text:
    L. C. Perks et al., Appellants, v. Richard D. Perkins et al., Appellees.
    1. Appeals and errors—when abstract insufficient. An abstract* which is not an abridgment of the record but which sets forth the evidence in the ease in full is not a compliance with rule 23 of the Appellate Court of the 4th district.
    2. Appeals and errors—when finding of chancellor not disturbed. Where there is a decided conflict in the testimony the finding of the chancellor based thereon will not be disturbed if the record contains sufficient competent evidence to sustain such finding.
    Foreclosure. Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Charles L. Rice, for appellants.
    Wall & Martin, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

Rule 23 of this court requires a party bringing a cause here to furnish a complete indexed abstract or abridgment of the record. The so-called abstract in this case is no abstract at all. Instead of being an abridgment of the record, it sets forth the evidence in the case in full. This is not a compliance with the rule; besides it entails much unnecessary labor on this court.

This was a bill to foreclose a mortgage on real estate executed by appellee Perkins and wife to one Charles S. Britton to secure a note payable to Britton and alleged to have been assigned by Britton to appellants for a valuable consideration.

The defendants answered admitting the execution of the note and mortgage to Britton but denying that Britton had assigned the same to appellants for a valuable consideration or that any sum was due upon said note. It was averred in the answer that appellee, Bichard D. Perkins, borrowed the sum of $265.96 from appellants, giving them a chattel mortgage as security, and that with the money so borrowed he paid off to Britton all that remained due upon the note and mortgage and the same were delivered to appellee Perkins but that under the pretense of wanting the note and mortgage to compute the interest the appellant Perks got possession of them.

The cause was referred to the master who took the testimony and upon a hearing the court found the equities with appellees and dismissed the bill.

It appears from the evidence that appellants purchased a small tract of land containing thirty-eight acres from appellee Perkins receiving a deed therefor, and at the time of such conveyance the mortgage described in the bill had been executed and was held by Britton. The mortgage covered the land conveyed to appellants and also the other two acres of the forty acre tract. At the time of the conveyance to appellants they were not aware of the outstanding mortgage held by Britton, although it was a matter of record and was a prior lien.

When it was discovered by appellants that Britton held the mortgage, by an arrangement with appellee Perkins, appellants furnished the money to pay off the mortgage note held by Britton and when it was paid they took an assignment from Britton of the note. At the same time appellee executed to appellants a chattel mortgage to secure a note payable one year after date for the sum of $284.57, which is still unpaid.

It was claimed by appellee Perkins that the chattel mortgage was given appellants as the only security for the amount paid Britton due on the real estate mortgage; that when so paid it was completely discharged and that appellant Perks got possession of the Britton note and mortgage on the pretense that he desired to calculate the amount, and the same was not an existing lien upon the land. Appellants claimed it was an existing lien; that they took an assignment of it in good faith; that the chattel mortgage’ executed by Perkins was given as an additional security only and this was the controverted question between the parties.

Appellee Perkins testified that appellant Perks when he discovered Britton held the mortgage, asked him what he had to sell to. pay it; that he Perks would pay it. Appellee said he had some mules, a cow, and a wagon. Perks said “If I will pay the note off will you give me a chattel mortgage on the property,” and appellee said he would; that Perks then told him to get Britton and he would pay it off and take the chattel mortgage. Perkins further testified that the parties met at the Bank where the note was paid, when appellee objected to the amount of interest and Perks asked to let him have the note and he would calculate the interest and that Perks said he would send appellee the note and mortgage by mail. Appellee further testified that Perks did not send him the note and mortgage and that two or three months afterwards he told Perks he had not sent it and Perks replied “he had not figured it yet.”

Britton testified Perks paid the amount of the note about $262 and that he assigned it to him at the time it was paid. Appellee stated he did not know that Britton assigned tíre note to appellants and that he was unable to read or write. It also appears from the evidence that while the amount of the indebtedness to Britton was about $262, the chattel mortgage was given to secure a note for the sum of $284.57.

It appears from the testimony that the two acres of the forty acres which was covered by the Britton mortgage and not included in the deed to appellants had been conveyed by appellee to his daughter, Edna Purchase, who with her husband, had built a small house and made other improvements upon it, to the value of about $350. Noble Purchase, the husband of Edna, testified that after the payment of the Britton mortgage appellant Perks made an effort to buy the two acres from them and upon their declining to sell said he would get it anyhow.

Appellee denies there was any agreement between appellants and himself that the note and mortgage of Britton should be assigned to appellants, nor does any such agreement appear from the testimony except that of Perks who testified that the chattel mortgage was given as an additional security for the money he paid Britton. •

Appellant Perks testified that the statement of Perkins that he took the note and mortgage to examine and see if the interest was correctly computed, was not true, and he also denied the conversation with Purchase relative to the offer to buy the two acres.

It will be seen there was a decided conflict in the testimony as to whether the chattel mortgage was given as the only security for the payment of the Britton mortgage, and that it was thereby discharged and cancelled, or whether it was by agreement of the parties assigned to appellants to be kept alive for their benefit as an additional indemnity or security to the chattel mortgage, and while the burden was on appellees to prove the averments of their answer by the greater weight of the evidence, we are not disposed to disturb the finding of the chancellor in this regard, and we are of opinion there was sufficient competent evidence to sustain the finding.

The decree of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    Theodore C. Keller et al., Appellants, v. Evan Fitzgerrell et al., Appellees.
    1. Contracts—when duration not extended beyond limit fixed by terms. The contract in question in this case construed and held not to create a joint adventure of such a character that such adventure would be implied to continue until concluded and that the same expired at the time expressly fixed in the instrument in question. Held, however, under the evidence, that such adventure was by tacit agreement continued beyond the stipulated time fixed for expiration.
    2. Appeals and errors—when finding of chancellor not disturbed. Where the witnesses are heard by the chancellor his findings of fact will not be disturbed unless clearly erroneous.
    3. Statute op Frauds—how must be availed of. In order to avail of the Statute of Frauds as a defense, it must be pleaded. If the applicability of the statute is as disclosed in chancery by way of answer, it is incumbent upon the complainants if they desire to avail of the statute, to do so by amendment of their bill.
    4. Statute of Frauds—when does not apply. The Statute of Frauds is inapplicable to an agreement for the sale of options which has been fully executed by the acceptance of the purchase money.
    Bill in equity. Appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Underwood & Smyser, B. W. Pope and I. R. Spilman, for appellants; Arthur W. Underwood, of counsel.
    George B. Gillespie, for appellees; W. S. Cantwell, Webb & Webb and Gillespie & Fitzgerald, of counsel.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellants, Theodore C. Keller and A. B. Steffins, filed a hill in equity against Evan Fitzgerrell, F. H. Stamper and S. B. Espy designated the defendants (and hereinafter called the appellees) and Loren 1ST. Wood and others called in the bill the co-defendants.

The bill averred that on May 25, 1907, appellants entered into the following written agreement;

“This agreement, made this 25th day of May, A. D. 1907, by and between Evan Fitzgerrell and F. H. Stamper, of Benton, Illinois, party of the first part, and T. C. Keller and A. B. Steffens, of Chicago, Illinois, party of the second part, to-wit:

“Whereas, the party of the first part hold by themselves property and certain options on property, covering the coal, oil and gas underlying all or part of Sections 17,18, 7, 8, 4, 5 & 6, Township 5 South, Bange 2 East, and Section 1, Township 5 South, Bange 1 East; said options expiring July 1, A. D. 1907, or later, and calling for a purchase price of Twenty-seven Dollar per acre, with an additional commission of One Dollar per acre to be paid to Messrs. Kirkpatrick and Hule.

“And Whereas, it is desired to secure the co-operation of the second party in the purchase or sale, lease or other disposal of said property and options.

“Now, then, it is hereby agreed by and between the parties hereto, that in the event of either party being-able to sell, lease, or otherwise advantageously dispose of said property and options, the profit derived from such sale, lease or other disposal, after deducting therefrom all actual expenses in the transaction of both parties, shall be divided in equal parts between first and second party.

“It is further agreed that the parties hereto will .promptly cause a drill hole to be bored to and through the coal in a spot in Section 8, Township 5 South, Bange 2 East, to be mutually agreed upon, the cost of such drilling to be borne in equal parts by both parties hereto, unless a purchaser is meanwhile found who will undertake the drilling at his own expense; the drilling is to be prosecuted with due diligence in order that the coal may be ascertained prior to July 1. It is understood that at or just before the time that the drill reaches the coal, both parties hereto shall be notified and further boring shall be stopped in order to give both parties an opportunity to be present, or send their representative to be present when the drill goes through the coal and the coal core is taken up.

“It is further understood and agreed that if the boring on Section 8, Township 5 South, Range 2 East, discloses the presence of sufficient and satisfactory coal and satisfactory conditions, and if, on the expiration of option, the property covered by the same has not been sold, leased or otherwise disposed of, then the parties hereto shall, at their joint expense, buy under their options, the coal, oil and gas under the following described land: The J. F. Rickert land, 226 acres, situated in Section 7, Township 5 South, Range 2 East; and if necessary, or found proper, also the J. F. Kirkpatrick land, 360 acres, situated in Sections 8,17 and 18/ Township 5 South, Range 2 East; also any adjoining land that it may be necessary, or thought proper, to acquire in order to secure a compact property, it being understood that where a prolongation of the operations can be secured on the previous, or better terms, this shall be done in preference to buying the property.

“It is further understood that if sufficient and satisfactory coal and conditions are found in Section 8, Township 5 South, Range 2 East, and if any of the above described property is jointly bought, then the party of the second part shall buy from the party of the first part, an undivided one-half interest in the coal, oil and gas underlying the North ½ of the N. E. ¼ of the N. W. 11-44 of Section 17, Township 5 South, Range 2 East, and the South 14 of the S. E. ¼ of Section 8, Township 5 South, Range 2 East, 200 acres, more or less; the full valuation to be rated at Twenty-seven ($27) Dollars per acre.

“It is further understood and agreed that if first party secures, directly or indirectly, a prolongation or renewal with or without changes of any options, covered by this contract, this same agreement shall apply to and be binding upon the parties hereto affecting such options so taken, extended or acquired, for and during the entire year of 1907.

“(Signed) Evan Fitzgerrell, (Seal)

“F. IT. Stamper,

“Parties of first part.

“T. G. Keller, (Seal)

“A. B. Steepens,

“Parties of second part.”

It was further averred that on August 24, 1907, the same parties entered into a further written agreement as follows:

“Whereas, Evan Fitzgerrell, S. B. Espy and F. H. Stamper, parties of the first part, and T. C. Keller, party of the second part, are the owners of the coal, oil and gas underlying the surface of the following-described land, to-wit: The East Half of the Southeast Quarter, and the Northwest Fourth of the Southwest Quarter, and the South half of the Northeast Quarter, and the Southeast Fourth of the Northwest Quarter, except the west three acres of the last described tract, all in Section Seven (7), and the North Half of the Northeast Quarter and the Northeast Fourth of the Northwest Quarter of Section Seventeen (17), and the South Half of the Southeast Quarter of Section Eight (8), all in Township Five (5) South, Bange Two (2) East, of the 3rd P. M., in Franklin County, Illinois, the parties of the first part owning an undivided one-half thereof and the party of the second part an undivided one-half thereof, in consideration of the mutual benefit to be derived by said parties working together, and of One Dollar paid by each party to the other, the receipt of which is hereby acknowledged. It is hereby agreed that any one of the persons whose names are subscribed hereto shall have the privilege of selling all of said land for a period of one year from this date at a price of not less than thirty-five dollars per acre, and that if such sale is made then each of the parties hereto will execute his proper deed of conveyance thereto, it being understood that full consideration of such, less the necessary expenses, shall be divided among the parties in accordance with their interests in fee in said land.

“Dated at Benton, Illinois, August 24, A. D. 1907.

“Executed in duplicate.

“Evan Fitzgerrell,

“8. B. Espy,

“F. H. Stamper,

“Parties of first part.

“Theo. C. Keller,

“Party of second part.”

It was further alleged that at the time said agreements were entered into, a partnership agreement was formed whereby each party became the owner of one-half interest in the coal purchased and the options; that under said first agreement they purchased the coal under 426 acres, each party paying one-half the purchase money and that a hole was drilled at joint expense on a tract of said land; that said options were taken in the name of appellee Fitzgerrell who held them in trust for appellants and appellees; that the parties to said agreements made deeds to the coal rights so owned by them to Fitzgerrell and procured deeds from the owners of the lands covered by the options amounting to some 4,000 acres to him on the agreement that he should hold title thereto for the joint benefit of all the parties to the agreements; that said Fitzgerrell without the knowledge or consent of appellants, delivered to one Lambert a deed to said coal rights; that Lambert conveyed the same to one Harper who conveyed the same to Wood and others at the price of $35 per acre ;„ that the profits on said option coal rights were $8 per acre which appellees claim, and deny the right of appellants to share therein; that Wood and others are paying said profits to appellees and the bill prays for an accounting from appellees and an injunction restraining the payment by Wood of said profits to appellees.

The appellees answered the bill denying a partnership and any agreements except those set forth; deny that the options were held by Fitzgerrell as trustee; allege said options by their terms expired July 1,1907; that after the execution of the first agreement above set forth, they were renewed until December 31, 1907, at which time they were to expire and did expire, and deny that thereafter any options were taken for the benefit of appellants or that a conveyance of them was made by Fitzgerrell to Lambert; deny they negotiated with Lambert for the benefit of appellants except as to the land owned in fee by appellants and appellees; deny appellants had any interest in the lands and options except the 426 acres owned in fee; allege that appellant Keller for himself and Steffens disposed of their entire interest in the transaction to Stamper for the snm of $7,455 which was paid on or before February 1, 1909, and received by appellant Keller.

The co-defendant Wood answered and filed a cross bill as a purchaser of said coal rights tendering the purchase money into court to abide the order to pay to whomsoever should be found entitled thereto. To the cross bill answers were filed and replications being-filed and the cause at issue, testimony was heard and the court found the equities with appellees and entered a decree dismissing the bill.

Numerous errors are assigned, but the main question presented is the alleged error of the court in finding the equities against appellants and dismissing- the bill.

This question involves two propositions, one a construction of the agreement of May 25, 1907, the other whether the appellants in the month of January, 1909, sold to appellees all their interest in the coal held in fee and in the options held by appellees.

The contention of appellants is that the agreement created a joint adventure in the options which was in the nature of a partnership and as such it imposed upon those associated in it the duty of fair dealing between themselves in the enterprise and it is contended there being such relation, the undertaking must continue until the enterprise is concluded although the duration of the joint adventure is fixed by the articles.

It must be conceded the agreement did not embrace any options not taken or extended or acquired during the year 1907. This is expressly set forth in the agreement.

The options had been taken and were held by appellees, or for their benefit, and appellants had no interest therein except such as they acquired by the terms of the agreement. They had invested neither time, labor nor money in securing them. Appellees had secured them and in addition thereto the fee in some coal as a nucleus about which they might create a field or territory, and had secured the fee so as to better prevent the acquirement of the field by others. They desired to dispose of these coal rights and the object was to ■associate some one in the enterprise who would by reason of supposed superior advantages aid them in making a sale. It was not the character of a joint adventure where it would be implied it should continue until concluded.

As to all options not taken, extended or acquired prior to December 31, 1907, the stipulated term when the joint interest should expire, was expressly fixed at that time, and so far as the agreement itself was concerned, appellants had no interest in the profits to he derived from the options not taken, extended or acquired within that time. When the specified time of a co-partnership or joint adventure has expired, the partnership or adventure is dissolved without any further action on the part of the partners or parties to the adventure.

It is true, however, that such an agreement may be continued after the stipulated time by express or tacit agreement and we are of opinion from the conduct of the parties as shown by the testimony that there was a tacit agreement that it should continue beyond the stipulated time. The evidence shows appellees, long-after December 31, 1907, recognized appellants were still interested in the options.

Upon the other proposition that appellants in January, 1909, by agreement with appellees disposed of their interest in the options, the evidence is conflicting. It was claimed in the answer and on the trial that appellants relinquished to appellees their interest in the whole transaction including the 426 acres of coal held in-fee for the sum of $7,455. Appellee, Fitzgerrell, who was placed on the stand by appellants, testified on cross examination that he went into the store of Stamper on the 10th or 12th of January, 1909, and found appellee Keller and Stamper there and Stamper said “Mr. Keller reports the Lambert deal has fallen through and is no good” and further said “I have bought Mr. Keller’s interest.” He further testified that both Stamper and Keller'went ahead and repeated the trade and that Stamper said he was to give Keller $7,455; that Keller replied that was right, that if Lambert didn’t take the land he Keller wanted to clean it up, it was not adjoining his land, that he was sick and tired of the holding and wanted to clean up the deal. Fitzgerrell further states that he Fitzgerrell included the options as well as the 426 acres of coal, that appellees were to pay Keller on or before February 1, 1909, and sent him a draft for $7,455 which was cashed by Keller.

This testimony is corroborated by appellee Stamper who testified that he told Keller in December, 1908, that Lambert was sick and would not take the property; that between the 1st and 20th of January Keller came to his store and asked how the coal deal was geting on, that Lambert was sick and gone to California and the deal was off; that he Stamper said he thought not and thought Lambert’s associates would carry out the deal; that Keller answered he knew they would not; that he was tired of it and wanted to sell out; that he had all the land he wanted and all the business he could attend to and that he calculated his interest at $7,455 for his entire interest in the land and options; that the witness then called his attention to the fact he had made a deed with the appellees conveying the 426 acres of coal to Lambert and if the witness could arrange with Lambert to take up the property without arranging for another deed, would it be all right to take it up that way and send him the money and he answered yes, when he received the $7,455 he would be satisfied and have nothing more to do with the transaction and if the deed to Lambert could not be used, he would make another deed. Stamper further stated that Fitzgerrell came in, and in the presence of witness and Keller went over the terms of the transaction. There are some letters and statements of Stamper in the record that tend to weaken his testimony and to discredit it, but there is ample corroboration of the alleged transaction by Fitzgerrell and in some degree by Ross Webb a clerk in the store where the alleged conversation was had.

Appellant Keller testified he had no such conversation at the store as testified by Fitzgerrell and Stamper in January, 1909, and never talked with them about selling his interest in the option; he also stated he did not recall saying at any time he was sick of the transaction and wanted to get out of it, nor that he would turn over the 426 acres of coal and his interest in the options for about $7,000.

It is the settled rule in chancery cases that where the witnesses are heard by the chancellor, his findings of fact should be seen to be clearly erroneous to warrant a reversal. We have examined and considered the testimony in the case both oral and documentary and the findings of the chancellor are not so erroneous upon the question of the alleged sale by appellants to appellees that we would be justified in reversing them.

It is urged that if the alleged oral agreement to sell had been established by the evidence it would not be a valid agreement by reason of the statute of frauds and perjuries, since it involved an interest in real estate. There are two reasons why the statute does not apply, .either of which would be sufficient.

To make available the statute, it must be pleaded, which was not doné in this case. It is true the question of its applicability in the cause was first disclosed by the answers of appellants which set up the oral agreement as a defense, and the only replication in chancery pleading being a general one, the statute could not be pleaded by way of replication, but if the statute was to be relied upon it should have been pleaded by way of amendment to the bill. White v. Morrison, 11 Ill. 361.

“It is a settled principle in equity that a party to avail himself of the benefit of the statute of frauds, must specially insist on it; if he fail to.do so he will be considered as having waived the advantage to be derived from its provisions.” Story’s Eq. Pl., 590; Tarleton v. Vietes, 1 Gil. 470.

“The defendant in order to avail himself of the benefit of the statute must set it up by plea or insist on it in his answer. The only difficulty is in determining how the complainant may take advantage of it by applying it to a transaction first introduced into the case by the answer. The better opinion is he should do so by amending his bill.” Tarleton v. Vietes, supra; White v. Morrison, supra.

We are of opinion also that the agreement for the sale of the options having been fully executed by the acceptance of the purchase money by appellants as found by the chancellor, the statute of frauds, even if pleaded, would furnish no answer to the agreement.

Other alleged errors assigned not being relied upon in the argument they will be regarded as waived.

The decree of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Justice Duncan

text:
    International Text Book Company, Appellant, v. Louis C. Mackhorn, Appellee.
    1. Appeals and errors—what general assignment of errors saves for review. Under a general assignment of errors that the court should have granted a new trial, the appellant may urge the rejection of proper and the admission of improper evidence, the giving of improper and the refusal of proper instructions, where proper objections were made and exceptions saved to the rulings thereon when offered, and also that-the evidence does not sustain the verdict.
    2. Appeals and errors—when exception to judgment not essential to review. An exception to the judgment is not essential to review where a case has been tried before the court without a jury.
    3. Evidence—when copies of letter incompetent. Copies of letters even if made by a letter-copying machine are not admissible as primary evidence; notice to produce duly served is essential to the right to the introduction of secondary evidence.
    4. Evidence—tohen re-offer of excluded evidence should be made. If letters have been rejected on the ground that they are secondary in character (no notice to produce having been served) they should be re-offered if the proof subsequently develops a claim upon the part of the addressee that the original letters had never been received. In the absence of such re-offer the rejection of the secondary evidence cannot be successfully urged as error.
    5. Evidence—when objection to question does not save propriety of answer for review. An objection to a question does not cover the propriety of an answer, if the answer as given was not called for by the question.
    6. Contracts—what not varying by parol. It is competent to supplement a written contract by evidence of matters of detail agreed upon as to which the contract is silent.
    7. Contracts-—when party must establish substantial performance. In an action to recover money claimed as due under a contract which money is not payable independently of performance of the contract by the plaintiff, the burden is upon the plaintiff before he can recover such money to establish that he substantially performed his part of such contract.
    8. Instructions—invading province of jury. An instruction which invades the province of the jury is palpably erroneous.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyer, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Rehearing denied October 27, 1910.
    Hall & Dame, for appellant; David C. Harrington, of counsel.
    Dan McGlynn, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This suit was begun before a justice of the peace to recover the balance of $49.40 alleged to be due under a contract for a scholarship in the International Correspondence Schools for a course of instruction to Louis T. Mackhorn in book-keeping and business forms, the price of which scholarship was guaranteed by Louis C. Mackhorn. A judgment was rendered for the defendant, and the cause was appealed to the City Court of East St. Louis in which, upon a trial by the court and a jury, judgment was rendered for the defendant. The cause being appealed here an opinion was filed at the February term, A. D. 1909, affirming the judgment of the lower court upon technical grounds not involving the merits of the case. A new hearing was granted appellant by this court at its last term.

On a reconsideration of the cause we think the appellant is entitled to a hearing on the merits. A motion for a new trial by the appellant was overruled in the lower court, and exceptions thereto were duly saved by the appellant. Proper" objections and exceptions were entered by appellant to the evidence and the instructions complained of, and the motion for a new trial assigned all causes urged here for a reversal of this judgment. Under the general assignment of error that the court should have granted new trial, the appellant may urge the rejection of proper, and the admission of improper, evidence, the giving of improper, and the refusal of proper, instructions where proper objections were made and exceptions saved to the rulings therein when offered, and also that the evidence does not sustain the verdict. The judgment in jury trials follows as a matter of course on the overruling of motions for a new trial and in arrest of judgment, and it is not usual in such cases to except to the judgment. In trials before the court without a jury it is usual where the correctness of a judgment is attacked either to move for a new trial and save exceptions to the overruling of the same, or to preserve an exception to the judgment. O. O. & F. R. V. R. R. Co. v. McMath, 91 Ill. 104; Grand Pac. Hotel Co. v. Pinkerton, 217 Ill. 61; Yarber v. C. & A. Ry. Co., 235 Ill. 589.

Appellant insists that the court erred in refusing to admit in evidence two copies of letters of appellant written to Louis T. Mackhorn in February, 1906, after the making of the contract, January 30, 1906, tending to show that appellant forwarded to said Louis T. Mackhorn instructions and lessons by correspondence in said course of study as provided in said contract. These letters were very material to appellant’s case, but it appears from this record that there had been no notice given to appellee previous to the trial to produce the originals of these letters, and that the only demand made on appellee for same to be produced was when the copies of those letters were offered in evidence. Objections were made to these copies that they were secondary evidence, and that no notice had been served on appellee to produce the originals before the copies were offered in evidence. The court sustained the objections of appellee on ascertaining that appellee did not have the originals in court. In this the court committed no error. Copies of the letters, even if made by a letter copying machine, are not admissible as primary evidence. 2 Elliott on Ev., sec. 1260, and 1 Elliott on Ev., sec. 208; King v. Worthington, 73 Ill. 161.

Evidence by a party to a suit as to the contents of letters written by him to the adverse party is inadmissible, when no notice to produce the originals was given. Wright v. Raftree, 181 Ill. 464; LaSalle Pressed Brick Co. v. Coe, 53 Ill. App. 506.

It is true as appellant claims, that after the refusal of the court to allow these copies to be read in evidence on said objections, that it was developed by the testimony of the Mackhorns that these letters were never received by them and that they did not have the originals in their possession. But if it be conceded that subsequent evidence was furnished showing that these letters were lost or not in existence, this does not make the ruling of the court complained of error. If it was afterwards proved that plaintiff was entitled to introduce secondary evidence of their contents, the copies of the letters should then have been re-offered in evidence. This was not done and as the ruling of the court was right when made, the assignment of error •thereon must fail. We have examined the other objection of the appellant to the court’s rulings on the evidence and find the same untenable. The court did not admit any evidence that tended to vary the terms of the written contract. The defendant was entitled to the evidence as to what lessons and instructions were furnished Mackhorn by appellant as bearing upon the question whether or not appellant had performed its part of the contract in furnishing these items. He was entitled to the evidence as to what lessons and instructions he was to receive and as to how he would receive them as told to him by the agent who represented the appellant in securing this contract as the contract was indefinite or silent in that regard. This was not varying the terms of the contract, but a method of finding out what were the terms of the contract in a matter wherein it was silent. As no evidence tending to vary the terms of the contract was admitted, and as the authority of the soliciting agent was not questioned, the authority of the agent was of no importance. Besides the evidence of his authority was admitted fully anyway. The statement of appellee that the agent, Baum, promised to instruct defendant’s son personally was improper; but the answer was not responsive to his counsel’s question and a motion should have been made by appellant to strike out his testimony, or an objection should have been made to this answer, and for failure so to do there is no ruling on the evidence. Objections to the question, simply, did not cover the answer, as no such an answer was sought for by the question.

Appellant also complains of the giving of the latter portion of the only instruction offered by appellee, to-wit: “And if you believe from the evidence in this case that the plaintiff failed or neglected to furnish the said Louis T. Mackhorn with such instructions as it agreed to give him, by the terms of said contract then you should find the issues in this case for the defendant.”

The plaintiff offered the converse of this proposition, and the whole case was defended upon the single issue that the plaintiff had not performed its contract in that regard. It is not perceived by us why this instruction is not proper and no good reason is given to the contrary. The written contract provided: “A complete set of the instruction papers and examining questions, in pamphlet form, and drawing plates used in teaching, which are to be supplied to me, in parts, as I proceed with my studies.” The testimony of the defense as given by both the Mackhorns, was that these matters were not furnished by appellant at all; and the evidence of the appellant in the furnishing of these matters is barely enough to make a prima facie case when only the legal evidence on that question is considered. Under the evidence in this record we think the jury were warranted in finding the issues for the defendant upon the rule of law that the plaintiff must prove by the preponderance of the evidence that it had substantially performed its part of the contract before it could recover.

The court very properly refused to give to the jury the appellant’s refused instruction for the reason that by it the jury were told that,.“from the undisputed evidence it appears that said company sent the books and commenced to give instructions as provided for in said contract, and did perform its part of said contract in so far as it was permitted to do so by said Louis Mackhorn,” etc., which facts were the contested ones in the case in the lower court. The instruction is palpably erroneous as invading the province of the jury.

Finding no reversible error in the record, the judgment of the lower court is affirmed.

Affirmed.


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    John Tennicot, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.
    1. Verdicts—when not disturbed as against the evidence. If the evidence upon which a verdict is based is conflicting and irreconcilable it will not be set aside as against the evidence unless clearly and manifestly so.
    2. Mines and miners—notice to operator of dangerous condition. An operator is chargeable with the nature and character of repairs made by its timbermen and in this way notice of the existence of a dangerous condition may be established.
    3. Mines and miners—what tends to establish dangerous condition. A dangerous condition is shown if curves exist in the driveway of a mine around which mules in use in such mine could not be continuously so driven as to avoid coming in contact with the timbers or props upon the side of the mine, with the result that such timbers or props not only might be but actually were knocked down.
    4. Mines and miners—when instruction as to marking dangerous places erroneous. An instruction upon this subject is erroneous which imposes the obligation upon the operator “to see that all dangerous places at the mine, above and below, were promptly marked.” In this case, however, a corrected transcript showed that the word “promptly” was not in the instruction as read to the jury, and it was held by the court that the word “properly” being the word qualifying “marked,” no error had been committed.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. Moyers, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Rehearing denied October 25, 1910.
    Wise, Keefe & Wheeler, for appellant; Mastin & Sherlock, of counsel.
    Webb & Webb, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

John Tennicot, appellee, obtained a judgment in the City Court of East St. Louis in the sum of $500 and costs against Donk Bros. Coal & Coke Company, from which judgment said company has prosecuted this appeal. The declaration is in case charging a willful violation of section 18 of the Mines and Miners Act, and consequent injury of the plaintiff who was employed in said company’s mine as driver. The cause was submitted to the jury on the first and second counts of the amended declaration, the sum total of both charges being in substance, that by reason of a very sharp curve in the track at the south end of the east branch of what is known as the parting on the main south entry, and the maintaining by the defendant there of a number of props in dangerous proximity to the rails at said curve, and which props were placed there for the support of cross bars resting against the roof and to secure the same, the miners’ cars in passing on said curve there frequently collided with, and frequently jumped the track there by reason of said sharp curve, and collided with, and knocked down said props, thereby endangering the drivers in said mine including this plaintiff,‘by reason of the falling-of said cross-bars and the roof there, and all of which the defendant then and there well knew; that the defendant willfully failed to see that said dangerous place was properly marked and danger signals displayed thereat; that the defendant’s mine examiner examined this mine on the morning of the day aforesaid and saw, or would have seen by a good faith examination, said unsafe conditions, and well knew that the same was dangerous for drivers, and willfully failed and omitted to place a conspicuous mark thereat as notice to keep out; and willfully failed to make a report on this condition as he found it in a book kept for that, purpose; and that plaintiff was willfully permitted by defendant to enter said mine and entry at said point for work, and not under the direction of the mine manager ; and while driving a car along said entry at said point, said car collided with, and left the track and collided with said props, so supporting said roof, and that they were thereby then and there knocked down and plaintiff was injured by the props, cross bars and parts of the roof falling on his head, arms and legs, whereby he was permanently injured, and expended and became responsible for $250 for medical aid, etc.

Appellant’s mine is located and operated by it at Maryville, Madison county. Twelve or more entries were developed westwardly off said main south entry, numbered from 1 to 12 consecutively. Near the point where the eighth entry turns westwardly off the main south, the latter entry branches into two parts, the said two parts coming together with sharp curves near the mouth of the tenth west entry. Each of said branches contained a track over which cars were hauled. The east branch was used to store empty cars for miners engaged in the south side of the mine, and the west branch was used for storing loaded cars collected by the drivers in the south side, and from thence were pulled by the motor to the bottom of the shaft to be hoisted. These two branches were known as the “parting,” and were separated by a pillow of coal, having an opening near the mouth of the ninth west entry of sufficient size to permit a driver and mule to pass from one side to the other. The loaded cars were delivered by the driver on the west branch as they came northwards on the main south. They would then unhitch, pass through this cross cut in the pillow eastward on to the track for empties, and then would hitch to and deliver the empties to the miners as they returned by the main south. When they were delivering empties the drivers spoke of it as “going in,” and when they returned with their loads, as “going out.” At the south end of the parting where these branches come; together the entry is about thirty feet wide and curves sharply to the southeast, making, as is said, a sharp corner at-the left hand rib. To support the roof at this point cross bars were put up against the roof supported on the west ends by a long bar erected near the roof running from a few feet north of the switch-frog and a little west of south. This long bar was supported on the south end by the right rib, and on the north end by a “dollar leg” standing a little north of the frog and between the two tracks. Upon this collar bar were resting several cross bars, roof supporters, extending thence southeasterly, and said cross-bars were supported at their east ends by props located between the left rib and the left rail, some of them being near the curve in the left track, and near the corner of the rib. These conditions had existed for months prior to this accident to appellee.

Peremptory instructions at the close of all the evidence were denied to appellant, and its motion for a new trial was overruled by the court. Appellant argues here (1) that the court erred in not granting a new trial; (2 and 3) that there was no willful violation of the Statute proven in this case; (4) that the court erred in its rulings on the evidence; (5) that the court erred in its rulings on the instructions.

First. The claim upon which appellant bases its right to a new trial in this case is that the plaintiff failed to prove his case by the preponderance of the evidence. We have examined the evidence carefully and find that it is very conflicting on almost all the essential points. The plaintiff’s evidence regarding the manner in which he got hurt is in substance, that he was driving a mule hitched to an empty car and standing near the center of the back end of the car, and that as he approached this curve in question-while going southward, a bolt on the front end of his car came in contact with a prop on the left side of the track; that this caused his car to run off the track and caused a lot of timber to fall on him; and that at that time he was near the center of the curve and his mule was walking between the rails; that when his car struck the prop it lmocked it down, and that about four timbers fell down on him knocking him from his car and injured him about the head, back and abdomen. Appellee also stated that the leg standing between the two tracks near the frog was about twelve inches from the west rail, and that some of the props on the east side stood about twelve or fourteen inches from the rail while some of them stood not over ten inches therefrom; that some of the cars in passing those props had nibbed them, and that there were marks on two of these props showing that they had been previously rubbed; that during the number of times that he had passed that curve the bolts on the cars struck that prop several times, but that this is the only time he had ever knocked one down. Thomas Page testified that the collar bar leg was between the tracks and not very far from the frog of the switch; that the props on the east side of the track were pretty close, but that he didn’t take particular notice of any props that were rubbed. Ben Cannon testified that these props were close to the rail and to his knowledge they had been knocked down four or five times before this accident. John Yasona, the defendant’s timberman, testified that he and his uncle put back two of these props and the collar bar leg shortly after plaintiff was injured and that two of the props were scratched by the cars passing there and that .they were too close; that previous to that while working there he saw a car scratch a prop and that he had seen two or three cars do that; that a prop on the left side had been knocked down twice before that and that he put them up before plaintiff was injured; that the collar bar leg was knocked down by most every driver before that, and that he put it up about fifty times. He also states that at the time plaintiff got hurt he moved two of these props five inches further away from the track, and that they were the ones the cars rubbed. Against this evidence Williams, mine manager, and Pettigrew, his assistant, say they measured these props (after they were reset) and that the closest prop to the rail was twenty-seven inches away and the farthest, thirty-two inches, and that no props were rubbed. They also say the collar leg down and two props over on the other side were inclined at top towards the rib, and two other witnesses testified to having passed between these props and standing cars there. It is also insisted by appellant that the witness, Yasona; was impeached byPettigrew, Copsticlc and Bayer, the latter two being the mine examiner and clerk of appellant, who all testified that before Yasona testified he told the attorney for appellant that the only prop he set after appellee was hurt was the collar bar leg and that it was the only one down. On this impeachment we might say that it is testified to, even by appellant’s witnesses, that this collar bar leg was down and that two other props on east side were inclined or bent over towards the rib, and that he was ordered there by the mine manager to put up these timbers. The jury were certainly warranted in believing that he did put up the three props whatever he may have said about it after-wards. The point on which he was contradicted and the facts are such as to leave quite an impression that they may have misunderstood this witness, or he, them. He certainly would not intend to say in presence of the mine manager that he only put up one prop when he knew that the mine manager must necessarily know that he was ordered to and did put them all back. While not knocked down flat, they were down, that is not up and in place, and admittedly so. We would certainly not be warranted under this evidence in holding that the verdict is manifestly and clearly against the weight of the evidence. It is for the jury to settle questions of fact under such contradictory and irreconcilable evidence as the foregoing. We cannot legally set such a verdict aside. If the facts proved by the plaintiff are to be taken as true, and they are so found evidently by the jury, the plaintiff has proved the charge in his declaration. We will further say that while the cars are proved to extend over the rails only about nine inches and that the bolts could riot have extended more than another inch and three quarters further over the rail, that much must also depend upon the distance of the front wheels from the front end of the car. Any car, street car or mining car, when rounding a sharp curve while moving may protrude its end much farther over the_ rail than its "sides, and the distance the end will extend over the rail depends necessarily on how the car is geared, and the evidence in this record does not show how it was geared.

Second and Third. Appellant also insists that it has proved by the licensed mine examiner that a reasonably careful and prudent examination of this mine was made by him on the morning of the accident; and that he did not find any dangerous condition, and that it is not responsible under the Statute for any dangerous condition that came about that day after such examination, although such condition caused injury. Plaintiff however insists that there was, and had been, for some considerable time prior to this injury, a dangerous condition there; that such an examination would necessarily have revealed this danger, and that the defendant had actual notice of it long before the injury. It is admitted that the place was not marked dangerous by any signal required by the Statute, and that no such condition was reported by the examiner and that the plaintiff was permitted to work there and not under the direction of the mine manager. If the evidence of Vasona, the company’s timberman is to be taken as true, the company had actual notice of the danger long prior to the accident. It is chargeable with the nature and character of its repairs made by its timberman. His knowledge was its knowledge. But irrespective of the question of whether the props were twelve inches or thirty-two inches from the switch rails, we are impressed with the notion that there is a dangerous condition there. Mules cannot be driven by any driver with mathematical precision at all times through such curves as are shown to be there, without danger of knocking down those timbers. The evidence shows they were knocked down previously by the tail chain striking one of these props. This shows them to be dangerous, and they ought to be more firmly planted and better guarded. Hnder the holding of our Supreme Court in Olson v. Kelley Coal Co., 236 Ill. 502, the appellant is clearly liable in this case, as ‘‘ The question of the condition of the entry at the point where the accident occurred was one of fact to be determined by the jury, and not by the mine examiner.”

Fourth. We have examined carefully the rulings of the court on the evidence that is complained of by appellant and find that in every instance appellant had the benefit of the evidence objected to elsewhere wherein there was any question as to- the correctness of the particular rulings pointed out.

Fifth. There was one erroneous instruction given, appellee’s second instruction, had it been worded as originally copied into the record by the clerk. As first certified the expression “to see that all dangerous places at the mine, above and below, were promptly marked,” rendered this instruction very erroneous. The corrected transcript of this instruction shows that the word “promptly,” was not in the instruction as read to the jury, and should have read “properly marked,” etc. All the other instructions of appellee that are objected to were unobjectionable, and what we have already said answers the objections raised. For the reasons already given, it was not error for the court to deny appellant’s peremptory instruction at the close of all the evidence.

Finding no reversible error in this record the judgment of the lower court is affirmed.

Affirmed.


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    Albert Eimers, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al., Appellants.
    1. Drainage—rights of railroad as to surface water. A railroad company has the right to drain from its right of way any surface waters which naturally come thereon, to a natural watercourse going through, the right of way; subject, however, to the limitation that it has no legal right to drain even mere surface waters to any natural watercourse other than the one or ones to which they would naturally flow by way of their own natural water shed.
    2. Drainage—limitation of owner’s right as to surface waters. No landowner has the right to divert surface waters or the flow of watercourses from their natural channels and thereby overflow the lands of another without rendering to him proper compensation for his damages by reason of such overflow.
    3. Drainage—when railroad liable for diversion of watercourses, etc. Where a railroad company diverts the flow of a watercourse or the flow of mere surface waters and conducts them through a ditch or otherwise through a natural water barrier to a point where they overflow the land of another, the company will be liable for such damages as result therefrom; and the fact that such waters are first conducted into a natural watercourse leading to or through the lands damaged will not change this liability provided such waters cause such natural watercourse to overflow its banks to the damage of such other landowner.
    4. Drainage—when duty of railroad to construct culverts under embankments. While there is no law to compel a railroad company to build a culvert under its embankment to allow mere surface waters to flow in their usual way to their natural watercourses, yet it is the duty of such company to provide culverts if by virtue of its construction such waters are diverted and backed upon the land of another; the duty of the railroad company is to prevent the overflowing of the land of another, and it is liable for a diversion caused by it which results in an overflow and consequent damage.
    5. Drainage—when particular phrase in instruction in action for causing overflow will not reverse. The use of the expression “by the construction of a railroad and borrow pits in question caused water to be led into Hinch branch,” etc., instead of the use of more specific language, such as “by means of the pipes and the tile,” held, not material, as the language used included that suggested.
    6. Verdicts—when not disturbed. Where the evidence is conflicting, after two verdicts in favor of the plaintiff the Appellate Court will be slow in setting aside a verdict as manifestly against the weight of the evidence or as the result of prejudice.

      7. Instructions—when, upon right of recovery appropriate. In an action to recover damages for overflow of land resulting from the diversion of surface water, an instruction is proper which tells the jury that if they “believe from the evidence that the plaintiff has proven his allegations as set forth in the amended declaration, or any count thereof then” the jury should find the defendant guilty, such an instruction being neessarily predicated upon an appropriate declaration.
    8. Instructions—upon extent of proof of declaration essential, proper. Held, that an instruction is proper which tells the jury that it is not necessary for the plaintiff to prove the facts set out in every count of his declaration but that the plaintiff is entitled to recover if he proves by a preponderance of the evidence the allegations contained in any one count, such an instruction necessarily being predicated upon the existence of one good count.
    9. Instructions—when need not refer to proof by preponderance of evidence. It is not necessary that each and every instruction shall repeat that the plaintiff’s proof to entitle him to recover must be by a preponderance of the evidence; if the jury are told this requirement of the law in one instruction the absence thereof in other instructions will not reverse.
    Action in case. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Rehearing denied October 27, 1910.
    Statement Tby the Court. The Cleveland, Cincinnati, Chicago and St. Louis Railway Co. and Chicago, Indianapolis & St. Louis Short Line Railway' Co. appeal from a judgment for the sum of $2,000 recovered by Albert Eimers against appellants in the Circuit Court of Madison county, in an action in case for damages for alleged negligence of appellants in the construction of their road-bed whereby appellee’s lands and crops were flooded with water and damaged. The said lands of appellee are the E. half of N. E. qr. and S. W. N. E. qr. of Sec. 5, and N. W. N. W. qr. Sec. 4 all in T. 5 N., R. 7 W. of 3d P. M., about two and three quarter miles southwest of Worden, and are bottom lands, eighty to one hundred acres of which are cleared- for farming lands, the remainder being in timber. Appellant’s road was constructed in 1904, and runs within about three quarters of a mile and south of appellee’s farm in a straight line, for about four miles after passing said lands, a little bit south of due northeast. It is a double track road having an embankment from sixteen to twenty-seven feet high at the points complained of in this suit. The earth to construct this embankment was taken from alongside the road, thereby making large borrow pits on each side, varying from fifty to two hundred and fifty feet in width and of the depth of two to fifteen feet. Beginning about sixteen hundred feet east of the crossing of this road with the east fork of Hinch Branch the road was constructed east for more than two miles through a natural divide, the natural surface of which at its easterly end was about one hundred feet higher than the natural surface of plaintiff’s lands. The line of this water shed was such that the waters to the north of the dividing line flowed towards Cahokia Creek. The waters to the south, that are complained of by appellee, flowed to Silver Creek through various channels and could not, unless diverted, reach appellee’s lands. The railroad runs through the southerly portion of this water shed and the waters that naturally fell upon a considerable portion of this shed and which had theretofore drained southerly into Silver Creek, were by the road collected into borrow pits on each side thereof and diverted and carried in a southwesterly direction along the borrow pits into the east fork of Hinch Branch a tributary of Cahokia Creek. This branch then flows westerly for about a half mile into the main Hinch Branch and thence northwesterly through plaintiff’s tract in section 4 and empties into Cahokia Creek about five hundred feet north of said tract. Cahokia Creek then flows in a southwesterly direction through the northeast tract of appellee’s land in said section 5 and thence continnes in a southwesterly course past the remainder of appellee’s farm. The main Hinch Branch and the east fork thereof are very small streams crossing the railroad almost at right angles about eighteen hundred feet apart and a little over a mile southeast of appellee’s land, the main branch being west of the fork. The source of the main branch is about three quarters of a mile southeast of the railroad, and the source of the east fork is not more than one quarter of a mile southeasterly of the railroad. About a mile and a quarter east of the crossing of the east fork of Hinch Branch, the Wabash railroad crosses under the appellant’s railroad tracks at a sharp angle, the Wabash running-in a direct line a little west of due northeast. The L. & M. Railroad also crosses the right of way of appellant in a similar manner about one quarter of a mile east of the Wabash and runs about parallel with the Wabash for more than a half mile north and south of appellant’s road. The dumps of these roads there are from about two to four feet high, while appellant’s dump at the Wabash is about twenty-seven feet high. The Hlinois Traction System, or the McKinley Road, also crosses under appellant’s tracks some six hundred feet east of the L. & M., and on the public road running south of Worden at what is known as the “McKinley Arch.” From the McKinley road west to the east fork of Hinch Branch, the borrow pits on both sides of the appellant’s road are connected with tiles or cast iron pipes buried beneath the surface of the ground, these tiles or pipes being buried one on each side of appellant’s road-bed under the embankments of the Wabash and L. & M. roads and under the various public road crossings. These tiles or pipes are eighteen inches in diameter on both sides of the appellant’s road at the crossings of the two railroads and on the north side of the McKinley Road crossing, and twelve inches in diameter on the south side at the McKinley crossing. At all other crossings west of the Wabash up to the east fork of Hinch Branch these tiles or pipes on each side of the road are twenty-four inches in diameter. At this branch and crossing the base of the dump of appellants at right angles is a 36 inch pipe, and at the crossings of the main branch in like manner is a 60 inch pipe. From the McKinley road east on the north side of appellants ’ dump the borrow pits are all connected with tile or pipe of different sizes, the east 1,700 feet being a nine inch tile buried under the surface of the ground. There are no tiles or culverts or other means for the water to pass north or south through the dump of appellants within the distances above named, except the said cast iron pipes at the two small branches.
    The declaration contained six counts, stating in different ways that appellants by means of its said embankment, borrow pits, ditches, tiles and pipes collected great quantities of water on both sides of its said right of way, a great deal of which otherwise never could have reached appellee’s lands by natural drains; and unlawfully and improperly conducted said water from its natural flow through the cuts in the natural water barriers a westerly direction along the sides of its right of way into said small branch and thence to plaintiff’s lands, in such quantities that the capacity of the branches was exceeded and their banks overflowed; and that thereby large swales were cut and washed in plaintiff’s said lands, and his soil washed away, and sand and other foreign debris washed thereon, and his said lands and his crops of 1905 and 1906 were greatly damaged, etc. At the close of all the evidence the court denied appellants’ motion for peremptory instructions, as well as their motion for a new trial, and entered judgment on the verdict in favor of plaintiff against defendants in the sum of $2,000, after appellee had entered a remittitur of $1,480.
    It is insisted- here by appellants (1) that they had the right to drain from the right of way any surface waters which naturally came thereon to a natural watercourse going through the right of way; (2) that a railroad company has the same rights as any other-owner of land, and may obstruct the mere flow of surface waters by its embankments; (3) that the verdict is the result of passion, prejudice or mistake and does not support the judgment; (4) that appellee’s three instruction's given by the court are erroneous.
    Wise & Keefe, and Springer & Buckley, for appellants; L. J. Hackney, of counsel.
    Terry & Guelting, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

First. Appellants’ first proposition is true with the limitation that no landowner has the legal right in Illinois to drain even mere surface waters to any natural watercourse other than the ones to which they would naturally flow by way of their own natural water shed. No landowner has the right to divert surface waters or the flow of watercourses from their natural channels and thereby overflow the lands of another without rendering to him proper compensation for his damages by reason of such overflow. Where a railroad company diverts the flow of a watercourse or the flow of mere surface waters and conducts them through a ditch or otherwise through a natural water barrier to a point where they overflow the land of another, the company will be liable for such damages as result therefrom. The fact that such waters are first conducted into a natural watercourse leading to or through the lands damaged will not change this liability provided such waters cause such natural watercourse to overflow its banks to the damage of such other landowner. The E. St. L. & C. Ry. Co. v. Eisentraut, 134 Ill. 96, and 34 Ill. App. 563; The C. & A. R. R. Co. v. Glenney, 118 Ill. 487 and 28 Ill. App. 364; The J., N. W. and S. E. R. R. Co. v. Cox, 91 Ill. 500; Graham v. Keene, 143 Ill. 425. In the case of Fenton ahd Thompson R. R. Co. v. Adams, 221 Ill. 201, our Supreme Court has stated the conditions under which barriers to the natural flow of water may be removed and standing surface waters drained onto or through the servient estate. On page 211 of that opinion the court says: “If an owner have upon his land when the surface is in its natural state, a basin in which water accumulates, and from which, when filled and overflowing, the water passes in a particular place where the rim of the basin is lower than elsewhere, and there flows through a depression to and upon the land of another, the natural outlet.and natural course for that water is through that low place in the rim and through that depression and the owner may lawfully cut down the rim and deepen the depression upon his own land so as to entirely drain the basin and cause the water therefrom to pass through the depression to and upon the land of his neighbor, if the neighbor’s land be low enough to entirely drain the basin, even though the amount of water flowing-through this depression to the servient heritage is thereby increased, and water which would be retained in the basin if the rim and depression were left as in a state of nature and never reach.the land of the neighbor, is thereby cast upon his heritage.” And again on page 213 the court says: “A proprietor of land may change the course of a natural watercourse within the limits of his own land if he restores it to the original channel before the lands of another are reached, provided in changing the course of the stream he does not cast upon the lands of an adjoining proprietor water which would not in a course of nature flow upon such adjoining premises.” These authorities clearly establish the doctrine that if one proprietor by tearing away natural barriers carries water upon the land of another which has fallen upon an entirely different water shed from that into which it is carried, the former proprietor will be liable to the latter for all damages caused by such unnatural flow of water.

It is said by appellants that while the embankments of the L. & M. and Wabash which were built before appellants’ road, constituted barriers to the direct fl'ow of the water east of those embankments through appellee’s lands before appellants’ embankment was built, yet they were not natural barriers, and that it cannot be successfully maintained that appellants did not have the right with the consent of those roads, to place tile therein and thereby drain its own lands into east fork. Even if this be conceded, we do not understand that appellee is complaining of all the waters that came from between these two roads. As to those waters between these two other roads that flowed into the main Hinch Branch before appellants’ road was built, of course it can make no difference now whether they reached appellee’s lands by the main branch or by east fork as the result would be practically the same. The water complained of by appellee that falls between those two roads as we understand it falls on lands lying north of the public road on the township line, and the elevations given on the plat show that these waters naturally flow north and against appellants’ embankment. The same is true of the waters falling just east of the L. & M. and north of the township line. Mr. Sheppard, the civil engineer who testified for appellee, states that none of these waters ever naturally flowed into Hinch Branch or Cahokia Creek. It does not seem to us that the plat in evidence in any wise contradicts him. As to the waters east of the L. & M. and south of the township line the evidence shows that they reach Silver Creek through the small stream running south and near the east side of the L. & M. road, and the plat strongly corroborates it though no elevations are given there.

Second. It is contended by appellant that it had no legal duty to put culverts under its embankments, so that the water would flow away; but that it had a right to obstruct and hold by its embankments the mere flow of surface waters. While this principle is only indirectly involved in this case, yet as a principle of law it is not sustained by our Supreme Court. The complaint of appellee in this case is that appellants obstructed the natural flow of surface water and also diverted and carried it into his lands, and that such water in a course of nature never could have reached his lands. There is no law to compel appellant to put culverts under its embankments to allow mere surface waters to flow in their usual way to their natural course, provided that in diverting said water it reaches its natural watercourse on the land of appellants and is not backed onto the land of another. It is held in Chic., P. & St. L. Ry. Co. of Ill. v. Reuter, 223 Ill. 387, that if a railroad company by the negligent or improper construction of its railroad embankment causes the land of an adjacent owner to be overflowed and damaged by surface waters that it will be liable for the damage of each overflow as in case of a nuisance. In other words such a structure as will so obstruct the natural flow of surface waters as unnecessarily to overflow the land of another and cause unnecessary damage that reasonable and practical skill and engineering would obviate, is not a legal or permanent structure, but may be treated as a nuisance and will subject the railroad company to endless litigation until the nuisance is abated. O. & M. Ry. Co. v. Wachter, 123 Ill. 440.

Third. By the testimony of Charles E. Sheppard, a civil engineer, and witness for appellee, it appears that the natural waters that fell on four hundred acres of land on the north side of appellants’ embankment, and on one hundred and fifty acres of land south of the embankment, that never could have reached the lands of appellee by their natural watercourses, were by means of appellants’ embankments, borrow pits and tiles collected against the sides of the embankment and diverted and carried into the east fork of Hinch Branch. On the north side of the embankment these continuous borrow pits all connected by tiles or pipes extended for more than two and one half miles east of this branch. Practically the only escape for these waters on both sides of the embankment was through this branch. When the waters on the north side over-filled the borrow pits and backed up very high a portion 'of these waters would escape south into Silver Creek on the public road after first passing through the McKinley Arch. Many of appellee’s witnesses state that the waters would back up so high that it would be two and three feet deep in the arch on the public road. This public road must be some higher than the natural surface of the earth there or it would not have those water pipes under its embankment. The elevations shown on the plat in evidence, admitted, to be correct, show the natural surface of the earth at the side of. this public road to be about four feet higher than at the surface at the Wabash crossing and about six feet higher than the bottom of the pipes under the Wabash embankment. These pipes must then have been submerged in water some seven to nine feet over their tops during these times of high water. The widest borrow pits are at the Wabash crossing and it is near a half mile from there back to the McKinley Arch. As the volume of water discharged westward depends upon the pressure and as pressure is measured by the heighth of the water, it can readily be seen that these two pipes under such conditions would discharge a very large volume of water to be carried by so small a branch.’ It must also .be remembered too that the waters were also collecting from the north against this embankment west of the Wabash in addition to the waters coming through the embankment of the Wabash and that the tiles or pipes west of the Wabash at the public road crossings were twenty-four inch pipes, and that the tile of pipe in the branch and connecting the waters of both sides of this embankment, is a thirty-six inch pipe. All this water too was in addition to that that nature had cut the branch to accommodate, and in high waters the branches would naturally receive all the waters from its own natural sources for which it had proper capacity. Many of appellee’s witnesses followed this water flow for this whole two miles and a half east of this branch during high waters, and down from there to appellee’s lands. They testify that the flow was continuous all the way to his lands, that the branch was higher than ever known, and that after the waters got down the steep grade in this branch from the railroad to the bottom lands where the grade was slight and the flow more sluggish, that the waters broke over on to plaintiff’s lands, submerging as much as forty acres of hi's cleared lands at a time and causing the damages complained of. Appellants insist that it is inconceivable that the water could come so far and in such volume through those pipes. We are wholly unable to see what long distance has to do in slowing the flow or in lessening the volume of water. Besides there are no pipes where these waters enter this branch. The evidence of the plaintiff’s witnesses is too voluminous to discuss in detail, there being thirty-five of them besides himself. According to their evidence the embankment of appellants caused all or most all the damage to appellee, and while contradicted in many essential things by the fourteen witnesses for appellants, the best that could be said of it for appellants, is that this testimony is in hopeless conflict, and it is peculiarly a question for the jury to decide the questions of liability in this case.' We have studied with great care the theory of the appellants that plaintiff’s damages and the ditches or swales cut across his lands were caused by the waters of Cahokia Creek breaking out over its banks near the present mouth of Pieper branch and flowing straight down south across Hinch Branch and thence southwest across plaintiff’s lands to Cahokia Creek again. Much of this evidence is circumstantial and to the effect that the corn and grass and other vegetation north of Hinch Branch where these swales start were bent in the direction of Hinch Branch, showing that the water flowed that way, and also by the further circumstances of drift wood and other debris being shown along there. Much of the evidence is positive and is contradicted by as much or more positive evidence by plaintiff. Many witnesses testify that appellee’s premises were in about the same condition before appellant’s road was built as on the day suit was brought. As many more contradict these statements. As to the circumstantial evidence which we always regard as very valuable, it is much weakened by the further evidence that just north of these swales and in their line on the north side of Hinch Branch there is at present another branch flowing out of the hills and the woods into Hinch Branch and also an old and former channel of Pieper branch that runs to or about the same point from the north, also emptying into Hinch Branch. As the slope of the country there is toward Hinch Branch from the north we do not feel justified in saying that the jury were not warranted in saying that very much of this debris and sign of waters flowing there were the result of natural waters coming down these channels from sources other than Cahokia Creek, and particularly so as the great wash and damages thereby are south of Hinch Branch. As to the amount of damages it is sufficient to say that the evidence of appellee’s witnesses was ample to sustain the full amount of the judgment and much more. The evidence is also in hopeless conflict on this question. Appellee’s witnesses fixed the damages to the cleared lands.alone at about thirty dollars per acre, while a few of appellants’ witnesses stated he was damaged some, but not nearly so much as the others fixed it, and several of appellants’ witnesses would tend to show that he suffered no damages at all as appellants’ embankment in no way damaged him. It is however shown by evidence from both sides that there are about ten acres or more of cleared lands there entirely ruined by these swales or washes, and that he had from thirty-five to fifty acres of corn almost entirely ruined in 1905 after it had matured and was shocked and that he about lost his crop in 1906 on account of overflows however caused. In view of the condition of the evidence, and in further consideration of the fact that the plaintiff has had two verdicts in his favor on these facts, we do not feel warranted in saying that the verdict is manifestly against the weight of the evidence or the result of prejudice, etc.

Fourth. There is no error in the giving of any of appellee’s instructions. By the first instruction the court told the jury, “If you believe from the evidence that the plaintiff has proven his allegations as set forth in the amended declaration or any count thereof, then you should find the defendant guilty.” And by the second instruction the jury were told that it is not necessary for the plaintiff to prove the facts set out in every count of the amended declaration, but that the plaintiff is entitled to recover if he proves by a preponderance of the evidence the allegations contained in any one count. These instructions in substance have been many times approved. St. L. A. & T. H. R. R. Co. v. Holman, 155 Ill. 21; C. & A. R. R. Co. v. Harrington, 90 Ill. App. 638; C. & A. Ry. Co. v. Hatfield, 109 Ill. App. 556; Central Ry. Co. v. Bannister, 195 Ill. 48; Donk Bros. Coal Co. v. Thil, 228 Ill. 233. It is only necessary for plaintiff to prove one good count in a declaration to recover. It is only necessary for him to prove the material allegations of any one count. There is no objection that will serve appellant, to a court saying to the jury that he is entitled to recover if he proves all his allegations in any one count. That is what said instructions require. If he had limited the requirements to proving the material allegations, then it would have been necessary to inform the jury what were the material allegations without leaving them to settle the question as to what allegations were material. A specific objection to the first instruction by appellants is that it does not require proof by a preponderance of the evidence. Other instructions of appellants plainly told the jury that plaintiff was required to prove his case by the preponderance of the evidence. It is not necessary to repeat this in every instruction given. Besides proving his case by the evidence “means no more nor no less” than proving it by the preponderance of the evidence. See case last cited, 228 Ill. 233. The third instruction of appellee is criticised by appellants because it uses the expression, “by the construction of a railroad and borrow pits in question caused water to be led into. Hinch Branch,” etc., instead of saying “by means of the pipes and the tile.” The pipes and tile may be properly considered a part of the railroad construction or borrow pits either. It took all of them to make the railroad structure and perhaps all of them to cause plaintiff’s damages, if any. The jury could not have been misled thereby.

Finding no reversible error in this record, the judgment of the lower court is affirmed.

Affirmed.


text:
    Otis E. Harvick, Appellee, v. Modern Woodmen of America, Appellant.
    1. Fraternal benefit societies—what constitutes contract of insurance. The application, the benefit certificate and the by-laws of the society, so far as legal, are to be read together as constituting the entire contract of the" society with the member.
    2. Fraternal benefit societies—w7ien breach of warranty vitiates contract. A substantial breach of a warranty by a member whether material to the risk or not, will relieve the society of the obligation of payment unless such breach has been waived by the society.
    3. Fraternal benefit societies—what constitutes breach of warranty. Where the by-laws of a society provide that applicants for insurance must be over 18 and under 45 years of age, a warranty by an applicant that he was of eligible age, if untrue, will relieve the society of the obligation of payment unless the society has waived the breach.
    4. Fraternal benefit societies—effect of warranty as to date of birth and age. It is competent for a fraternal benefit society to require an applicant for insurance not only to warrant his actual age but Ms precise date of birth and such warranties where made are separate and distinct; and it is error for the court by its instructions to treat such warranties as constituting one and the same defense.
    5. Fraternal benefit societies—what essential to waive breach of warranty. A waiver of a breach of warranty by a fraternal benefit society is not established by the mere receipt and retention of an assessment; it must be shown that such assessment was received and retained with knowledge by an agent of the society of the facts which constituted the breach.
    6. Fraternal benefit societies—when waiver of one breach of warranty does not waive the breach of another warranty. While evidence might establish that a society has waived a breach of warranty consisting in the applicant falsely representing himself not to be over a .certain age, yet such evidence would not necessarily waive a breach of warranty consisting in a false statement of the date of his birth; the society might well be willing to overlook a slightly excessive age but not an age materially in excess of that represented.
    7. Fraternal benefit societies—what not essential to defense of waiver. In an action for insurance benefits against a fraternal benefit society the plaintiff is entitled to the benefit of the defense of waiver without specially pleading it.
    8. Fraternal benefit societies—effect of by-laws upon question of agency. In an action against a fraternal benefit society to recover insurance benefits the plaintiff may show that the officers of the local camp are the agents of the head camp, notwithstanding the fact that the by-laws provide that they shall be considered the agents of the plaintiff. It is not within the power of a fraternal benefit society to avoid the responsibility cast upon it by law for the acts of its agents by a provision in the by-laws that they shall not be considered its agents, if as a matter of fact they are its agents.
    9. Fraternal benefit societies—how question of agency determined. Whether or not the agents of a local camp are the agents of the head camp is a mixed question of law and fact to be determined by the jury under proper instruction on the evidence.
    10. Evidence—how proof of age may be established. The age of a deceased party may be established by proof of declarations of the deceased, by declarations of blood relatives, etc., when made ante litem motam.

    Assumpsit. Appeal from the Circuit Court of Johnson county; the Hon. Albert W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.

      Truman Plantz, George G. Perrin and George W. English, for appellant.
    Mansfield, Cowan & Boulware and S. A. Van Kirk, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The plaintiff is a beneficiary named in a certificate of insurance issued by the defendant, a benevolent fraternity, upon the life of plaintiff’s brother, Prank W. Harvick. To the declaration defendant pleaded the general issue with notice of two special defenses in substance (1) that said Prank W. Harvick stated in his application for said certificate and as part of his contract of insurance, that he was born March 2, 1859, which statement was a warranty and untrue; that he was not born on said date but was born in March, 1857; (2) that he was over forty-five years of age at the date of his certificate, March 11, 1903, and under appellant’s by-laws was ineligible and never became a member of defendant’s society; and that said certificate was void and all payments thereon were forfeited by reason of said facts. The plaintiff joined issue and upon a jury trial judgment was rendered in favor of plaintiff against the defendant for $2,158.33. The defendant appeals.

It was conclusively proved on the trial that the said applicant represented in his application that he was born March 2, 1859. The said application contained among other things the following:

“I further agree that the foregoing answers and statements,-shall form the basis of the contract between me and Modern Woodmen of America, and are offered by me as a consideration for the contract applied for, and are hereby made a part of any benefit certificate that may be issued upon this application, and shall be deemed and taken as a part of such certificate: - and I further agree that if any answer or statement in this application is not literally true, or if I shall fail to comply with and conform to any and all laws of said Modern Woodmen of America, whether now in force or hereafter adopted, that my benefit certificate shall be void. ’ ’

The said contract of insurance contains this clause:

“That the application for membership in this society, made by the said member, a copy of which is hereto attached and made a part hereof,-is true in all respects, and that the literal truth of such application and each and every part thereof shall be held to be a strict warranty and to form the only basis of the liability of this society to such member, and to his beneficiary, the same as if fully set forth in this certificate.”

The by-laws of the defendant provided that the applicant must be over eighteen, and under forty-five, years of age at date of certificate. Also that the clerk of the local camp is the agent of such local camp and not the agent of the head camp; that he shall not collect dues from a member whom he knows has made false representations in his application; and that the retention of dnes or transmission of same to the head camp shall not have the effect of waiving the forfeiture of the certificate of such a member.

The application, the benefit certificate, and the bylaws of the association, so far as legal, are to be read together as constituting the entire contract of the deceased with the defendant. A. O. U. W. v. Jesse, 50 Ill. App. 101; Royal Arcanum v. Coverdale, 93 Ill. App. 373; Covenant Mut. L. Ass’n v. Kentner, 188 Ill. 431.

By the terms of this contract the statement of the deceased in his application that he was born March 2, 1859, was a strict warranty, as distinguished from a mere representation. A substantial breach of this warranty, whether material to the risk or not, will defeat the policy, unless the defense was waived by the defendant. Thomas v. Fame Ins. Co., 108 Ill. 91.

The provision of the by-laws that the applicant must be under forty-five years of age at the date of his certificate was binding; and if the evidence should prove he was over forty-five years of age at the date of his certificate, his policy was void unless the defendant waived that defense. As the charter of the defendant gave it power to insure persons between seventeen and sixty years of age, it could waive the provisions of its by-laws and insure a person over the age of forty-five and under sixty years. Wood v. Mystic Circle, 212 Ill. 532; Loyal Americans v. Mayer, 137 Ill. App. 574.

The evidence in this case upon the question of whether or not Frank W. Harvick was born March 2, 1859, was very conflicting. Plaintiff and defendant are both fortified with much evidence tending to support their respective sides of this question. As the judgment of the lower court will have to be reversed and the cause remanded for errors hereinafter noted, we refrain from discussing the evidence as to its merits, and will limit our consideration thereof to certain parts of it, the admissibility of which, is challenged. It will be noted that there are two distinct defenses sought to be interposed in this case by the appellant, one of which is a breach of warranty by the insured as to the date of his birth and the other is a violation by him of the by-laws of the association. The plaintiff by his instructions numbered 4, 5, 7, 9, 12 and 13 treated these defenses as one and the same, or to speak more accurately, treated the second defense as the only one in the case. The plaintiff stated in Ms fourth instruction to the jury that the material defense made by the defendant in this case is that Frank W. Harvick was over forty-five years of age when his certificate was issued, and that the defendant must prove that fact to defeat a recovery by the plaintiff. Every instruction given for the plaintiff and conditionally directing a verdict for the plaintiff, whether upon the subject of waiver or otherwise ignores the defendant’s defense that the insured warranted that he was born March 2, 1859, and that that statement was untrue. For this reason all six instructions above named are improper, and the giving of them by the court was reversible error. It was competent for the parties to make that statement a strict warranty as they did; and if the proof shall show that it is untrue, the plaintiff cannot maintain this suit in the absence of proof of a waiver of this defense. There is no proof in this record that Morgan, the clerk of the local camp, or any other officer of said camp whose acts are claimed to be a waiver of any defense to said policy, had any knowledge whatever as to the date of the insured’s birth, or that he had ever falsely stated the date of his birth, or that he had attempted to state the date of his birth in his application at all. The only evidence upon which to base a waiver was by the plaintiff to the effect that Morgan, clerk of the local camp told him when he delivered the proofs of death to Morgan and asked him to get Mr. Newton’s signature to' them that Morgan came back to him and said Mr. Newton (Venerable Consul) refused to sign it because he said Frank Harvick was too old when he joined the lodge, and that after that statement Morgan received from plaintiff an assessment owed by him on the certificate and sent it to the head camp and that the assessment has never been returned. There can be no waiver predicated, on Newton’s knowledge and acts because he refused to recognize the liábility after death of assured, and there is no evidence in the record that he ever knew of the date of the assured’s birth or his exact age prior to assured’s last illness. He swears he had no such knowledge prior to his last illness. For this reason also Newton’s name should not have appeared in instruction No. 13 for plaintiff and plaintiff’s No. 9 was improper because there was no evidence that the defendant knew the insured was over forty-five years of age when the certificate was issued. Plaintiff’s instruction No. 11 states an abstract proposition of law simply and should not have been given for that reason; and, besides, as the construction of the contract is for the court the jury should not have been told in an instruction that defendant’s laws, rules, etc., “will be most strictly construed against it.”

This case necessarily hinges upon the truthfulness of the statement of the applicant that he was born' March 2, 1859. If that statement is untrue plaintiff cannot recover. If the statement is true then the applicant was not forty-five years old when the certificate wits issued. But it is not true that proof that he was not forty-five years of age proves that he was born March 2,1859. So unless there is evidence on which to base a waiver of the defense of breach of warranty, the doctrine of waiver ought not to be brought into the case at all as it could not avail plaintiff in such case and could only serve to confuse the jury. The defendant might be willing to waive the provision of the by-law if the applicant was only a few months over forty-five years old if it was collecting assessments and dues for that aged man, while it might be altogether unwilling to waive a defense of warranty as to date of birth where, as the defense claims in this case, the applicant was two years older than he stated his age to be. The defenses are materially different in name, and also in results to the association, and it had the right to have the jury so understand and properly pass on the issues in the case.

On the question of waiver, if it can properly arise in the case, we are of the opinion that the plaintiff is entitled to the benefit of that defense without specially pleading it. The authorities so hold. Bailey v. The V. Nat. Bank, 127 Ill. 332; German F. Ins. Co. v. Grunert, 112 Ill. 68.

The plaintiff may show that the officers of the local camp are the agents of the head camp, notwithstanding the fact that the by-laws provide that they shall be considered as the agents of the plaintiff. It is not within the power of the defendant to avoid the responsibility cast on it by law for the acts of its agents, by a provision in the by-laws that they shall not be considered its agents, if as a matter of fact they are its agents. Whether or not the agents of a local camp are the agents of the head camp is a mixed question of law and fact to be determined by the jury, under proper instructions, from the evidence, notwithstanding such by-law. The L. M. Ins. Co. v. Bell, 166 Ill. 400; Royal Neighbors of A. v. Boman, 177 Ill. 27; Supreme Lodge K. of H. v. Davis, 26 Colorado 253; Bacon’s Benefit Societies, Sec. 153.

We do not think the court erred in permitting plaintiff to testify as to the age and date of the birth of the assured, but we think that it was competent for plaintiff to testify that the assured said about ten years before he applied for the Certificate in question that he was born March 2, 1859. It is true that what his brother said in that regard, was hearsay testimony. Pedigree and family history may be proved by hearsay evidence, that is, it may be proved by the declarations of deceased, blood relatives, or of husband or wife, of the party whose pedigree is at issue, when made ante litem motam. The term pedigree embraces not only descent and relationship, but also the facts of birth, marriage, and death, and the date or times when these events happened. 1 Elliott on Ev., secs. 360, 361, 364 and 377; 1 Wharton on Ev., secs. 201 and 213; Greenleaf on Ev., secs. 103 and 104; Am. L. Ins. & T. Co. v. Rosenagle, 77 Penn. St. 507.

The declaration of the party whose pedigree is in issue, if dead, is admissible to prove his pedigree, if not self-serving and at all times if disserving. It has been admitted by courts of high authority in this country even when self-serving, but the Mississippi Court would exclude it if self-serving. Washington v. Bank for Savings, 171 N. Y. 166; Young v. Shulenberg, 165 N. Y. 385; Eisenlord v. Clum, 126 N. Y. 552; Cuddy v. Brown, 78 Ill. 415; Wise v. Wynn, 59 Miss. 588.

The declaration of the assured at the time the family record was destroyed, some ten years before he applied for this certificate, that he was bom March 2, 1859, was neither self-serving nor disserving so far as he could then discern. If made it must have been made without any thought of any possibility of it ever affecting him or any one claiming through bim in a law suit. Nobody, other than his parents, could be supposed to know better than he when he was born. It was admissible. What proving force it shall have is a question for the jury.

But for the errors indicated the judgment" of the lower court is reversed and the cause will be remanded for a new trial.

Reversed and remanded.