  notice.  It  tend- 
ered him  no  unearned  premium.  Indeed  it  could  not  have 
canceled  the  policy  and  escaped  liability  after  its  officers 
wrote  to  their  agent,  for  the  fire  occurred  less  than  five  days 
thereafter. 

It  is  argued,  these  stipulations  as  to  cancellation  were  for 
the  benefit  of  McKenzie  only,  and  were  not  available  to  the 
Hartfbrd  company,  and  that  if  McKenzie  afterward  chose 
to  waive  these  conditions  and  treat  the  Hanover  policy  as 
canceled,  the  Hartford  company  could  not  be  heard  to 
complain  thereof.  The  real  question  is,  what  was  the  con- 
dition of  the  insurance  at  the  time  of  the  fire;  had  the 
Hanover  policy  then  been  canceled  ?  Neither  party  could 
afterward  change  the  conditions  existing  at  the  time  of 
the  fire  so  as  to  afterward  create  a  liability  by  the  opposite 


Second  District — December  Term,  1896,  623 

Hartford  Fire  Ins.  Co.  v.  McKenzie. 

party  where  none  existed  at  the  moment  of  the  fire.  At 
any  time  before  the  fire  McKenzie  could  have  waived  each 
and  every  of  these  conditions,  and  consented  to  treat 
the  Hanover  policy  as  canceled.  But  by  the  fire  and  the 
acts  of  Underwood,  the  Hartford  company  became  inter- 
ested in  the  question  whether  the  Hanover  policy  had  been 
canceled  before  the  fire.  That  question  was  to  be  deter- 
mined by  the  facts  as  they  then  existed — by  what  had 
theretofore  been  done.  McKenzie  could  not,  two  days  later, 
at  Sterling,  give  any  consent,  or  waive  any  conditions,  so 
as  to  then  make  good  an  intended  cancellation  which  had 
not  been  carried  into  effect  when  the  property  was  burned. 
We  are  of  opinion  the  Hanover  company  had  taken  no 
steps  to  comply  with  the  stipulations  of  its  policy  as  to  can- 
cellation, and  that  there  had  been  no  waiver  of  those 
conditions,  when  the  fire  occurred,  and  that  the  Hanover 
policy  was  then  in  full  force,  and  that  because  it  was  in 
force,  the  Hartford  policy  was  void  by  virtue  of  its  own 
provisions  above  recited.  We  also  hold  that  at  the  time 
Underwood  made  the  notations  for  the  Hartford  policy, 
and  signed  the  policy  in  blank,  and  undertook  to  so  trans- 
fer debits  and  credits  as  to  pay  the  Hartford  company  for 
its  policy,  he  was  acting  without  authorit}''  from  McKenzie, 
and  that  the  Hartford  policy  had  not  been  ordered,  and 
was  not  paid  for  or  delivered.  The  transaction  between 
Underwood  and  McKenzie  at  Sterling  two  days  after  the 
fire,  when  Underwood  persuaded  McKenzie  the  Hanover 
polioj'^  had  been  canceled,  and  the  Hartford  company  was 
liable  to  him  for  the  loss,  and  McKenzie  gave  up  the  Hano- 
ver policy  and  took  the  Hartford  policy,  can  not  avail  here 
to  determine  which  policy  was  in  force  at  the  time  of  the 
fire.  It  is  not  within  the  scope  of  the  authority  ordinarily 
conferred  upon  an  insurance  agent  to  deliver  a  policy  after 
the  property  has  been  destroyed  by  fire.  The  act  of  an 
insurance  agent  in  canceling  a  policy  on  his  books,  and 
writing  a  policy  in  another  company  and  forwarding  it  as 
a  proposed  substitute,  is  ineffectual  to  terminate  the  old 
policy  till  notice  to  the  insured  or  his  agent.    Stebbins  v. 


624  Appellate  Courts  op  Illinois. 

Vol.  70.]  Hartford  Fire  Ins.  Co.  v.  McKenzie. 

Lancashire  Ins.  Co.,  60  N.  H.  65;  Massasoit  Steam  Mills  v. 
Western  Assurance  Co.,  125  Mass.  Ill;  "Wilson  v.  N.  H. 
Fire  Ins.  Co.  (Mass.),  5  K  E.  Rep.  818. 

But  if  it  were  established  Underw^ood  was  the  agent  of 
McKenzie  to  accept  or  waive  notice  of  cancellation  and  to 
reinsure,  still  we  are  of  opinion  that  under  the  special  facts 
of  the  case  the  Hartford  company  would  not  be  bound. 
Underwood  would  then  be  the  agent  both  of  McKenzie  and 
the  Hartford  company.  The  property  was  hazardous — was 
such  a  risk  as  many  companies  would  refuse— and  Under- 
wood knew  it.  He  had  told  McKenzie  in  December,  that 
before  he  could  bind  any  company  on  it  he  would  have  to 
consult  its  officers.  He  did  not  think  it  best  to  write  a 
policy  at  first,  but  prepared  an  application  and  forwarded  it 
to  one  company,  and  it  was  rejected;  then  he  sent  an  appli- 
cation to  a  second  company,  and  it  also  was  rejected;  then 
he  wrote  a  policy  in  the  Hanover,  but  did  not  deliver  it  till 
he  got  word  that  it  was  accepted.  Now  the  Hanover  had 
written  that  it  desired  its  policy  canceled.  Thereupon 
Underwood  wrote,  or  partially  wrote,  the  Hartford  policy 
here  sued  on,  and  notified  that  company  of  the  details  of 
the  policy,  but  not  of  the  existence  and  attempted  cancella- 
tion of  the  Hanover  policy.  We  are  of  opinion  that  if  he 
was  the  agent  both  of  McKenzie  and  the  Hartford  company, 
as  here  contended,  then  the  contract  he  so  attempted  to 
make  between  them  was  not  binding  till  approved  by  both 
parties  with  knowledge  of  the  facts.  London  &  L.  F.  Ins. 
Co.  V.  Turnbull,  86  Ky.  230;  Empire  S.  Ins.  Co.  v.  Am.  Cent. 
Ins.  Co.,  138  N.  Y.  446. 

Instruction  numbered  1^  offered  by  defendant,  stated  the 
law  on  this  subject  correctly,  and  it  was  error  to  refuse  it 

Other  defenses  against  this  policy  are  argued,  but  their 
consideration  is  rendered  unnecessary  by  the  conclusions 
already  reached.  Under  the  evidence  the  court  is  of  opin- 
ion appellee  has  no  cause  of  action  against  the  Hartford 
company,  and  the  judgment  of  the  court  below  is  therefore 
reversed. 

Finding  of  facts  to  be  embodied  in  the  judgment: 


Second  District — December  Term,  1896.  625 

Gross  V.  Schroeder. 

The  court  finds  that  the  policy  sued  upon  was  not  ordered 
or  paid  for  by,  or  delivered  to,  plaintiff  before  the  destruc- 
tion of  the  propert}^  by  fire;  that  plaintiff  at  the  time  of  the 
fire  had  ho  knowledge  of  any  steps  taken  to  insure  him  in 
the  appellant  company;  that  the  policy  sued  upon  had  not 
been  completed  at  the  time  of  the  fire;  that  at  the  time  of 
the  fire  appellee  had  in  his  possession  a  policy  of  insurance 
upon  said  property  in  the  Hanover  Insurance  Company, 
upon  which  alone  he  relied  as  his  security  against  loss  by 
fire;  that  he  had  never  been  notified  of  any  purpose  by 
the  Hanover  company  to  cancel  said  policy;  that  there  was 
then  unearned  premium  theretofore  paid  by.  appellee  upon 
said  Hanover  policy  which  had  not  been  returned  to  him  at 
the  time  of  the  fire;  that  the  stipulation  for  cancellation 
contained  in  said  Hanover  policy  had  not  been  complied 
with  at  the  time  of  the  fire;  and  that  Underwood  was  not 
the  agent  or  representative  of  appellee  in  any  matter  relat- 
ing to  the  cancellation  of  the  Hanover  policy. 


Henry  Gross  t.  Fred  Schroeder. 

1.  Landlord  and  Tenant— i2t^^^  of  Landlord  to  Diatrain.'-The 
evidence  in  this  case  clearly  establishes  that  appellee  removed,  without 
his  landlord's  consent,  a  sufficient  portion  of  the  crops  raised  on  the 
demised  premises  to  endanger  the  lien  of  the  landlord,  and  under  the 
provisions  of  the  statute  the  landlord  was  entitled  to  recover  the  amount 
of  rent  unpaid,  by  distress  proceedings. 

2.  Contracts— Comptete  Perfonnance  Essential  to  Recovery  in  this 
Co^e.— The  contract  relied  upon  as  a  set-off  in  this  case  wa^i  not  severa- 
ble and  appellee  could  not  demand  payment  of  the  fifty  dollars  provided 
for  therein  without  showing  his  entire  and  complete  compliance  with 
that  contract 

Distress  for  Bent.— Appeal  from  the  Circuit  Court  of  Will  County: 
the  Hon.  Qeo.  W.  Stipp,  Judge,  presiding.  Heard  in  this  court  at  the 
December  term,  1890.  Reversed  and  remanded.  Opinion  filed  June  20, 
1897. 

Haley  &  O'Donnel,  attorneys  for  appellant. 

Vok  LXX  « 


626  Appellate  Courts  op  Illinois. 

Vol.  70.1  Groea  v.  Schroeder. 

John  W.  D'Arcy,  attorney  for  appellee. 

Mr.  Justice  Wright  dklivered  the  opinion  of  the  Court. 

Appellant,  being  the  landlord  of  the  appellee,  instituted 
proceedings  bj  distress  against  the  latter  in  the  court  below 
for  a  balance  of  rent,  and  in  the  distress  warrant  which  stands 
as  the  declaration,  it  is  alleged  in  substance  that  the  tenant 
had  or  was  about  to  remove  from  the  demised  premises,  such 
part  or  portion  of  the  crops  raised  thereon  as  would  endanger 
the  lien  of  the  landlord  upon  such  crops  for  the  rent  agreed 
to  be  paid.  It  also  appears  from  the  evidence  that  in  his 
attempt  to  collect  rent  from  the  tenant  some  controversy 
arose  between  the  landlord  and  tenant  concerning  a  mutually 
satisfactory  disposition  of  the  crops,  that  finally  terminated 
in  the  following  written  undertaking  by  the  appellant : 

"MoNEE,  III.,  Nov.  19,  1894. 

I  hereby  agree  to  pay  to  the  order  of  Fred  C.  Schroeder 
the  sum  of  fifty  dollars,  as  soon  as  he  shall  have  husked  the 
corn  and  placed  the  same  in  crib  now  standing  and  partly 
husked  on  my  farm  occupied  by  the  said  F.  C.  Schroeder, 
and  also  after  he  has  hauled  all  the  oats  grown  by  him  on 
my  farm  to  and  delivered  at  elevator  of  G.  S.  Miller,  in 
Monee,  111.  H.  Cross." 

The  triM  in  the  Circuit  Court  was  by  jury,  the  verdict 
being  for  the  defendant.  Plainiiflf  below  moved  for  a  new 
trial,  which  having  been  overruled,  final  judgment  was 
entered  from  which  this  appeal  was  taken. 

Wo  are  of  the  opinion  the  evidence  clearly  establishes  the 
fact  that  appellee  did,  without  the  consent  of  his  landlord, 
remove  and  sell  such  part  or  portion  of  the  crops  raised  on 
the  demised  premises  as  did  endanger  the  lien  of  the  appel- 
lant for  the  rent  agreed  to  be  paid.  The  testimony  of 
appellee  himself  proves  this  fact,  and  under  the  provisions 
of  the  statute  the  appellant  was  entitled  to  recover  the 
amount  of  rent  admitted  to  be  unpaid.  In  this  respect  we 
think  the  verdict  was  against  the  evidence  in  the  case,  and 
a  new  trial  should  have  been  awarded. 

The  court  on  its  own  motion  gave  to  the  jury  the  follow- 
ing instruction,  based  upon  the  undertaking  above  quoted : 


Second  District — December  Term,  1806.  627 

Travelers  Ins.  Co.  v.  Mayo. 

"  The  court  instructs  the  jury  that  the  defendant  can  not 
ba  allowed  the  alleged  set-off  of  $50  unless  he  has  shown 
by  the  evidence  that  he  fully  complied  with  the  terms  of 
the  agreement  by  which  he  was  to  receive  said  $50;  that  is, 
husk  the  corn  then  partly  husked  and  haul  all  the  oats 
raised  upon  said  farm  of  plaintiff  for  the  year  1894,  but  the 
jury  may  allow  to  the  defendant  such  proportion  of  said  $50 
as  the  evidence  shows  the  defendant  has  performed  of  the 
work  named  in  said  contract,  and  which  the  plaintiff  has 
received  the  benefit  of,  if  the  evidence  shows  any  such." 

This  instruction  we  think  is  contradictory  in  its  terms; 
the  first  part  of  it  correctly  states  the  law  as  we  understand 
it,  but  the  last  part  is  opposed  to  the  first  and  nullifies  it. 
If  the  appellee  could  not  be  allowed  the  $50  unless  he  fully 
complied  with  the  terms  of  his  agreement,  as  we  think  he 
was  bound  to  do,  and  as  the  instruction  correctly  stated,  it 
is  difficult  to  see  how  he  could  be  allowed  a  part  of  the  $50 
for  an  incomplete  performance  of  the  contract,  as  the 
instruction  also  clearly  informs  the  jury. 

For  the  errors  indicated,  the  judgment  of  the  Circuit 
Court  will  be  reversed  and  the  cause  remanded. 


The  Travelers  Insurance  Company  v.  Clara  P.  Mayo. 

1.  Wergkbl— 'Deficiency  Decree  in  Foreclosure  Proceedings — ^Where  a 
plaintiff  files  a  bill  to  foreclose  a  mortgage  securing  notes  on  which  the 
defendants  are  liable  jointly  and  severally,  and  after  a  sale  of  the  mort- 
gaged premises  elects  to  take  a  deficiency  decree  against  only  one  of  the 
defendants,  the  judgment  is  a  merger  of  the  whole  cause  of  action 
against  all  the  defendants,  and  a  subsequent  suit  can  not  be  maintained 
against  any  one  of  them. 

2.  Promissory  '^ortva— Suits  Against  a  Surety, — The  fact  that  one 
of  the  signers  of  a  note  is  a  security,  does  not  make  him  any  the  less  liable 
jointly  with  the  principal,  and  any  suit  at  law  on  the  note  should  be 
against  the  signers  jointly  and  not  against  the  surety  in  the  capacity  of 
indorser  after  pursuit  of  the  principal  to  insolvency. 

Assnmpsit,  on  a  promissory  note.  Appeal  from  the  Circuit  Court  of 
Will  County;  the  Hon.  Dorra.ncb  Dibbll,  Judge,  presiding.  Heard  in 
this  court  at  the  December  term,  1896.  Affirmed.  Opinion  filed  July  1, 
1807. 


I  70  es7\ 
1 170s  4m 


628  Appellate  Courts  of  Illinois. 

Vol.  70.]  Travelers  Ins.  Co.  v.  Mayo. 

Alexander  Clark  and  C.  W.  Brown,  attorneys  for 
appellant. 

Garnsey  &  Knox,  attorneys  for  appellee. 

Mr  Justice  Lacey  delivered  the  opinion  of  the  CorRT. 

This  was  a  suit  in  assumpsit,  seeking  recovery  on  a  joint 
and  several  promissory  note  given  by  R.  G.  Mayo  and  his 
wife,  the  appellee,  executed  in  the  State  of  Florida,  June 
35,  1888,  for  $5,000  with  twelve  per  cent  interest  after 
maturity  and  due  in  two  years. 

The  note  was  payable  at  the  appellant's  oflSce,  at  Hart- 
ford, Connecticut,  with  exchange  on  New  York.  This  suit 
was  commenced  in  attachment  against  both  signers  of  the 
note,  and  the  writ  levied  on  the  real  estate  of  appellee. 

She  then"  iSled  pleas  alleging  her  coverture,  and  that  by 
the  laws  of  Florida,  a  married  woman,  was  not  liable  on  a 
promissory  note.  The  suit  was  dismissed  as  to  R.  G.  Mayo 
and  additional  counts  filed,  Nos.  5  and  6,  attempting  to 
charge  appellee  as  guarantor. 

The  appellee  then  filed  her  fourth  plea,  setting  up  the 
execution  of  the  note  and  mortgage  on  the  real  estate  in 
the  State  of  Florida;  that  the  same  was  foreclosed  in  the 
Circuit  Court  in  Orange  county,  State  of  Florida,  and  a 
decree  of  sale  of  foreclosure  entered  bj^  said  court,  and  the 
real  estate  sold,  for  a  certain  sum  bid,  leaving  a  (leficiency 
of  $4,891.10,  and  that  judgment  was  rendered  in  said 
court  for  said  deficiency  against  thesaid  R.  G.  Mayo  alone, 
although  appellee  was  duly  served  and  said  court  had 
jurisdiction  of  her  and  the  said  Mayo,  and  said  judgment 
was  rendered  on  the  said  note  being  the  same  cause  of 
action  sued  on  in  this  case,  and  claimed  that  the  said  note 
was  merged  in  said  judgment,  and  that  the  same  was  a  bar 
to  this  action  against  her. 

The  appellant  then  filed  its  seventh  count  setting  up  as 
cause  of  action,  the  same  facts  and  seeking  recovery  on  the 
deficiency  decree. 

The  court  below  sustained  demurrer  to  said  seventh  count 


Second  District — December  Term,  1896.  629 


Travelers  Ins.  Co.  v.  Mayo. 


and  overruled  it  to  the  fourth  plea.  The  cause  was  sub- 
mitted to  the  court  the  appellant  abiding  by  his  demurrer 
to  said  fourth  plea,  and  the  court  rendered  judgment  against 
appellant  for  costs,  from  which  judgment  this  appeal  is 
taken. 

The  errors  assigned  are  that  the  court  erred  in  overruling 
the  demurrer  of  the  appellant  to  the  fourth  plea,  and  in 
sustaining  the  demurrer  to  the  seventh  count  of  the  declara- 
tion. 

The  only  question  to  be  passed  upon  by  this  court  is 
whether  the  said  deficiency  decree  rendered  by  the  Florida 
court  against  R.  G.  Mayo  alone,  was  an.  extinguishment  of 
the  cause  of  action  against  appellee  as  well  as  R.  G.  Mayo. 
It  is  not  disputed  that  a  judgment  or  decree  against  one  of 
two  joint  principals  releases  the  other,  and  this  rule  appears 
to  be  fully  established  and  recognized  in  Lawrence  v. 
Beecher,  116  Ind.  312.  (19  N.  E.  R.  143.)  The  case  cited 
liolds  that  where  there  is  a  deficiency  decree  against  one  of 
several  makers  of  a  promissory  note,  and  no  disposition  of 
the  case  as  to  the  others  is  directly  made  further  than  to 
decree  that  their  equity  of  redemption  is  barred,  the  cause 
of  action  is  barred  in  a  subsequent  suit  on  the  note  against 
those  not  included  in  the  deficiency  decree.  It  would  not 
be  the  case  however  w^here  there  was  simply  a  decree  of 
foreclosure  but  a  subsequent  deficiency  decree  is  in  its  effect 
a  personal  judgment  on  the  note,  and  where  the  court  has 
jurisdiction  against  all  the  several  makers  and  only  renders 
judgment  against  one  this  extinguishes  his  cause  of  action 
against  the  others. 

The  court  also  further  holds  that  even  where  the  note  was 
joint  and  several,  and  where  each  might  be  sued  severallj'-, 
yet  where  all  are  sued  as  joint  makers  and  judgment  is  taken 
against  one,  the  other  makers  by  this  action  are  released. 
The  case  might  be  different  if  the  court  had  dismissed  the 
suit  against  those  not  sought  to  be  held  in  such  manner  as 
to  make  it  a  several  action  against  each  of  the  makers  before 
final  judgment  against  one.  In  a  case  like  the  Indiana  case, 
where  a  deficiency  judgment  was  taken  against  one  of  sev- 


630  Appellate  Coukts  of  Illinois. 

Vol.  70.]  Travelers  Ins.  Co.  v.  Mayo. 

eral  makers  of  a  promissory  note  and  no  other  disposition 
made  by  the  court  as  to  the  others,  the  cause  of  action  is 
merged  in  the  judgment  and  those  against  whom  no  judg- 
ment is  ta.ken  are  released. 

The  appellant  seeks  to  evade  the  force  of  the  rule,  cor- 
rectly announced,  as  we  think,  in  the  case  cited,  by  the  fact 
set  out  in  the  fourth  plea  that  appellee,  while  she  signed  the 
note  as  a  joint  maker,  was  in  fact  security  for  Rudolph  P. 
Mayo,  her  husband,  and  that  therefore  her  husband  might 
be  pursued  to  final  judgment  or  decree  without  releasing 
her,  though  the  court  had  jurisdiction  of  her  person  the  same 
as  that  of  her  husband. 

This  contention  is  based  on  the  supposed  ground  that  she 
was  only  secondarily  liable  and  that  the  principal,  especially 
in  equity,  should  be  pursued  to  insolvency  before  the  liabil- 
itv  of  the  suretv  should  attach,  and  therefore  she  is  not 
released  by  the  action  of  the  court  in  the  foreclosure  and 
deficiency  decree  in  the  Florida  case. 

The  fact  that  appellee  was  security  did  not  make  her  any 
the  less  liable  jointly  with  the  principal,  and  this  was  the 
position  she  occupied,  and  any  suit  at  law  brought  on  the 
note  should  have  been  against  both  jointly  and  not  against 
appellee  in  the  capacity  of  indorser  after  having  pursued  the 
principal  to  insolvency  showing  a  suit  for  that  purpose  to 
be  unavailing,  and  not  as  a  guarantor. 

She  occupied  the  position  of  principal  and  joint  maker. 
It  is  true  she  was  security  and  would  be  in  law  and  in  equity 
so  considered  in  any  equitable  defense  she  should  make.  If 
no  rights  of  appellee  as  security  had  been  violated  by  the 
payee  she  had  no  defense  and  must  answer  as  principal. 
The  following  cases  will  illustrate.  Eodgers  v.  School  Trust- 
ees, 46  III.  428;  Lincoln  v.  Hinzey,  51  111.  435. 

The  following  rule  is  laid  down  in  Lawrence  v.  Beecher, 
116  Ind.,  supra:  "  Where  a  plaintiff  voluntarily  elects  to 
take  a  personal  judgment  against  one  of  a  number  of  defend- 
ants severally  liable,  without  in  any  way  preserving  his 
rights  against  others  then  equally  liable  before  the  court, 
the  presumption  is  that  he  is  content  with  the  judgment  and 


Second  District — December  Term,  1896.  631 

McCune  v.  American  Screw  Co. 

that  his  coatentment  is  due  to  the  fact  that  he  received  at 
the  hands  of  the  court  all  the  relief  that  he  was  justly 
entitled  to  receive.  If  he  desires  to  prevent  this  result  he 
must  take  some  steps  as  he  well  may  to  counteract  this  pre- 
sumption. If  he  takes  no  such  steps,  but  elects  to  take  a 
final  judgment  against  one  of  the  defendants  and  takes  onl3'^ 
a  judgment  of  foreclosure  against  the  others,  he  can  not 
justly  complain  if  this  presumption  prevails  against  him, 
since  he  must  be  deemed  to  have  obtained  all  the  relief 
to  which  equity  and  justice  entitled  him."  The  plaintiff 
should  not  be  allowed  "  to  disturb  the  courts  and  vex  the 
parties  with  many  actions." 

If  appellee  were  security  in  this  case,  and  the  court  had 
full  jurisdiction  as  it  bad  of  her  person  and  subjecttmatter 
of  the  suit  and  that  of  the  principal,  and  entered  a  final 
deficiency  decree,  without  dismissing  the  bill  against  her 
without  prejudice  against  the  principal,  the  presumption 
would  be  that  on  account  of  her  securityship  and  some  vio- 
lation of  her  rights  by  the  appellant  as  such,  she  was 
released,  or  that  he  voluntarily  released  her. 

It  may  be  that  if  appellant  had  taken  some  secondary 
relief  in  his  decree  against  appellee,  whether  rightfully  or 
wrongfully,  she  would  have  been  bound  by  it  and  liable 
according  to  its  terms. 

But  no  such  action  was  taken.  The  finding  of  the 
Florida  court  was,  in  effect,  in  her  favor,  and  by  its  decree 
appellant  must  abide.  We  can  see  no  substantial  difference 
in  appellant's  favor,  as  claimed  by  his  counsel,  between  this 
case  and  the  Indiana  case  above  cited.  Seeing  no  error  in 
the  record,  the  judgment  of  the  court  below  is  affirmed. 


70    631 I 
170s  622 


Wm.  A.  McCiiney  Assignee^  y.  The  American  Screw  Co.    JS  ^ 

et  al. 

1.  Voluntary  Assionmbnts— ^re  Chancery  Proceedings.— A  pro- 
ceeding in  a  County  Court,  under*  the  act  relating  to  assignments  by 
insolvent  debtors,  is  not  a  purely  statutory  proceeding,  but  is  a  chan- 
cery proceediiLg,  modified  and  regulated  by  statute.    It  is  a  suit  in 


632  Appellate  Courts  of  Illinois. 

Vol.  70.]  McCune  v.  American  Screw  Ca 

chancery,  within  the  meaning  of  the  statute  relating  to  AppsUate 
Courts. 

2.  Appeals — From  the  County  Court  in  Insolvency  Proceedings, — 
An  appeal  from  a  final  order  or  decree  of  a  Ck>unt7  Court,  in  the  admin- 
istration of  an  insolvent  estate,  under  a  general  assignment  for  the 
benefit  of  creditors,  goes  to  the  Appellate  and  not  to  the  Circuit  Court. 

8.  Same — Final  Orders. — An  order  of  a  County  Court  in  assignment 
proceedings,  which  finally  settles  the  right  to  have  certain  disputed 
assets  of  the  insolvent  charged  to  the  assignee,  is  a  final  order,  within 
the  meaning  of  the  statute  in  regard  to  appeals. 

Assigrnment  Proceed! ngs.— Appeal  from  the  Circuit  Court  of  White- 
side County;  the  Hon.  J.  C.  Garver,  Judge,  presiding.  Heard  in  this 
court  at  the  December  term,  18d6.    Affirmed.    Opinion  filed  July  1, 

1897. 

0.  L.  Sheldon,  attorney  for  appellant 
John  W.  Alexander,  attorney  for  appellees. 

Mb.  Justice  Laoey  delivered  the  opinion  of  the  Court. 

This  was  an  appeal  from  the  County  Court  to  the  Cii'cuit 
Court  from  an  order  of  the  County  Court  sustaining  certain 
objections  to  the  final  report  of  appellant  as  assignee,  under 
the  insolvent  debtor's  act,  of  the  Novelty  Manufacturing  Co., 
made  by  the  appellee  a  creditor  of  the  insolvent. 

On  March  6,  1896,  the  court,  after  sustaining  certain 
objections  made  by  appellee  to  the  final  report  of  the 
appellant,  ordered  the  latter  to  file  another  report  under 
oath  charging  himself  with  various  items  stated. 

From  this  order  the  appellant  prayed  an  appeal  to  the 
Circuit  Court  of  Whiteside  County,  which  was  allowed  and 
perfected.  On  motion  of  appellee  made  in  the  Circuit  Court 
to  dismiss  the  appeal  the  same  was  dismissed  by  the  court. 
The  ground  on  which  the  appeal  was  dismissed  was,  that  it 
was  not  properly  taken  to  the  Circuit  Court  but  should 
have  been  taken  directly  to  the  Appellate  Court. 

From  this  order  of  dismissal  this  appeal  is  taken  to  this 
court,  and  a  reversal  of  the  order  of  the  Circuit  Court  dis- 
missing such  appeal  from  the  County  Court  asked. 

The  question  is  presented  whether  or  not  an  appeal  lies 


Second  DisTRrcr — December  Term,  1896.  633 

McCune  v.  American  Screw  Co. 

from  an  order  of  the  County  Court  to  the  Circuit  Court  in 
charging  an  assignee  on  hearing  of  his  final  report  with 
moneys  he  claims  he  should  not  be  charged  with,  or  must 
an  appeal  be  taken  to  the  Appellate  Court  in  the  first 
instance. 

It  is  conceded  that  if  this  proceeding  is  in  its  nature  a 
chancery  procaading  in  the  County  Court,  then  under  Sec. 
8,  Chap.  37,  R.  S.,  the  appeal  lies  directly  to  the  Appellate 
Court,  provided  the  order  appealed  from  was  a  final  order. 
We  are  of  opinion  the  order  of  the  County  Court  was  a 
final  order.  It  settled  finally  the  right  to  have  certain  dis- 
puted assets  of  the  insolvent  charged  up  against  appellant 
the  assignee,  and  as  to  them  the  order  was  final. 

As  to  whether  this  was  a  chancery  proceeding,  we  think 
the  question  well  settled  by  the  Supreme  Court  in  the  fol-. 
lowing  cases,  which  we  refer  to  for  a  full  exposition  of  the 
law  on  the  point  in  question,  to  wit :  Union  Trust  Com- 
pany V.  Trumbull  et  al.,  137  111.  156;  Lee  v.  People  ex  rel., 
140*^111.  536;  Levy  v.  Chicago  National  Bank,  158  111.  88. 

In  the  latter  case  it  was  expressly  held  that  a  voluntary 
assignment  for  the  benefit  of  creditors  at  common  law  cre- 
ated a  trust  in  the  assignee  and  was  a  subject  of  equitable 
jurisdiction,  and  that  "  the  trust  in  behalf  of  creditors  by 
virtue  of  a  voluntary  assignment  is  no  less  a  subject  of 
equitable  cognizance  since  the  enactment  of  this  statute 
than  it  was  before  its  enactment,  and  hence,  if  no  tribunal 
had  been  named  for  the  enforcement  of  the  provisions  of 
this  statute  it  would  have  devolved  upon  a  court  of  chan- 
cery to  do  so.  The  proceeding  is  not  a  statutory  proceed- 
ing but  a  chancery  proceeding  modified  and  regulated  by 

statute." 

The  court  further  held  that  the  fact  that  the  statute  con- 

fered  jurisdiction  on  the  County  Court  to  administer  the 

subject-matter  of  the  assignment  did  not  change  the  nature 

of  the  proceeding,  but  that  it  remained  a  chancery  suit  in 

the  County  Court. 

We  regard  the  question  fully  settled  by  the  above  cases,  and 

it  is  not  necessary  that  the  proceedings  in  the  County  Court, 


634  Appellate  Courts  of  Illinois. 

Vol.  70.]  The  People  v.  Johnson. 

as  to  pleadings,  should  conform  to  those  in  chancery  to 
make  this  a  chancery  proceeding,  as  supposed  by  appellant's 
counsel. 

It  is  enough  if  the  County  Court,  according  to  the  prac- 
tice in  that  court,  is  exercising  equity  jurisdiction. 

The  case  of  Grier  v.  Cable,  159  111.  32,  is  not  in  point,  as 
that  was  a  case  of  the  presentation  and  allowance  of  claims 
against  an  insolvent  estate,  and  was  purely  a  statutory 
proceeding. 

The  order  appealed  from  was  one  settling  the  rights  of 
creditors  in  a  final  report  of  the  assignee,  and  was  in  the 
nature  of  a  final  decree  in  chancery  against  tbe  assignee  as 
to  how  much  he  should  be  required  to  pay  the  creditors  and 
how  much  he  owed  the  estate  of  the  insolvent,  and  was  as 
much  of  a  proceeding  in  chancery  as  any  part  of  the  pro- 
ceeding and  was  in  its  nature  final  on  that  question. 

As  all  orders  made  by  the  County  Court  in  its  administra- 
tion of  the  insolvent's  estate  would  be  in  the  exercise  of  its 
chancery  jurisdiction,  even  interlocutory  orders  could  not 
be  appealed  from  to  the  Circuit  Court.  Seeing  no  error  in 
the  record,  the  order  of  the  Circuit  Court  dismissing  the 
appeal  is  affirmed. 


The  People  of  the  State  of  Illinois  ex  rel.  Sarah 

Sullivan  v.  Jesse  Johnson. 

1.  Evidence — Opiniona  as  to  Period  of  Gestation  in  Bastardy  Cases. — 
In  a  bastardy  case,  turning  upon  the  question  whether  a  child  had  seen 
the  full,  or  natural  period  of  gestation,  a  physician  professing  to  be 
informed  on  the  subject  may  be  allowed  to  give  his  opinion  on  the  ques- 
tion involved,  the  opinion  being  based  on  the  appearance  of  the  child  at 
the  age  of  thirteen  months. 

2.  Same  —  Foundation  for  Hypothetical  Questions.— "Whe^er  the 
expert  evidence  introduced  establishes  the  facts  upon  which  hypo- 
thetical questions  are  based,  is  for  the  jury,  and  if  it  tends  to  do  so,  it  is 
proper  to  allow  the  questions  to  be  asked. 

8.  Same— A«  to  Length  of  Period  of  Gestation  in  Bastardy  Cases.— 
In  a  bastardy  case,  turning  upon  the  question  whether  more  than  seven 


Second  Distbiot — December  Term,  1896.  635 

The  People  v.  Johnson. 

monthft  had  elapsed  between  the  act  of  connection  and  the  birth  of  the 
child,  an  expert  witness  may  be  allowed  to  testify  that  in  case  the  child 
in  question  had  been  a  seven  months*  child,  and  had  been  treated  at  its 
birth  in  the  manner  the  evidence  showed,  the  chances  for  its  survival 
would  have  been  small. 

4.  Error — As  to  Admission  of  Evidence  as  Ground  for  BeversaJ. — 
Where  the  great  preponderance  of  the  evidence  was  in  favor  of  the 
appellee,  a  slight  error  in  the  admission  or  rejection  of  evidence  is  not 
sufficient  cause  for  a  reversal  of  the  judgment. 

Bastard j.—Appeal  from  the  County  Court  of  La  Salle  County:  the 
Hon.  Henry  W.  Johnson,  Judge,  presiding.    Heard  in  this  court  at  the 
,  December  term,  1896.    Affirmed.    Opinion  filed  July  1, 1897. 

Y.  J.  Duncan,  State's  attornej^  and  Hall  &  Haight,  at- 
torneys for  appellants. 

"  Medical  men,  when  called  as  scientific  witnesses,  can 
not  give  their  opinion  as  to  the  merits  of  the  cause,  but 
their  opinions  must  be  predicated  upon  facts  proved."  Pyle 
et  al.  V.  Pyle  et  al..  Vol.  41  Northeastern  Reporter,  999; 
Chicago  &  Alton  Ry.  Co.  et  al.  v.  The  Springfield  &  N.  W. 
Ry.  Co.,  67  111.  142;  C,  R.  L  &  P.  Ry.  Co.  v.  Moffitt,  75 
111.  5'24,  Sec.  1;  Greenleaf  on  Evidence,  Sec.  440;  Louisville, 
New  Albany  &  Chicago  Ry.  Co.  v.  Shires,  Adra.,  108  111. 
617;  Schneider  et  al.  v.  Manning  et  al.,  121  111.  376;  Henry 
v.  Hall,  13  111.  App.  343;  Hoerner  v.  Koch  et  al.,  84  111. 
408. 

Trainob  &  Browne,  attorneys  for  appellee. 

"  On  questions  of  science,  skill  or  trade,  or  others  of  the 
like  kind,  persons  of  skill,  sometimes  called  experts,  may 
not  only  testify  to  facts,  but  are  permitted  to  give  their 
opinions  in  evidence.  Thus,  the  opinions  of  medical  men 
are  constantlv  admitted  as  to  the  cause  of  disease,  or  of 
death,  or  the  consequence  of  wounds,  and  as  to  the  sane  or 
insane  state  of  a  person's  mind,  as  collected  from  a  number 
of  circumstances  of  professional  skill,  and  such  opinions  are 
admissible  in  evidence,  though  the  witness  founds  them,  not 
on  his  own  personal  observation,  but  on  the  case  itself,  as 
proved  by  other  witnesses  on  the  trial."     1  Greenleaf  on 


636  Appellate  C!ourts  of  Illinois. 

Vol.  70.]  The  People  v.  Johnson. 

Evidence,  Sec.  440;  Starkie's  Evidence,  164;  Schneider  et  al. 
V.  Manning  et  al.,  121  111.  387;  O.  &  M.  Ky.  Co.  v.  Webb, 
142  111.  404;  O.  &  M.  Ky.  Co.  v.  Neutzel,  143  111.  46;  Natl. 
G.  &  F.  Co.  V.  Miethke,  35  111.  App.  629. 

The  party  seeking  an  opinion  of  an  effect,  may,  within 
reasonable  limits,  put  his  case  hypothetically  as  he  claims 
it  to  have  been  proved,  and  take  the  opinion  of  the  witness 
therein,  leaving  the  jury  to  determine  whether  the  case  as 
put  is  the  one  proved.  Am.  &  Eng.  Ency.  of  L.,  Vol.  7, 
p.  614,  citing  long  line  of  State  decisions;  McFall  v.  Smith, 
32  111.  App.  472. 

"  The  claim  is  that  a  hypothetical  question  may  not  be 
put  to  an  expert,  unless  it  states  the  facts  as  they  exist.  It 
is  manifest,  if  this  is  the  rule,  that  in  a  trial  where  there  is 
a  dispute  as  to  the  facts,  which  can  be  settled  only  by  the 
jury,  there  would  be  no  room  for  a  hypothetical  question. 
The  very  meaning  of  the  word  "  (hypothetical)  "  is  that  it 
supposes,  assumes  something  for  the  time  being.  Each 
side,  in  an  issue  of  facts,  has  its  theory  of  what  is  the  true 
state  of  facts,  and  assumes  that  it  can  prove  it  to  be  so  to 
the  satisfaction  of  the  jury,  and  so  assunriing  shapes  hypo- 
thetical questions  to  experts  accordingly."  Cowley  v. 
People,  83  N.  Y.  464;  Erickson  v.  Smith,  2  Abb.  App.  Dec. 
(N.  Y.)  64;  People  v.  Lake,  12  N.  Y.  368;  Seymour  V.  Pel- 
lows,  77  N.  Y.  178;  Guiterman  v.  Liverpool  Oo.  N.  Y.  &  P. 
S.,Co.,  83  N.  Y.  359,  364. 

Mr.  Justice  Lacey  delivered  the  opinion  of  the  Court 

This  was  an  action  at  the  complaint  of  Sarah  E.  Sullivan, 
an  unmarried  woman,  charging  appellee  Jesse  Johnson  with 
being  the  father  of  her  bastard  child. 

The  parents  of  the  parties  were  farmers,  living  in  Allen 
township,  LaSalle  county,  Illinois,  and  were  Norwegians. 

The  case  of  the  apj^ellant  rests  upon  her  unsupported 
evidence  as  to  the  act  of  copulation  between  her  and  appel- 
lee, vrhich  she  claims  caused  her  pregnancy,  and,  as  she  testi- 
fied, took  place  on  the  night  of  July  21,  A.  D.  1894,  at  the 
home  of  one  of  their  neighbors,  named  Hegaland,  where 


Second  Distkict — December  Term,  1896.  637 


The  People  v.  Johnson. 


appellee  and  Miss  Sullivan  were  guests.  The  child  was 
born  February  24,  1895,  and  it  is  claimed  by  appellant  that 
the  pregnancy  took  place  on  the  21st  July,  1894,  as  a 
result  of  the  act  of  copulation,  said  to  have  taken  place  at 
the  time  alleged. 

It  is  also  claimed  that  one  other  act  of  sexual  intercourse 
took  place  between  Sarah  E.  Sullivan  and  appellee  in  Octo- 
ber, 1894,  at  the  complaining  witness'  father's  residence,  in 
the  barn. 

These  are  the  only  two  acts  of  sexual  intercourse  that 
ever  took  place  between  them,  according  to  the  testimony 
of  the  complaining  witness.  ^ 

The  case  of  appellant  rests  entirely  on  the  unsupported 
evidence  of  Sarah  E.  Sullivan,  and  is  contradicted  by  the 
evidence  of  appellee,  who  testified  that  he  never  had  had 
sexual  intercourse  with  her  at  any  time,  or  with  any  other 
woman,  and  had  never  made  any  propositions  or  advances 
to  her  with  that  end  in  view.  Appellee  was  about  twenty- 
two  years  old  at  the  time  and  the  complaining  witness 
about  thirty  years  old. 

Prior  to  the  fifth  day  of  July,  1894,  the  complaining  wit- 
ness had  been  residing  in  Minnesota  with  relatives  for  some 
six  months,  and  had  then  returned  to  her  father's  home  in 
La  Salle  county,  Illinois. 

The  appellee  was  corroborated  by  the  facts  and  circum- 
stances shown  in  evidence  and  by  the  evidence  of  medical 
experts,  tending  to  show  that  from  the  testimony  given  and 
the  appearance  of  the  child  at  the  birth,  as  testified  to  by 
the  attending  physician,  it  had  seen  the  full  period  of  285 
days,  the  natural  period  of  gestation,  and  could  not  have 
been  born  218  days  from  the  period  of  conception,  which  it 
must  have  been,  if  the  complaining  witness'  testimony  was 

true. 

There  was  other  evidence  corroborating  appellee's  testi- 
mony, in  whose  favor  the  jury  returned  a  verdict,  finding 
appellee  not  to  be  the  father  of  the  child. 

The  evidence  was  abundant  to  sustain  the  verdict  of  the 
jury,  and  it  is  not  even  insisted  by  counsel  for  appellant 
that  the  verdict  was  against  the  weight  of  the  evidence. 


638  Appellate  Courts  op  Illinois. 

Vol.  70.]  .    The  People  v.  Johnson. 

It  is  complained  that  the  court  below  erred  in  admitting 
certain  evidence  of  experts  on  the  question  as  to  whether 
the  child  was  a  nine  months'  child  or  the  reverse. 

And  one  of  the  points  is  that  Dr.  Hathaway  was  allowed 
to  testify  as  to  whether  the  child  was  in  his  opinion  a  nine 
months'  uterine  child,  or  about  that  old  at  the  time  of  its 
birth;  this  judgment  being  based  on  the  appearance  of  the 
child  as  he  saw  it  running  about  in  the  court  room.  The 
child  was  not  introduced  in  evidence  before  the  jury  and 
we  see  no  reason  why  the  doctor  could  not  be  allowed  to  tes- 
tify as  to  his  opinion,  judging  from  the  development  of  the 
child  at  the  time,  as  he  professed  to  be  able  to  do.  The 
child  was  then  thirteen  months  old. 

It  is  complained  that  other  of  the  expert  testimony  as  to 
the  period  of  gestation  of  the  child  was  not  based  on  the 
evidence. 

In  answer  to  this  objection  we  may  say  that  appellee 
insisted  that  the  expert  evidence  tended  to  establish  the  facts 
upon  which  the  hypothetical  questions  were  based,  and 
whether  it  did  so  or  not  was  a  proper  question  for  the  jury. 
It  was  proper  therefore  for  the  court  to  allow  the  questions 
to  be  propounded  by  appellee's  counsel  to  the  witnesses, 
taking  care  not  to  allow  the  questions  to  be  so  framed  as  to 
mislead  the  jury. 

It  is  also  objected  that  an  expert  witness  was  allowed  to 
testify,  in  substance,  that  in  case  the  child  in  question  had 
been  a  seven  months'  child  and  had  been  treated  in  the  same 
manner  as  the  evidence  tended  to  show  this  one  was  cared 
for  at  its  birth,  the  chances  of  its  survival  would  have  been 
greatly  against  it.  The  object  of  this  testimony  was  to  show 
this  fact  bearing  on  the  disputed  question  as  to  whether  the 
child  was  a  nine  months'  child,  as  claimed  by  appellee,  and 
hence  he  is  not  guilty. 

We  see  no  reversible  error  in  this  ruling  of  the  court. 

In  view  of  the  fact  that  the  great  preponderance  of  the 
evidence  was  in  favor  of  the  appellee,  no  slight  error  of  the 
court,  if  any  were  made  in  the  admission  or  rejection  of 
evidence,  would  be  sufficient  cause  for  reversal 


Second  Di8tru;t — December  Term,  1896.  639 

David  Bradley  Mfg.  Co.  v.  Raynor. 


Some  complaint  is  made  as  to  the  giving  and  refusing  of 
instructions,  but  after  a  careful  examination  we  are  of  the 
opinion  that  the  jury  was  fairly  and  properly  instructed  and 
could  not  have  been  misled. 

The  judgment  of  the  court  below  is  therefore  affirmed. 


David  Bradley  Manufacturing  Company  v.  Lansing  J. 

Baynor^  Beceiver. 

1.  Contracts — Whether  Sales  or  Bailments. — A  contract  provided 
that  the  consignee  should  pay  for  goods  to  be  delivered  **  as  per  prices 
and  terms  annexed  to  said  goods,'^  and  that  the  consignor  should  carry 
**  all  goods  remaining  unsold.*'  Held,  that  the  contract  was  a  sale  and 
not  a  bailment. 

2.  Same — Whether  Sales  or  Bailments — The  Riile  Stated, — ^Where 
there  is  no  obligation  to  return  an  article,  the  party  receiving  it  being 
at  liberty  to  return  another  thing  of  equal  value,  he  becomes  a  debtor  to 
make  a  return,  and  the  title  to  the  property  is  changed— it  is  a  sale. 

Petition,  in  assignment  proceeding.  Appeal  from  the  Circuit  Court 
of  Will  County;  the  Hon.  Dorrancb  Dibell,  Judge,  presiding.  Heard 
in  this  court  at  the  December  term,  1896.  Affirmed.  Opinion  filed 
July  1, 18»7. 

Egbert  Phelps,  attorney  for  appellant. 
George  8.  House,  attorney  for  appellee. 

Mr.  Justicb  Lacey  delivered  the  opinion  of  the  Court. 

The  appellant  intervened  by  petition  to  compel  appellee 
as  receiver  of  the  Joliet  Strowbridge  Company  to  turn  over 
to  it  certain  farming  implements  held  by  it,  claiming  that 
the  goods  in  question  were  put  into  the  possession  of  the 
insolvent  Joliet  Strowbridge  Company  before  insolvency  and 
while  it  was  conducting  a  retail  business  in  farm  implements 
as  its  agent,  for  sale,  and  not  as  purchaser;  that  the  Joliet 
Strowbridge  Company,  as  to  the  goods  in  question,  was  the 
bailee  of  appellant,  and  that  the  title  to  the  goods  remained 


640  Appellate  Courts  of  Illinois. 

Vol.  70.]  David  Bradley-  Mfg.  Co.  v.  Raynor. 

in  the  appellant  and  was  not  in  the  consignee,  which  after- 
ward became  insolvent,  and  was  put  in  the  hands  of  appellee 
as  receiver  by  order  of  the  Circuit  Court  in  chancery. 

The  amount  of  the  goods  in  the  aggregate  claimed  is 
$1,115.70. 

The  decision  of  the  case  hinges  on  the  proper  construction 
of  two  contracts  between  the  appellant  and  the  said  Joliet 
Strowbridge  Company  of  1894  and  1895,  and  proof  that 
settlements  were  never  made  unless  the  goods  were  sold. 

The  proof  produced  by  the  appellant  fails  to  show  under 
which  contract,  the  one  of  1894:  or  1895,  the  goods  were  de- 
livered to  the  Joliet  Strowbridge  Company.  They  were 
delivered  under  one  or  both,  and  as  the  burden  of  proof  was 
on  appellant  if  there  was  any  difference,  it  must  be  assumed 
that  the  goods  were  delivered  under  the  one  of  1895,  which 
it  is  conceded  was  most  unfavorable  to  the  appellant. 

The  first  contract,  dated  October  9,  1894,  is  in  the  form 
of  an  order  from  the  Joliet  Strowbridge  Company,  directed 
to  appellant,  in  which  goods  are  ordered  to  be  shipped  to  it 
at  Joliet,  111.,  subject  to  the  conditions  as  named  on  the  next 
page  of  the  order,  and  for  which  the  said  consignee  agreed 
"  to  pay  as  per  price  and  terms  annexed  to  said  goods,  for 
all  goods  sold."  According  to  conditions  the  Joliet  Strow- 
bridge Company  was  to  pay  the  freight,  and  to  stand,  all 
breakage. 

The  second  contract,  of  October  12, 1895,  provided  that 
the  consignee  should  pay  for  the  goods  '^  as  per  prices  and 
terms  annexed  to  said  goods;"  and  a  memorandum  was 
attached,  by  which  the  appellants  were  to  carry  *'all  goods 
remaining  unsold." 

It  seems  to  us  that  the  transaction  amounted  to  a  sale  of 
the  goods  to  the  Joliet  Strowbridge  Company,  or  at  least 
it  had  an  option  to  pay  for  the  goods  and  retain  them. 

It  was  an  absolute  sale,  so  far  as  the  appellant  was  con- 
cerned. 

There  was  no  agreement  on  the  part  of  the  Joliet  Strow- 
bridge Company  to  return  the  goods  to  appellant,  or  that 
it  should  retain  any  property  interest  in  them,  and  any 


Second  District — December  Term,  1896.  641 

People  V.  Welsh. 

shortage  was  not  to  be  allowed  to  the  purchaser,  and  the 
goods  were  held  and  sold  as  the  consignee  saw  proper 
without  restriction,  and  were  regarded  and  treated  as  the 
property  of  the  purchaser,  and  settled  for  accordingly. 

It  is  in  principle  the  same  as  a  case  of  "  sale  or  return," 
leaving  it  optional  with  the  purchaser  and  creditor  to  be 
extended  until  sale.  We  refer  to  the  following  cases,  as 
establishing  the  doctrine  that  where  "  the  receiver  is  at 
liberty  to  return  another  thing  of  equal  value  or  the  money 
value,  he  becomes  a  debtor  to  make  the  return,  and  the 
title  to  the  property  is  changed — ^it  is  a  sale."  Lonergan  v. 
Stewart,  55  111.  49;  Eichardson  v.  Olmstead,  74  111.  213; 
Chickering  v.  Bastress,  130  111.  214;  Lenz  v.  Harrison,  148 
111.  598. 

We  are  of  the  opinion  that  the  decree  of  the  Circuit  Court 
was  right,  refusing  the  relief  sought  by  appellants,  and  it 
is  therefore  affirmed. 


People,  etc.5  ex  rel.  Nancy  8.  Tilden  et  al.  v.  John  M. 
Welsh  et  al..  Trustees  of  Schools. 

1.  Elections — Women  Can  Not  Vote  Upon  a  Proposition  to  Estab- 
lish a  Township  High  School. — ^The  act  of  1891,  giving  to  women  the 
right  **  to  vote  at  any  election  held  for  the  purpose  of  choosing  any  officer 
under  the  general  or  special  school  laws  of  this  State,'*  only  confers 
upon  women  the  right  to  vote  for  *'  any  officer  under  the  general  school 
laws/*  and  does  not  authoriase  them  to  vote  on  a  proposition  to  establish 
a  township  high  school  submitted  at  such  an  election. 

Mandamus. — Appeal  from  the  Circuit  Ck>urt  of  La  Salle  County;  the 
Hon.  Charles  Blanohard,  Judge,  presiding.  Heard  in  this  court  at 
the  December  term,  1896.    Affirmed.    Opinion  filed  July  1,  1897.    . 

F.  E.  HoBERG,  Henry  Mayo  and  John  H.  Widmer,  attor- 
neys for  appellants. 

Although  the  act  of  1891  does  not,  in  terms,  profess  to  be 
an  amendment  to  any  other  statute,  it  is  manifest  that  its 

YobLXX    41 


642  Appellate  Courts  of  Illinois. 

Vol.  70.]  People  v.  Welsh. 

necessary  effect  is  to  amend  the  general  school  law,  as 
revised  by  the  act  of  1889,  by  conferring  upon  females  the 
privilege  of  voting  at  elections  provided  for  in  that  law. 
Its  obvious  purpose  and  intent  was  to  give  to  the  women 
of  our  State  an  equal  voice  with  the  men  in  deciding  such 
elections.  One  law  mav  be  amended  bv  another  without 
any  reference  to  it.  People  v.  Wright,  70  111.  388;  Timm 
v.  Harrison,  109  111.  593;  School  Directors  v.  School  Direct- 
ors, 135  111.  464;  English  v.  City  of  Danville,  150  111.  92; 
Castner  v.  Walrod,  83  111.  171. 

And  an  amendment  of  a  statute  will  operate  precisely  as 
though  the  subject-matter  of  the  amendment  had  been 
originally  incorporated  in  the  statute  amended,  as  regards 
any  action  had  after  the  amendment  was  made.  Hoi  brook 
v.  Nichol,  36  111.  161;  English  v.  City  of  Danville,  150 
111.  92. 

In  construing  the  act  of  1889,  as  amended  by  the  act  of 
1891,  we  think  the  following  rules  are  applicable: 

The  primary  object  of  construction  is  to  ascertain  and 
give  effect  to  the  legislative  intention.  Zaresseller  v.  People, 
17  111.  104;  Soby  v.  People,  13 1  111.  66. 

A  thing  within  the  intention  is  regarded  as  within  the 
statute  though  not  within  the  letter,  and  a  thing  within  the 
letter  is  not  within  the  statute" unless  within  the  intention. 
Perry  County  v.  Jefferson  County,  94  111.  214;  People  v. 
Hoffman,  97  111.  234;  People  v.  City  of  Chicago,  152  111.  546. 

The  court  should  look  at  the  whole  act,  and  seek  to  ascer- 
tain such  intention  b}'^  an  ei^amination  and  comparison  of 
its  various  provisions.     Soby  v.  People,  134  111.  66. 

The  several  provisions  should  be  construed  together,  in 
the  light  of  the  general  objects  and  purposes  of  the  enact- 
ment, so  as  to  give  effect  to  the  main  intent,  althouorh 
thereby  particular  provisions  are  not  construed  according 
to  their  literal  meaning.  People  v.  City  of  Chicago,  152 
HI.  546. 

Courts,  in  construing  a  statute,  are  not  confined  to  the  lit- 
eral meaning  of  the  words  in  the  statute,  but  the  intention 
is  to  be  gathered  from  the  necessity  or  reason  of  the  ciuict- 


Second  District — December  Term,  1896.  643 

People  V.  Welsh. 

ment,  and  the  meaning  of  the  words  enlarged  op  restricted 
according  to  their  true  intent.  Castner  v.  Walrod,  83  111. 
171;  People  v.  Chicago,  152  111.  546. 

That  which  is  implied  is  as  much  a  part  of  the  statute  as 
that  which  is  expressed;  and  it  is  not  necessary,  in  all  cases, 
that  the  legislature  should  in  explicit  and  aflBrmative  terms 
declare  its  will  in  order  to  make  that  will  the  law.  People 
V.  Chicago,  152  111.  546;  Wood  v.  Blanchard,  19  111.  38. 

Duncan,  Hasktns  &  Panneck  and  Chables  W.  Helmig, 
attorneys  for  appellees. 

"The  presumption  is  that  the  legislature  does  not  intend 
to  change  or  modify  the  law  beyond  what  it  expressly 
declares,  either  in  express  terms  or  by  unmistakable  impli- 
cation; for  it  is  not  to  be  supposed  that  the  legislature  will 
overturn  the  established  principles  of  law  without  express- 
ing such  intention  with  irresistible  clearness."  Vol.  23,  Am. 
&  Eng.  Enc.  of  Law,  357. 

Mr.  Justice  Dibell  delivered  the  opinion  of  the  Court. 

At  the  general  election  for  township  trustee  of  schools  in 
township  33  north,  and  of  range  1,  east  of  the  third  P.  M. 
in  La  Salle  county,  a  proposition  to  establish  a  township 
high  school  was  also  submitted  to  the  voters.  Many  women 
possessing  the  legal  qualifications  entitling  them  to  vote 
for  school  officers  voted  at  said  election,  and  voted  not  only 
for  school  trustee,  as  by  law  provided,  but  also  upon  the 
proposition  to  establish  a  high  school.  The  school  trustees 
in  canvassing  the  returns,  while  counting  the  votes  of  the 
women  for  trustee,  rejected  their  votes  upon  the  question 
of  a  high  schocd.  They  declared  the  proposition  adopted, 
and  correctly  so  if  they  were  right  in  rejecting  the  votes 
thereon  cast  by  the  women;  but  if  the  women  were  legally 
entitled  to  vote  upon  that  subject,  then  the  proposition  was 
in  fact  defeated  by  their  vote.  Nancy  S.  Tilden  and  other 
women  who  voted  against  said  proposition  at  said  election 
filed  in  the  Circuit  Court  of  La  Salle  County  their  petition 
for  a  mandamus  against  said   trustees  to  compel  them  to 


644  Appellate  Courts  of  Illinois. 

Vol.  70.]  People  ▼.  Welsh. 

count  and  record  the  votes  cast  by  women  for  and  against 
establishing  a  township  high  school,  and  to  make  return  to 
the  county  superintendent  of  schools  of  the  result  adverse 
to  the  establishment  of  such  school.  The  Circuit  Court 
sustained  a  demurrer  to  the  petition  and  dismissed  it  at  the 
cost  of  the  relators.  From  that  judgment  the  relators  pros- 
ecute this  appeal. 

The  sole  question  presented  is  whether  women  are  entitled 
to  vote  upon  a  proposition  for  the  establishment  of  a  town- 
ship high  school.  The  Constitution  does  not  authorize 
women  to  vote.  The  only  electors  therein  provided  for  are 
men.  It  is  only  in  cases  where  the  Constitution  contains  no 
provision  as  to  the  mode  in  which  an  election  shall  be  held 
and  as  to  the  qualifications  of  an  elector  thereat,  that  the 
legislature  can  confer  suffrage  upon  women.  People  ex 
rel.  Ahrens  v.  English,  139  111.  622;  Plummer  v.  Yost,  144 
111.  68.  Their  authority  to  vote  in  such  cases  would  rest 
wholly  upon  legislative  enactment.  The  only  authority 
relied  upon  here  for  the  counting  of  the  ballots  in  dispute 
is  the  act  in  force  July  1,  1891,  entitled,  "An  act  to  entitle 
women  to  vote  at  any  election  held  for  the  purpose  of 
choosing  any  officer  under  the  general  or  special  school  laws 
of  this  State."  The  only  vote  embraced  within  the  title  of 
the  act,  as  we  construe  it,  is  a  vote  "  choosing  any  officer 
under  the  general  or  special  school  laws."  If  the  argument 
that  a  woman  may  vote  at  an  election  of  school  officers  not 
only  for  such  oflicers  but  also  upon  everything  else  sub- 
mitted to  be  voted  upon  at  such  election,  has  any  support 
in  the  title  of  the  act,  which  we  think  it  has  not,  that  posi- 
tion is  excluded  by  section  two  of  the  act.  It  provides  that 
if  there  are  other  public  officers  to  be  elected  at  the  same 
time  as  school  officers,  the  ballots  offered  by  women  entitled 
to  vote  under  said  act  shall  not  contain  the  name  of  any 
person  to  be  voted  for  at  such  election  except  such  officers 
of  public  schools,  and  that  such  ballots  cast  by  women  shall 
be  deposited  in  a  separate  ballot  box,  but  canvassed  with 
other  ballots  cast  for  school  officers  at  such  election. 

The  obvious  purpose  of  the  act  was  to  permit  women  to 


Second  District — December  Term,  1896.   645 

Brennan  v.  Kinsley. 

vote  for  school  oflBcers,  and  caution  was  used  to  prevent 
their  voting  to  fill  other  offices  which  might  be  included 
upon  the  ballots  cast  by  men  at  the  same  election.  It  is 
true  the  act  does  not  in  express  terms  forbid  women  voting 
upon  a  proposition  submitted  at  said  election,  but  neither  • 
does  it  expressly  or  by  any  fair  implication  permit  them  to 
do  so.  They  can  not  vote  upon  the  proposition  unless  they 
can  derive  their  authority  from  the  statute.  Under  the 
position  here  contended  for,  if  the  legislature  should  author- 
ize the  election  of  a  school  trustee  at  the  general  election 
when  officers,  from  presidential  electors  down  to  constables, 
are  upon  the  ballot,  while  women  could  not  vote  for  any 
other  officer  named  upon  the  ballot  except  school  trustee, 
yet  they  could  vote  upon  any  constitutional  amendment  or 
proposition  to  issue  bonds  or  create  a  debt,  which  happened 
to  be  legally  submitted  at  such  general  election.  W'e  can 
not  believe  the  legislature,  in  framing  the  act  under  consid- 
eration, intended  any  such  result.  We  are  of  opinion  the 
sole  purpose  of  the  act  was  to  permit  women  to  vote  for 
school  officers.  It  follows  that  it  was  the  duty  of  the  board 
of  trustees  to  refuse  to  count  ballots  cast  by  women  for  and 
against  the  establishment  of  a  township  high  school,  and 
that  the  judgment  of  the  Circuit  Court  sustaining  the 
demurrer  to  the  petition  for  a  mandamus,  s^nd  dismissing 
the  petition^  was  right,  and  it  is  therefore  affirmed. 


Honora  S.  Brennan  and  Jolin  8.  Cook  v.  Jeremiah  A. 

Kinsley, 

1.  Appellate  Courts-— Have  no  Jurisdiction  of  Constitutional 
Questions, — The  constitutionality  of  the  act  of  June  17,  1887,  entitled 
'*An  act  to  provide  for  appeals  from  interlocutory  orders,  granting 
injunctions  or  appointing  receivers,"  in  so  far  as  it  purports  to  allow  an 
appeal  from  an  order  overruling  a  motion  to  dissolve  an  injunction 
is  fairly  subject  to  question;  and  an  appeal  from  such  an  order  should 
go  to  the  Supreme  Court,  as  this  couit  has  no  power  to  pass  on  the 
validity  of  a  statute. 


646  Appellate  Courts  of  Illinois. 

Vol.  70.]  Le  Fevere  v.  Watson. 

Injanctioii.— Motion  to  dissolve.  Appeal  from  the  Circuit  Ck)urt  of 
Will  County;  the  Hon.  Dorrancb  Dibell,  Judge,  presiding.  Heard  in 
this  court  at  the  December  term,  1806.  Appeal  dismissed.  Opinion 
aied  July  1. 1897. 

H.  T.  &  L.  Helm,  attorneys  for  apiDellants. 

Bekj.  Olin  and  Merrill  Spragde,  attorneys  for  appellee. 

Mr.  Justice  Wright  delivered  the  opinion  of  the 
Court. 

The  appellants  appeal  to  this  court  from  an  order  of  the 
Circuit  Court  refusing  their  motion  to  dissolve  the  injunc- 
tion issued  in  the  case.  Appellee  has  moved  this  court  to 
dismiss  the  appeal,  and  for  cause  urges  that  the  statute  of 
June  14,  18S7,  in  force  July  1, 1887  (3  Starr  &  Curtiss,  3171), 
entitled,  "  An  act  to  provide  for  appeals  from  interlocutory 
orders  granting  injunctions  or  appointing  receivers,"  in  so 
far  as  it  purports  to  allow  an  appeal  from  an  order  overrul- 
ing a  motion  to  dissolve  an  injunction,  violates  Sec,  IS, 
Art.  4  of  the  Constitution,  because  the  subject  of  overruling 
motions  to  dissolve  injunctions  is  not  expressed  in  the  title 
of  the  act.  We  think  the  question  of  the  validity  of  the 
statute  in  the  respect  specified  fairly  arises,  and  if  that  is 
true  as  we  think  it  clearly  follows,  the  appeal  should  have 
been  taken  directly  to  the  Supreme  Court,  we  being  pro- 
hibited by  the  statute  from  passing  upon  a  question  of  that 
nature.  The  Appellate  Court  of  the  First  District  have 
decided  this  question  in  the  same  way.  Taylor  v.  Kirby, 
31  App.  658;  Henkleman  v.  Peterson,  40  App.  640;  Chicago 
V.  Beck,  44  App.  47;  Black  Diamond  Co.  v.  Waterloo,  62 
App.  206. 

The  appeal  will  therefore  be  dismissed. 


70  ~    6461 
107     2806 


M.  E.  Le  Fevere  v.  John  Q.  Watson  et  al. 

1.  Practicb — BUls  of  Exceptions,— The  action  of  the  court  in  over- 
ruling a  motion  to  quash  a  writ  of  certiorari  can  only  be  brought  to  the 
notice  of  the  Appellate  Ck)urt  by  a  biU  of  exceptions.  Recitals  by  the 
clerk  in  the  record  are  not  sufficient. 


Second  District — December  Term,  189G.   647 

Le  Fevere  v.  Watson. 

2.  Appellate  Coubt  Practice —  When  no  Bill  of  Eocceptions  is  Filed, 
— When  alleged  errors  can  not  be  considered  because  no  bill  of  excep- 
tions is  filed,  the  proper  practice  is  to  afl^-m  the  judgment  rather  than 
to  dismiss  the  appeal  or  writ  of  error. 

Transcript,  from  a  justice  of  the  peace.  Appeal  from  the  County- 
Court  of  Peoria  County;  the  Hon.  Robert  H.  Lovett,  Judge,  presiding. 
Heard  in  this  c6m*t  at  the  December  term,  1896.  Affiimed.  Opinion 
filed  July  9, 1897. 

Charles  A.  Kimmel,  attorney  for  plaintiff  in  error. 
Dan  R.  Sheen,  attorney  for  defendants  in  error. 

Opinion  per  Curiam. 

Plaintiff  in  error  sued  defendants  in  error  before  a  ius- 
tice  of  the  peace  and  recovered  judgment.  Having  failed 
to  appeal,  they  petitioned  the  County  Court  for  a  writ  of 
certiorari  under  the  statute,  which  W8.s  allowed,  and  the 
case  brought  into  that  court,  where  a  trial  was  had  by  a 
jury  and  a  verdict  rendered  for  defendants  in  error,  upon 
which  the  court  rendered  judgment  against  plaintiff  in 
error  for  the  costs  of  suit.  He  brings  the  case  to  this  court 
on  a  writ  of  error,  and  assigns  for  error :  1,  that  the 
court  erred  in  overruling  plaintiff's  motion  to  quash  the 
writ  of  certiorari  and  dismiss  the  appeal,  and  2,  that  the 
court  erred  in  rendering  judgment  for  the  defendants,  and 
that  the  judgment  should  have  been  for  the  plaintiff. 

In  order  to  have  preserved  these  questions  for  the 
consideration  of  this  court,  the  plaintiff  in  error  should 
have  saved  them  in  a  bill  of  exceptions,  as  otherwise  there 
is  nothing  in  the  record  for  use  to  pass  upon.  There  is  no 
bill  of  exceptions  in  the  record.  The  clerk  has  improperly 
inserted  in  the  record  what  purports  to  be  a  motion  to 
quash  the  writ  of  certiorari,  and  also  a  motion  for  a  new 
trial,  but  this  action  of  the  clerk  does  not  make  these 
alleged  motions  a  part  of  the  record.  In  the  case  of  Hersey 
V.  Schaedel,  6  111.  App.  188,  it  was  held  that  the  action  of  the 
court  in  overruling  a  motion  to  quash  a  writ  of  certiorari 
can  only  be  brought  to  the  notice  of  the  Appellate  Court 


648  Appellate  Coubts  op  Illinois. 

Vol,  70.]  Le  Fevere  v.  Watson. 

by  a  bill  of  excjeptions,  and  that  recitals  by  the  clerk  in  the 
record  are  not  sufficient. 

We  think  the  rule  is  established  by  numerous  decisions 
in  this  State,  that  motions  of  this  character  and  the  action 
of  the  court  thereon  can  only  be  preserved  for  the  consider- 
ation of  Appellate  Courts  by  bill  of  exceptions.  Lusk  v. 
Parsons,  39  111.  App.  3S0;  Bernett  v.  Baird,  67  111.  App. 
422;  Hughes  v.  Richter,  60  Id.  616;  Gould  v.  Howe,  127 
111.  251;  (1,  R.  I.  &  P.  R.  R.  Co.  v.  Town  of  Calumet,  151 
111.  515;  Bank  of  Lawrence  Co.  v.  LeMoyne,  127  111.  253. 

Many  other  cases  mio^ht  be  cited  to  the  same  effect  but  we 
deem  it  unnecessary.  The  defendants  in  error  have  entered 
a  motion  to  dismiss  the  writ  of  error  because  the  record 
contains  no  bill  of  exceptions  upon  which  the  alleged  errors 
can  properly  be  assigned,  but  we  think  the  proper  practice 
is  to  affirm  the  judgment  for  the  reasons  above  given  which 
will  accordingly  be  done.    Judgment  affirmed. 


CASES 


IH  THI 


APPELLATE  COURTS  OF  ILLINOIS. 


First  District — March  Term,  1897. 


Samuel  Franklin  y.  Iretns  B.  Krnm  and  J.  Fraser. 

1.  Continuances — Amendments  as  Ground  For.— The  court  holds 
that  the  amendment  to  the  declaration  in  this  case  did  not  materially 
change  the  nature  of  the  action;  that  it  was  such  that  defendant  could 
not  have  been  injured  thereby,  and  that  it  furnished  no  ground  for  con- 
tinuance. 

2.  Contracts — Readiness  to  Perform,— A  contracted  to  deliver  to  B 
a  certain  quantity  of  lumber  at  such  time  before  a  specified  date,  as 
might  suit  the  convenience  of  B.  After  receiving  part  of  the  lumber  B 
refiised  to  accept  the  remainder.  Held,  that  it  was  not  essential  to  a 
recovery  that  A  should  have  had  all  the  lumber  on  hand  ready  for 
delivery  from  the  date  of  the  contract  to  the  time  of  B*s  refusal  to  per- 
form on  his  part,  but  that  it  was  sufficient  if  A  had  and  was  ready  to 
deliver  the  lumber  whenever  B  wished  for  it. 

8.  Sales—  When  Tender  of  Goods  Sold  is  Unnecessary. — If  the  vendee 
in  a  contract  of  sale  for  future  delivery  notifies  the  vendor  that  he  will 
not  receive  the  goods,  the  vendor  is  thereby  absolved  from  any  obliga- 
tion that  he  might  otherwise  have  been  under  to  make  a  tender. 

Assnmpslt,  on  a  contract  of  sale.  Appeal  from  the  Superior  Court  of 
Cook  County;  the  Hon.  Arthur  H.  Chetlain,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed  Jime 
14,  1897. 

Statement  of  the  Case. 

This  record  brings  for  review  a  judgment  for  $1,500, 
entered  against  the  appellant  for  damages  alleged  to  have 

(049) 


70    6491 
1718  378 


G5()  Appellate  Courts  of  Illixots. 

Vol.  70.]  Franklin  v.  Krum. 

been  sustained  by  appellant's  refusal  to  accept  900,000  feet 
of  lumber  under  a  written  contract  made  between  him  and 
appellees. 

Appellant,  at  the  time  that  the  contract  in  question  was 
entered  into,  was  engaged  in  the  manufacture  of  moldings 
and  picture  frames  in  Chicago,  and  was  an  extensive  user 
of  lumber  in  that  business.  It  appears  that  only  dry  lum- 
ber could  be  used  in  the  manufacture  of  moldings  and 
picture  frames,  and  that  winter-sawed  lumber  was  more 
nearly  fit  for  such  purpose  than  any  other. 

That  there  was  a  refusal  to  accept  lumber  from  appellees 
under  the  contract  sued  upon,  is  conceded.  There  is  a  differ- 
ence between  the  parties  as  to  the  cause  of  the  refusal. 
Appellant  insists  that  he  was  warranted  in  refusing  to 
to  accept  the  lumber  which  was  being  delivered  to  him  by 
appellees,  because  of  its  inferior  quality  and  because  it  was 
not  within  the  terms  of  the  contract,  the  complaint  being 
that  it  was  green  and  wet,  and  the  sizes,  and  percentages  of 
sizes,  not  in  accordance  with  the  contract.  The  appellees 
insist  that  there  was  no  cause  for  appellant's  refusal  to 
accept  the  lumber,  and  claim  that  a  fall  in  the  market  value 
of  the  lumber  and  business  depression  was  the  cause  of  this 
refusal. 

The  declaration  avers  that  the  appellees  were  ready  and 
willing  at  all  times  after  the  execution  of  the  contract, 
between  March  3,  1893,  and  November  1,  1893,  to  deliver 
the  balance  of  lumber,  and  that  appellees  repeatedly  ten- 
dered and  offered  to  deliver  the  balance  of  the  lumber  in 
quantities  and  at  times  to  suit  the  convenience  of  appellant; 
that  appellees  suffered  loss  in  the  depreciation  of  the  market 
value  of  the  lumber,  and  were  obliged  to  resell  the  balance 
of  the  lumber  at  a  large  expense. 

A  plea  of  general  issue  was  interposed  to  this  amended 
declaration.  On  the  trial,  in  the  course  of  taking  evidence, 
appellees  asked  and  obtained  leave,  over  the  objection  of 
appellant,  to  amend  this  amended  declaration.  First,  by 
increasing  the  ad  damnum.  Second,  by  striking  out  of  the 
amended  declaration  the  last  paragraph :      '^  And   were 


First  District — March  Term,  1897.       661 

Franklin  v.  Krum. 

obliged  to  sell  said  balance  of  899,500  feet  of  lumber,  at  an 
expense  in  reselling  same  of  $500."  Upon  this  latter 
amendment  being  permitted  appellant  moved  for^a  contin- 
uance on  the  ground  of  surprise,  and  tendered  his  affidavit 
in  support  of  the  motion,  but  the  court  overruled  the 
motion. 

The  jury  returned  a  verdict  of  $1,500  in  favor  of  the 
appellees,  upon  which  there  was  judgment. 

Pam  &  Donnelly,  attorneys  for  appellant. 
Smiley  &  Claek,  attorneys  for  appellees. 

Mb.  Justice  Waterman  delivered  the  opinion  of  the 
Court. 

The  declaration  originally  read  as  follows : 

"Whereby  plaintiflfs  say  they  suffered  great  loss  in  the 
depreciation  of  tl\e  market  value  of  said  899,500  feet  of  said 
lumber,  and  were  obliged  to  sell  said  balance  of  899,500 
feet  of  lumber  at  an  expense  in  reselling  same  of  five  hun- 
dred dollars,  to  the  damage  of  the  plaintiffs  of  twenty-five 
hundred  dollars,  and,  therefore,  they  bring  their  suit,"  etc. 

This  was  amended  so  as  to  read : 

"  Whereby  the  plaintiffs  say  they  suffered  great  loss  in  the 
depreciation  of  the  market  value  of  said  899,500  feet  of  said 
lumber  to  the  damage  of  the  plaintiffs  of  $3,500,  and,  there- 
fore, they  bring  their  suit,"  etc. 

Because  of  such  amendment  appellant  applied  for  a 
continuance  and  filed  an  affidavit  in  support  of  the  same. 

The  amendment  of  the  declaration  did  not  materially 
change  the  nature  of  the  action,  nor  was  it  such  that  appel- 
lant could  have  been  injured  thereby. 

Appellant  insists  that  the  court  held  that  it  was  not 
necessary  for  appellees  to  show  that  they  were  ready,  able 
and  willing  to  deliver  the  lumber  in  accordance  with  the 
terms  of  the  contract.  On  the  contrary,  the  court  instructed 
the  jury  as  follows : 

"  The  court  instructs  the  jury  that  before  the  plaintiffs 


652  Appellate  Courts  of  iLLiNOia 

Vol.  70.]  Franklin  v.  Krum. 

can  recover  herein  they  must  show  that  they  were  ready, 
able  and  willing  to  perform  their  part  of  the  contract  in 
accordance  with  the  terms  thereof,  and  if  you  find  from  the 
evidence  that  the  plaintiffs  were  unable  to  perform  the 
contract,  in  so  far  as  it  was  by  them  to  be  performed,  in 
accordance  with  the  terms  thereof,  then  the  plaintiffs  can 
not  recover,  and  your  verdict  herein  should  be  for  the 
defendant." 

Apparently  from  the  course  of  the  trial,  it  seems  that 
appellant's  contention  was  that  from  the  making  of  this 
contract  to  the  refusal  of  appellant  to  carry  out  the  same,  it 
was  obligatory  upon  appellees  to  have  had  all  the  lumber 
on  hand  ready  for  delivery.  Such  is  not  the  law.  It  was 
sufiELcient  for  the  purposes  of  the  contract  if  appellees  had 
and  were  ready  to  deliver  the  lumber^whenever  appellant 
wished  for  it. 

Nor  did  the  averment  in  the  plaintiff's  declaration,  that 
from  the  execution  of  the  contract,  March  3,  1893,  to  the 
first  day  of  November,  1893,  they  had  been  ready  and  willing 
to  deliver  all  of  the  lumber,  compel  appellees  to  prove  that 
during  this  period  they  had  in  their  possesion  all  of  such 
lumber.  Nor  were  appellees,  as  is  insisted,  obliged  to  show 
that  they  tendered  to  appellant  the  lumber  described  in  the 
contract. 

On  the  8th  of  August,  1893,  appellant  sent  to  appellees 
the  following  letter : 

"  Chicago,  8—1—93. 
Krum,  Fraser  &  Co. 

Dear  Sik  :  We  can  not  understand  why,  after  you 
received  instructions  from  us  to  cease  shipping,  you  sent  this 
car  of  lumber.  Business  is  very  poor  and  the  prospects  are 
unfavorable,  and  we  do  not  want  to  buy  anything  that  we 
are  not  sure  that  we  can  pay  for.  This  car  was  delivered 
and  accepted  by  us,  but  we  would  like  the  bill  dated  August 
1st.  Do  not  ship  us  any  more  lumber  until  you  receive 
orders  to  do  so,  as  we  will  not  accept  it. 

Tours  truly, 

S.  Fbankldt.** 


First  District — March  Term,  1897.       653 

Franklin  r.  Krum. 

On  tbe  9th  day  of  the  same  month,  appellant  sent  the 
following  letter: 

«  Chicago,  8— 9— '93. 
Krum,  Fraser  &  Co.,  City. 

Gentlemen  :  After  tallying  the  last  two  cars  of  lumber, 
we  find  that  the  percentage  of  first  and  second  does  not 
exceed  35  per  cent,  while  you  contracted  and  agreed  that 
there  should  be  at  least  50  per  cent,  and  also  that  75  to  80 
per  cent  should  be  12  feet.  The  first  and  second  is  almost 
all  14  feet,  which  makes  it  of  no  more  value  to  us  than  com- 
mon. We  can  not  use  this  at  the  price,  and  hold  it  subject 
to  your  order,  and  also  we  wish  the  contract  annulled.  We 
will  not  receive  any  more  lumber  on  it.  You  have  yourself 
broken  the  contract  by  not  delivering  enough  first  and  sec- 
ond and  the  percentage  of  12  feet  as  provided  for  in  the 

same. 

Tours  truly, 

S.  Franklin.*' 

To  which  appellees,  on  the  10th  of  the  same  month,  replied, 
saying,  among  other  things  :  "  We  are  ready  to  furnish 
you  with  the  remainder  of  the  quantity  as  per  contract, 
delivering  just  what  we  agreed  to  in  respect  to  the  percent- 
age of  first  and  second  clear,  and  also  the  12  foot  lengths," 
to  which  appellant  on  the  23d  made  the  following  reply : 

«  Chicago,  8— 23— '93. 
Krum,  Fraser  &  Co.,  City. 

Dear  Sir  :  With  reference  to  your  recent  communica- 
tion, relative  to  contract  for  basswood,  we  would  like  to  see 
one  of  your  firm.  On  thing  is  certain,  we  can  not,  so  long 
as  the  present  condition  of  business  lasts,  accept  any  more 
lumber,  as  we  have  no  use  for  it,  having  now  more  stock 
than  we  will  use  all  the  next  month,  as  we  are  running  with 
but  one-third  of  our  usual  force  and  only,  on  the  average, 
three  days  to  a  week,  eight  hours  per  day.  Money  is  exceed- 
ingly tight,  collections  difficult,  and  we  will  not€ontract  any 
bills  which  we  do  not  see  our  way  to  pay  when  they  mature. 

Yours  truly, 

S.  Franklin." 


654  Appellate  Courts  of  Illinois. 

Vol.  70.]  Edson  v.  Pcnnsylvaiiia  Co. 

Appellant  afterward  saw  one  of  the  appellees,  and  told 
him  that  he  would  not  receive  any  more  lumber.  Certainly 
this  conduct  on  the  part  of  appellant  absolved  appellees 
from  any  obligation  that  they  might  otherwise  have  been 
under  to  make  a  tender  of  the  lumber. 

The  action  of  the  court  in  admitting  in  rebuttal  the  testi- 
mony of  the  witnesses  Pingle,  Manthei  and  Fraser  was 
within  its  discretion. 

Appellant  also  complains  of  the  admission  in  evidence  of 
two  of  the  letters  heretofore  mentioned.  That  the  letters 
came  from  appellant  and  were  dictated  by  him  and  forwarded 
at  his  instance,  was  abundantly  shown. 

We  do  not  think  that  the  verdict  is  against  the  weight 
of  the  evidence,  or  that  the  damages  awarded  are  excessive. 

The  jury  was  fully  and  fairly  instructed,  in  such  a  man- 
ner that  appellant  has  no  reason  to  complain  of  the  action 
of  the  court  in  this  regard.  At  his  instance  sixteen  instruc- 
tions were  given,  which  fully  covered  the  law  applicable  to 
the  case. 

The  judgment  of  the  Superior  Court  is  affirmed. 


Susan  B.  Edson  v.  The  Pennsylvania  Company. 

1 .  Common  Carriers — Liability  for  Loss  of  Baggage, — ^A  common 
carrier  is  not  exempt  from  liability  for  a  loss  of  baggage  which  takes 
place  because  of  an  act  of  God,  if  such  carrier  has  been  guilty  of  any 
previous  negligence  or  misconduct,  which  brings  the  property  in  contact 
with  the  destructive  force,  or  unnecessarily  exposes  it  thereto. 

2.  Same — Liability  of,  for  Loss  of  Baggage^Shovnng  Necessary 
Where  Loss  is  Caused  by  act  of  God.— In  a  suit  against  a  common 
carrier  for  the  value  of  lost  baggage,  an  admission  that  the  loss  was 
caused  by  an  act  of  God  relieves  the  defendant  from  its  liability  as  an 
insurer  of  safe  delivery,  and  in  order  to  again  impose  upon  it  tlie  pre- 
sumption of  liability  the  plaintiff  must  furnish  proof  of  concurring 
negligence. 

Assampsit,  for  the  value  of  baggage.  Appeal  from  the  Circuit  Court 
of  Cook  County;  the  Hon.  Charles  G.  Neelt,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Afl^med.  Opinion  filed 
July  26,  1897. 


First  District — March  Term,  1897.       655 

Edfion  v.  Pennsylyarda  Co. 

Knight  &  Brown,  attorneys  for  appellant. 

Geoeob  Willard,  attorney  for  appellee. 

It  was  stipulated  "  that  the  trunk  and  contents  sued  for 
in  this  case  were  lost  in  the  Johnstown  flood." 

Under  this  stipulation  the  burden  of  proving  concurring 
negligence  was,  of  course,  on  the  appellant.  Eailroad  v. 
Reeves,  10  Wall.  176. 

Mr.  Justice  Sears  delivered  the  opinion  of  the  Court. 

This  suit  was  brought  by  appellant  to  recover  the  value 
of  a  trunk  and  contents,  lost  while  in  possession  of  appellee 
as  a  common  carrier. 

Appellant  delivered  the  trunk  to  appellee  on  May  30, 
1889,  at  Chicago,  for  transportation  to  New  York,  and  it 
was  placed  upon  appellee's  train,  which  left  Chicago  on  the 
same  day  for  the  point  of  destination.  The  train  reached 
the  village  of  Connemau^h  at  about  10:40  a.  m.  of  the  31st, 
and  was  unavoidably  prevented  from  further  progress  by 
reason  of  a  wash-out  of  the  tracks  to  the  eastward.  It 
remained  at  Connemaugh  until  about  4  o'clock  in  the  after- 
noon of  that  day.  At  about  that  time  an  artificial  dam  on 
the  south  fork  of  the  Connemaugh  river  gave  way,  and  a 
great  volume  of  water  was  thereby  let  intg  the  valley  of  the 
Connemaugh,  which,  rushing  down  the  narrow  valley, 
caused  what  is  known  as  the  Johnstown  flood,  by  which  the 
baggage  car  containing  appellant's  trunk  was  carried  away 
and  destroyed.  It  is  uncontroverted  that  the  train  could 
not  have  proceeded  eastward  from  Connemaugh.  The  road 
descended  lower  into  the  valley  to  the  westward  and  a 
great  portion  of  the  disaster  caused  by  the  flood  occurred 
west  of  Connemaugh,  at  Johnstown.  It  would  seem,  how- 
ever, from  the  light  of  after  events,  that  if  the  train  had 
been  moved  to  some  certain  spot  to  the  west  of  Connemaugh 
(and  not  too  far  west)  it  might  have  avoided  the  disaster. 

At  the  conclusion  of  the  evidence  for  plaintiff,  appellant, 
the  trial  court  directed  a  verdict  for  defendant,  appellee; 
and  this  action  of  the  court  is  assigned  as  error. 

That  the  Johnstown  flood,  by  which  appellant's  trunk 


656  Appellate  Courts  of  Illinois. 

Vol,  70.]  Edson  v.  Pennsylvania  Co. 

was  destroyed,  was,  in  contemplatian  of  law,  an  act  of  God, 
is  not  disputed.  Appellant's  contention  rests  upon  the 
proposition  of  law  that  a  common  carrier  is  liable  for  loss 
of  baggage  in  its  possession,  when  such  loss  is  due  not  solely 
to  an  act  of  God,  but  to  an  act  of  God  combined  with  the 
negligence  of  the  carrier;  and  upon  the  further  proposition 
that  the  record  here  so  far  shows  negligence  on  the  part  of 
appellee  in  bringing  the  property  of  appellant  in  contact 

with  the  flood,  as  to  warrant  the  submission  of  the  question 
of  such  negligence  as  a  ground  of  liability  to  the  jury. 

The  proposition  first  stated  is  amply  sustained  by  Wald  v. 
P.,  C,  C.  &  St.  L.  E.  E.  Co.,  162  111.  545. 

There  is  a  conflict  of  authorities  in  the  earlier  decisions 
upon  the  liability  of  a  common  carrier  in  cases  where  loss 
has  occurred  through  act  of  God,  and  there  has  been  negli- 
gence on  the  part  of  the  carrier  by  way  of  delay  in  trans- 
portation which  operated  to  subject  the  property  to  the 
force  causing  such  loss.  But  the  question  is  well  settled  by 
the  decision  in  Wald  v.  P.,  C,  C.  &  St.  L.  E.  E.  Co.,  supra^ 
wherein  Chief  Justice  Magruder,  in  delivering  the  opinion, 
and  after  a  thorough  review  of  the  authorities,  announces 
the  conclusion  that  "  a  common  carrier  is  not  exempt  from 
liability  for  a  loss  which  takes  place  because  of  an  act  of 
God,  if  such  carrier  has  been  guilty  of  any  previous  negli- 
gence or  misconduct,  which  brings  the  property  in  contact 
with  the  destructive  force  of  the  actus  Dei.  or  unnecessarily 
exposes  it  thereto." 

We  have  then,  to  consider  whether  there  is  evidence  in 
the  record  which  shows  negligence  on  the  part  of  appellee. 

No  negligence  is  claimed  by  appellant  in  the  management 
of  the  train  up  to  the  time  of  its  arrival  at  Connemaugh. 
It  being  undisputed  that  no  progress  could  be  made  to  the 
eastward,  and  up  out  of  the  valley,  it  leaves  only  a  question 
as  to  any  duty,'shown  by  the  evidence,  to  move  back  toward 
the  west.  Appellant  offered  no  evidence  upon  this  point, 
except  the  depositions  of  certain  witnesses,  which  deposi- 
tions had  been  taken  on  behalf  of  appellee.  The  only  evi- 
dence is  that  elicited  by  the  cross-examination  of  those 
witnesses.    From  their  testimony  it  appears  that  at  the 


First  DrsTRicr — March  Term,  1897.       6/>7 


Edson  V.  Pennsylvania  Co. 


time  in  question  Connemaugh  seemed  to  the  employes  of 
appellee  to  be  the  safest  available  place  at  which  the  train 
could  be  held.  One  witness  (Diggett)  testifies  that  eflforts 
were  made  to  send  messages  to  Johnstown  to  warn  people 
there  **  to  look  out  for  the  worst." 

It  is  difficult  to  perceive  why  reasonably  cautious  persons 
should  move  a  train  back  into  the  valley  toward  Johns- 
town, which  was  then  viewed  as  a  point  of  great  possible 
danger.  The  fact  that  subsequent  events  showed  that  had 
the  train  been  moved  a  part  of  the  way  toward  Johnstown 
it  would  have  escaped,  is  no  criterion  by  which  to  measure 
the  duty  of  appellee's  employes.  Hare,  one  of  the  trainmen, 
testified  :  "  I  knew  that  the  tracks  were  in  bad  condition 
toward  Johnstown,  but  I  thought,  and  think  yet,  that  we 
were  in  the  safest  place  in  the  position  occupied  by  us  in 

the  vard." 

*> 

Counsel  for  appellant  cite  the  case  of  Wald  v.  P.,  C,  C.  & 
St.  L.  R.  R.  Co.,  supray  as  sustaining  their  contention  that 
this  cause  presents  such  question  of  negligence  as  should  be 
submitted  to  a  jury.  But  there  is  a  clear  distinction  between 
the  facts  appearing  in  that  case  and  those  disclosed  by  the 
record  here.  In  the  former  case,  there  was  a  conflict  of 
evidence,  and  there  was  some  evidence  tending  to  show  that 
the  carrier  had  been  guilty  of  a  breach  of  its  implied  con- 
tract to  carry  promptly  and  in  due  course  of  business,  and 
that  it  had  been  guilty  of  negligence  in  permitting  an  unnec- 
essary delay  in  transportation,  which  operated  to  bring  the 
baggage  in  the  way  of  the  destroying  force. 

No  such  question  appears  here.  There  is  no  conflict  of 
evidence  in  this  case. 

The  admitted  fact  of  the  losia  of  the  trunk  in  the  flood 
excused  appellee  from  its  liability  as  an  insurer  of  safe  deliv- 
ery. In  order  to  again  impose  upon  it  the  presumption  of 
liability,  it  devolved  upon  appellant  to  furnish  proof. 

The  only  question  for  the  trial  court  to  determine  was 
whether  any  act  or  omission  on  the  part  of  appellee  appeared 
from  the  evidence,  upon  which  negligence  could  be  predi- 
cated. 

TouLXX  a 


658 


Appellate  Courts  op  Illinois. 


Vol.  70.] 


Chandler  v.  Smith. 


70       658 
102     H06 


In  determination  of  that  question,  the  court  directed  the 
jury  to  find  for  the  defendant,  the  appellee  here.  No  other 
and  different  verdict  could  properly  have  been  rendered,  or, 
if  rendered,  have  been  permitted  to  stand. 

The  judgment  is  atfirmed. 


Cornelias  G.  Chandler  v.  William  H.  Smith. 

1.  Measttre  of  Damages — Loss  Occasioned  by  Pecuniary  Condition 
of  Plaintiff, — That  a  plaintiff  suing  for  the  wrongful  destruction  of  a 
bam  had  no  place  to  take  his  horses,  and  could  get  none,  is  h  matter  of 
which  the  law  will  take  no  notice,  as  the  pecuniary  xx>ndition  of  such  a 
plaintiff  can  not  be  considered  in  determining  the  measure  of  his  dam- 
ages. 

2.  Same— 77i6  Ride  as  to  Recovery  for  Torts  Stated.^ A  plaintiff 
suing  for  a  tort  can  only  recover  such  damages  as  are  the  natural  and 
proximate  result  of  the  injury  complained  of. 

8.  Burden  op  Proof — Of  a  License, — ^In  a  suit  for  the  wrongful 
destruction  of  a  baxn,  the  defendant  pleaded  a  license.  Held,  that  the 
burden  was  upon  him  to  establish  it,  as  affiimative  defenses  must  be 
proved  by  the  defendant. 

4.  New  TRiAiB—Ctimuldlive  Matter  Not  SuJ^ctenf.— Affidavits  in 
support  of  a  motion  for  a  new  trial  which  are  merely  cumulative  and 
not  conclusive,  furnish  no  sufficient  reason  for  the  allowance  of  the 
motion. 

Trespass,  for  the  destruction  of  a  bam.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Edward  F.  Dunmb,  Judg^,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed  if  remittitur  be 
entered,  otherwise  reversed  and  remanded.  Opinion  filed  August  5, 
1897. 


BuRHANS  &  Hill,  attorneys  for  appellant. 
Pabkk  E.  Simmons,  attorney  for  appellee. 


Mb.  Justice  Windes  delivered  the  opinion  of  the  CJoubt. 

This  is  an  action  by  the  appellee  against  the  appellant 
for  tearing  down  a  barn  occupied  by  the  appellee  as  a  liv- 
ery, boarding  and  sale  stable.  He  has  recovered  $800,  for 
$589  of  which  the  brief  of  his  counsel  accounts  as  the  loss 


First  District — March  Term,  1897.       659 

Chandler  v.  Smith. 

on  horses  which  he  sold  at  a  sacrifice.  True,  the  brief  says 
the  whole  damages,  for  which  he  undertakes  to  give  items, 
should  have  been  $1,022. 

Selling  his  horses  at  a  sacrifice  may  have  been  dictated  by 
many  other  reasons  than  tearing  down  the  barn.  That 
appellee  had  no  place  to  take  his  horses  and  could  get  none, 
is  a  matter  the  law  takes  no  notice  of.  The  pecuniary  con- 
dition of  appellee  can  not  be  considered  in  determining  the 
measure  of  his  damages.  Hecht  v.  Feldman,  153  111.  890; 
Palm  V.  Ohio  and  Mississippi  K.  K.,  18  111.  217. 

In  any  event,  it  can  not  be  said  the  fact  that  appellee  was 
compelled  to  sell  his  horses  was  the  natural  and  proximate 
result  of  the  barn  being  torn  down.  This  must  be  so  before 
the  loss  on  sale  of  horses  would  be  a  proper  element  of  dam- 
ages. 1  Sutherland  on  Dams.,  19  and  21;  Chapman  v. 
Kirby,  49  111.  211. 

The  other  proof  as  to  damages  to  appellee  we  think  was 
properly  submitted  to  the  jury,  and  would  justify  a  verdict 
to  the  amount  of  $433,  but  no  more  for  loss  on  business  of 
appellee.    Chapman  v.  Kirby,  sujpra. 

The  appellant  contends  that  having  pleaded  a  license,  the 
burden  was  on  the  appellee  to  prove  that  the  appellant  had 
no  license;  this  position  is  not  tenable.  Affirmative  defenses 
must  be  proved  by  the  defendant.  Messmore  v.  Larson,  86 
111.  268. 

It  may  be  that  if  the  defense  of  freehold  in  Mrs.  Harris, 
and  entry  by  her  authority,  1  Ch.  PI,  539,  Ed.  1883,  had 
been  pleaded,  it  might  have  been  proved,  destroying  the 
appellee's  whole  case.    But  no  such  plea  was  put  in. 

The  affidavits  read  in  support  of  a  new  trial  were  merely 
cumulative  and  not  conclusive,  and  therefore  furnish  no  suf- 
ficient reason  for  granting  a  new  trial. 

If  the  appellee  will,  within  ten  days  after  this  opinion  is 
filed,  remit  $367  from  the  judgment,  we  will  affirm  the 
residue. 

If  not,  for  the  error  in  admitting  the  evidence  of  loss  on 
horses,  the  judgment  must  be  reversed  and  the  cause 
remanded.  In  either  event  the  costs  are  against  the 
appellee. 


660  Appellate  Courts  of  Illinois. 

Vol.  70.1  Howard  v.  Tedford. 


70 

660 

76 

872 

to" 

"wo 

Ti 

30 

72 

202 

75 

187 

Harriet  D.  Howard  y.  Matilda  Tedford. 

1.  Practice — Exclusion  of  Evidence  us  Error — Showing  Necessary. 
—The  exclusion  of  evidence  can  not  be  held  to  be  error,  unless  it  is 
shown  that  injury  resulted  therefrom,  and  to  show  injury  by  the  exclu- 
sion of  evidence,  the  facts  proposed  to  be  proved  must  appear. 

2.  Tklaia— Reading  from  the  Pleadings  in  Argument—A  refusal  by 
the  trial  court  to  allow  defendant's  attorney  to  read  from  the  affidavit 
filed  with  the  declaration  and  comment  thereon  in  closing  argument  is 
not  error  calling  for  a  reversal,  whei*e  there  was  no  contest  as  to  the 
amoimt  due. 

Assumpsit,  on  the  common  counts.  Appeal  from  the  Circuit  Court 
of  Cook  County;  the  Hon.  Charles  G.  Neely,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term^  1807.  Afi^med.  Opinion  filed 
July  26,  1897. 

ScHiNTZ  &  Ives,  attorneys  for  appellant. 

Moses,  Rosenthal  &  Kennedy,  attorneys  for  appellee. 

Me.  Justice  Sears  delivered  the  opinion  of  the  Court. 

This  was  an  action  to  recover  an  amount  alleged  to  be 
due  appellee  for  wages. 

The  evidence  presented  a  case  proper  for  submission  to 
a  jury,  and  in  the  absence  of  a  prejudicial  error,  their  find- 
ing should  not  be  disturbed. 

There  are  two  errors  assigned : 

1st.  That  the  trial  court  erred  in  excluding  answers  to 
two  questions  put  by  counsel  for  appellant  to  one  Howard, 
a  witness. 

That  this  ruling  was  erroneous  can  not  be  urged  here,  for 
counsel  neglected  to  make  known  by  proffer  or  otherwise, 
what  he  would  prove  by  the  answers  sought.  The  trial 
court  could  not  pass  upon  the  relevancy  or  materiality  of 
the  testimony  excluded  upon  the  motion  for  a  new  trial; 
nor  can  this  court  determine  that  its  exclusion  was  in  any 
degree  prejudicial  to  appellant. 

In  Gaffield  v.  Scott,  33  111.  App.  317,  this  court  has  said : 
"  There  was  no  offer  made  by  counsel,  and  no  statement  to 


First  District — March  Term,  1897,       661 

Hough  V.  Collins. 

the  court  of  what  he  expected  the  witness  would  answer 
to  sach  questions.  *  *  *  We  must  know  w^hat  appel- 
lant claims  the  answers  would  be,  before  we  can  determine 
that  it  was  error  to  exclude  them.  Jenks  v.  Knotts,  58  la. 
549;  Vatow  v.  Diehl,  62  la.  676;  Mergenthem  v.  The  State, 
107  Ind.  567;  Stanley  v.  Smith,  15  Oregon,  505;"  also 
Giddings  v.  McCumber,  61  111.  App.  375. 

2d.  The  other  error  assigned  is  the  refusal  of  the  court 
to  permit  counsel  for  appellant  to  read  from  the  affidavit, 
filed  with  the  declaration,  and  comment  upon  the  same  in 
closing  argument. 

The  authorities  cited  hv  counsel  sustain  their  contention 
that  such  ruling  would  in  general  be  error.  Yet,  if  it  be 
error  in  this  case,  it  is  not  ground  for  reversal;  for  the 
only  legitimate  purpose  for  which  the  affidavit  might  have 
been  used  in  argument,  viz.,  as  bearing  upon  the  question  of 
amount  due,  was  precluded  by  the  fact  that  there  was  no 
contest  whatever  upon  the  question  of  amount.  Appel- 
lant's counsel,  in  effect,  stated  to  the  jury  that  there  would 
be  no  contest  as  to  amount,  and  that  the  only  question  sub- 
mitted would  be  that  of  liability. 

It  does  not  appear  that  the  affidavit  was  made  by  any 
litigant  or  witness  in  the  case.  The  ruling  could  not  have 
worked  harm  to  appellant.    The  judgment  is  affirmed. 


Wm.  Hough  V.  Thomas  A.  Collins.  Ii%,  ?§8| 

1.  Mechanics'  Ltesq— Contracts  Made  with  a  Third  Person,— It  the 
owner  of  land  authorizes  a  third  person  to  have  a  building  erected 
thereon,  he  makes  his  land  liable  to  the  lien  of  the  mechanics  for  labor 
and  material  furnished. 

Mechanic's  Lien. — Appeal  from  the  Circuit  Court  of  Cook  County ; 
the  Hon.  ELBamoE  Hanect,  Judge,  presiding.  Heard  in  this  court  at 
the  March  term,  1897.    Affirmed.     Opinion  filed  July  86,  1897. 

Samuel  J.  Howe  and  Chables  Pickleb,  attorneys  for 
appellant. 


662  Appellate  Courts  of  Illinois. 

Vol.  70.]  Hough  v.  Collins. 

Sullivan  &  McAbdle,  attorneys  for  appellee. 

Mb.  Justice  Sears  delivered  the  opinion  of  the  Court. 

This  is  a  proceeding  to  enforce  a  mechanic's  lien.  The 
petitioner,  Collins,  filed  his  claim  as  an  original  contractor 
against  Hough  as  owner.  Hough  was  owner,  but  had 
entered  into  an  anomalous  contract  with  a  Doctor  Dorn 
and  his  wife,  copartners  under  the  firm  name  of  C.  E. 
Dorn  &  Co.,  in  relation  to  the  remodeling  of  the  building 
in  question. 

Two  contracts  were  signed  by  Collins,  one  with  C.  E. 
Dorn  &  Co.,  wherein  they  are  described  as  owners,  Exhibit 
"  D,"  and  another  with  Hough,  Exhibit  "  1."  One  of  the 
questions  of  fact  presented  by  the  record  is  as  to  which  of 
these  contracts  was  the  one  under  which  Collins  performed 
his  work. 

Appellant  contends  that  the  contract  between  Hough 
and  C.  E.  Dorn  &  Co.  was,  in  effect,  a  building  contract; 
that  C.  E.  Dorn  &  Co.  were  the  original  contractors;  that 
Collins  was  a  sub-contractor  only;  that  he  operated  under 
the  contract.  Exhibit  *'  D,"  as  a  sub-contractor  with  C.  E. 
Dorn  &  Co.  as  original  contractors;  that  the  contract 
between  Collins  and  Hough,  Exhibit "  1,"  was  never  exe- 
cuted by  Hough;  and  that  the  claim  of  Collins  as  an  original 
contractor  is  without  foundation.  To  this  we  can  not 
assent. 

The  contract  of  Hough  and  C.  E.  Dorn  &  Co.  is  in 
substance  as  follows : 

"Agreement,  dated  January  10,  1894,  between  William 
Hough,  first  party,  and  C.  E.  Dorn  &  Co.,  second  party, 
witnesses,  in  consideration  of  $L  and  mutual  promises,  that 
second  parties  profess  to  be  general  contractors,  and  acknowl- 
edge to  have  examined  and  fully  comprehended  the 
accompanying  plans  and  specifications  made  by  DeWitt 
Taylor  Kennard,  as  architect,  and  agree  to  furnish  all 
material  and  labor  necessary  to  remodel  and  complete  the 
interior  of  (building  described  in  bill)  for  first  party 
according  to  said  plans  and  specifications^  and  deliver  same 


First  District — March  Term,  1897.       663 

Hough  V.  Collins. 

completely  jBiiished  in  every  respect  to  the  acceptance  of 
said  architect  by  April  15,  1894,  or  forfeit  $10  for  each  and 
every  day  that  may  expire  between  the  said  time  and  the 
time  of  completion.  And  in  consideration  of  the  full  and 
faithful  performance  of  this  contract  by  second  parties,  the^ 
first  party  agrees  to  pay  to  second  parties  the  actual  cost^ 
to  wit,  a  sum  equal  to  the  actual  cost  of  the  labor  and 
material  furnished  as  above  by  second  party,  in  installments 
as  the  work  progresses,  on  the  architect's  estimate,  holding 
back  fifteen  per  cent  until  the  final  completion  and  accept- 
ance of  the  work  by  said  architect,  etc.  Time  shall  be  of 
the  essence  of  this  contract." 

This  contract,  whatever  name  be  given  it  is,  in  efl'ect, 
simply  an  arrangement  by  which  Hough  attempts,  through 
C.  E.  Dorn  &  Co.,  to  accomplish  the  remodeling  of  his 
building,  using  them  to  superintend  the  details  and  to  act 
as  his  paymasters  in  expending  his  money.  It  has  not  the 
essential  characteristics  of  a  genuine  builder's  contract. 
C.  E.  Dorn  &  Co.  do  not  undertake  to  remodel  at  any  given 
price.  They  are  to  receive  only  the  cost  of  the  remodeling. 
In  effect  they  are  to  supervise  the  work,  and  Hough  is  to 
pay  what  the  work  actually  costs.  To  call  Dorn  &  Co.  the 
managers  or  superintendents  of  Hough,  would  be  perfectly 
consistent  with  the  spirit  of  the  contract;  nor  does  the  mere 
calling  them  contractors  at  all  change  their  real  relation- 
ship. It  is  true  that  the  contract  does  contain  covenants 
that  Hough  is  to  furnish  the  money  only  upon  architect's 
certificates,  that  a  per  diem  penalty  shall  follow  failure  to. 
complete  within  given  time,  and  that  certain  percentages 
may  be  withheld;  but  the  coloring  given  by  such  provisions 
is  not  conclusive  to  stamp  it  as  a  builder's  contract,  and  the 
entire  absence  of  any  consideration  for  the  undertaking  of 
Dorn  &  Co.  is  inconsistent  with  such  conclusion. 

It  is  shown  that  Dorn  &  Co.  were  the  agents  of  Hough 
for  the  collection  of  rents. 

Whether  this  contract  be  regarded  merely  as  an  oddity 
in  the  way  of  an  agency  contract,  or  as  a  subterfuge  to  avoid 
liens,  matters  not.    The  result  is  in  law  the  same.    Hough 


664  Appellate  Couuts  of  Illinois. 

Vol.  70.]  Hudlim  v.  Blakeslee. 

attempted  through  a  third  party  to  make  contracts  for  the 
remodeling  of  his  building.  The  cause  comes  within  the 
reasoning  of  Paulsen  v.  Manske  et  al.,  126  111.  72,  wherein 
the  court  sav :  "  It  mav  be  diflBcult  to  define  the  exact 
legal  relations  existing  between  these  parties,  but  it  is 
evident  that  Paulsen  was  authorized  and  empowered  by  the 
Browns  to  erect  a  row  of  buildings  upon  the  lot,  and  they 
were  practically  to  furnish  the  money.  *  *  *  It  can 
make  no  difference  that  the  contracts  for  labor  and  material 
were  signed  by  Paulsen  alone.  He  was,  in  fact,  acting  for 
and  in  behalf  of  the  Browns,  and  they  can  not  be  permitted 
to  receive  the  benefit  and  escape  the  liability  of  the  mechan- 
ic's lien  attaching  to  their  interests." 

The  test  suggested  by  this  decision  would  seem  to  be  the 
paying  by  the  owner — whether  he  pay  in  a  sum,  limited  by 
the  contract,  to  the  contractor,  or  in  such  sums  only  as 
become  due  to  laborers  and  material  men,  whether  the 
payments  be  made  directly  or  indirectly.  In  this  case 
Hough  was  not  protected  beyond  a  limited  sum,  fixed  by  a 
builder's  contract,  but  was  to  pay  all  costs  of  remodeling,  of 
which  the  claim  of  appellee  is  a  part. 

If  as  such  third  party,  through  whom  Hough  was 
attempting  to  operate,  Dorn  &  Co.  were  his  agents,  it 
matters  not  at  all  whether  the  work  was  done  under  the 
contract  with  them  (Hough  being  their  undisclosed  prin- 
cipal) or  under  the  contract  with  Hough,  which  Dorn  &  Co. 
bad  power  to  make  for  him. 

The  merit  of  the  case  and  the  law  are  with  the  appellee. 

The  decree  is  affirmed. 


Joseph  H.  Hudlun  v.  George  8.  Blakeslee. 

1.  Corporations— JSJfecf  of  Insolvency  of,  on  Claims  of  Officers 
against  the  Corporation, — The  directors  of  a  solvent  corporation,  acting 
in  good  faith,  may  deal  with  it  and  loan  it  money,  and  the  subsequent 
insolvency  of  the  corx>oration  wiU  not  affect  their  right  of  action  to 
recover  their  loans. 


First  District — March  Term,  1897.       6t>5 

Hudlun  V.  Blakeslee. 

Creditor's  Bill.— Appeal  from  tlie  Circuit  Court  of  Cook  County;  the 
Hon.  John  Gibbons,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term,  1897.  Reversed  and  remanded  with  directions.  Opinion 
filed  July  26,  1897. 

0.  Stuart  Beattib,  attorney  for  appellant. 

Israel  Shbimski  and  Franklin  A.  Denison,  attorneys 
for  appellee. 

Mr.  Justice  Windes  delivered  the  opinion  of  the  Court. 

Appellant  has  appealed  from  an  interlocutory  order  of 
the  Circuit  Court  appointing  a  receiver  on  a  creditor's  bill, 
based  upon  a  judgment  recovered  by  appellee  Blakeslee, 
against  a  corporation,  May  25,  1897. 

The  sufficiency  of  the  allegations  of  the  bill  to  justify 
the  appointment  of  the  receiver  are  questioned.  The  bill 
alleges  that  a  judgment  was  rendered  May  19, 1897,  against 
the  same  corporation,  in  favor  of  appellant,  upon  two  notes, 
dated,  respectively.  May  13,  1895,  and  June  2,  1894;  the 
first  payable  on  demand  and  the  second  in  six  months, 
which  notes  were  given  by  one  Snowden,  who  was  then 
secretary  and  a  director  of  the  same  corporation,  and  when 
the  judgment  was  entered  was  the  president  and  director; 
that  the  notes  were  delivered  by  Snowden  to  appellant 
without  consideration,  after  their  maturity;  that  at  the  time 
the  notes  were  delivered  to  appellant  the  corporation  was 
Insolvent,  to  the  knowledge  of  Snowden  and  appellant;  that 
the  transfer  was  a  scheme  to  prefer  Snowden  as  a  creditor 
of  the  corporation,  and  that  appellant's  judgment  is  fraud- 
ulent and  void  as  to  appellant,  and  a  preference  of  the 
director,  Snowden. 

While  the  bill  contains  the  usual  allegations  of  a  cred- 
itor's bill,  as  to  issuance  of  execution,  return  of  sheriff  nulla 
hana^  and  the  like,  it  fails  to  allege  the  insolvency  of  the 
corporation  at  the  time  the  notes  were  given,  or  at  the  time 
when  the  debt  was  contracted  for  which  the  notes  were 
given,  nor  does  the  bill  attack  the  hona  fides  of  the  notes  in 
any  way,  except  it  says  their  transfer  to  appellant  was  with- 


666  Appellate  Courts  op  Illhstois. 


Vol.  70.]         North  Chicago  Street  R.  R.  Co.  v.  Shreve. 

out  consideration  and  a  scheme  to  prefer  Snowden  as  a 
creditor. 

It  is  wholly  immaterial  that  the  corporation  was  insolvent 
when  the  notes  were  transferred.  In  order  that  the  case  of 
Beach  v.  Miller,  130  111.  162,  cited  by  appellee,  be  in  point 
the  bill  should  allege  insolvency  of  the  corporation  at  the 
time  the  notes  wei:^  given  or  the  debt  contracted. 

In  Illinois  Steel  Co.  v.  O'Donnell,  166  111.  624,  the  Su- 
preme  Court  held  that  the  directors  of  a  solvent  corpo- 
ration, acting  in  good  faith,  may  deal  with  it  and  loan  it 
money,  and  the  subsequent  insolvency  of  the  corporation 
will  not  aflfect  their  rights  of  action  to  recover  their  loans. 

Therefore  it  seems  clear  that  the  allegations  of  this  bill 
were  insufficient  to  justify  the  appointment  of  the  receiver, 
and  the  order  of  the  Circuit  Court  in  that  regard  is  reversed 
and  the  cause  remanded,  with  directions  to  the  Circuit 
Court  to  make  such  orders  as  to  said  receivership  as  will  not 
be  inconsistent  with  this  opinion.  Eeversed  and  remanded 
with  directions. 


70    666 

17U  438 

—  — - — X. 

70        RHU 

93   ^898    North  Chicago  Street  Railroad  Company  t.  Suth  E. 

Shreve. 

1.  Instructions— TF?i€n  Justified  by  the  Evidence. — ^In  a  personal  in- 
jury suit  the  jury  were  instructed  that  if  they  found  from  the  evidence 
that  the  injury  was  permanent  and  incurable  they  should  take  that  fact 
into  consideration  in  assessing  the  damages.  No  expert  evidence  was 
offered  on  this  point,  and  the  testimony  was  not  such  that  an  ordinary 
person  not  a  medical  expert  could  say,  with  absolute  certainty,  that  the 
injury  to  the  plaintiff  was  permanent  or  incurable;  it  tended,  however, 
to  show  a  condition  from  which  it  would  not  be  imreasonable  for  men 
of  ordinary  information  to  infer  that  the  injury  was  permanent.  Seld, 
that  the  evidence  was  sufficient  to  justify  the  instruction. 

2.  Practice — Improper  Remarks  of  Counsel  ShotUd  be  Objected  to.— 
Counsel  should  not  be  permitted  to  allow  opposing  counsel  to  make  im- 
proper remarks  to  the  jury  without  objection,  and  first  call  the  atten- 
tion of  the  court  to  them  on  motion  for  a  new  trial. 

8.    Appeals  and  EELR0BS—Exces8it}e  Damages  as  Oround  for  Re- 


First  District — March  Term,  1897.       667 

North  Chicago  Street  R.  R.  Co.  v.  Shreve. 

versa  f. — Where  liability  is  clearly  established  an  excessive  verdict  caused 
by  improper  remarks  of  counsel  furnishes  no  ground  for  a  reversal,  if 
the  excessive  damages  are  remitted. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Circuit 
Court  of  Cook  County;  the  Hon.  Abner  Smith,  Judge,  presiding.  Heard 
in  this  court  at  the  March  term,  1897.  Ai&rmed.  Opinion  Sled  July 
36, 1897, 

Egbebt  jAMiEso£r  and  John  A.  Eosb,  attorneys  for  appel- 
lant. 

"  It  is  the  duty  of  the  Circuit  Court,  in  conducting  trials 
by  jury,  to  restrain  every  effort  of  the  parties  to  bring  before 
the  jury  matters  which  are  foreign  to  the  issues  to  be  tried, 
and  especially  and  scrupulously  to  exclude  all  matter  when 
the  same  has  a  tendency  to  excite  the  prejudice  of  the  jury 
against  the  party  to  the  issue."  Hennies  v.  Vogel,  87  111. 
244. 

"  A  court  hearing  counsel,  under  pretense  of  arguing  a 
case,  making  statements  of  matter  to  the  jury  not  in  evi- 
dence, nor  pertinent,  as  illustrative  of  matters  in  evidence, 
should  stop  the  counsel  and  explain  to  the  jury  the  impro- 
priety of  his  language,  and  take  such  measures  as  shall  be 
appropriate  to  prevent  a  repetition  of  such  misconduct,  and 
for  failure  of  duty  in  that  respect  manifestly  affecting  the  re- 
sult, the  judgment  should  be  reversed."  Elgin,  J.  &  E.  R.,R. 
Co.  V.  Fletcher,  128  111.  627  To  the  same  effect  are  Wal- 
dron  V.  Waldron,  156  U.  8.  361;  Jackson  v.  The  People,  18 
111.  App.  508;  Pittsburg,  C,  C.  &  St.  Louis  Ry.  Co.  v.  Story, 
63  111.  App.  239;  Chicago  City  R.  R.  Co.  v.'^Barron,  57  111. 
App.  469;  Yoe  v.  People,  49  111.  410;  Angelo  v.  The 
People,  96  111.  209;  McDonald  v.  The  People.  126  111.  150. 
Raggio  V.  The  People,  135  111.  533;  Union  Life  Ins.  Co.  v. 
Cheever,  36  Ohio  State,  201;  Farman  v.  Lauman,  73  Ind. 
568;  People  v.  Mitchell,  62  Cal.  411;  Bullock  v.  Smith,  15 
Ga.  395;  Jenkins  v.  N.  C.  Ore  Co.,  65  K  C.  563;  Brown 
V.  Swineford,  44  Wis.  291. 

"  If  the  trial  judge  does  not  interpose,  as  he  properly 
may,  without  being  called  upon  during  the  trial,  it  should, 
and  doubtless  will,  always  be  his  duty  on  a  motion  for  a 


668  Appellate  Courts  of  Illinois. 

Vol.  70.]         North  Chicago  Street  R.  R.  Co.  v.  Shreve. 

now  trial,  if  he  believes  that  any  improper  element  has 
been  worked  into  the  case  by  unfair  and  prejudicial  appeals 
to  the  jury,  to  award  a  new  trial,  if  for  such  prejudicial 
matter  one  be  asked."  Berry  v.  State,  10  Qs,.  511;  see  also 
Gould  V.  Howe,  127  111.  251;  James  v.  Dexter,  113  111.  654; 
Martin  v.  Foulke,  114  111.  206;  Firemen's  Ins.  Co.  v.  Peck, 
126  111.  493. 

"When  a  verdict  is  so  flagrantly  excessive  as  to  be  only 
accounted  for  on  the  grounds  of  prejudice,  passion  or  mis- 
conception, a  remittitur  does  not  remove  the  prejudice, 
passion  or  misconception.     Lowenthal  v.  Streng,  90  111.  74. 

A  defendant  ought  to  have  the  right  to  have  the  verdict 
of  an  unprejudiced  jury  upon  his  case,  and  not  be  compelled 
to  accept  in  lieu  thereof  the  judgment  of  the  court,  and 
thus  be  practically  denied  trial  by  jury.  Chicago  &  N. 
W.  K.  R.  Co.  V.  Cummings,    20  111.  App.  333 

Maheb  &  Gilbert,  attorneys  tor  appellee. 

We  contend  that  $5,000  is  not  an  excessive  verdict,  but 
even  conceding  that  $5,000  was  a  high  verdict,  still  the 
remittitur  entered  by  the  plaintiff  would  cure  an  error  of 
this  character,  if  there  be  one.  This  court  has  repeatedly 
held  that  a  remittitur  would  cure  an  excessive  verdict. 
Stumer  v.  Pitchman,  22  111.  App.  399;  Village  of  Evanston 
V.  Fitzgerald,  37  111.  App.  86;  North  Chicago  Street  Rail- 
way  V.  Lewis,  35  111.  App.  477.  See  also  Clayton  v.  Brooks, 
31  111.  App.  62;  Albin  v.  Kinney,  96  111.  214;  U.  R.  M.  Co. 
V.  Gillem,  100  111.  52;  Thomas  v.  Fisher,  71  111.  576. 

Mr.  Justice  Windes  delivered  the  opinion  of  the  Court. 

This  was  an  action  to  recover  for  damages  sustained  by 
reason  of  an  accident  alleged  to  have  happened  to  appellee. 

Appellee  testified  that  she  took  a  car  of  appellant's  at 
the  corner  of  Washington  and  Dearborn  streets,  in  the  city 
of  Chicago;  that  she  had  hardly  gotten  into  the  car  until 
the  conductor  came  to  collect  her  fare;  that  the  car  went 
one  block  to  the  corner  of  Dearborn  and  Eandolph  streets, 
when  she  discovered  that  it  was  turning  west,  whereas  she 


First  District — March  Term,  1897.       669 

North  Chicago  Street  R.  R.  Co.  v.  Shreve. 

wished  to  go  north;  she  therefore  signaled  the  conductor 
to  stop,  and  the  conductor  nodded  his  head  and  whistled; 
that  the  car  did  stop;  that  she  attempted  to  get  off  the  car, 
and  stepped  her  right  foot  onto  the  foot-board,  and  that 
just  as  she  was  going  to  step  on  the  ground,  the  car  moved 
forward  with  a  quick  jerk  and  threw  her  off,  her  right  side 
striking  the  pavement  of  Randolph  street.  The  conductor 
came  to  her  and  asked  her  if  she  was  hurt  and  helped  her 
to  get  up.  That  she  then  walked  to  South  Water  street, 
and  feelino^  badlv  went  from  there  to  149  Washington 
street,  where  her  husband  worked. 

Her  brother  and  his  wife  corroborated  her  as  to  the  hap- 
pening of  and  the  circumstances  attending  the  accident. 

As  the  consequence  of  her  injury  appellee  testijBed  that 
she  had  a  miscarriage,  and  she  also  testified,  and  there  was 
the  evidence  of  a  physician  which  corroborated  her,  as  to 
her  condition  subsequent  to  the  injury  she  received. 

The  defendant  claimed  to  have  no  report  or  knowledge 
of  the  accident,  and  it  introduced  no  testimony  as  to  it.  It 
did,  however,  introduce  evidence  of  a  rule  said  to  have  been 
in  force  at  the  time  of  the  accident,  to  the  effect  that  con- 
ductors were  not  to  collect  fares  until  after  the  cars  had 
crossed  Randolph  street. 

The  jury  returned  a  verdict  of  $5,000  for  the  plaintiff. 
A  remittitur  of  $3,000  was  made,  and  judgment  against  the 
defendant  was  entered  for  the  sum  of  $2,000. 

The  court,  at  the  instance  of  appellee,  gave  the  jury  the 
following  instruction : 

"The  court  instructs  the  jury  that  if  you  find  the  issues 
for  the  plaintiff  in  this  case,  then  the  plaintiff  is  entitled  to 
recover  such  actual  damages  as  the  evidence  ma\'  show  she 
has  sustained  as  the  direct  or  permanent  result  of  such  injury, 
taking  into  consideration  her  pain  and  suffering  so  far  as 
the  same  may  appear  from  the  evidence  in  the  case;  and  if 
the  jury  find  from  the  evidence  that  said  injury  is  perma- 
nent and  incurable,  they  should  take  this  into  consideration 
in  assessing  the  plaintiffs  damages." 

While  the  testimony  as  to  the  injury  of  the  plaintiff  was 


670  Appellate  Courts  of  Illinois. 

Vol.  70.]  North  Chicago  Street  R.  R.  Ck).  v.  Shreve. 

not  such  that  an  ordinary  juror,  that  is,  a  person  not  a 
medical  expert,  could  say  with  absolute  certainty  that  the 
injury  to  the  plaintiflP  was  permanent  or  incurable,  and  there 
was  no  testimony  of  medical  experts  that  such  is  the  case, 
it  was  such  as  tended  to  show  a  condition  from  which  it 
would  not  be  unreasonable  that  men  with  ordinary  infor- 
mation as  to  the  experiences  of  women  in  matters  peculiar 
to  their  sex,  and  the  duties  and  trials  of  wife  and  mother- 
hood, should  infer  that  her  condition,  considering  the  time 
it  had  existed,  was  permanent.  We  therefore  think  that 
while  the  evidence  was  not  strong,  it  was  sufficient  to  justify 
the  instruction. 

None  of  the  witnesses  testifying  to  the  accident  were  in 
any  way  impeached;  and  while  it  is  singular  that  the  defend- 
ant should  have  had  no  report  of  this  accident,  yet  the 
evidence  was  such  that  the  jury  could  not  do  otherwise  than 
return  a  verdict  for  the  plaintiff,  and  we  see  no  reason  for 
thinking  that  another  jury  would  do  otherwise. 

It  does  not  appear  that  the  defendant,  appellant,  has  any 
more  knowledge  now  concerning  the  accident  than  it  had 
at  the  time  of  the  trial  of  this  case  in  the  court  below. 

We  are  of  the  opinion  that  if  the  jury  was  in  any  way 
misled  by  the  instruction  complained  of,  still  the  damages 
awarded  by  the  jury  can  not  have  been  increased  by  this 
instruction  more  than  to  the  amount  remitted  from  the 
verdict. 

Objection  is  made  to  the  conduct  of  counsel  of  appellee 
during  the  trial.  While  we  do  not  approve  of  all  that  was 
said  or  done,  we  do  not  think  we  ought  to  reverse  this  judg- 
ment for  any  such  reason.  No  objection  appears  from  the 
record  to  have  been  called  to  the  attention  of  the  conrt  as 
to  the  language  of  counsel,  and  no  ruling  obtained  from  the 
court.  Marder,  Luse  &  Co.  v.  Leary,  i  37  111.  322;  West  Chi- 
cago St.  R.  B.  Co.  V.  Annis,  165  111.  475,  and  cases  there 
cited. 

Counsel  should  not  be  permitted  to  allow  opposing  counsel 
to  make  improper  arguments  to  the  jury  without  objeo- 
tion,  and  first  call  attention  of  the  court  to  it  on  motion  for 
new  triaL 


First  District — March  Term,  1897.       671 

Abbott  V.  Stone. 

We  see  no  reason  for  thinking  that  another  trial  would 
result  in  a  judgment  more  favorable  to  defendant  than  the 
present.  If  the  verdict  of  $5,000  was  caused  by  improper 
remarks  of  counsel,  the  liability,  as  we  think,  of  appellant 
being  clearly  established,  and  the  excessive  damages  having 
been  remitted,  it  would  be  useless  to  awai*d  another  trial. 
We  regard  it,  therefore,  as  not  unjust  to  appellant  or  appellee 
that  the  judgment  of  the  Circuit  Court  for  $2,000  should  be 
affirmed. 


Alice  Asbnry  Abbott  v.  George  W.  Stone  and  Francis  B. 

Sherwood. 

1.  Usury — Duplicate  Promises, — A  principal  note  contained  a  prom- 
ise to  pay  interest.  Notes  for  the  amount  of  the  interest  were  also 
given,  this  fact  being  recited  in  the  principal  note.  Held,  that  the  form 
of  the  transaction  did  not  render  it  usuriouSi  only  one  payment  being 
intended. 

2.  EvmENCE— 0/  the  Payment  of  Taxes,— The  receipt  of  a  county 
coUector  is  competent  evidence  of  the  payment  of  taxes. 

8.  ^iOKTQAQES— Allowance  of  Solicitor's  Fees  Under  TYust  Deed, — 
Attorney ^s  fees  may  be  allowed  to  the  holder  of  notes  secured  by  a  trust 
deed  providing  for  the  payment  of  attorney's  fees  to  the  trustee  in  case 
of  foreclosure,  as  it  matters  not  to  the  grantor  whether  he  pays  to  the 
trustee  or  the  holder  of  the  notes. 

4.  Promissory  l^onisa— Indorsements  as  Evidence  of  7Y«e.— Notes 
offered  in  evidence  by  the  complainant  in  a  foreclosure  suit  showed 
indorsements  to  a  third  person  which  the  complainant  testified  were  for 
collection  only.  Heldy  that  this  was  sufficient  as  equity  looks  to  sub- 
stance and  as  the  indorsements  might  have  been  canceled. 

5.  Equity  Practice— -4«  fo  Orders  of  Reference,— A  cause  was 
referred  to  a  master  in  chancery  to  take  proof  of  the  allegations  of  the 
bilL  The  defendant  did  not  ask  that  the  master  be  ordered  to  take  proof 
of  the  averments  of  the  answer,  or  make  any  objection  to  the  form  of 
the  order,  and  he  and  his  witnesses  testified  before  the  master.  Held,  that 
the  defendant  oould  not  complain  of  the  form  of  the  order  on  appeal. 

Foreclosure.— Appeal  from  the  Circuit  Court  of  Cook  County;  the 
Hon.  OuvER  H.  HoRTON,  Judge,  presiding.  Heard  in  this  court  at  the 
March  term.  1807.    Affirmed.    Opinion  filed  July  26,  1897. 

Edward  Eoby,  attorney  for  appellant 


70    671! 
172s  6S4 


672  Appellate  Courts  op  Illinois. 

Vol.  70.]  Abbott  v.  Stone. 

If  the  principal  and  lawful  interest,  or  the  principal  alone 
is  to  be  repaid  at  all  events,  no  contingency  in  respect  to  the 
excess  of  interest,  or  to  the  entire  interest,  will  be  sufficient 
to  remove  the  contract  from  the  operation  of  the  statute. 
A  stipulation  for  even  a  chance  of  a  profit  beyond  lawful 
interest  is  illegal.  27  Am.  &  E.  Ency.  of  Law,  924;  Roberts 
v.  Trenayne,  Cro.  Jac.  507;  Barnard  v.  Young,  17  Vesey,  44; 
White  V.  Wright,  3  B.  ife  C.  273,  10  E.  C.  L.  76;  Cleveland 
V.  Loder,  7  Paige,  657;  Browne  v.  Vreden burgh,  43  N.  Y. 
(4  Hand)  195. 

In  this  case  the  theory  of  the  bill  is  that  Stone  as  sole 
creditor  filed  the  bill;  and  the  decree  does  not  acknowle<lge 
any  trust,  but  requires  sale  by  a  master  in  chancery — the 
executive  officer  of  the  court. 

The  mortgage  does  not  provide  for  any  attorney's  fee 
where  the  creditor  forecloses.  Fowler  v.  Eq.  Trust  Co., 
141  D.  S.  384,  p.  407. 

Richard  B.  Twiss,  attorney  for  appellees. 

The  statutes  of  Illinois  relating  to  revenue  provide  for 
levying  taxes  on  real  property  in  this  State,  and  courts  will 
take  notice  of  a  public  law.  Nimmo  v.  Jackman,  21  Ul. 
App.  607. 

Notice  will  be  taken  of  such  things,  as  all  persons  of  ordi- 
nary intelligence  are  presumed  to  know.  Hamilton  v. 
People,  113  111.  34;  Chi.,  B.  &  Q.  R.  R.  v.  Warner,  108  111. 
538. 

A  court  will  take  judicial  notice  of  the  public  officers  of 
the  county  in  which  it  sits,  and  in  some  cases  their  signa- 
tures. Walcott  V.  Gibbs,  97  111.  122;  Dyer  v.  Flint  21  III. 
80;  Thompson  v.  Haskell^  21  III.  215;  Brackett  v.  People, 
115  111.  29. 

An  indorsement  is  in  the  power  and  control  of  the  payee, 
and  he  may  strike  it  out  or  not  as  he  thinks  proper,  and 
the  possession  of  the  note  by  the  payee  is,  unless  the  con- 
trary api)ears>  evidence  that  he  is  the  hoiiafide  holder  of  it 
Parks  V.Brown,  16  111.  454,  and  authorities  there  citeil; 

Best  V.  Nokomis  National  Bank,  76  111.  608;  Sweet  v.  Gar- 
wood, 88  III.  407;  Richards  v.  Darst,  51  111.  140. 


First  District — March  Term,  1897.       673 

Abbott  ▼.  Stone. 

Mil  Justice  Windes  DKLnrEBED  the  opinion  of  the  Court. 

This  is  an  appeal  from  a  decree  of  foreclosure  of  a  trust 
deed  given  to  secure  a  loan  of  $20,000.  The  bill  was  filed 
by  the  trustee  and  holder  of  the  secured  notes. 

The  principal  note  given  by  appellant  was  as  follows : 
"  $20,000.00.  Chicago,  Ills.,  July  14,  1892. 

On  August  15th,  A.  D.  1897,  after  date,  for  value  received 
I,  Alice .  Asbury  Abbott,  promise  to  pay  to  the  order  of 
George  W.  Stone,  of  Chicago,  the  principal  sum  of  twenty 
thousand  (20,000)  dollars,  with  interest  thereon  at  the  rate 
of  six  (6)  per  cent  per  annum  from  August  15,  1892,  pay- 
able half  yearly,  to  wit :  On  the  fifteenth  day  of  February 
and  of  August  in  each  year,  until  said  principal  sum  is  fully 
paid.  Both  principal  and  interest  are  payable  at  Northern 
Trust  Co.'s  Bank,  of  Chicago. 

The  several  installments  of  interest  aforesaid,  for  said 
period,  five  years,  are  further  evidenced  by  ten  (10)  interest 
notes,  or  coupons,  of  even  date  herewith. 

The  payment  of  this  note  is  secured  by  trust  deed  of  even 
date  herewith,  on  real  estate  in  city  of  Chicago,  Cook  county, 
Illinois. 

Alice  Asbury  Abbott." 

Ten  interest  notes  representing  the  semi-annual  interest 
for  five  years  were  also  given  by  appellant,  each  of  which 
bear  interest  at  seven  per  cent  per  annum  after  maturity, 
and  she  now  contends  that  the  transaction  was  therefore 
usurious,  not  that  usury  has  been  demanded  or  was  intended 
but  that  the  form  of  the  notes,  principal  and  coupons,  is  such 
as  to  constitute  usury. 

We  do  not  so  understand  the  notes. 

Four  hundred  dollars  of  the  loan  of  $20,000  was  paid  to 
William  L.  Pierce  &  Co.,  and  for  this  appellant  gave  the 
following  receipt : 
"  John  W.  trim,  610  Chamber  of  Commerce  Bldg.,  Chicago. 

Received  of  Geo.  W.  Stone  the  sum  of  four  hundred  (400) 
dollars  as  part  of  the  loan  of  twenty  thousand  (20,000)  dol- 
lars— balance  left  in  escrow  with  Jno.  W.  Ulm. 

Alice  Asbury  Abbott." 

YolLZX  41 


674  Appellate  Courts  of  Illinois. 

Vol.  70.]  Abbott  v.  Stone. 

This  amount,  the  evidence  shows,  was  paid  to  Pierce  & 
Co.  for  commissions,  and  was  entirely  proper. 

Appellant  objects  to  the  just  allowance  of  $239.57,  paid 
by  appellee.  Stone,  for  taxes  upon  the  incumbered  property, 
and  for  which  appellee  produced  the  receipt  of  the  county 
collector,  which  was  competent  evidence  of  payment,  but  if 
not,  a  witness  testified  that  he  paid  the  taxes. 

A  solicitor's  fee  of  $539.38  was  properly  allowed  under 
the  provision  of  the  trust  deed,  which  appellant  states  as 
follows : 

"The  provision  is,  that  in  case  the  trustee  files  a  bill, and 
obtains  a  decree  and  sells  the  premises  as  trustee,  or  special 
commissioner,  or  otherwise,  under  order  of  court,  he  may, 
out  of  the  proceeds  of  the  sale,  pay,  first,  the  costs  of  suit; 
all  cost  of  advertising,  sale  and  conveyance,  and  reasonable 
fee  or  compensation  as  trustee;  also  (not  to  exceed)  two 
and  a  half  per  cent  on  the  amount  of  such  principal,  interest 
and  costs,  for  attorney's  and  solicitor's  fees,  and  all  other 
expenses  of  this  trust,  including  all  moneys  advanced  for 
insurance,  taxes  and  other  liens  and  asessments,  with 
interest  thereon  at  seven  per  cent  per  annum;  '  and  then ' 
to  pay  the  principal  of  said  notes  and  interest  up  to  the 
time  of  such  sale;  (third)  rendering  the  overplus,  if  any, 
unto  the  said  party  of  the  first  part." 

As  to  such  provision,  see  Cheltenham  Improvement  Co. 
V.  Whitehead,  128  111.  279,  Avhich  is  authority  for  allowing 
the  solicitor's  fee  in  this  case. 

It  is  claimed  that  two  of  the  interest  notes  offered  in 
evidence  appear  to  have  been  indorsed  by  complainant, 
Stone,  to  the  Northern  Trust  Co.,  and  that  it  should  have 
been  made  a  party  to  the  bill.  The  notes  w^ere  produced 
on  the  hearing  by  Stone,  who  testified  that  the  indorse- 
ments were  for  collection  only.  This  was  sufficient,  as 
equity  looks  to  substance.  The  indorsements  might  have 
been  canceled  on  the  hearing,  and  that  they  were  not  so 
canceled  can  make  no  difference. 

The  following  order  of  reference  was  made : 

"  George  W.  Stone  et  al.  v.  Alice  A.  Abbott  et  al.    Bill. 


First  District — March  Term,  1897.       675 

Abbott  V.  Stone. 

On  motion  of  complainants'  solicitor,  it  is  ordered  that 
this  cause  be  and  is  hereby  is  referred  to  William  Fenimore 
Cooper,  Esq.,  one  of  the  masters  in  chancery  of  this  court, 
to  take  proof  of  all  the  material  allegations  in  the  said 
bill  contained,  and  report  the  same  to  this  court,  with  his 
opinion  on  the  law  and  the  evidence,  with  all  convenient? 
speed." 

This  order  is  said  by  appellant  to  have  been  a  nullity, 
because  appellant  insists  that  under  it  proof  of  the  allega- 
tions of  the  answer  was  not  to  be  taken. 

If  appellant  desired  that  there  should  be  special  direc- 
tions to  take  proof  of  the  averments  in  the  answer,  she 
could  have  asked  for  it.  It  is  evident  that  in  the  order 
the  word  "bill"  is  used  as  synonomous  with  cause  or 
pleadings. 

Appellant,  with  her  witnesses,  appeared  and  testified 
before  the  master. 

Afterward  the  following  order  was  made : 

**  This  cause  coming  on  to  be  heard  upon  the  objections 
and  motions  and  exceptions  to  the  denial  or  overruling  of 
such  objections  and  motions,  saved  by  said  defendant,  Alice 
A.  Abbott,  during  the  taking  of  testimony  before  the  mas- 
ter in  chancery,  according  to  the  provisions  of  the  rule  of 
this  court,  it  is  ordered  by  this  court  that  the  master  make 
his  report  upon  the  evidence  taken,  and  that  all  the  said 
motions  and  exceptions  be  saved,  to  be  considered  by  the 
court  upon  the  hearing  of  the  case,  and  the  report  of  the 
master." 

The  master  made  a  report,  to  which  appellant  filed 
objections,  and  these  being  overruled,  they  were  refiled  as 
exceptions,  but  appellant  did  not  ask  for  a  further  reference 
or  for  the  taking  of  additional  testimony,  or  for  another 
report. 

The  testimony  and  evidence  were  reported  to  the  court, 
appellant  not  asking  leave  to  add  anything  thereto. 

The  action  of  the  trustee  shows  that  he  accepted  the 
trust,  and  that  the  trust  deed  was  and  is  a  valid  incum- 
brance. 

The  decree  of  th6  Circuit  Court  is  affirmed. 


676 


Appellate  Coubts  op  Illinois. 


70    676 
9f)    126 


70        676 
el05  »558 


Vol.  70.] 


C.  &  N.  W.  Ry.  Ck).  V.  Kane. 


Chicago  &  North  Western  Railway  Co.  r.  John  Joseph 

Kane. 


1.  Ordinary  Care  —  When  a  Question  far  the  Jury.  —Whether, 
under  all  the  circumstances  of  this  case,  the  plaintiff  was  exercising,  at 
the  time  of  the  injury,  the  care  that  an  ordinarily  prudent  man  would 
have  exercised,  is  a  question  on  which  reasonable,  fair-minded  men  might 
fairly  arrive  at  different  conclusions,  and  was  properly  submitted  to  the 
jury. 

-  2.  Master  and  Servant  — i^tsito  Aammed  by  the  Servant. —  Any 
number  of  instances  of  negligence  of  a  master  not  amounting  to  a  cus- 
tom or  mode  of  doing  business  will  not  cast  upon  the  servant  the  risk  of 
subsequent  or  other  similar  acts  of  negligence.  To  accomplish  this 
result  there  must  be  a  custom  known  to  the  servant,  or  which  by  the 
exercise  of  ordinary  care  he  should  have  known. 

3.  Contributory  Negligence— FaiZttre  to  Qvard  Against  a  Custom 
of  Defendant  to  Disobey  the  Law, — In  an  action  against  a  railroad  com- 
pany for  personal  injuries,  in  which  the  negligence  charged  is  a  failure 
to  ring  a  bell  as  required  by  a  city  ordinance,  evidence  that  it  was  the 
custom  of  the  company  to  disregard  the  ordinance,  and  that  the  plaint- 
iff knew  it,  is  admissible  on  the  question  of  contributory  negligence. 

4.  Damages— TVioZ  Court  Should  Decide  Whether  they  are  Excessive. 
— ^A  trial  judge  is  generally  in  a  far  better  position  than  an  Appellate 
Court  to  decide  whether  the  damages  awarded  by  a  jury  are  excessive, 
and  he  should  never  leave  this  duty  to  be  performed  by  an  appellate 
ti'ibunal. 

5.  Same^$30,000  Excessive  Under  the  Circumstances  of  this  Case. — 
A  verdict  for  $20,000,  damages  for  the  loss  of  an  arm,  in  favor  of  a 
young  man  twenty  years  of  age,  who  was  earning  $1  per  day  at  the 
time  of  the  accident,  and  who  afterward  secured  employment  at  $35 
per  month,  is  excessive,  and  should  not  be  allowed  to  stand. 


Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the  Hon.  James  GKxigin,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Reversed  and  remanded. 
Opmion  filed  July  26,  1897. 

A.  W.  PuLVKB,  attorney  for  appellant;  E.  E.  Osbobne  and 
L.  "W.  Bowers,  of  counsel. 

Case  &  Hooan,  attorneys  for  appellee;  Simeon  P.  Shops, 
of  counsel. 


First  District — March  Term,  1897.       677 

0.  &  N.  W.  Ry.  Co.  V.  Kane. 

Me.  Justice  Windbs  delivered  the  opinion  of  the  Court. 

This  case  has  been  tried  twice,  the  first  trial  resulting  in 
a  judgment  for  $10,000,  which  was  reversed,  this  court 
holding  that  the  law  would  not  permit  a  recovery  under  the 
evidence  in  that  trial.  (50  111.  App.  100.)  The  second  trial 
resulted  in  a  judgment  for  appellee  of  $20,000,  the  trial  court 
holding,  however,  that  the  verdict  was  too  large,  but  stating 
that  it  would  require  a  remittitur  if  it  were  not  for  the  fact 
that  this  court  (as  heretofore  constituted),  had  taken  upon 
itself  the  power  to  make  remittiturs  from  judgments  which 
it  believed  to  be  excessive,  and  therefore  declined  to  inter- 
fere with  the  amount  of  the  verdict. 

The  declaration  under  which  the  first  trial  was  had 
charged  appellant  with  negligence  in  kicking  a  freight  car 
through  its  switching,  yard  where  appellee  was  at  work, 
without  any  one  being  on  it  to  warn  appellee  of  its  approach, 
and  also  without  giving  appellee  any  warning  whatever  to 
look  out  for  its  approach. 

Before  the  second  trial  appellee  filed  two  additional 
counts,  the  first  of  which  set  up  two  rules  of  appellant, 
providing  for  a  man  being  on  the  car  or  ahead  of  it  when 
pushed  ahead  or  backed  by  an  engine,  or  in  case  of  a  flying 
switch  being  made,  to  see  that  the  way  was  clear  and  to  give 
signals,  and  alleged  that  appellee  was  injured  by  reason  of 
a  failure  to  comply  with  these  rules;  the  second  count  set 
up  a  city  ordinance,  requiring  the  bells  of  engines  to  be 
rung  continuously  while  running  in  the  city,  and  alleged 
that  appellee  was  injured  by  reason  of  a  failure  to  ring  bell 
so  as  to  warn  appellee  of  the  approach  of  the  car  which 
struck  him. 

The  two  additional  counts  merely  re-stated  more  specifi- 
cally the  several  charges  of  negligence  in  the  original 
declaration. 

The  proof  shows  that  appellee,  at  the  date  of  the  accident, 
which  occurred  about  10  a.  m.,  November  22,  1890,  was 
between  nineteen  and  twenty  years  of  age;  had  been 
employed  for  ten  days  before  the  injury  by  appellant,  and 
was  at  work  in  its  switch  yard,  Avhich  was  over  one-half  a 


678  Appellate  Courts  of  Illinois. 

Vol.  70.]  C.  &.  N.  W.  Ry.  Ck>.  v.  KAne. 

mile  long  and  contained  more  than  forty  tracks;  no  streets 
crossing  it;  that  from  three  to  six  engines  were  constantly 
employed  in  switching  cars  in  the  yard,  and  some  600  cars 
were  switched  per  day;  that  appellee's  duty  was  to  pick  up 
and  distribute  throughout  the  yard,  where  they  could  be 
used,  the  links  and  pins  necessary  to  couple  together  cars 
into  trains,  and  in  doing  this  he  was  obliged  to  go  all  over 
the  yard  every  day  from  seven  a.  m.  until  dark;  that  he  used 
a  wheelbarrow  to  carry  the  links  and  pins  about  the  yard 
and  distributed  them  from  that;  that  no  bells  were  rung  or 
whistles  sounded  by  the  engines  engaged  in  switching,  unless 
in  case  of  danger;  that  it  was  not  customary  to  have  a  man 
on  top  of  cars  that  were  kicked  or  switched  alone  through 
the  yard,  though  that  was  sometimes  done;  that  at  the  time 
of  the  accident  appellee  was  engaged  at  his  work  in  picking 
up  links  and  pins  about  400  feet  east  from  the  west  end  of 
track  No.  15,  where  it  connected  with  a  lead  track,  and 
while  so  engaged  on  track  15,  with  his  back  to  the  west, 
and  as  he  came  out  from  the  track  where  he  was  at  work, 
a  car  coming  from  the  west  on  track  15,  and  which  was  not 
attached  to  an  engine,  but  had  been  kicked  or  pushed  in 
from  a  lead  track  and  uncoupled  from  the  engine  some  300 
feet  away  from  this  point,  ran  against  him,  without  his 
seeing  it  or  hearing  any  warning  of  its  approach,  and 
caught  his  right  arm  between  the  moving  car  and  another 
stationary  car  on  the  track  in  front  of  which  he  was  picking 
up  the  links  and  pins.  Appellee  did  not  look  for  moving 
cars  immediately  preceding  the  accident.  The  last  time  he 
looked  west  along  track  15  it  was  clear. 

His  arm  was  so  crushed  that  amputation  of  it  near 
the  shoulder  was  performed.  No  one  was  on  the  moving 
car,  and  neither  the  bell  or  whistle  of  the  engine,  which 
had  been  attached  to  the  car,  and  which,  at  the  time  of  the 
accident  was  some  three  hundred  or  four  hundred  feet 
away,  was  rung  or  blown  just  previous  to  the  time  the  car 
was  separated  from  the  engine,  nor  while  the  car  moved 
through  the  yard  toward  the  place  of  the  accident,  nor  was 
any  warning  whatever  given  to  appellee.     The  car  that 


First  District — March  Term,  1897-       679 

C.  &  N.  W.  Rj.  Co.  V.  Kane. 

caused  the  injury  went  in  on  track  16  at  the  rate  of  four  or 
five  miles  an  hour,  and  at  the  time  it  struck  appellee  was 
moving  at  about  the  same  rate.  This  movement  of  cars  is 
designated  by  some  of  the  witnesses  as  a  "  kicking  switch  " 
— by  others,  a  "  flying  switch,"  but  the  weight  of  evidence 
is  that  it  is  called  by  railroad  men  a  "  kicking  switch  "  or 
simply  "  switching." 

Ko  serious  ill  has  resulted  to  appellee  from  his  injury, 
except  the  deprivation  of  his  right  arm,  and  from  which  he 
no  doubt  suflfered  great  pain  for  a  time.  He  left  school  at 
twelve  years  of  age,  and  prior  to  his  injury  had  worked  at 
paper  hanging,  for  which  he  received  $1  per  day.  After 
his  injury  he  was  idle  two  or  two  and  one-half  3^ears,  and 
since  has  worked  as  a  flagman,  receiving  $35  per  month. 

Appellant's  first  and  second  contentions  are  that  appellee 
did  not  use  ordinary  care,  and  that  he  assumed  the  risks  of 
the  danger  of  switching  cars  in  its  yard. 

It  is  true,  no  doubt,  that  had  appellee  looked  for  moving 
cars  a  few  seconds  before  he  was  hurt,  he  would  have 
escaped  injury,  but  he  says  that  he  did  look  before  he  went 
onto  the  track  and  saw  that  it  was  clear,  and  being  engaged 
at  his  work,  more  time  elapsed  after  he  looked  than  he 
thought;  also  it  appears  that  a  naan  was  at  times  placed  on 
moving  cars.  It  was  a  question  of  fact  whether,  under  all 
the  surroundings,  appellee  was  exercising  the  care  that  an 
ordinarily  prudent  and  careful  man  would  have  done.  This 
is  a  question  on  which  reasonable,  fair-minded  men  may 
fairly  arrive  at  different  conclusions,  and  was  properly  sub- 
mitted to  the  jury.  Terre  Haute  C:  I.  E.  II.  Co.  v.  Voclker, 
129  111.  641-60;  Chicago  &  K  W.  Ey.  Co.  v.  Dunleavy,  Id. 
141;  C,  C,  0.  &  St.  L.  Ry.  Co.  v.  Baddeley,  150  111.  333; 
St.  Louis,  A.  «fe  T.  H.  R.  R.  Co.  v.  Eggmann,  IGl  111.  160; 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  O'Connor,  115  111.  254-62. 

That  two  juries  have  found  that  appellee  used  ordinary 
care,  is  not  without  weight  in  considering  this  question.       , 

It  is  also  true  that  the  switch  yard  was  a  dangerous  place 
to  work,  and  while  it  appears  that  it  was  not  customary  to 
have  men  on  cars  when  being  switched,  appellee  had  only 


680  Appellate  Courts  op  Illinois. 

Vol.  70.]  C.  &  N.  W.  Ry.  Co.  v.  Kane. 

worked  there  but  a  short  time^  and  had  seen  men  on  cars 
which  were  being  switched,  and  it  does  not  appear  that  he 
was  aware  of  a  custom  in  the  yard  which  was  in  violation 
of  the  rules  of  the  company,  nor  does  the  evidence  show  so 
clearly  as  to  make  it  a  question  of  law  for  the  court,  that 
by  the  exercise  of  ordinary  care  he  should  have  known. 
Any  number  of  instances,  not  amounting  to  a  custom  or 
mode  of  doing  business,  of  negligence  of  the  master,  will 
not  cast  upon  the  servant  the  risk  of  subsequent  or  other 
similar  acts  of  negligence.  There  must  be  a  custom  known 
to  the  servant,  or  which  by  ordinary  care  he  should  have 
known.  In  any  event  the  question  as  to  whether  appellee, 
in  the  exercise  of  ordinary  care,  should  have  known  the 
custom  of  moving  cars  in  the  yard,  under  the  evidence  in 
this  record,  should  have  been  submitted  to  the  jury.  Sher- 
man V.  Ry.  Co.,  34  Minn.  259;  Bengtson  v.  Ey.  Co.,  47  Minn. 
486;  Abbott  v.  McCadden,  81  Wis.  563. 

The  cases  cited  by  appellant  as  to  assumed  risks,  are  all 
cases  where  the  servant  had  actual  knowledge  of  the  dan- 
ger to  which  he  was  exposed,  or  by  the  exercise  of  ordinary 
care,  should  have  had  knowledge. 

The  trial  court  refused  to  allow  appellant  to  show,  by  a 
cross-examination  of  two  of  appellee's  witnesses,  whether  or 
not  it  was  a  custom  at  and  prior  to  the  accident,  when 
switching  cars  to  ring  the  bell  of  the  engine  every  time  it 
moved  in  the  vard,  and  that  it  was  known — the  court  hold- 
ins:  in  substance,  that  a  custom  can  not  be  shown  which  vio- 
lates  an  ordinance.  As  before  stated,  appellee  had  offered 
and  the  court  had  received  in  evidence  an  ordinance  of  the 
city  of  Chicago  which  required  the  engine  bell  to  be  rang 
continually  while  running  within  the  city,  and  the  evidence 
shows  no  bell  was  rung  at  and  prior  to  the  aocdent. 

The  ruling  of  the  court  was  erroneous  in  this  regard. 
Bengtson  v.  Ry.  Co.,  47  Minn.  486;  Abbott  v.  McCadden, 
81  Wis.  563. 

In  the  Bengtson  case,  the  court  says :  "  Conceding  that 
proof  that  the  engine  and  tender  were  running  at  a  greater 
rate  of  speed  than  that  allowed  by  the  ordinance,  was  evi- 
dence of  negligence  on  the  part  of  the  defendant^  yet  if 


First  District — March  Term,  1897.       681 

C.  &  N.  W.  Ry.  Co.  V.  Kane. 

running  trains  in  the  yard  at  a  greater  rate  of  speed  than 
four  miles  per  hour  was  the  defendant's  mode  of  transacting 
its  business,  and  that  and  the  risks  to  which  it  subjected 
him  were  known  to  deceased  while  in  its  employment,  he 
assumed  the  risks." 

In  the  Abbott  case,  supra^  the  defense  offered  to  prove 
that  it  was  the  universal  custom  in  the  yard,  before  and  at 
the  time  of  the  accident,  to  run  switch  engines,  in  doing  the 
yard  work,  much  faster  than  six  miles  per  hour  (that  rate 
being  the  limit  fixed  by  ordinance),  and  that  the  deceased 
well  knew  it.  The  court  said:  "  While  the  custom  of  run- 
ning switch  engines  at  an  illegal  or  dangerous  rate  of  speed  is 
no  defense,  it  is  quite  apparent  that,  if  the  deceased  knew  that 
the  engines  in  the  yard  constantly  were  operated  at  such  a 
rate  of  speed,  and  chose  without  objection  to  remain  in  his 
employment,  it  was  entirely  competent  to  prove  the  two 
facts,  as  bearing  on  the  extent  of  the  risk  which  the 
deceased  voluntarily  assumed." 

The  fact  that  appellant  was  allowed  to  prove  by  its  wit- 
nessess  the  custom  in  question,  does  not  avoid  the  error  nor 
the  probable  effect  of  the  court's  ruling  on  the  jury. 

The  only  remaining  matter  for '  consideration  is  the 
amount  of  damages.  While  this  court  might  be  entirely 
justified,  in  view  of  the  statements  of  the  trial  judge,  in 
holding  that  the  damages  awarded  are  excessive,  we  prefer 
to  decide  that  point  on  the  evidence  in  the  record.  It  seems 
proper,  however,  to  say  that  the  reason  given  by  the  trial 
judge,  stated  heretofore,  for  Aot  requiring  a  remittitur,  is 
wholly  insufficient.  The  trial  judge  should  never  leave  his 
duty  to  be  performed  by  an  appellate  tribunal.  He  is 
generally  in  far  better  position  than  an  Appellate  Court  to 
pass  upon  the  question  of  the  amount  of  damages. 

The  matters  stated  above  as  to  the  nature  of  appellee's 
injuries,  his  earning  capacity,  education  and  station  in  life, 
make  it  fully  apparent  that  $20,000  is  a  grossly  excessive 
judgment,  which  should  not  have  been  entered  by  the  trial 
court. 

For  the  errors  above  noted  the  judgment  will  be  reversed 
and  the  cause  remanded. 


682  Appellate  Courts  of  Illinois. 

Vol.  70.]  Hopper  v.  Da  vies. 


John  F.  Hopper  and  John  E.  Patterson  y.  Baehael 

Davies. 

1.  Judgments. — Interference  With,  in  Equity. — ^There  is  no  such 
showing  of  fraud,  accident  or  mistake  in  this  case  as  warrants  a  court 
of  equity  in  assuming  jurisdiction  to  revise  a  judgment  at  law. 

2.  Judicial  BjlU^— Inadequacy  of  iVice.— Inadequacy  of  price  is 
not  sufficient  ground  for  setting  aside  a  judicial  sale. 

3.  Receivers — Where  Court  has  no  Jurisdiction  of  the  Suhject-Mat- 
ter. — If,  on  a  bill  to  set  aside  a  judicial  sale,  it  appear  that  the  court  is 
without  jurisdiction  to  grant  the  ultimate  relief  prayed  by  the  bill  it  has 
no  power  to  appoint  a  receiver. 

Bill,  to  set  aside  a  judgment  and  sheriff's  deed.  Appeal  from  the 
Circuit  Court  of  Cook  County;  the  Hon.  Elbridqe  Hanecy,  Judge, 
presiding.  Heard  in  this  court  at  the  March  term,  1897.  Reversed  and 
remanded.    Opinion  filed  August  6,  1897. 

r 

Manton  Maverick,  attorney  for  appellant  Jno.  F.  Hopper. 
George  Martin,  attorney  for  appellant  Jno.  E.  Patterson. 

George  A.  Williams,  attorney  for  appellee. 

Mr.  Justice  Sears  delivered  the  opinion  of  the  Court. 

This  is  an  appeal  from  an  interlocutory  order,  appointing 
a  receiver  of  certain  real  estate. 

The  bill  of  complaint  of  appellee  alleges  a  judgment 
recovered  against  her  in  favor  of  J.  N.  "Waller,  as  adminis- 
trator, etc.,  upon  certain  promissory  notes,  which  notes,  the 
bill  alleges,  had  been  paid;  execution  upon  judgment,  sale 
of  the  real  estate  in  question  by  sheriff  upon  execution, 
sheriff's  deed  to  appellant  Patterson,  conveyance  by  Pat- 
terson to  appellant  Hopper,  and  appropriation  of  rents  by 
Patterson.  No  attack  is  made  upon  the  regularity  of  the 
proceedings  in  which  the  judgment  was  rendered.  It  is, 
however,  alleged  that  the  complainant,  appellee,  was  enabled 
to  properly  testify  at  the  hearing  of  the  cause,  which 
resulted  in  the  judgment,  because  of  the  serious  illness  of  her 


First  District — March  Term,  1897.       683 

Hopper  V.  Davies. 

husband,  and  was  prevented  from  appealing  from  the  judg- 
ment partly  by  the  death  of  her  husband,  and  partly  by  the 
assurance  of  her  attorney — against  whom  there  is  no  charge 
of  fraud — that  he  would  obtain  a  new  trial. 

The  prayer  of  the  bill  is,  among  other  things,  for  the  set- 
ting aside  of  the  judgment,  the  sheriff's  deed  and  the  deed 
from  Patterson  to  Hopper. 

It  is  urged  that  the  receiver  was  appointed  without  notice 
to  appellant  Hopper.  We  think  that  upon  the  facts — the 
failure  to  find  the  address  of  Hopper  from  the  directory  or 
otherwise,  the  refusal  of  Patterson  and  his  counsel  to  dis- 
close the  whereabouts  of  Hopper,  and  their  subsequent  prof- 
fer to  brinof  him  before  the  court  within  twentv-f our  hours 
if  the  court  would  delay  the  appointment  of  a  receiver,  the 
court  was  fully  warranted  in  excusing  any  further  effort  to 
notify  Hopper. 

It  is  also  urged  that  the  verification  of  the  bill  is  insuffi- 
cient, and  Packer  v.  Eoberts,  44  111.  App.  232,  and  other 
cases  are  cited  in  support  thereof. 

These  cases  are  not  in  point.  In  each  there  was  a  total 
failure  of  proper  verification.  In  the  case  under  consider- 
ation the  entire  bill,  save  one  allegation,  was  directly  and 
positively  verified  as  matters  of  fact,  and  that  single  allega- 
tion, verified  upon  information  and  belief,  is  not  a  vital 
one. 

But  both  of  these  contentions  become  unimportant  from 
the  view  which  we  take  of  the  bill  itself  and  the  question 
of  its  sufficiency.  There  are  general  allegations  of  fraud  in 
the  bill,  but  the  only  specific  allegation  of  any  kind,  attack- 
ing the  validity  of  the  judgment,  which  is  the  basis  of  the 
title  of  appellant  Hopper,  is  that  the  appellee,  the  judgment 
defendant,  owed  nothing  to  the  plaintiff,  who  recovered 
the  judgment. 

That  appellee  had  adequate  remedy  at  law  in  this  behalf, 
is  only  controverted  by  the  allegation  that  the  illness  and 
death  of  her  husband  prevented  a  proper  attention  to  her 
suit.  This  is  in  itself  no  ground  for  the  intervention  of  a 
court  of  equity.    There  is  no  such  showing  of  fraud,  acci- 


70    084 
1?0»  281 

70    684 
85    515 


684  Appellate  Courts  of  Illinois. 

Vol.  70.]  Shaffner  v.  Appleman. 

dent  or  mistake,  as  would  warrant  a  court  of  equity  in 
assuming  jurisdiction  to  revise  a  judgment  at  law.  Lucas 
V.  Spencer,  27  111.  15. 

Nor  is  the  allegation  of  inadequacy  of  price  paid  at  the 
sheriiFs  sale  suflBcient.  O'Callaghan.  v.  O'Callaghan,  91  IlL 
228. 

The  bill,  as  presented  by  the  record,  whatever  its  suflB- 
ciency  for  any  of  the  other  ends  of  relief  sought,  is  insuffi- 
cient for  any  relief  as  to  the  judgment  and  sale  as  aflfecting 
the  title  of  Hopper  to  the  real  estate  in  question. 

"It  is  clear,  if  the  court  was  without  jurisdiction  to  grant 
the  ultimate  relief  prayed  by  the  bill,  it  had  no  power  to 
appoint  the  receiver,"  etc.  The  People  v.  Weigley,  155  IlL 
491. 

The  order  is  therefore  reversed  and  the  cause  remanded. 


Benjamin  M.  Shaffner  et  al.  t.  J,  S.  Appleman  et  al. 

1.  Mortgages— ForecZo«ure  of  Junior  and  First  Liens. — ^A  prior 
mortgage  can  not  be  foreclosed  under  a  decree  upon  an  original  bill  filed 
by  a  junior  mortgagee.  If  the  holder  of  the  senior  mortgage  desires  a 
foreclosure  in  such  suit,  he  must  file  a  cross-bill,  and  if  he  does,  he  may 
be  allowed  solicitor's  fees  if  they  are  provided  for  in  his  mortgage, 

2.  Same— jFbr?n  of  Decree  of  Foreclosure.— A  decree  of  foreclosure 
that  does  not  direct  the  defendants  to  pay,  but  only  orders  that  the 
premises  be  sold  if  tliey  do  not,  is  not  subject  to  objection  by  them. 

3.  Equity  I^raotice— Expenses  of  Foreclosure  Must  Have  Been 
Objected  to  if  Questioned  on  Appeal. — Where  an  item  of  expense  aUowed 
to  the  complainant  in  a  foreclosure  suit  by  a  master  in  chancery  was 
not  objected  to  before  him,  nor  excepted  to  before  the  court,  the  pro- 
priety of  its  allowance  being  the  subject  of  evidence,  the  allowance  can 
not  be  questioned  for  the  first  time  on  appeaL 

Foreclosure. — Appeal  from  the  Superior  Court  of  Cook  County;  the 
Hon.  John  Barton  Patne,  Judge,  presiding.  Heard  in  this  court  at 
the  March  term  1897.    Affirmed.    Opinion  filed  July  26,  1897. 

B.  M.  Shaffnek,  attorney  for  appellants. 

Lyman  &  Jaokson,  attorneys  for  appellees. 

Opinion  per  Curiam. 

The  appellee  named  in  the  title  filed  a  bill  to  foreclose  a 


FiusT  District — March  Term,  1897.       686 

Shaffner  v.  Appleman. 

trust  deed,  in  the  nature  of  a  mortgage  executed  to  him  by 
the  appellants,  to  secure  $4,000.  The  bill  prayed  for  a  fore- 
closure, subject  to  a  prior  trust  deed  of  the  same  nature, 
executed  by  the  appellants  to  Lyman  Baird  to  secure 
$16,000.  This  last  trust  deed  provided  for  "  a  reasonable 
sum  for  solicitor's  fee  in  any  proceedings  to  foreclose"  it. 
Baird  and  the  holder  of  the  $16,000  note  came  into  the  suit, 
and  filed  a  cross-bill  to  foreclose  the  deed  to  Baird. 

The  master  reported,  inter  alia^  that  $300  was  a  reason- 
able solicitor's  fee  to  them.  The  appellants  objected  and 
excepted  to  the  allowance  of  that  fee,  not  because  it  was  not 
reasonable,  but  because  the  cross-complainants  might  have 
had  their  relief  without  a  cross-bill,  and  cite  Soles  v.  Shep- 
pard,  96  ill.  131;  which  was  a  case,  not  of  a  prior,  but 
junior  incumbrancer,  to  whom  his  share  of  the  surplus  pro- 
ceeds might  have  been  distributed  without  any  pleading  on 
his  part. 

Here  the  trust  deed  of  the  cross-complainants,  could  not 
have  been  foreclosed  by  a  decree  upon  the  original  bill. 
Rose  V.  Chandler,  50  111.  App.  421. 

Whether  coming  into  that  suit,  and  filing  a  cross-bill  was 
regular  practice,  we  need  not  inquire;  it  was  no  injury,  but 
beneficial,  to  the  appellants  that  the  cross-complainants 
took  that  course,  instead  of  filing  an  original  bill,  as  the 
costs  in  the  one  suit  were  less  than  they  would  have  been 
in  two.  The  allowance  of  the  fee  was  within  the  letter  and 
the  spirit  of  the  trust  deed  to  Baird. 

Another  item  allowed  by  the  master,  and  here  complained 
of,  was  not  objected  to  before  him,  nor  excepted  to  before 
the  court,  and  whether  it  was  an  expense  within  the  terms 
of  the  trust,  would  be  the  subject  of  evidence;  the  sufii- 
ciency  of  which  can  not  be  questioned  for  the  first  time  on 
appeal. 

The  complaint  that  the  decree  does  not  direct  the  appel- 
lants to  pay,  but  only  that  the  premises  should  be  sold  if 
they  do  not,  will  probably  be  rectified  if  there  should  be  a 
deficiency.  If  the  decree  was  wrong  in  that  respect,  which 
it  is  not,  the  appellants  are  not  harmed  by  the  error. 

The  decree  is  affirmed. 


686  Appellate  Courts  of  Illinois. 

Vol.  70.]  Norton  Bros.  v.  Sczpurak. 


70      686 
101     1372 


Norton  Brothers^  a  Corporation^  y.  Stella  Sczpnrak. 

1.  Negligence— Fai7wrc  of  Master  to  Keep  Machinery  in  Repair^- 
When  Defects  Will  Create  Liability, — In  a  suit  by  a  servant  against  his 
master  for  an  injury  said  to  be  due  to  the  negligence  of  the  master,  if  it 
be  shown  that  a  machine  causing  the  injury  worked  defectively  and 
that  the  master  knew  it,  it  is  not  material  what  particular  flaw  or 
impediment  caused  the  improper  working  of  the  machine.  Such 
improper  operation  is  in  itself  a  defect. 

2.  Questions  op  Fact — Contributory  Negligence  and  Assumption  of 
Hazard  by  Servant, — That  a  plaintiff  suing  for  personal  injuries  was, 
when  injured,  removing  a  piece  of  work  with  her  fingers  when  she 
might  have  used  a  stick  for  the  purpose,  and  that  she  had  worked  for 
some  time  upon  machines  somewhat  similar  in  operation,  establish 
neither  contributory  negligence  or  assumed  hazard  upon  her  part,  con- 
clusively and  as  matters  of  law. 

3.  Instructions — A  Proposition  of  Law  Need  Only  be  Stated  Once. — 
After  clearly  informing  the  jury  as  to  the  law  governing  them  on  a 
particular  question,  the  court  is  not  obliged  to,  nor  should  it  reiterate 
the  same  proposition  of  law  in  other  instructions,  coupled  with  different 
hypotheses  of  fact  which  might  apply. 

Trespass  on  the  Case,  for  personal  injuries.  Appeal  from  the  Supe- 
rior Court  of  Cook  County;  the  Hon.  Philip  Stein,  Judge,  presiding. 
Heard  in  this  court  at  the  March  term,  1897.  Affirmed.  Opinion  filed 
August  5,  1897. 

Herriok,  Allen,  Boyesen  &  Martin,  attorneys  for  ap- 
pellant. 

Louis  Spahn  and  Marcus  Kavanagh,  attorneys  for  appel- 
lee. 

Mr.  Justice  Sears  deliveeed  the  opinion  of  the  Coukt. 

Appellee,  a  young  woman  employed  as  a  press-hand, 
brought  suit  to  recover  for  personal  injuries  alleged  to  have 
resulted  from  negligence  of  appellant,  her  employer,  a  man- 
ufacturing company.  A  verdict  and  judgment  in  her  favor 
resulted. 

The  appellant  was  engaged  in  the  manufacture  of  tin- 
ware, and  used  a  large  number  of  machines  of  somewhat 


First  District — March  Term,  1897.       687 

Norton  Bros.  t.  Sczpurak. 

similar  construction  to  the  one  upon  which  appellee  was 
injured.  The  machine  or  press  at  which  appellee  was  at  work 
when  injured,  was  a  press  or  stamp  for  the  purpose  of  stamp- 
ing into  the  shape  desired  various  portions  of  the  tinware 
manufactured  by  appellant. 

The  stamp  or  die  is  so  constructed  that  in  order  to  operate 
or  come  down  on  the  disk  and  object  to  be  stamped,  it  has 
to  be  put  in  action  by  a  treadle  or  lever  which,  by  being 
pressed,  liberates  a  clutch-pin,  which,  when  so  liberated, 
admits  of  the  descent  of  the  stamp;  but  until  the  stamp  is 
so  liberated  by  the  removal  of  the  clutch-pin  through  the 
pressure  on  the  lever  or  treadle,  this  clutch-pin  holds,  or  is 
supposed  to  hold,  the  stamp  until  it  is  again  permitted  to 
descend  by  the  withdrawal  of  the  clutch-pin.  The  stamp 
then  makes  one  punch,  and  after  each  action  should  be  again 
immediately  locked  by  the  automatic  action  of  the  clutch- 
pin,  which  should  slip  into  place  and  hold  the  stamp  until 
the  next  pressure  of  the  lever.  Each  action  of  the  stamp 
completes  the  work  to  be  done  by  it  on  each  particular  piece 
of  tin,  and  the  stamp  should  remain  suspended  until  the 
operator  adjusts  another  piece  of  tin  for  the  impress  of  the 
stamp,  and  applies  the  lever. 

In  some  of  the  machines  the  clutch-pin  is  released  by 
pressing  on  a  treadle,  and  in  others  by  pulling  on  a  lever. 
The  one  at  which  appellee  was  hurt  was  of  the  latter 
description. 

The  evidence  was  conflicting.  There  was  evidence  that 
the  machine  by  which  appellee  was  injured  operated  defect- 
ively; that  appellant  had  knowledge  of  such  defective 
working  of  the  machine,  and,  with  such  knowledge,  directed 
appellee  to  work  upon  the  same,  without  any  notice  or  warn- 
ing to  her  as  to  its  condition. 

A  fellow-employe  of  appellee,  Mary  Murrin,  testified: 
"  I  worked  at  it  about  twenty  minutes;  then  the  punch  ran 
up  and  down;  I  had  touched  the  lever;  it  ran  up'and  down 
twice,  when  it  should  have  only  ran  up  and  down  once;  I 
didn't  touch  the  lever  twice;  I  touched  it  once. 

When  it  did  that  I  told  Frank  Brown,  the  foreman,  that 
the  press  was  running  up  and  down. 


688  Appellate  Courts  op  Illinois. 

Vol.  70.]  Nortou  Bros.  v.  Sczpurak. 

1  saw  Stella  running  down  the  aisle  after  she  was  hurt; 
this  was  the  same  place  at  which  she  was  hurt;  it  was  be- 
tween two  and  three  hours  after  I  told  the  foreman  about 
the  condition  of  that  machine,  that  I  saw  Stella  running 
down  the  aisle." 

Julia  Comley,  another  employe  of  appellant,  speaking  of 
the  defective  working  of  the  machine,  testified :  "  Before 
Stella  was  hurt,  I  told  Mr.  Louis  or  Mr.  Frank  Brown.  It 
is  a  long  time  since  I  was  out  there.  I  can't  remember  just 
when.     They  were  the  foremen  in  that  room." 

Appellee  testified :  "  The  assistant  foreman  came  along 
and  told  me  to  run  that  other  press.  Frank  Brown  was 
the  assistant  foreman;  he  ordered  the  people  around  to 
work.  I  did  not  touch  the  lever;  Frank  Brown  said  noth- 
ing to  me  at  all  about  the  condition  of  the  machine;  nobody 
told  me  a  word  about  it." 

There  was  no  evidence  as  to  what  the  particular  defect 
was,  which  caused  the  machine  to  operate  improperly.  But 
there  was  evidence  that  it  did  work  improperly  in  this, 
that  the  stamp  descended  at  times  without  the  touch  upon 
the  lever  which  should  direct  its  descent,  as  shown  by  the 
testimony  of  Murrin,  who  stated  that  it  descended  twice 
when  the  lever  was  touched  but  once. 

It  is  urged  by  counsel  for  appellant  that  in  order  to  re- 
cover, it  devolved  upon  appellee  to  show  aflirmatively  the 
specific  defect  which  caused  the  injury,  and  in  support 
thereof  they  cite  Sack  v.  Dolese,  137  111.  129. 

There  can  be  no  question  as  to  the  doctrine  invoked  as 
applied  to  that  case.  But  what  of  its  application  to  this 
case? 

In  the  case  cited,  it  will  be  found  that  a  vital  point  was 
lack  of  any  evidence  to  show  that  notice  of  any  defect  was 
chargeable  upon  the  master.  In  the  case  nnder  considera- 
tion, there  was  no  such  question.  Here,  there  is  direct 
evidence  that  the  master  was  informed,  through  its  fore- 
man, that  the  machine  did  operate  defectively.  It  is  not 
material  here  what  particular  flaw  or  impediment  caused 
the  improper  working  of  the  machine.    It  is  enough  that 


First  District — March  Term,  1897.       689 

Norton  Bros.  ▼.  Sczpurak. 

it  did  so  improperly  operate,  if  appellant  knew  of  it.    Such 
improper  operation  was,  in  itself,  the  defect. 

It  is  very  strenuously  urged  by  counsel  for  appellant  that 
the  expert  evidence  showed  conclusively  that  the  machine 
could  not  have  operated  as  indicated  by  the  evidence  for 
appellee.  It  is  enough  to  say  that  the  jury  from  the  evi- 
dence believed  the  theory  of  appellee  as  to  what  was, 
rather  than  the  theory  of  the  experts  as  to  what  could  not 
have  been.    Chicago,  A.  P.  B.  Co.  v.  Reininger,  41  111.  App. 

The  question  of  contributory  negligence  was,  under  the 
facts  here,  a  question  for  the  jury. 

It  was  also  question  for  the  jury  whether  the  danger, 
which  resulted  in  injury,  was,  under  the  facts  of  this  case 
an  assumed  hazard. 

That  appellee  was,  when  injured,  removing  a  piece  of 
v^ork  with  her  fingers,  when  she  might  have  used  a  stick 
for  the  purpose,  and  that  she  had  worked  for  some  time 
upon  machines  somewhat,  though  not  precisely,  similar  in 
method  of  operation,  establish  neither  contributory  negli- 
gence on  her  part  nor  assumed  hazard,  conclusively  and  as 
matters  of  law.    Donahue  v.  Drown,  27  N.  E.  Rep.  675. 

The  evidence,  though  conflicting,  being  sufficient  to  sus- 
tain appellee's  declaration  and  to  warrant  the  jury  in  finding 
that  appellant  knew  that  the  machine  was  defective  in  its 
operation,  and  that  apj^ellant,  with  such  knowledge  and 
without  warning  to  appellee,  placed  appellee  at  work  upon 
the  same,  and  that  appellee,  without  fault  upon  her  part, 
and  without  having  assumed  as  an  ordinary  hazard  of  her 
employment  the  danger  to  which  she  was  thus  exposed, 
was  thereby  injured,  the  finding  of  the  jury  to  such  effect 
should  stand  unless  there  be  error  in  the  proceeding  of  the 
trial.  No  such  error  is  urged,  except  the  refusal  of  the 
court  to  give  the  seventh  and  eighth  instructions  offered 
by  appellant.  Each  purports  to  instruct  upon  the  question 
of  contributory  negligence,  and  the  eighth  instruction  tells 
the  jury  that  certain  stated  facts  would  constitute  such 
negligence. 

VOL.LXX   44 


690  Appellate  Courts  of  Illinois. 

Vol.  70.]  Norton  Bros.  v.  Sczpurak. 

The  doctrine  of  contributory  negligence  which  the  jury 
were  called  upon  to  apply  to  the  facts  of  this  case,  was  suffi- 
cientl}*^  explained  to  them  by  the  first  and  second  instruc- 
tions given  for  appellant. 

After  clearly  informing  the  jury  as  to  the  law  governing 
them  in  this  regard,  the  court  was  not  obliged  to,  nor  should 
it,  reiterate  the  proposition  of  law,  in  other  instructions 
coupled  with  different  hypotheses  of  fact  which  might 
apply. 

The  judgment  is  affirmed. 


ANALYTICAL   INDEX. 


A 

ABATEMENT— Death  of  all  the  parties  to  a  suit 98 

ABSTRACTS— Must  show  what  is  relied  on  for  reversal 371 

Must  show  errors  complained  of 198 

What  they  should  show 807 

ACCOUNT  STATED— Not  conclusive 858 

Power  of  a  corporation  to  make 858 

ACTIONS — When  considered  as  commenced  as  to  new  defendants 

added  by  amendment 480 

AGENCY — Acts  done  by  officers  of  a  corporation  as  officers  of  an- 
other corporation :  556 

Contracts  made  by  an  agent  representing  both  principals  void 

until  ratified 616 

Authority  of  an  insurance  agent : 616 

The  law  as  to  the  existence  of  the  relationship  of  principal  and 

agent  applied 457 

The  relation  found  to  exist 589 

AGENTS— Authority  under  general  directions 356 

ALIAS  WRITS— Defined 177 

Not  provided  for  in  attachment  suit 177 

ALIMONY— Where  the  marriage  is  denied 840 

AMENDMENTS— As  ground  for  a  continuance 649 

As  to  the  parties 540 

Effect  of  failure  to  make  actual  coiTection  of  paper 189 

May  be  made  at  any  time  after  papers  are  filed 480 

APPEAL  BONDS— What  is  a  breach  of 855 

APPEALS  AND  ERRORS— Excessive  damages  as  ground  for  re- 
versal   666 

Appeals  by  certiorari  still  allowable 399 

From  the  County  Court  in  insolvency  proceedings 632 

Final  ordere, 632 

Involving  the  constitutionality  of  a  statute 175,  819,  646 

Questions  arising  on 684 

Involving  a  freehold 195 

Rights  of  parties  not  appealing  not  considered 557 

(691) 


692  Appellate  Courts  op  Illinois. 

APPEARANCES— When  deemed  to  be  general 49 

EfiFect  of  writing,  consenting  to  action 49 

APPELLATE  COURT  PRACTICE— Abstract  most  show   errors 

complained  of 193 

Abstract  must  show  what  errors  are  based  on 186 

As  to  matters  not  abstracted 4d0 

As  to  minor  errors,  where  the  judgment  is  substantially  right. .  102 

Bills  of  exceptions  must  show  facts  relied  on  for  reversal 544 

Briefs  must  be  filed  as  required  by  the  rules 613 

Enforcement  of  rules 587 

Errors  not  effecting  the  result  need  not  be  considered. 51 

Filing  new  bonds 36 

Grounds  for  reversal  must  be  shown  by  the  abstract. . . .'. 871 

In  examining  refused  instructions • 289 

Insufficient  bill  of  exceptions. 139 

New  points  cannot  be  made  on  petition  for  rehearing 273 

Rights  of  parly  not  appealing  not  ground  for  reversal 557 

What  abstracts  should  show 807 

When  bill  of  exceptions  is  unnecessary 253 

When  no  bill  of  exceptions  is  filed 647 

Where  instructions  do  not  appear  in  the  abstract 434 

Where  the  bill  of  exceptions  does  not  contain  all  the  evidence.  863 

APPELLATE  COURTS— Have  no  jurisdiction  of  cases  involving 

a  freehold 196 

Have  no  jurisdiction  of  cases  involving  the  validity  of  a 

statute 175 

Have  no  jurisdiction  of  constitutional  questions 819,  645 

ARCHITECTS— Certificate  of,  final  except  in  case  of  fraud  or 

mistakes 273 

Fraud  or  mistake  of— How  shown 273 

ARGUMENTS— Reasonableness  of  restrictions  of 22 

Right  to  make  to  jury  can  not  be  cut  off 53 

ARREST  OF  JUDGMENT— After  demurrer  to  declaration  is  over- 
ruled   550 

ARRESTS— By  private  persons 116 

ASSUMPSIT — ^Lies  for  amount  due  on  judgment  in  eminent  domain 

proceedings 125 

'•AT"— Defined 389 

ATTACHMENTS— Alias  writs  of  attachment  void 177 

Are  purely  statutory  proceedings 177 

Alias  writs  not  provided  for 177 

ATTORNEYS — ^Admissions  of,  do  not  bind  client 220 

Their  duty  to  talk  to  witnesses 387 

ATTORNEY'S  FEES— Allowance  of,  under  trust  deed 671 

B 

BAGGAGE — Liability  of  common  carriers  for  loss  of <  654 

Showing  fiecessary  to  establish  liability  where  loss  is  caused  by 

actof  God 654 


Analytical  Index.  693 

BAILMENTS— Distinguished  from  sales 689 

Loss  of  property  by  the  bailee •.••••••••  846 

BANKS  AND  BANKING- Bank's  liability  on  checks 592 

It  is  not  the  duty  of  a  bank  to  hold  funds  to  meet  an  outstand- 
ing check 692 

Bank's  liability  on  checks — Proof  required  to  establish 592 

Checks  presented  after  insolvency  of  bank  as  a  set-off  against 

debt  to  bank 407 

Time  allowed  payee  to  present  check 245 

BASTARD Y— Opinions  as  the  period  of  gestation 684 

BENEFIT  SOCIETIES— Change  of  beneficiary 180 

When  vested  rights  accrue 180 

Mode  of  changing  the  beneficiary 180 

Change  of  beneficiary — ^New  contract 180 

Good  standing  of  members — How  shown — Presumptions  as  to.  95 

Forfeiture  of  membership 95 

Loss  of  good  standing  in— How  shown 95 

BILLS  OF  EXCEPTIONS— Affidavits  read  on  a  motion  for  a  new 

trial 854 

Must  show  facts  relied  on  for  reversal 544 

Must  show  that  they  contain  all  the  evidence 878 

Power  of  court  to  extend  time  to  file 25 

References  to  matters  following  judge's  certificate 265 

Presumptions  as  to  different  handwritings  in 265 

Should  not  omit  matters  that  may  have  affected  the  result. . . .  199 

What  they  should  show 129 

When  necessary 646 

When  regarded  as  incomplete 48 

When  unnecessary 258 

BONDS — How  insufficiency  of  may  be  remedied. 86 

To  cover  the  performance  of  future  contracts 425 

A  bond  construed 425 

To  indeninify  officers 251 

What  breaches  of,  may  form  the  basis  of  a  recovery 28 

What  will  amount  to  a  breach  of  an  appeal  bond 855 

BRIEFS— What  they  should  contain 818 

BUILDING  CONTRACTS— Certificate  of  architect  final  except  in 

case  of  fraud  or  mistake ' 278 

Fraud  or  mistake  of  architect  in  issuing  certificate — How  shown  278 
Fraud  or  mistake  of  architect  in  issuing  certificate— Injunction 

against  architect  as  evidence  of 278 

BURDEN  OF  PROOF— As  to  payment,  when  a  note  is  given  for  a 

debt 557 

Is  upon  plaintiff > 80 

Non-performance  of  a  contract 162 

Of  a  license 658 

Of  loss  of  good  standing  in  benefit  society 95 

That  a  different  line  of  conduct  would  have  reduced  damages  276 


694  Appellate  Courts  of  Illinois. 

C. 

CANCELLATION— Conditions  of,  must  be  fully  complied  with. . .  615 

Of  an  insurance  policy  as  affecting  other  companies 616 

CARRIERS — The  rule  as  to  presumption  of  liability  for  injury  to 

passengers  stated 97 

CASE — Allegation  that  defendant  promised,  is  surplusage 106 

For  breach  of  a  duty  arising  under  a  contract 415 

Where  the  action  lies 363 

Where  the  action  lies — The  rule  applied S63 

CERTIORARI— Sec.  75  to  80  of  the  act  of  1873  in  regard  to  justices 

and  constables  not  repealed. . :  399 

Facts  to  be  shown  by  petition 399 

CHARITABLE  USES— The  statute  of  43  Eliz.,  Chap.  4,  is  in  force 

in  this  State 675 

CHATTEL  MORTGAGES— After  acquired  property 356 

Upon  a  stock  of  merchandise  kept  for  sale 356 

Foreclosure  by  agents  under  general  directions 356 

For  pui'chase  money 138 

CHATTEL  MORTGAGES— Household  goods  sold  on  the  install- 
ment plan 869 

CHECKS— Liability  of  bank  on 593 

Liability  of  bank  on — Proof  required  to  establish 592 

Presented  after  assignment  of  bank — Rights  of  payee 399 

Time  allowed  payee  to  present 245 

CITIES  AND  VILLAGES— Power  of  council  to  create  liability. . .  125 

Acts  of  oflScer  under  void  order 125 

Application  of  Sec.  13.  Art.  8,  Chap.  24,  R.  S 125 

COMMENCEMENT— Of  suit  as  to  new  defendant 480 

COMMON  CARRIERS— Liability  of,  for  loss  of  baggage 654 

Liability  of,  for  loss  of  baggage — Showing  necessary  where  loss 

is  caused  by  act  of  God 654 

COMMON  COUNTS— Value  of  legal  services  maybe  recovered 

under 22 

When  recovery  may  be  had  under 73 

COMPLAINTS — In  forcible  detainer  proceedings — What  they  need 

not  show 213 

CONSIDERATION— Debt  of  a  third  person 40 

Fear  of  trouble 40 

Failure  of,  must  be  specially  pleaded 405 

Non-performance  of  agreement  as  failure  of 69 

Of  guaranty — Burden  of  proof 76 

Want  of,  as  a  defense  to  a  promissory  note 434 

When  proof  of,  is  not  required 82 

CONSTITUTIONAL  QUESTIONS— Appellate  Court  has  no  juris- 
diction of 319 

CONSPIRACY — ^As  an  aggravation  of  damages 415 


Analytical  Index.  695 

CONSTRUCTION— Mentioning   part   of    a    class    excludes    the 

remainder.  ...*••• 255 

Of  act  by  legislature  is  binding  on  the  courts 491 

Of  contracts 143 

Of  contracts  of  a  surety 425 

Of  forfeiture  clauses : 539 

Of  statutes — Grammatical  accuracy 138 

Rule  where  the  meaning  is  doubtful 143 

CONTEMPT  OF  COURT— Classes  of— CivU  contempts  defined. ...  233 

Length  of  commitments  for  civil  contempts 233 

CONTINUANCES— Amendments  as  ground  for 649 

CONTRIBUTORY   NEGLIGENCE— Failure   to  guard  against  a 

custom  of  defendant  to  disobey  the  laW 676 

CONTRACTS— A  contract  construed 143,  476 

A  sealed  instrument  may  be  abrogated  by  parol 537 

Against  public  policy — Agreement  of  street  railroad  company 

not  to  cross  tracks  of  another  company 254 

Although  in  writing,  may,  when  incomplete,  be  explained  by 

parol  evidence 25 

Assignment  of  vendee  does  not  rescind  contract  of  sale 522 

Complete  performance  essential  to  recovery  in  this  case 625 

Construction  of  a  contract  contained  in  different  instruments.  153 
Construction  of —Mentioning  part  of  a  class  excludes  the  re- 
mainder  :  255 

Effect  of  upon  legal  obligations 364 

General  groimd  of  a  legal  implication 255 

Character  of  obligations  raised  by  legal  implication 256 

The  rule  as  to  implied  obligations,  applied 256 

Execution  of — Identification  of  the  parties 2J22 

Implied  warranties 265 

In  restraint  of  trade 471 

In  restraint  of  traffic  in  intoxicating  liquors 471 

Must  be  assented  to  by  both  parties 605 

Of  a  surety — Construction  of 425 

Ofilce  of  customs  and  usages  in  explaining 228 

Oral  contracts,  how  proved 105 

Readiness  to  perform 649 

Requisites  to  a  recovery  of  money  paid  under. 110 

Substantial  performance 158 

To  deliver  telegrams  —Place  of  performance  of 275 

On  back  of  telegraph  blank 275 

Exempting  telegraph  company  from  liability  void 275 

Effect  of  stipulation  requiring  repetition  of  telegraph  message.  275 

Waiverof  conditions  of . .' 72 

Slight  defects  in  the  performance  of 72 

Slight  defects  in  the  performance  of — The  rule  applied 72 

"What  the  parties  do  under,  as  evidence  of  the  terms  of 105 

Where  the  mind  of  the  parties  did  not  meet  as  to  the  price  of 

services,  their  value  may  be  proved. .  • 22 


696  Appellate  Coubts  op  Illinois. 

CONTRACTS.     Continued. 

'  Whether  sales  or  bailments • 639 

W  hether  sales  or  bailments— The  rule  stated 689 

CORPORATIONS— Act  done  by  officers  of  a  corporation  as  officers 

of  another  corporation 656 

Agreements  for  the  exchange  of  stock  for  property 168 

Authority  of  officers  to  render  a  statement  of  aocomit 858 

Effect  of  insolvency  of »  on  claims  of  officers  against  the  cor- 
poration  « 664 

Proof  of  incorporation  waived  by  plea  of  the  general  issue. . ,  •  510 

When  stock  may  be  paid  for  in  property 161 

COSTS— Suit  dismissed  without  payment  of 17 

Where  a  judgment  is  corrected  in  a  mere  matter  of  form 484 

Where  the  judgment  is  erroneous  as  to  parties  not  appealing. .  496 

COURTS — Power  of,  over  their  own  process 79 

Power  CO  extend  time  to  file  Bills  of  exceptions 25 

Power  of,  as  to  custody  of  infants 578 

CRIMINAL  LAW— Inducing  people  to  violate  oicdinances 205 

CUSTOM  AND  USAGE— Proper  office  of —  Must  be  generally 

known 228 

Requisites  of 228 

D 

DAMAGES — Excessive  damages  as  ground  for  reversal 666 

Failure  to  deliver  stock — ^Value  of  stock  must  be  proved 25 

In  case  of  death  by  negligence — When  only  nominal 20 

Death  from  negligence 20 

In  excess  of  the  amount  stated  in  the  summons 504 

Proof  of  conspiracy  as  aggravation  of 415 

Trial  court  should  decide  whether  they  are  excessive 676 

When  a  court  of  appeal  will  not  interfere  with •  •  887 

$1 ,500  excessive  for  taking  property  worth  $60 222 

$2,500  excessive  under  the  circumstances 418 

$14,000  held  not  excessive 831 

$20,000  excessive  under  the  circumstances 676 

DEBT— To  recover  a  penalty  not  quasi  criminal  in  its  nature 808 

DECREES— Fprm  of  when  bill  is  without  equity 490 

In  accordance  with  the  facts,  approved 185 

Upon  conflicting  evidence 411 

When  finding  of  facts  recited  in,  is  conclusive 286 

Who  are  bound  by •. 262 

DEEDS— A  deed  construed 217 

Apparently  absolute— presumptions  as  to 440 

Intended  as  mortgages — Compensation  for  loss  of  equity  of  re- 
demption  .^ 518 

Effect  of  return  of,  to  grantor's  custody  without  recordinj^. ...  185 

Must  contain  the  name  of  a  grantee 589 

When  held  to  be  mortgages 440 

DEFAULTS— Plea  on  file 504 


Analytical  Index.  697 

DEMAND— Must  be  by  f>artie8  in  interest 158 

DEMURRERS— Waiver  of 650 

DICTA— When  to  be  followed 196 

DISMISSALS— After  verdict 227 

DIVORCE— Orders  as  to  the  custody  of  children 573 

DRAINAGE — Duty  of  municipal  corporations  in  regard  to.   467 

Measureof  damages 467 

The  act  of  1889  construed 527 

Right  to  close  ditches  must  be  clearly  established 527 

Rights  of  owner  of  dominant  heritage 527 

Right  of  owner  of  dominant  heritage  to  construct  ditches 527 

Filling  up  Ditches 527 

DRAINAGE  DISTRICTS.— Power  of  commissioners 449 

Assessments... 449 

Power  to  contract 449 

DISTRESS  FOR  RENT— Rights  of  the  landlord 625 

E 

EASEMENTS.    Abandonment  of,  by  implication 217 

In  favor  of  municipal  corporations 467 

Rights  of  owner  of  dominant  heritage  as  to  drainage 527 

ELECTIONS— Women  can  not  vote  upon  a  proposition  to  estab- 
lish a  township  high  school 641 

ELECTRIC  WIRES-Duty  in  locating 881 

EMINENT  DOMAIN— When  proceedings  may  Ije  abandoned 124 

EQUITY — ^Adjustment  of  amount  due  on  promissory  note 185 

Exhaustion  of  legal  remedy  not  necessary  to  attactk    upon 

fraudulent  conveyance 286 

Order  of  sale,  under  a  prayer  for  general  relief 286 

Province  of,  as  to  fraudulent  conveyances 286 

Has  power  to  appoint  a  trustee  to  administer  a  charity 576 

Jurisdiction  in  carrying  into  effect  charitable  bequests 576 

Neglect  to  pursue  remedy  at  law - 79 

Relief  against  judgments 810,  682 

Power  of  court  of,  over  erroneous  judgments 810 

The  rule  as  to  variances 295 

Voluntary  assignments  are  proceedings  in 682 

When  it  will  relieve  against  a  judgment 160 

EQUITY  PLEADING— Statement  of  default  in  making  payments.  411 

Unnecessary  averments 162 

When  matters  of  defense  need  not  be  pleaded  by  a  com- 
plainant   162 

EQUITY  PRACTICE— Applications  for  rehearing  in  the  trial  court  527 

As  to  orders  of  reference 671 

Expenses  of  foreclosure  must  have  been  objected  to  if  ques- 
tioned on  appeal 684 

ERROR— As  to  admission  of  evidence  as  ground  for  reversal 685 

In  instructions,  without  injury  not  grouQd  for  reversaL 416 


698  Appellate  Courts  of  Illinois. 

ERROK.     Continued. 

Not  effecting  the  result  need  not  be  considered 51 

Without  injury  not  ground  for  reversal 239,  484,  487,  587 

ESTOPPEL— By  words  or  conduct 222 

Execution  of  notes 476 

Of  tenant  to  set  up  old  grounds  of  complaint 102 

ET  C-^TERA— The  phrase  defined 139 

EVICTION— What  is  not 349 

EVIDENCE — ^Admission  of,  in  rebuttal,  rests  in  the  discretion  of 

the  trial  judge 318 

As  to  experiments  and  witnesses'  knowledge 463 

As  to  proper  method  of  doing  work,  in  suit  for  negligence  ....  429 

Declarations  of  payee  of  a  note  as  against  an  indorsee 294 

Questions  calling  for  conclusions  improper 295 

Existence  of,  and  proceedings  under  mortgages 169 

Records  of  mortgages — When  competent 169 

In  personal  injury  cases — Exhibition  of  injuiy  to  the  jury 550 

In  rebuttal  must  deny  or  explain  evidence  in  chief 220 

Testimony  in  rebuttal 220 

Of  the  payment  of  taxes 671 

One  plea  not  evidence  in  refutation  or  support  of  another 73 

Opinions  as  to  period  of  gestation  in  bastardy  cases 634 

Foundation  for  hypothetical  questions : 634 

As  to  length  of  period  of  gestation  in  bastardy  cases 634 

Order  of  the  introduction  of 222 

Proof  of  value  of  services  to  corroborate  statement  as  to  con- 
tract price  therecSf 22 

To  impeach  a  witness  should  be  offered  specifically 278 

What  the  parties  do  under  the  contract  as  evidence 105 

When  objections  must  be  specific 28 

EXECUTIONS— Expenses  of  oflScer  should  be  approved  by  the 

com-t — Rights  of  third  parties 822 

Levy  of,  on  property  in  hands  of  fraudulent  grantee 89 

Power  of  the  court  to  quash  the  levy 79 

When  they  must  be  taken 129 

F 

FALSE  IMPRISONMENT— Arrests  by  private  persons 116 

FEES— For  recording  plats 42 

FELLOW  SERVANTS— Foreman  of  contractora,  and  employes  of 

a  railroad  company 345 

The  rule  stated : 331 

Must  be  able  to  exercise  an  influence  over  each  other '  381 

Who  are,  a  question  of  fact  for  the  jury 65 

FIXTURES — ^Whether  real  or  personal  property — Agreements 557 

Whether  real  or  personal  property — Rights  of  mortgagees 557 

FORCIBLE  DETAINER— Complaint  necessary  to  jurisdiction  in. .  258 

Showing  necessary  as  to  filing  of  complaint 258 

Possession  not  necessary 471 


Analytical  Index.  699 

FORCIBLE  DETAINER.     Continued, 

What  the  complaint  need  not  state 213 

Doubt  as  to  the  ground  on  which  right  of  possession  is  based 

immaterial 218 

FORFEITURES— Clauses  providing  for,  construed  strictly 699 

Of  membership  in  benefit  societies 95 

Not  favored 540 

FORMER  DECISIONS— Approved  and  followed 546,  595 

FRAUD— How  shown 311 

FRAUD  OR  MISTAKE— Of  architect— How  shown 273 

FRAUDULENT  CONVEYANCES— May  be  set  aside  in  equity ....  236 
Exhaustion  of  legal  remedy  not  necessary  to  attack  upon  in 

equity 236 

Attacks  upon,  in  equity 286 

Sale  of  land  after  removal  of,  proper  under  prayer  for  general 

relief 236 

FREEHOLDS — Appellate  court  has  no  jurisdiction  of  cases  involv- 
ing   195 

G 

GENERAL  ISSUE— In  case— What  it  puts  in  issue 198 

GUAR ANTY— A  recovery  sustained 150 

Consideration  for,  must  be  shown 76 

Nature  uf  the  undertaking 153 

When  there  is  no  liability 153 

Of  a  debt  payable  from  a  particular  fund — When  the  right  of 

action  accrues 455 

GUARANTOR — Who  is  prima  /acie- Nature  of  liability  may  be 

shown 150 

GROUND— Meaning  of  the  term 217 

H 

HUSBAND  AND  WIFE— Alimony  not  allowed  when  the  relation- 
ship is  denied 840 

Family  expenses 54 

When  proof  of  joint  liability  of,  is  unnecessary 237 

HYPOTHETICAL  QUESTIONS-Foundation  for 634 

I 

INJUNCTIONS— Against  construction  of  street  railroad 254 

Appeals  concerning  motions  to  dissolve 645 

On  bills  for  specific  performance 385 

Issuance  of  without  notice 385 

Solicitor's  fees  on  dissolution  of 822 

INDEMNITY  BONDS— Rights  of  sheriflf  as  to 251 

INDORSEMENTS— As  evidence  of  title 671 

INFANTS— Care  required  of 487 

Power  of  a  court  of  chancery  as  to  the  custody  of 572 

Removal  from  the  State  of  wards  of  the  court  not  favored. . . .  572 


700  Appellate  Courts  of  Illinois. 

INSTRUCTIONS— Accuracy  required  in  close  cases W 

As  to  issues  not  raised  by  the  pleadings  nor  following  from  the 

evidence 818 

Error  without  injury  not  ground  for  reversal 416,  484 

Right  to,  limited 289 

Repetitions  in,  not  required 429 

Should  relate  to  facts  shown 480 

Repetition  of  the  same  proposition 45,  430,  463,  C86 

Should  be  based  on  the  evidence 271 

Should  be  construed  together 547 

Should  harmonise 214 

To  be  considered  as  a  series 166 

When  a  party  can  not  complain. 166 

When  justified  by  the  evidence 666 

INSURANCE— See  also  Benefit  Societies. 

Asses'tments  on  members  of  mutual  companies  in  case  of  in- 
solvency   876 

Cancellation  of  policy  and  subsequent  insolvency  of  mutual 

company 876 

Cancellation  of  policies 615 

Cancellation  of  policies — Return  of  premium 615 

Policies  can  not  be  canceled  without  notice 615 

Authority  of  an  insurance  agent 616 

Cancellation,  as  affecting  other  companies 616 

Construction  of  policies— Ambiguities 148 

Construction  of  forfeiture  clauses 599 

Effect  of  unlawful  use  of  property 599 

Questions  involved  where  risk  is  alleged  to  be  increased  by  al- 
terations   599 

Objections  to  title  of  insured 599 

False  statements  in  the  application 189 

Forfeitures  not  favored 540 

Forfeiture  of  policy  for  non-payment — Partial  payments  after 

forfeiture 487 

INTEREST — Allowed  on  account  of  unreasonable  and  vexatious 

delay  of  payment 589 

INTOXICATING  LIQUORS  -Contracts  in  restramt  of  traffic  in . . .  471 

J 

JOINT  LIABILITY— Not  show  by  the  evidence 500 

Of  husband  and  wife — When  proof  is  unnecessary 227 

JUDGMENTS— For  an  amount  in  excess  of  the  damages  claimed 

in  the  summons 504 

Form  of,  when  final 216 

By  justices  of  the  peace — When  they  are  final 215 

Interference  with,  in  equity 682 

Motions  in  arrest  of 415 

Presumptions  in  favor  of 48,  820 

Relief  against  in  equity 160,  810 

Power  of  a  court  of  equity  over  an  erroneous  judgment 810 


Analytical  Index.  701 

JUDICIAL  SALES— Inadequacy  of  price 682 

JURIES — Axe  the  judges  of  the  credibility  of  witnesses 547 

JUSTICES  OF  THE  PEACE— Complainant  necessary  to  jurisdic- 
tion in  forcible  detainer 258 

Statements  in  transcripts 258 

When  judgments  by,  are  final 216 

L 

LACHES— As  a  bar  to  equitable  relief 441 

LANDLORD  AND  TENANT— Liability  of  acts  of  an  employee. . .  98 

Right  of  landlord  to  distrain 625 

Suit  for  rent  after  recovery  on  bond  in  forcible  entry  and  de- 
tainer proceedings 596 

When  the  landlord  may  relet  for  the  benefit  of  the  tenant 849 

Acceptance  necessary  to  a  surrender 849 

Re-entry  to  make  repairs  not  an  eviction    349 

What  passes  as  appurtenances 849 

Waiver  of  ground  of  complaint  by  tenant — Estoppel 102 

Tenant  liable  for  all  rent  agreed  on — Exceptions. 102 

No  relief  against  covenant  to  pay  rent,  unless,  etc 102 

LEASES— Beginning  of  term  where  no  time  is  fixed — Oral  con- 
tracts   105 

What  pass  as  appurtenances 849 

LEGAL  OBLIGATIONS— When  not  varied  by  contract 864 

LICENSES— Burden  of  proof  of 658 

LIMITATIONS— Additional  counts   stating   the   same  cause  of 

action 45 

As  a  bar  to  a  mortgage 498 

LIS  PENDENS — Former  suit  dismissed  without  paying  costs 17 

M 

MANDAMUS— Showing  required 42 

MASTER  AND  SERVANT— Duty  of  servant  to  look  for  defects  in 

machinery 45 

Duty  to  furnish  safe  machinery  can  not  be  delegated 91 

Failure  of  master  to  keep  machinery  in  repair 686 

Right  of  a  servant  to  demand  a  letter  of  recommendation. ...  415 
Indictment  against  servant  in  suit  for  failure  to  give  letter  of 

recommendation 415 

Right  of  servant  to  presume  that  master  has  done  his  duty. ...  91 

Risks  assumed  by  the  servant 676 

The  rule  as  to  fellow-servants  stated 881 

Who  are  fellow-servants 881 

Wrongful  discharge — Continued  readiness  to  perform  not  nec- 
essary   51 

MEASURE  OF  DAMAGES— Contract  calling  for  part  payment  in 

merchandise 108 

Death  from  negligence * 20 


702  Appellate  Courts  of  Illinois. 

MEASURE  OF  DAMAGES.     Continued, 

Failure  to  deliver  stock 25 

Future  loss  of  time 271 

In  actions  for  personal  injuries 336 

Injury  caused  by  water 467 

Injuries  caused  by  negligence 276 

Loss  occasioned  by  pecuniary  condition  of  plaintiff 658 

The  rule  as  to  recovery  for  torts  stated 668 

MECHANIC'S  LIENS— Contracts  made  with  a  third  person 661 

Form  of  petition  under  section  24  of  the  act  of  1895 491 

When  lien  is  claimed  under  section  24,  n<»tice  need  not  be  filed 

with  the  circuit  clerk 491 

The  law  is  remedial  and  subject  to  legislative  control  as  to  past 

contracts 491 

MEMBERSHIP— In  benefit  society— forfeiture  of. 95 

Loss  of  good  standing — how  shown 95 

MERGER — Deficiency  decree  in  foreclosure  proceedings 627 

MISJOINDER— Consequences  of 284 

MISTAKES  OF  LAW— Money  paid  under,  can  not  be  recovered. .  62 

MORTG  AGES— AUowiince  of  solicitor's  fees  under  trust  deed 671 

Deeds  absolute  in  form — Compensation  for  loss  of  equity  of  re- 
demption   513 

Effect  of  deficiency  decree  against  part  of  signers  of  note 627 

Failure  to  release— Sec.  10,  Chap.  95,  R  S.,  construed 804 

Action  to  recover  penalty  for  failure  to  release  not  quasi  crim- 
inal   308 

Foreclosure  of  junior  and  first  liens 684 

Form  of  decree  of  foreclosure 684 

Pleading  defaults  under 411 

Rights  of  mortgagee  under  in  security  clause 480 

The  statute  of  limitations  as  a  bar  to 498 

When  deeds  apparently  absolute  will  be  held  to  be. 440 

Presumptions  regarding  deeds  apparently  absolute. 440 

How  presumption  that  deed  was  intended  as  a  mortgage  may 

be  rebutted 441 

When  record  of,  is  competent  evidence. 169 

Existence  of,  and  proceedings  under 169 

MUNICIPAL  CORPORATIONS— Duty  in  constructing  drains 467 

Easements  in  favor  of 467 

Use  of  streets  for  railway  purposes  not  controlled  by  injunction  254 

MUTUAL  INSURANCE  COMPANIES— When  membera  can  not 

question  assessments  in  case  of  insolvency 376 

Cancellation  of  policies  and  subsequent  insolvency. 876 

NEGLIGENCE— A  question  of  fact  for  the  jury 55 

Not  shown  by  the  evidence 60 


Analytical  Index.  703 

NEGLIGENCE.     Continued, 

Absence  of  lights  upon  electric  cars 871 

Allowing  a  railroad  car  to  obstruct  a  street  crossing 567 

Driving  on  street  car  track 84 

Duty  of  person  injured  by 276 

Failure  of  master  to  furnish  safe  machinery 91 

Failure  of  master  to  keep  machinery  in  repair— When  defects 

will  create  liability 686 

Failure  to  fence  roof 105 

Frightening  horees 196 

Pleading— Particularity  of  statement  required  in  declaration. . .  196 

Insulation  of  electric  wires 881 

Liability  for  damage  caused  by  fire 510 

Measure  of  damages  for 20 

Of  street  railway  operating  double  track 171 

Not  excused  by  co-operating  negligence  of  third  party 188 

Of  carrier — When  presumed 97 

Reliance  upon  a  custom  of  a  railroad  company  is  not 119 

Evidence  of  need  not  be  pleaded 119 

Belying  on  flagman  at  railroad  crossing  is  not 518 

Risks  assumed  by  the  servant 676 

Running  trains  at  great  speed 487 

Showing  necessary,  in  suit  based  on 67 

Starting  street  car  suddenly  as  passengers  are  getting  off. . .   .  289 

NEGLIGENCE  AND  ORDINARY  CARE— Getting  oflf  train  while 

it  is  in  motion 550 

NEGOTIABLE  INSTRUMENTS— Time  allowed  payee  to  present 

check 245 

NEW  TRIALS— Cumulative  matter  not  sufficient 658 

NOTICE— Proof  of  publication 263 

Taking  security  for  release,  is  notice  of  its  effect 185 

o 

OBJECTIONS— Should  be  specific 307,  480 

Should  be  specific — The  rule  applied 307 

When  they  must  be  specific 22,  28 

OFFICERS— Liability  of  city  for  acts  of,  under  void  order 125 

Process  as  a  protection  to ' 326 

ORDINARY  CARE— All  that  is  required , 171 

Application  of  the  rule  to  children 487 

Of  children— A  question  for  the  jury 487 

A  question  for  the  jury Ill 

Drunken  man  entitled  to  the  exercise  of,  for  his  protection 111 

When  a  question  for  the  jury 676 

ORDINANCES — An  ordinance  of  the  city  of  Chicago  construed . . .  820 

Inducing  people  to  violate 205 

Pleading 613 

OWNERSHIP — A  legal  conclusion  from  facts  shown 86 


704  Appellate  Courts  op  Illinois. 

P 

parol  EVIDENCEi— To  explain  incomplete  contract 25 

PARTNERSHIP— Each  partner  is  presumed  to  know  the  state  of 

the  accounts  of  all  the  partners 603 

A  debt  of  a  partner  to  the  firm  is  extinguished  by  a  sale  to  the 

other  partners. 602 

PiVSSENGERS--Duty  of  street  railroad  in  dischargmg 2S» 

Not  presumed  to  know  proper  place  to  alight 299 

Care  required  of 239 

Proof  of  payment  of  fare  in  suits  for  personal  injuries 299 

PARTIES— Amendments  asto 540 

Ck>nsequences  of  misjoinder 284 

In  replevin 886 

Persons  described  as  unknown  owners 262 

PAYMENT — When  a  note  for  the  amount  due  will  amount  to. . . .  557 

Burden  of  proof  as  to,  when  a  note  is  given  for  the  debt.^ ....  557 

PLEADING — A  plea  of  avoidance  must  give  color 548 

After  issues  are  made  up 210 

Allegation  not  denied,  considered  as  admitted 82 

Allegations  of  duty 148 

Statement  of  material  facts 148 

Case  lies  for  a  breach  of  a  duty  arising  under  a  contract 415 

Defects  cured  by  verdict 831,  415 

Evidence  of  negligence  need  not  be  stated 119 

Failure  of  consideration 405 

Failure  of  consideration  of  a  note  held  by  an  assignee 181 

Material  facts  not  denied — Proof  unnecessary 181 

Fraud 811 

Legal  services  covered  by  the  common  counts 22 

Particularity  of  statement  required  in  charging  negligence. . . .  196 
Plea  of  general  issue  does  not  put  in  issue  incorporation  of  a 

defendant  company 510 

Pleas  relying  on  the  statutes  against  trusts  and  conspiracies 

against  trade 543 

Pleas  setting  up  matters  admissible  under  the  general  issue. . .  830 

Special  contracts  under  the  common  counts 72 

Proper  designation  of  parties .'  136 

What  is  not  denied  by  the  general  issue,  in  case 196 

What  is  surplusage  in 106 

When  ignorance  of  existing  conditions  should  be  pleaded 106 

PLEADING  AND  EVIDENCE— As  to  negligence 439 

Ordinances  of  a  city 613 

PLEAS — ^May  be  read  to  the  jury 78 

Verification  of,  on  information  and  belief 181 

PR  ACTICE— As  to  costs,  where  a  judgment  is  corrected  on  appeal.  484 

Bills  of  exceptions 646 

Defaults  while  plea  is  on  file 504 


Analytical  Index.  705 

PRACTICE.     Continued. 

Denial  of  execution  of  written  InBtrument  by  pleas  not  sworn  to  136 

Docketing  causes 28 

Leave  of  court  to  file  assignment  of  breaches  of  an  appeal  bond  28 

Evidence  to  impeach  a  witness  should  be  offered  specifically. .  273 

Exceptions  must  be  taken 129 

Exceptions  to  the  overruling  of  a  motion  for  a  new  trial 129 

Exclusion  of  evidence  as  error 660 

Improper  remarks  of  counsel  should  be  objected  to 666 

Judgment  in  excess  of  damages  claimed  in  summons 504 

Motions  in  arrest  of  judgment 415 

Objections  should  be  specific 307,  480 

Objections  should  be  specific — The  rule  applied 807 

Application  of  technical  rules 307 

Pleading  after  issues  are  made  up 210 

Correction  of  verdicts 210 

Bemarks  by  the  court  during  the  trial 102 

Right  to  address  the  jury  absolute 53 

Trial  court  should  decide  whether  damages  are  excessive 676 

Waiver  of  motion  to  exclude,  by  introducing  evidence 550 

Motions  in  arrest  of  judgment 650 

How  question  of  variance  should  be  presented 650 

When  amendments  may  be  made 480 

When  objections  should  be  made 599 

When  objections  to  evidence  must  be  specific. . . . .' 22 

PRESUMPTIONS— As  to  condition  of  membership  in  benefit  society  95 

As  to  different  handwritings  in  a  bill  of  exceptions 265 

In  favor  of  judgments 48,  820 

PROCESS— As  a  protection  to  an  officer 826 

Power  of  the  court  over 79 

PROMISSORY  NOTES— Ad justment  of  amount  due  on,  in  equity .  185 

Assigned  after  maturity— Want  of  consideration  as  a  defense.  484 

Burden  of  proof  as  to  payment,  when  a  note  is  given  for  a  debt  557 

Consideration— Debt  of  a  third  person 40 

Consideration— Fear  of  trouble 40 

Execution  of,  as  an  estoppeL 476 

Recovery  of  money  paid  on 476 

Given  as  receipts  for  money  to  be  used  for  the  benefit  of  the 

payee * 447 

How  failure  of  consideration  should  be  pleaded 181 

Indorsements  as  evidence  of  title 671 

Indorsed  in  blank — Possession  evidence  of  title 208 

First  assignment  to  bona  ./Zde  holder  without  notice  of  defects, 

fixes  character  of 208 

Suits  against  a  surety 627 

The  name  of  a  party  upon  the  back  of,  is  prima  facie  a  guar- 
anty   158 

When  a  note  for  the  amoimt  due  will  amount  to  payment. ....  557 

You  LXX  tf 


706  Appellate  Courts  of  Illinois. 

PROPOSITIONS  OF  LAW— Must  not  be  propositions  of  fact 359 

PUBLIC  POLICY — Agreements  concerning  the  use  of  streets 254 

PUBLICATION— Of  notice-Proof  of 268 

Q 

QUESTIONS  OF  FACT— Contributory  negligence   and  assump- 
tion of  hazard  by  servant 686 

Who  are  fellow-servants — Negligence 55 

QUESTIONS  OF  LAW— Should  not  be  submitted  to  the  jury 86 

E 

RAILROADS — Allowing  car  to  obstruct  street  crossing,  as  negli- 
gence   567 

Care  required  of »  as  to  condition  and  place  of  cars -   91 

Contracts  for  the  construction  of  not  enforcible  specifically. . .  885 

Custom  to  disobey  a  law 676 

Duty  of  employee  to  look  for  defects  in  machinery 45 

Evidence  as  to  experiments  and  witnesses'  knowledge 463 

Getting  off  moving  train  is  not  negligence  per  ae. 550 

Persons  about  to  cross  tracks  may  rely  on  flagman 518 

Proof  of  liability  for  damages  caused  by  fire 510 

Liability  for  dama|2:e  caused  by  fire 510 

Reliance  upon  customs  of,  is  not  negligence 119 

Running  trains  at  great  rate  of  speed  as  negligence 487 

REAL  ESTATE— Abandonment  of  easements  by  implication 217 

Agreements  as  to  character  of  fixtures 557 

Agreement  giving  vendor  a  right  to  seize  property  attached  to 

real  estate 557 

Damage?  caused  by  embankments 284 

Deeds  must  contain  the  name  of  a  grantee 539 

Effect  of  judgment  for  taxes  in  suit  for  breach  of  warranty. . .  88 

Remedies  for  breach  of  agreement  to  convey 288 

Rights  of  owner  of  dominant  heritage  as  to  drainage 527 

What  amounts  to  a  watercourse 527 

When  party  agreeing  to  convey  need  not  have  title 288 

RECEIVERS— Appointment  of,  without  notice 879 

Where  the  court  has  no  jurisdiction  of  the  subject-matter 682 

RESCISSION— Assignment  of  vendee  does  not  rescind  contract  of 

sale 522 

RECORD— What  not  included  in 22 

RECORDER'S  FEES— For  recording  plats 42 

RECOVERY— When  the  evidence  shows  a  defense 826 

In  trespass — When  the  evidence  shows  a  defense 826 

REFORM ATION— Of  written  instruments  in  equity 609 

REMEDIES—On  agreements  to  convey  real  estate 288 

REPEALS— By  implication— The  rule  stated 899 


V 


Analytical  Index.  707 


:>                        REPLEVIN— Parties  in '. 826 

Sufficiency  of  verdicts 176 

RES  JUDICATA — Parties  must  appear  in  same  capacity  and  sub- 
ject-matter must  be  identical 596 

Suit  for  rent  after  recovery  in  forcible  entry  and  detainer  pro- 
ceedings   596 

REWARDS — Parties  claiming  must  have  acted  with  knowledge  of  605 

s 

^                        SALES — Breach  of  warranty — ^Recovery  of  money  paid 476 

Clause  giving  vendor  right  to  seize  property  for  non-payment 

valid 557 

Distinguished  from  bailments 639 

For  future  delivery — Rights  of  the  parties  where  the  vendee 

K                                   makes  an  assignment 522 

>:                               When  tender  of  goods  sold  is  unnecessary 649 

'  SCHOOLS— Women  can  not  vote  on  the  establishment  of  township 

'-                                   high  school 641 

SEALED  INSTRUMENTS— May  be  abrogated  by  parol 537 

SECURITY  CONTRACTS— Construction  of 425 

SHERIFFS— Right  to  require  an  indemnity  bond 251 

Writ  of  replevin  a  defense  against  an  action  of  replevin 326 

SHORT  CAUSE  CALENDAR— Motion  to  strike  cause  from 367 

SOLICITOR'S  FEES— Allowance  of,  under  trust  deed 671 

On  dissolution  of  an  injunction 322 

[•  SPECIFIC   PERFORMANCE— Contract     must     be     enforceable 

■•                                   against  both  parties 384 

Of  contracts  including  a  series  of  acts 384 

;;                                 Injunctions 385 

?J                         STARE  DECISIS— When  dicta  should  be  followed 196 

fi                          STATUTE  OF  FRAUDS— Applied 180 

^                         STATUTES— Construction  of,  by  legislature  binding  on  the  courts.  491 

■                                 Application  of  Sec.  13,  Art.  3,  Chap.  24,  R.  S 125 

Application  of  Sec.  24  of  Mechanic's  Lien  Act 491 

Granting  exemption  from  taxation  construed  strictly 33 

Sec.  10,  Chap.  95,  R.  S. ,  construed 304 

^                                Sees.  75  to  80  of  the  act  of  1872  in  regard  to  Justices  and  Con- 
stables not  repealed 399 

The  statutes  of  43  Eliz.,  Chap.  4,  is  in  force  in  this  State 575 

Grammatical  accuracy  in  construing 138 

Jurisdiction  of  the  Appellate  Court  in  cases  involving  the  valid- 
ity of '. 175 

Repeals  by  implication 399 

The  act  of  1889  in  regard  to  drainage  construed 527 

STOCK — Of  corporations — When  it  may  be  paid  for  in  property...  161 

'                          STREET  RAILROADS— Absence  of  lights  upon  cars 371 

Agreements  not  to  cross  tracks  of  another  company  against  pub- 

i                                   lie  policy 254 


708  Appellate  C!ouets  op  Illinois. 

STREET  railroads.     Continued. 

Care  required  of  passengers 239 

Duty  in  discharging  passengers 239 

Proper  places  to  alight — Presumption  of  knowledge  of  passen- 
gers as  to 239 

Proof  of  payment  of  fare  in  suits  for  personal  injuries 289 

Liability  of,  for  frightening  horses 190 

Operating  double  tracks — Negligence 171 

Starting  cars  suddenly^  as  passengers  are  getting  off 239 

STREETS — Injunctions  against  the  use  of,  for  railway  purposes. . .    254 
Liability  for  changing  grades 284 

suns — When  considered  as  commenced  as  to  new  defendants 

added  by  amendment • 480 

SURETY—LiabiUty  of 627 

T 

TAXES— Evidence  of  thepayraentof 671 

Statutes  granting  exemptions  construed  strictly 83 

Effect  of  judgment  for,  in  suit  for  breach  of  warranty — Duty 

to  appeal 83 

TELEGRAPH  COMPANIES—Oontracts  on  back  of  blank 275 

Contract  exempting  company  from  liability  void 275 

Effect  of  stipulation  requiring  repetition  of  message 275 

Place  of  performance  of  contract  with 275 

TENDERr— Of  goods  sold— When  necessary 649 

TIMBER— Wrongful  cutting  of 459 

TORTS— Liability  of  landlord  for  acts  of  an  employe 93 

Measure  of  damages  for 658 

TRADE— Contracts  in  restraint  of 471 

TRESPASS— Against  a  sheriff— Writ  of  replevin  a  defense 826 

No  recovery  where  the  evidence  shows  a  defense 326 

TRESPASS  ON  THE  CASE— See  Case. 

TRIAL  BY  JURY— Du-ectinga  verdict  for  the  plaintiff 876 

TRIALS  BY  THE  COURT— Effect  of  finding 346 

Finding  not  disturbed 496 

On  conflicting  evidence 474 

TRIALS — ^Ad mission  of  evidence  in  rebuttal  a  matter  of  discretion  818 

Order  of  the  introduction  of  evidence 220,  222 

Readingfrom  the  pleadings  in  argument 660 

Remarks  by  the  court  during 103 

Restriction  of  arguments 22 

Right  to  address  the  jury  absolute 58 

TROVER — Character  of  the  action — Showing  necessary  to  maintain  200 
Proof  necessary  to  support ^ 200 

TRUSTS  AND  CONSPIRACIES  AGAINST  TRADE— Pleas  under 

the  statute  against 548 


Analyticai.  Index.  709 

U 

USURY— Duplicate  promisea .' 871 

V 

VARIANCE — ^How  presented  as  a  question  at  law , .  550 

In  equity 2^ 

When  immaterial 876 

VENDOR'S  LIENS— General  principles— Waiver 297 

Taking  other  security  waives  lien 297 

Waiver  by  taking  other  security — The  rule  applied 297 

Waiver  by  conduct 297 

VERDICTS— Against  the  weight  of  the  evidence 76,  191,  449 

Defects  cured  by 831 ,  415 

In  replevin— Sufficiency  of 176 

On  conflicting  evidence. . .  .101,  116, 188. 188,  813,  818,  445,  447, 

468,  502,  507,  586,  613 

Not  sustained  by  the  evidence 818,  489,  460 

Must  be  sustained  by  the  evidence 67 

On  questions  of  fact  conclusive 84 

Sustained  by  the  evidence. 444 

Will  not  be  disturbed  when  warranted  by  the  evidence 210 

Power  of  court  to  order  correction  of 210 

When  not  to  be  set  aside 837 

When  not  part  of  the  record 22 

When  conclusive 119,  856 

VOLUNTARY  ASSIGNMENTS— Appeals  in 632 

Are  chancery  proceedings 631 

Effect  of,  on  sales  for  future  delivery 522 

Payment  of  claims  as  inducement  to  consent  to  discontinuance  85 

Title  of  the  assignee 567 

Duty  of  the  assignee  as  to  the  rights  of  mortgagees 557 

w 

WAIVER— Of  conditions  of  a  contract 72 

Of  demurrer 550 

By  introducing  evidence,  etc 550 

Of  gi'ound  of  complaint  by  tenant 102 

Of  vendor's  lien 297 

Taking  other  security  waives  vendor's  lien 297 

Of  vendor's  lien  by  conduct 297 

WATERCOURSE— The  term  defined 527 

WARRANTIES — When  implied,  as  to  the  merchantable  quality  of 

goods 265 

WILLS— A  will  construed 576 

Charities — intention  of  the  testator 576 

Charities— insufficiency  of  bequest 576 

Bequest  on  condition  that  city  donate  lot 576 

Equity  has  power  to  appoint  trustees  to  carry  out 576 


." 

^ 


710  Appellate  Courts  op  iLLiNOia 

WILLS.     Continued, 

Jurisdiction  of  equity  in  carrying  into  effect  charitable  be- 
quests   576 

The  statute  of  48  Eliz.,  Chap.  4,  is  in  force  in  this  State 575 

WITNESSES—Attomeys  should  talk  with,  before  trial 837 

Credibility  of,  is  for  the  jury 547 

Competency  of  a  complainant  when  the  defendant  claims  as 

heir  of  a  deceased  person 4d8 

WORDS  AND  PHRASES— »* At" 289 

''Et  coetera'' .%.  189 

WRITTEN  INSTRUMENTS— Reformation  of,  in  equity 609 

When  incomplete,  may  be  explained  by  parol  evidenee 25 


6.^  ^. ;/://:" 


t 


^ 


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