text:
    Alice B. Hendershott v. William S. Calhoun.
    Landlord and tenant—Indorsement on order.—Plaintiff leased certain premises to defendant for one year at $25 per month, and being indebted to one DeWolf, drew an order on defendant requesting him to pay all of said twelve monthly installments to said DeWolf, which order defendant duly accepted. Defendant paid the installments to DeWolf for several months, and then vacated the premises, and refused to pay further rent. Plaintiff paid the balance remaining due to DeWolf, who indorsed the aforesaid order in blank and delivered it to plaintiff, and she brought suit against defendant for the balance of the rent due. Held, that an instruction that the giving of the order to DeWolf barred the plaintiff’s right to recover was erroneous.
    Error to the Circuit Court of Cook county; the Hon. Will-jam H. Barnum, Judge, presiding.
    Opinion filed December 16, 1885.

      Hr. Elbbidge Haneoy and Hr. F. P. .Reynolds, for plaintiff in error;
    that where a lease under seal fixes a certain amount of rent to he paid, a parol agreement changing the amount of rent to he paid and leaving the lease in other respects unchanged and in force is not binding on the lessor, cited Barnett v. Barnes, 73 Ill. 216; Toach v. Farum, 90 Ill. 368; Hume v. Taylor, 63 Ill. 43.
    The order offered in evidence by defendant is a negotiable instrument and is assignable by indorsement: R. S., Ch. 98, §§ 3, 4; Turner v. P. & S. R. R. Co., 95 Ill. 134.
    Hr. W. W. Evans, for defendant in error;
    cited Fisher v. Deering, 60 Ill. 114; Scheidt v. Belz, 4 Bradwell, 431; Seavey v. Carrigan, 4 Bradwell, 324.
   Bailey, P. J.

This was a suit commenced before a justice of the peace by Alice Hendershott against William S. Calhoun, and taken by appeal to the circuit court, where a trial before the court and a jury resulted in a verdict and judgment for the defendant.

It appears that on the 7th day of February, 1882, the plaintiff executed to the defendant a lease under seal, demising certain premises for a term of one year from Hay 1,1882, and reserving as rent the sum of §300, payable in monthly installments of §25 each. On the day on which the term commenced, the plaintiff, together with her husband, being indebted to one James E. DeWolf in the sum of §300 upon a promissory note of that date executed by them to him, drew an order on the defendant, by which they requested him to pay each of said monthly installments of rent to said DeWolf to apply in payment of said note, which order was then and there duly accepted by the defendant in writing and delivered to said DeWolf. In pursuance of said order, the defendant paid said rent to DeWolf down to and including the installment for Hovember, 1882, and one half of the installment for December, and then vacated the premises and refused to pay any further rent. On the first day of Hay, 1883, and before the commencement of this suit, the plaintiff paid the balanee remaining due on the note to DeWolf, and thereupon DeWolf indorsed said order in blank and delivered the same to the plaintiff, and the same was produced by her at the trial.

The only instruction given by the court to the jury was the following, which was given at the instance of the defendant:

“ The jury are instructed for the defendant, that if they believe, from the evidence, that the money due and to become due under the lease in question was assigned by the plaintiff to J. E. DeWolf on or about the first day of May, 1882, to apply in payment of indebtedness due from the plaintiff to said DeWolf, and that.the said defendant agreed thereafter to make his payments to said DeWolf, and that he did make such payments up to the time of leaving the premises in question, then the jury are instructed that the said defendant became liable to pay said rent to said DeWolf, and in that ease the plaintiff can not recover the same in this action.”

The only evidence of an assignment .of the rent by the plaintiff to DeWolí was that furnished by the order. Whether an instrument not under seal could operate, technically, as an assignment of the rent reserved by a sealed lease, it is not necessary, in the view we take of the case, to determine. If it be admitted that it had that effect, it is clear that the assignment was in the nature of a pledge or mortgage of the rents as collateral security for the payment of the indebtedness from the plaintiff to DeWolf. Under such assignment the assignee was undoubtedly entitled to receive payment of the rents so long as the debt or any part of it remained unpaid; but on payment of the debt, his rights under the assignment became satisfied and extinguished.

“Upon payment or tender of the debt, the pledgor is entitled to a return of the collateral securities which he has deposited with the pledgee.” Colebrooke on Collateral Securities, 134. A creditor holding collateral securities for a debt, is entitled to hold them until he gets his pay; then they belong to the debtor. Bank of Rutland v. Woodruff, 34 Vt. 89. See also, Lewis v. Mott, 36 N. Y. 402; Ocean National Bank v. Faut, 50 Id. 474.

When the plaintiff paid DeWolf the balance due on the note, the order, if not functus officio, became the property of the plaintiff, and she was entitled to have it surrendered to her. DeW olf, recognizing her rights, surrendered the order, and thereby the rents which had been assigned or pledged to him became the plaintiff’s, and thenceforth they were payable to her.

The instruction proceeded upon the theory that the assignment of the rents to DeWolf was absolute, and wholly ignored the facts, about which there seems to have been no controversy, that they were assigned merely as collateral security; that the debt for which they were pledged had been paid, and that the assignment or pledge had been surrendered to the plaintiff. It is manifest that the instruction failed to lay down the correct rule of law applicable to the evidence, and was therefore erroneous.

There was some controversy as to the condition of the demised premises at the time the defendant vacated them, it being claimed that in consequence of their want of repair, the defendant was discharged from the further payment of rent. That branch of the case was not covered by the instruction, it being held that the giving of the order to DeW olf barred the plaintiff’s right to recover- It may be presumed, therefore, that the verdict was based solely upon the defense submitted to the jury by the instruction. We do not for that reason deem it necessary to consider the weight or effect of the evidence tending to show that the premises were uninhabitable at the time the defendant vacated them.

■ For the error in giving the instruction the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    James R. Paul v. Charles Leyenberger.
    1. Malicious Prosecution—Damages.—In an action for malicious prosecution where the actual damage to the plaintiff for the arrest and imprisonment are definitely shown, and the jury find for the plaintiff, but give only nominal damages, it is error in the court to deny a motion for a new trial.
    2. Jurisdiction,—It is within the province of an appellate court to revise and set aside a verdict for insufficient as well as for excessive damages; -
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed October 22, 1885.
    Mr. E. A. Sherbtjbne, for appellant.
    Mr. Hobert Hervey, for appellee;
    that courts will not grant new trials merely to enable the plaintiff to recover vindictive damages, cited McKee v. Ingalls, 4 Scam. 30; Plumleigh v. Dawson, 1 Gilm. 544; Comstock v. Brosseau, 65 Ill. 39.
   McAllister, J.

This was an action for malicious prosecution, brought by the appellant, Paul, against the appellee, ■Leyenberger. On the trial the plaintiff, in addition to such as tended to support his cause of action, adduced evidence, which was not controveited, showing that he had sustained actual damages, as the direct consequence of his arrest and imprisonment, to the amount of ■ thirty-five dollars.

The jury, upon evidence sufficient to support a verdict of guilty, found the defendant guilty, but gave the plaintiff damages only in the nominal sum of one dollar. The plaintiff moved for a new trial, which was denied and judgment was entered on the verdict. The plaintiff appeals.

We are of opinion that under the circumstances in evidence, the court below erred in denying the plaintiff’s motion for a new trial.

The actual damage was shown with such definiteness as to be capable of being classified under a particular head and determined by a legal measure. There was then that element of damage not only involved in the case, but clearly established. But, from the evidence establishing such actual damage and the verdict, it is perfectly obvious that the jury omitted, for what mason we can not say, to take that element of damage into consideration in making up their verdict. As a matter of principle, important in the due administration of justice, that omission constituted a sufficient ground for granting a new trial, and the court erred in refusing it. Phillips v. The S. W. Railway Co., 4 Q. B. D. 406; affirmed, 5 Q. B. D. 78.

The injury to the plaintiff below from the arrest and imprisonment, can not justly and properly be said to have been trivial. It was serious and substantial. In such case 4he rule is that the plaintiff is entitled to substantial compensation; and in case of trivial injury, or even without any actual injury, to merely nominal damages. Phillips v. Phillips, 34 N. J. Law, 215.

Where a rule of damages can be discovered, the jury are bound to. follow it. Walker v. Smith, 1 Wash. C. C. R. 152.

• It is within the province of an appellate court to revise and. set aside a verdict for insufficiency, as well as for excessiveness of damages. Robbins v. Hudson R. R. Co., 7 Bosworth, 1; McDonald v. Walter, 40 N. Y. 551; 2 Sedg. on Dam., 7th Ed., 660; 1 Suth. on Dam. 810.

■ For the error of the court below in denying plaintiff’s motion for a new trial, the judgment will be reversed and cause remanded.

Judgment reversed. ■


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    Nelson Perin v. Augustus A. Parker.
    1. Contract—Board of Trade deal.—In the absence of any express contract respecting margins, and absence of any evidence of a custom or usage of trade or any rules of the Board of Trade, a Chicago Board of Trade deal will be governed by the rules of the common law; and by its roles, before a broker or commission merchant could, of his own mere volition, buy in the grain’of his principal, deliver it upon the previous sale made by such broker for that principal, and hold the latter responsible for the loss, he would be required, as a condition precedent, to give such principal reasonable notice and opportunity to furnish the requisite margins.
    2. Notice—Reasonableness.—A telegram received by defendant at Cincinnati at 12:15 to send $6,000 margins by 12:30—it being the fault of the telegraph company, which was the sender’s agent, that it was not received sooner, is not a reasonable notice
    Error to the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed October 22, 1885.
    This was a suit by Parker against Perm, to recover .for commissions earned and money paid by the former as commission merchant in the business of the latter, December 30,1882. Perm, who resided and did business in Cincinnati, Ohio, directed Parker, as commission merchant doing business on the Chicago Board ‘ of Trade, to sell for him 25,000 bushels of corn, to be delivered in January, and a like amount to he delivered in May, then next. Parker on same day complied and sold on ’change 10,000 bushels at 19f cents per bushel, 15,000 at J9f cents, to be delivered in January, and 15,000.at 53§ cents, 10,000 at 53f cents per bushel, to be delivered in May. All of which was sold at the market price and Perm advised of the sale by telegram on the same day. The parties had had similar transactions from time to time during the previous two years, and, in no instance, had Perm been asked by Parker to put up margins, nor were any put up; nor were any put up or asked for at the time of this last transaction. From the time of such sale, the price of corn advanced. Parker kept Perin advised as to state of market. January 4, 1883, Perin ordered Parker by telegram to buy 100,000 bushels of corn on break. The latter immediately sent back a dispatch saying: “ January corn closes fifty, three quarters. If buy on break and delivered what shall we do with'it?” To this Perin replied : “ If corn is being delivered only buy twenty-five on break.”
    Testimony was given that the word “break” meant in Board of Trade circles, a decline in the market. Parker testified that there was no break, and therefore he did not buy. Perin testified that there was. It also appeared that “ twenty-five” in Per in’s dispatch meant antHvás understood as 25;000. January 12, 1883, Parker wrote Perm giving him the state of the market, and said: u As markets.stand this evening your trades are about §3,500 against you,'and if w@: ■ do not hear from you to-morrow we shall draw §3,500.” And January 13, Parker telegraphed Perin, that January corn' was 60|: cents and that he should draw for §5,000. Perin on same day replied by telegram saying that he would not pay draft; that when differences were settled he would pay and' not before. And on the same day wrote Parker: “ I wired you this morning not to draw on me as I would not pay it. I am perfectly willing to pay losses when determined but not before. 1 consider you had an order to cover my January sales when the market was about fifty-one cents. If you did not do so, it was your own mistake and not mine.” January 15th, Parker drew and sent a draft on Perin at Cincinnati for §4,000, which the latter refused to pay and it went to protest; but on the night of the 15th, Parker went to Cincinnati and had an interview with Perin, in the course of which he admitted that there was no dispute about the corn for delivery in Hay, got his check book and then proceeded to fill out a check for the amount-; but thinking Parker might apply it on the January corn, he concluded not to give it. He, insisting that Parker violated his orders in not buying the 25,000 bushels on the alleged break, refused to pay Parker anything and proposed to arbitrate. Parker gave him no intimation of an intention to buy in the corn for Perm’s account and close out the deal; but coming home January 17th, Parker found that his draft of January 15th had been protested for non-payment. At about 11 A. m. January 18th, Parker sent Perm the following telegram : “We notice our draft on you, 15th inst,margins for January and May corn protested for non-payment. Unless you telegraph us six thousand dollars margins before 12:30 to-day, shall buy in the corn for your account.”
    Perm had an office in Cincinnati, but there is nothing to show that the telegram was taken there. On the contrary, it appears that it was taken to the Chamber of Commerce and left at 11:25. Perm did not go there till 12, and it was a quarter past before he got it. He had no such sum of money with him. His bank was two blocks away, and the telegraph office as much further. It was quite impossible for him to comply if he had been disposed to.
    There was no evidence as to any express contract, usage, or custom of the rules of the Chicago Board of Trade. There was evidence tending to show that Parker, by his acts, waived the benefit of each demand for margins down to that of Jan. 18, 1883, and there was some evidence tending to show that Perm retracted the notice he gave to Parker, that he would not furnish any margins or pay any losses before the diferences were ascertained.
    The court, on behalf of plaintiff below, gave to the jury the following instructions:
    6. The jury are instructed, as a matter of law, that a com. mission merchant or broker is entitled to be indemnified against loss upon purchases or sales made for his principal, and if the jury believe from the evidence in this case that defendant Perm, on or about Dec. 30, 1882, ordered plaintiff Parker to sell for him 50,000 bushels of corn, to be delivered in the month of January and May, next thereafter, and that the plaintiff made such saffi according to said order, and that thereafter the price of corn advanced in the market, so that there was a loss on said corn, then the plaintiff had a right to cal-upon said defendant for a sufficient sum to indemnify the plaintiff against loss; and if the jury shall further believe from the evidence, that corn did rise in value after such sale, and that the plaintiff called upon said Perin for money sufficient to protect him against loss, and .that said Perin neglected and refused to pay or furnish the plaintiff with such money, then the plaintiff had a right to purchase the corn, covered by said contracts, and deliver the same on said contracts, and the defendant is liable for the loss, if any, sustained by the plaintiff; provided the jury shall believe from the evidence, that the plaintiff used due diligence to purchase said corn at the lowest market price at the time of such purchase.”
    8. If the jury believe from the evidence, that the defendant, Perin, ordered the plaintiff, Parker, to sell for his account 50,000 bushels of corn, and that the plaintiff, Parker, sold the same as stated in the foregoing instructions, and if the jury further believe from the evidence that the plaintiff, Parker, by letters or telegrams before the 18th of January, 1883, asked and demanded money or margins sufficient to secure the plaintiff against loss on account of said sale, and also drew drafts on the defendant for margins, which the defendant declined and refused to pay, and also that the plaintiff, Parker, went to Cincinnati where the defendant resided, and on the 16tli of January, 1883, again demanded from the defendant money or margins sufficient to secure .him from loss on said sales, and that the defendant neglected and refused to furnish such money or margins, then the plaintiff had a right to purchase said corn for the account of the defendant, and charge him with the amount lost and paid out by the plaintiff, notwithstanding that the jury may believe from the evidence that the said plaintiff, after his return to Chicago, and on the 18th of January, 1883, telegraphed the plaintiff that unless he deposited $6,000 margins before 12:30 on that day, he should buy in the corn for his account.”
    There was a verdict for plaintiff below of $4,869.91, on which judgment passed, and the defendant brings error to this court.
    Mr. Melville W. Fullee, for plaintiff in error;
    as to notice, cited Denton v. Jackson, 106 Ill. 433; Moeller v. McLagan, 60 Ill. 317; Corbett v. Underwood, 83 Ill. 324.
    Messrs. Mohboe & Tewkesbuey, for defendant in error.
   McAllister, J.

There was no evidence' as to any express contract between the parties respecting margins; and they had had similar transactions before without any being furnished by Perin or required by Parker. Neither was there any evidence of a custom or usage of trade or of any rules of the Chicago Board of Trade applicable to the case. It is therefore a case where the common law must be looked to for a guide. By its rules the broker or commission merchant would, in such, a case as this, be required as a condition precedent to the right of his own mere volition, to buy in the grain for account of his principal, deliver it upon the previous sale made by such broker for that principal, and hold the latter responsible for the loss, to give such principal reasonable notice and opportunity to furnish the requisite margins. Denton et al. v. Jackson, 106 Ill. 433.

Parker having called upon Perm for margins by notice that he should draw on him, Perin, January 13, 1883, gave Parker notice that he should not advance any money for margins or losses before the differences were ascertained and determined. From the receipt of that notice, if it -was not his duty, Parker would have been justified in immediately buying in the corn, and, to save himself, close up the sales he had made for his principal. And, perhaps, if the notice so given remained unretracted, he would have had the right, nothing intervening to change their relations, to treat such notice as discharging him from the duty of giving what would be considered as a further reasonable notice and opportunity to Perin to furnish the requisite margins. Phillpots v. Evans, 5 Mees. & Welsh. 474; Ripley v. McClure, 4 Welsb. H. & Gordon, 358; Cort et al. v. The Ambergate, etc., Railway Co., 6 Eng. Law Eq. 237.

' But we are of opinion that there were facts and circumstances in evidence, tending to show a retraction of that notice by Perin, and a waiver by Parker, to make it necessary to submit the question to the jury. Parker not only failed to act upon that notice, but afterward made three other demands upon Perin for margins, each successive one being for a substantially larger amount than the former; and, besides, he sought and had a personal interview with him. In neither of the notices he gave Perin prior to that of January 18, 3883, or at the interview, did he give any intimation of an intention on his part to buy in the corn and close out the transaction. Taking all the circumstances into consideration, we think it was a question which should have been submitted to the jury, whether or not Parker, by his acts, waived all rights under each of his notices, down to that of said January 18th. So that, if Perm’s notice of January 13th, that he would advance no margins or pay any losses before the differences were determined, should be found to have been retracted by him, or waived by Parker, and it should be found that the latter had, by his acts, waived all the notices he had given to Perin before that of said January 18th, in which he notified Perin that unless he sent six thousand dollars, by telegraph, by 12:30 of that day, he should buy in the corn for Perm’s account, then the case turned upon the question, whether or not that afforded reasonable notice and opportunity to Perin within the rule announced by the Supreme Court in Denton v. Jackson, supra. We are of opinion that such notice, having been received by Perin at 12:15, to send $6,000 by telegraph by 12:30, it not being his fault that it was not received sooner, but the fault of the telegraph company, which was the agent of Parker, it was not a reasonable notice. The notice was not sent to Perm’s office, but to the Chamber of Commerce, at Cincinnati; Perin did not go there until twelve o’clock, and it was a quarter past when it was handed to him. He was not expected to, and did not, have any such sum of money with him,' and his bank and the telegraph office were the distance of two blocks away; besides, it would require more than the time allowed to make the necessary arrangements for the money.

How, by the sixth and eighth instructions for the plaintiff, each of which purported to direct the jury as to all the necessary elements of the plaintiff’s cause of action, there is an utter failure to submit to the jury any question as to the retraction by Perm of his notice of January 13th; any question as to waiver by Parker of all his notices prior to that of January 18th, or of the reasonableness of that or any other notice by Parker to his principal.

We are of opinion that both of those instructions were substantially defective and misleading, for the giving which, the the judgment must he reversed and cause remanded.

Judgment reversed.


text:
    Isaac Stone et al. v. I. V. Williamson et al.
    1. Practice.—An affidavit entitled in the cause and sworn to before the clerk of the court in which the case is pending, should not be treated as a nullity because there was no formal venue.
    2. Same.—It is the policy of the statutes of this State to favor amendments of pleadings for the promotion of justice.
    8. Sale—Under power.—It is the settled doctrine of equity in this State that sales of land by a mortgagee or trustee under a power of sale without recourse to legal proceedings, will he zealously watched by courts of equity, and upon proof of the slightest fraud or unfair conduct, or a departure from the power, they will be instantly set aside.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed October 22, 1885.
    Mr. W. 0. Goudy, for appellants;
    that great strictness is required in the execution of powers of sale, particularly where the rights of third parties have not intervened, cited Rounsavell v. Crofoot, 4 Bradwell, 671; Longwith v. Butler, 3 Gilm. 33; Thornton v. Boyden, 31 Ill. 200.
    Messrs. Grant & Brady, for appellees;
    that the amendments proposed by the appellants were properly denied by the court, cited Hoyt v. Tuxbury, 70 Ill. 332; Goodbody v. Goodbody, 95 Ill. 456; 1 Daniell’s Chy. Pr. 416.
   McAllister, J.

This was an appeal by the Stones from a decree of the court below, denying appellant’s leave to file amendments to their bill, which were prepared and tendered, and dismissing their bill against appellees as filed, for want of equity. It appears that all the parties to the suit except appellee Phelps, were non-residents of this State; the Stones residing in Massachusetts, and appellee Williamson, in Pennsylvania; that June 17, 1875, the Stones being the owners in fee, in severalty, of three lots situate upon Quincy street, in Chicago, known as lots Mos. 122, 124 and 126, they, or Isaac Stone, borrowed $12,000 of Williamson, for which the former gave his note to the latter, payable in three years with interest, at the rate of eight per cent, per annum, payable semiannually; and to secure which, both appellants executed to Phelps, as trustee, a deed of said lots of said date, which was duly acknowledged and recorded June 20, 1875, in the proper office; that said deed was in the usual form, and contained a power of sale authorizing said trustee, in case of default, at the request of the holder of said note, to sell said premises at public auction, for cash, at one of the doors of the court house, etc., after having first published a notice of the time and place of such sale, in some newspaper, at the time published in the English language, in said city of Chicago, for thirty days before the day of such sale, or such sale may be conducted by the acting sheriff of Cook county, or the person named herein, according to the provisions of the statute of the State of Illinois, in relation to mortgages, approved March 26, 1874, in force July 1, 1874.” It appears that there was a sale of the premises, at least in form, by the trustee, Dee. 22, 1878, after the maturity of the note, all the principal and $480 in interest remaining unpaid; that the sale was preceded by a notice of the time and place, published in the Chicago Legal Hews, a weekly paper, in each issue for four successive weeks, the first being Hov. 9, 1878, and the last Hov. 30, same month; that the holder of the note, Williamson, purported to have been the highest bidder, his bid being §9,000, to whom Phelps, the trustee, executed a deed, which was recorded.

The rights of no third party having intervened, and no change having been effected or taken place as respected the relations of debtor and creditor and mortgagors and mortgagees between the Stones and Williamson, except what may have been occasioned by the alleged sale, the former brought this bill against the latter and Phelps, August 11,1883, for the purpose of being permitted to redeem the premises from said trust deed or mortgage, by paying all that may be found to be lawfully due to said Williamson. The facts set forth as the grounds for the relief, were, in substance, that the notice was not in compliance with the terms of the power ; that the trustee failed to offer two of the lots together onreceivingnobidfor either lot offered separately; and an agreement that the Stones should have the privilege of redeeming. There were answers traversing all such allegations, and the case was heard on bill, answers, replication and proof. It appeared in evidence that there was a building on the lots which are located in the vicinity of the new building of the Chicago Board of Trade ; that the building on the Stone property was brick, and three stories in height, with basement; that only two days before the trust deed to Williamson was made, the Stones paid §37,000 for the property ; that while property there had been affected as to value by the panic, and did not command a ready sale or high price at the time of the alleged sale by Phelps, under the trust deed, yet, it being favorably located, with a good promise for the future, it was, in a comparatively short time after such sale, worth some five times as much as Williamson got it for, and who still holds Stone’s note, with a deficiency of §3,500 remaining due upon it. It appears that prior to giving the notice of sale, Phelps, on representation that the act might secure friendly consideration from Williamson, induced the Stones to permit him, Phelps, to take possession of the premises and collect the rents for Williamson. There were circumstances in evidence which want of space will not permit us to detail, but which clearly tend to show collusion between Williamson and Phelps, the trustee, to cut off the equity of redemption of the Stones, and put the title in Williamson for as much as practicable, less than the amount of the indebtedness secured ; which tended to show that Phelps, the trustee, whose duty it was to stand indifferent between the parties, was actuated by a zealous interest in behalf of Williamson alone.

On the hearing, Phelps was a witness on his own and Williamson’s behalf; upon his cross-examination, facts and circumstances were testified to by him, which clearly tended to show that the alleged trustee sale, by him, under the above mentioned power, was no fair sale at auction; and, indeed, that in a view of a court of equity, it could not he regarded as a sale at auction, within the terms of said power. But such facts, being unknown to the Stones or their solicitor, were not alleged in the bill; therefore, no relief could he based upon them. Said solicitor thereupon prepared amendments to the bill in due form, and with an affidavit showing want of previous knowledge of such facts, asked leave to file said amendments. But, on objection by appellee’s counsel, that there was no venue to the affidavit, the court refused the leave asked, and dismissed the bill for want of equity. There was, it is true, no formal venue to the affidavit. That circumstance was urged by appellee’s counsel here, as justifying the action of the chancellor. There is no room for doubt, from the record and the argument of appellee’s counsel here, that the chancellor refused the leave to amend, on account of that defect in the affidavit, and that in acting upon the objection of appellee’s counsel, he was misled. Because the facts showing that the complainants would have been entitled to relief, if the bill had been differently framed, appearing in the testimony of Phelps, no affidavit was necessary. Booth v. Wiley, 102 Ill. 84.

But we think it too technical to treat the affidavit as a nullity, because there was no formal venue. It was properly entitled in the cause, and was sworn to before the clerk of the court wherein the cause was pending. Harris v. Lester, 80 Ill. 307.

It is strenuously insisted by appellee’s counsel, that inasmuch as the law has invested the chancellor with discretionary power as regards amendments, this court can not revise his action in that regard in this case. It is the policy of the statutes of this State, to favor amendments of pleading for the promotion of justice. That policy has broadened in proportion to the declension suffered by the legal profession, in the science or art of pleading.

How, the granting the right to the Stones to redeem on the terms proposed, imposes no hardship upon Williamson, the lender of the money; to deny it, subjects the borrowers to a ruinous sacrifice of a very valuable estate. It is the settled doctrine of equity in this State, that inasmuch as sales of land by a mortgagee or trustee, under a power of sale, without recourse to legal proceedings, are liable to abuse, they will be jealously watched by courts of equity, and upon proof of the slightest fraud or unfair conduct, or a departure from the power, they will instantly be set aside. Longwith v. Butler, 3 Gilm. 32; Burr v. Borden, 61 Ill. 389; Rounsavell v. Crofoot, 4 Bradwell, 671.

Did not the facts which were elicited on the hearing, and embraced in the proposed amendments, tend to entitle the complainants to relief under the above rules ? We think they did; especially when taken in connection with the other facts as to the conduct of the trustee. We think it clear, too, that the chancellor was misled, and acted under a misapprehension as to the affidavit. . In such a case as this, then, if there can no precedent be found as to the province of an appellate court, to correct such an error in the interest of justice, we think it our duty to make one. The decree of the court below will be reversed and the cause remanded with leave to the complainants to amend their bill.

Decree reversed.


text:
    Charles Carpenter v. Edward Burkhardt.
    /Instbuction.—An instruction to the effect that, as a matter of law, if the jury believe from the evidence that by the written contract, the defendant was to pay the plaintiff for the material and labor in question only upon the certificate of the architect, then it is necessary for the plaintiff" to first obtain such certificate before he be entitled to recover payment from the defendant, or show a good reason for not doing so, would be erroneous as purporting to submit to the jury the construction of the written contract, and to determine as matter of law what would or would not amount to an excuse on the part of the plaintiff for the non-production of the architect’s certificate.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed November 25, 1885.
    This was an action by appellee, Burkhardt, against appellant, Carpenter, to recover for work, labor and materials done and furnished by the former for the latter in the construction of a stone-front building. There was a trial, under the general issue, resulting in a verdict and judgment for plaintiff, in the sum of $135.75, and the defendant brings the record here for revision. It appears therefrom that the work was done under a written contract between the parties, whereby plaintiff was to furnish the stone of the best limestone or Athens marble, and the work to be done in the best workmanlike manner by plaintiff, for which defendant was to pay a specified sum. The contract contained the usual provision, naming an architect who was employed by defendant to superintend the work, and providing that the work was to be done to his entire satisfaction, and that payments were to be made only upon his certificates. The plaintiff gave evidence tending to prove the completion of the work according to the contract, and some extra work, all amounting to a sum equal to that found by the jury ; and also gave evidence by way of excusing the non-production of the architect’s certificate for the same, tending to show that during the progress of the work the defendant had dismissed said architect from his service and that the latter refused such certificate in part for that reason. The defendant gave evidence tending to prove defects or imperfections in the colors of the stone, and some other defects in the work; and also evidence in conflict with that of plaintiff as to the discharge of the architect as such.
    The following instructions were asked on behalf of defendant and refused by the court:
    “ 3d. The jury are further instructed, as a matter of law, that if they believe from the evidence in this case, that the defendant was to pay the plaintiff for the cut stone in question and labor in setting the same in the building, only upon the certificate of the architect, William Longlmrst, that such cut stone and labor were satisfactory to him, then it is necessary for the plaintiff to first obtain such certificate before he be entitled to recover payment from the defendant, or show a good reason for not doing so.
    4th. If the jury believe from the evidence, that the quality of stone furnished by the plaintiff was not the best quality, or that the labor was defective, or that the labor performed by him was not of the best workmanship, then the jury are instructed to find such damages for the defendant as they believe he has sustained thereby, and recoup the same from whatever sum the jury believe there is due the plaintiff from the defendant, arising out of the said contract between them and in evidence in this case.”
    Hr. John E. Dalton, for appellant;
    cited Coey v. Lehman, 79 Ill. 173; Downey v. O’Donnell, 86 Ill. 49.
    Hr. H. F. White, for appellee ;
    cited Fowler v. Deakman, 84 Ill. 130; Badger v. Kerber, 61 Ill. 328.
   McAllister, J.

We are of opinion that no sufficient ground has been shown upon the argument to justify us in interfering with the verdict of the jury, as being unsupported by the evidence, or as being against the clear weight and preponderance of the evidence. We are also of opinion that there was no error on the part of the court below in refusing the third and fourth instructions ashed for defendant. The third clearly purported to submit to the jury the construction of the written contract, and to determine as matter of law what would or would not amount to an excuse on the part of the plaintiff, for the non-prod action of the architect’s certificate. It has been too many times decided, that it was error in civil cases to submit questions of law to the jury, to need any citations.

The fourth instruction was faulty in assuming that defendant had sustained damage, a fact in dispute on the trial, and besides, the matter, in correct form, had been given to the jury in defendant’s second instruction. The judgment should be affirmed.

Affirmed.


author: Wilson, J.

text:
    Johanna Uhre et al. v. Anton Melum.
    Chattceey.—As the creditor’s bill does not aver that complainant was a creditor at the time of the conveyance of the property in question by the debtor to his wife, it is fatally defective.
    Appeal from the Circuit Court of Cook county; the Hon. Mueray F. Tuley, Judge, presiding.
    Opinion filed November 25, 1885.
    This was a creditor’s hill, brought by appellee against appellants in the Cook county Circuit Court. The hill alleges the recovery of a judgment by the complainant against Anders Ubre and Knud K. Forrast, at the May term, 1882, of said court for $130 and costs, the issuing of an execution thereon June 19, 1882, which was returned Sept. 17, 1882, indorsed, 66 Defendant not found, no property found and no part satisfied;” alleges that TJhre is the owner of certain houses and lots, (describing them,) and is collecting the rents, although the title to the property stands of record in the name of Johanna TJhre, wife of Anders; avers that said Johanna has no title in equity to said property as against the creditors of said Anders, because it was conveyed to her by her husband without consideration; avers that at the time of said conveyance “ said Anders was heavily indebted and was deemed insolvent,” and snch conveyance was made in fraud of the rights of his creditors, and to hinder and delay them. The bill also called for a disclosure as to certain other matters.
    Answers were called for under oath, and there was a general prayer for relief.
    The defendants, Anders B. and Johanna TJhre, filed sworn answers, denying that Anders B. is the owner of the houses and lots in question, or that he has been collecting the rents of the same, or that he has any right or title in or to the same, legal or equitable, except his inchoate right of dower; denies that the property was conveyed to the wife in trust for Anders, or to defraud, hinder or delay his creditors, and states fully the facts and circumstances under which the conveyance was made to her. Duplication to the answers was filed, and proofs were taken.
    Dp on a final hearing the court declared that the deed from Anders B. Dhre to Finney and from Finney to Johanna Dhre be set aside and canceled as to said complainant, and that the complainant’s said judgment be declared a lien on said premises, etc. The defendants, Johanna and Anders TJhre, bring the case here by writ of error.
    Hr. H. B. Hubd, for appellants;
    cited Merrell v. Johnson, 96 Ill. 224; Koster v. Hiller, 4 Bradwell, 21; Bettinger v. Kasten, 111 Ill. 260.
    Hr. I. E. Boyeser, for appellee.
   Wilson, J.

The answers of the defendants having been put in under oath, were, so far as responsive to the bill, evidence for tlie defendants, and were sufficient, we think, if not disproved, to' have prevented the relief sought. The burden of disproving them was upon the complainant. After a careful consideration of the evidence, we should have much difficulty in holding, even if the complainant’s case were free from obstacles in other respects, that the answers were overcome, corroborated as they were by other evidence. But as the case is to be reversed upon another ground, it is unnecessary to express a definite opinion on that subject in the present appeal

There is no averment in the bill that the complainant was a creditor of the defendant, Anders B. Uhre, at the time of the conveyance of the property by him to' Finney and by the latter to Johanna Uhre. It is a rule of general application in all pleadings, that the plaintiff must aver every material fact necessary to his cause of action. 1 Chit. Pl. 270. In Mitford and Tyler Pl. and Prac. in Eq., 152, it is said: “A bill of this nature must state the matter touching which a discovery is sought, the interest of the plaintiff and defendant in the subject, and the right of the first to require the discovery from the other.”

In Montz v. Hoffman, 35 Ill. 533, and again in Merrell v. Johnson, 96 Ill. 224, the rule is stated thus: “ To impeach such a conveyance successfully, it devolved upon the complainants to aver and prove that they were creditors at the time, and that the grantor was then insolvent, etc.” See also, Koster v. Hiller, 4 Bradwell, 21.

Here there was not only no allegation that complainant was a creditor of Uhre at the time of the conveyance to the wife, but none that he was insolvent, unless the allegation that he was heavily indebted and was deemed insolvent” is to be taken as an allegation of insolvency. By whom he was so “ deemed ” is not stated. A person may be heavily indebted and at the same time be entirely solvent.

We are of opinion that the bill was fatally defective in not averring that complainant was a creditor at the time of the' conveyance of the property in question by Uhre to his wife. The decree is therefore reversed, and the cause remanded to to the court below.

Reversed and remanded.


author: Bailey, P. J.

text:
    Samuel Sheller, Impleaded, etc., v. Oscar McKenney et al.
    1. Evidence.—An admission or promise by the alleged maker in relation to a note not produced or identified, even if unexplained and undisputed, will not warrant a finding either that said alleged maker had ratified the forgery of his name thereto, or estopped himself from denying his liability thereon.
    2. Practice—Instruction.—An instruction based upon no evidence and raising a theory of law not in the case, can only have a tendency to confuse and embarrass the jury and should not be given.
    3. Estoppel—Equitable.—A party will not be allowed to invoke the rule of equitable estoppel where he has not been induced to change Ms previous position, but only to change his “ previous condition of mind.”
    Appeal from the Circuit Court of Carroll county; the lion. John Y. Eustace, Judge, presiding.
    Opinion filed November 25, 1885.
    This was a suit in assumpsit, brought by Oscar McKenney and George C. Loveland against ¡Noah Blough and Samuel Sheller, in the Circuit Court of Carroll county. The declaration counted upon two promissory notes, executed by the defendants to the plaintiffs, one for §300, dated March 17, 1877, and the other for §100, dated October 2, 1882. Defendant Sheller appeared and pleaded non-assumpsit, verified by affidavit, and defendant Blough was defaulted for want of a plea. Prior to the trial, the plaintiffs withdrew that portion of their declaration relating to the §100 note, and the issue as to the other note being tried before the court and a jury, the plaintiffs recovered a verdict and judgment for the amount appearing to be due thereon.
    The defense made by Sheller was, that his signature to the note was a forgery. It appeared that the §300 note was given to the plaintiffs by Blough for money loaned to him by them, and that the §100 note, at or about the day of its date, ivas given by Blough to the plaintiffs in payment and satisfaction of the amount then due on the $300 note. Sheller’s signature to the $400 note, as the evidence shows beyond question, was a forgery, and the plaintiffs, on becoming aware of that fact, procured a return by Blough to them of the $300 note which they had previously surrendered to him.
    The evidence as to the genuineness of Sheller’s signature to the $300 note was conflicting. Blough, who at the time his deposition was taken was confined in the county jail on a charge of forgery, and who, at the time of the trial, had been convicted of that offense, and was suffering a term of imprisonment in the penitentiary, testified that the note was signed by Sheller; but his evidence was disputed by Sheller, who testified that the signature to said note was not his, and that he never signed the note or authorized any one to sign it for him, and that he never heard of the note or knew of its existence until a short time before Blough went to the penitentiary. In this he was corroborated by the evidence of his son, who testified that in his opinion the signature was not genuine.
    Each of the plaintiffs gave evidence of an interview with Sheller in relation to the notes. HcKenney testified that he had no conversation with him in relation to the $300 note, but that he had one in relation to the $400 note, in which Sheller stated that he had signed a $200 note in blank, upon which he understood Blough was to obtain money from another person or from the plaintiffs. Sheller, in giving his account of the same interview, testified that HcKenney told him that he had a $300 note with his, Sheller’s, signature on it, which Blough had given to the plaintiffs, and that he told Hc-Kenney that he had never signed a note to them for that amount; that he had signed a note for $200, with the name of the payee blank, and that he supposed, at the time he was signing it, that the money was to come from the plaintiffs. Substantially the same version of the conversation was given by Sheller’s son.
    Loveland testified that he wrote to Sheller in regard to the $300 note, and that two or three days afterward Sheller came into the plaintiff’s store and said that he wanted Blough to pay the note, and thought he would do so if the plaintiffs would give Mm a little time, but that if the plaintiffs must have their money, he would go to the bank and get it; that Sheller said he would see it paid, if Blough did not pay it. The witness testified, however, that at this interview no note was produced or shown to Sheller, and that he could not say that the amount of the note was mentioned either in the conversation or in the notice sent to Sheller, although he thought it was mentioned in both. The date of this conversation was fixed by the witness at about April 1, 1882, a little more than two-years before the commencement of the suit. Sheller testified positively that no such interview took place, and he claims not to have known the amount of the note held by the plaintiffs, or even of the existence of the §300 note, until long afterward.
    The court permitted the plaintiffs, against the objection of defendant Sheller, to read in evidence to the jury the §400 note; also the plea in this case and Sheller’s affidavit verifying the same, and also Sheller’s sworn plea in a suit by another plaintiff against him and Blough; to the admission of which evidence said Sheller duly excepted. The court, at the instance of the plaintiffs, gave to the jury the following instructions :
    1. “The court instructs the jury that the law is, that where a person’s name is signed to a promissory note without his authority, he may afterward ratify its execution, and acknowledge its binding validity; and if he does this, his relation to the note will be precisely the same as if he had executed it personally.
    2. “ The court instructs the jury, that if a party signs his name to blank paper and delivers it, with authority to fill the blank above his signature with a note or bill to a specified person or firm, and the person receiving it fills it to a different person, and it is passed in the course of business without notice of the facts, the maker is bound by the instrument.
    3. “ Although the jury may believe, from the evidence, that the defendant Sheller did not sign the note in suit, but that defendant Blough signed said Sheller’s name thereto without authority, still, if the jury further believe, from the evidence, that since his name was so signed without authority, the defendant Sheller, with full knowledge of all the facts; went to the plaintiffs and promised them or either of them to pay said note, had knowledge that he was talking about the note now in suit, then he will be deemed to have adopted said note, and is bound to the same extent as though he had signed the note in the first place, and in such case your verdict should be for the plaintiffs.
    4. “ The Court instructs the jury that when a person, by his words or conduct, voluntarily, knowingly and intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief so as to change his previous condition of mind, the person inducing such belief will be estopped from afterward denying the existence of such state of things to the prejudice of the person so acting.
    5. “The court instructs the jury that any statement or admissions knowingly, deliberately and purposely made by one person, intended to influence the conduct of another, if acted upon by the latter, will be binding upon the former, and it is a matter of no importance whether such representations are made in direct language to the plaintiffs themselves, or whether they may be implied from the conduct of the parties sought to be charged, provided such conduct is intended to influence the actions of the others, and did so influence them to the others’ prejudice.
    6. “ The jury are instructed, that to constitute an estoppel it is not necessary that the party should design to mislead; it is enough if the act of declaration was deliberately and intentionally made, with full knowledge of the facts, and did mislead, and was calculated to do so, to the injury of another, while acting in good faith, and with reasonable prudence and diligence.”
    By consent of the parties the appeal has been brought to this court.
    Hr. James Shaw, Hr. E. F. Butcher, and Hr. Nelson Fletcher, for appellant.
    Hr. George 0. Hastin, Hr. George W. Hover and Hr. George L. Hoffman, for appellees.
   Bailey, P. J.

The evidence as to the genuineness of defendant Sheller’s signature to the $300 note being conflicting, the first six instructions given to the jury, at the instance of the plaintiffs, except perhaps the second, related exclusively to the rules of law applicable to the case, should the jury find that issue in favor of Sheller. The propriety of these instructions then, must be determined upon the theory that the jury so found, and that Sheller’s signature to the note was, in fact, a forgery. Of these instructions, the first two sought to apply the doctrine of subsequent ratification, and the last three that of equitable estoppel.

The only evidence in the case upon which a theory of either ratification or estoppel is sought to be based, is that of a conversation between Loveland, one of the plaintiffs, and Sheller, about the first of April, 1882. That conversation is sworn to by Loveland and denied by Sheller; but assuming that Love-land’s account of it is correct, it appears that on that occasion no note was produced, and it is left exceedingly doubtful whether the amount or description of the note about which the parties were conversing was so stated as to identify in the mind of either the subject-matter of the conversation. At that time, as the evidence clearly shows, a genuine note signed by Blough and Sheller for $200 was outstanding, and as Sheller supposed or thought very probable, in the hands of the plaintiff's. He came to Loveland’s store in answer to a notification received from Loveland, to call on him in relation to some note against him held by the plaintiff, and a conversation thereupon took place in which Sheller said to Loveland that he wanted Blough to pay the note and thought he would do so if the plaintiffs would give him a little time, but that if the plaintiffs must have their money, he would go to the bank and get it; that he would see it paid if Blough did not pay it.

We think it very doubtful whether this evidence was sufficient to justify the submission to the jury of any proposition in relation to the $300 note. In Shaver v. Ehle, 16 John. 201, • a person called on the maker of a note payable to A or bearer, and demanded payment, but neither showed the note nor mentioned the amount or date of it, and the maker acknowledged that he had given a note to A, and that he would pay it at a future day; it was held that this was not a sufficient admission of the execution of the note to supersede the necessity of proving it by the subscribing witness.

So, in Palmer v. Manning, 4 Denio, 131, the evidence to prove the making of a promissory note, purporting to be signed by the defendant, and payable to the bearer, was that the plaintiffs agent called on the defendant with the alleged note in his pocket, but which he did not exhibit, and told him he had a, note for a certain amount against him, which he wanted the defendant to pay, and the defendant said he had given such a note and would pay it if the plaintiff would make a small deduction and indulge him as to time; and it was held that the identity of the note was not proved, and that the evidence did not tend to show that the defendant admitted that he executed the note produced on the trial.

The foregoing cases are cited with approval and their authority adopted by the Supreme Court in Glazier v. Streamer, 57 Ill. 91. There, to prove that a note which was claimed to have been obtained by fraud and circumvention was the genuine note of the defendant, the justice of the peace before whom the suit was originally brought, testified to an admission made to him by the defendant out of court, in respect to the genuineness of a note, when no note was exhibited to him, and it was held that the justice’s evidence, even if unexplained, was not sufficient to warrant a verdict in favor of the validity of the note.

In the light of these authorities, we are unable to see how Sheller’s admission or promise in relation to a note not produced or identified, even if unexplained and undisputed, could warrant a finding either that Sheller had ratified the forgery of his name thereto, or estopped himself from denying his liability thereon.

The second instruction is clearly inapplicable to any evidence in the case. It lays down the abstract proposition that, if a party signs his name to a blank paper and delivers it, with authority to fill the blank above his signature with a note or bill, to a specified person or firm, and the ■ person receiving it fills it out to a different person, and it is passed in the course of business without notice of the facts, the maker is bound by the instrument. There is no pretense by either party that the note in suit was executed in the manner here indicated. The only note shown to have been executed in blank, was a note for 8200, in which the name of the payee was blank when Slieller’s signature was appended thereto. But that note and the mode of its execution were matters purely collateral to the issues in this case, and no question in relation thereto could properly be submitted to the jury. An instruction based upon no evidence, and raising a theory of law not in the case, could only have a tendency to confuse and embarrass the jury, and should not have been given.

The fourth instruction attempts to state the doctrine of equitable estoppel, but states it inaccurately. That doctrine, as formulated by Lord Denman, in Pickard v. Sears, 6 A. & E. 469, is as follows: “ Where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” This statement of the rule has been almost uniformly adopted in this and other States, and as an example of its approval in this State, the recent case of Hill v. Blackwelder, 113 Ill. 283, may be cited.

The fourth instruction is a clear departure from this rule. That holds that where a person, by his words or conduct, voluntarily, knowingly and intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as to cha/nge Ms previous condition of mind, the person inducing such belief will be estopped from afterward denying the existence of such state of things to the prejudice of the person so acting. The foundation of the doctrine of equitable estoppel is, the necessity of preventing the consummation of the fraud which would result if a person who, by his words or conduct, has induced another to act so as to change his previous position, should afterward be permitted to deny the existence of the state of things upon the faith of which the other party has so acted. But it would certainly be a novel doctrine to hold that a party may invoke the rule of equitable estoppel, where he has not been induced to change his previous position, but only to change his previous condition of mind. By merely changing his condition of mind or adopting a particular belief, no rights are lost or put in jeopardy, since by correcting his state of mind when the truth is ascertained, he is placed completely in statu quo.

But we find no evidence in the case which cabs for an application of the doctrine of equitable estoppel. Even if it bo true that Sheller promised to pay the note in question if time should be given Blough, there is no evidence that the plaintiffs acted upon that assurance. It is only claimed that they were thereby induced to postpone bringing suit on the note. It is true suit was not brought until after the expiration of two years from that time, but we fail to find any evidence that such delay was induced by the words or conduct of Sheller, or that by their delay they lost any security or were otherwise prejudiced. It follows that none of the instructions on the subject of estoppel should have been given, upon the evidence as it appears in the record.

It is insisted that the verdict is contrary to the preponderance of the evidence, and that the judgment should be reversed for that reason. As the case must be submitted to another jury, we forbear discussing the weight of the evidence, but for the error in giving the foregoing instructions, the judgment wib be reversed and the cause remanded.

Judgment reversed.


text:
    Frederick Heisler et al. v. Theodore C. Dickinson, Impl’d, etc.
    Practice—Creditor’s bill.—On a creditor’s bill filed, which waived answer under oath, answered by defendant not upon oath, and replication joined by complainant, it was error to dismiss for want of equity on defendant’s motion; as under section 25 of chapter 22 of the statute, entitled Chancery, the complainant was entitled to adduce testimony to contradict the answer and maintain the allegations of the bill.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed November 25, 1885.
    Mr. Eugene E. Prussing, for appellants.
    Messrs. Abbott, Oliver & Showaltee for appellee ;
    that if the complainant fails to get a discovery as to all hut the judgment creditor at least the office of the bill is spent, cited 1 Story’s Eq. Jur., §§ 71-74; Russell v. Clark, 7 Cranch, 89; Nourse v. Gregory, 3 Littell, 380; Robinson v. Gilbraith, 4 Bibb, 184; Ferguson v. Waters, 3 Bibb, 303.
   McAllister, J.

This was a creditor’s hill by appellants against Wagner and Goodwillie, as judgment debtors, and against Dickinson, who it was alléged was indebted to the judgment debtors and had property and effects in his hands belonging to them. The bill was in form one for discovery and relief, but waived answer under oatli. Dickinson filed his answer, not upon oath, by which he traversed all the allegations of the bill in reference to him, to which appellants fi’ed a replication. On motion of the defendants, the court dismissed the hill for want of equity, without hearing any evidence. Section 25, of Chap. 22, entitled Chancery, reads: “ When the complainant shall require a discovery respecting the matter charged in the hill, the disclosure shall not be deemed conclusive, but if a replication be filed, may be disproved or contradicted like any other testimony, according to the practice of courts of equity.”

If the bill in this case is not to be regarded as a bill of discovery it was like any other case, and the court could not properly dismiss it on motion of defendants, without evidence, unless it failed to set out a case which entitled the complainants to any relief. The bill here was not 'of that character. It was a proper bill of the kind known as a creditor’s bill. If, however, it was a bill for discovery, or in the nature of such bill, then the right of complainants to adduce testimony to contradict the answer and maintain the allegations of the bill, was secured by said § 25 of the statute. In any pioint of view, therefore, it was error to dismiss it upon the coming in of the answer, since a replication was filed thereto.

The decree of the court below will be reversed and the cause remanded.

Decree reversed.


text:
    James M. Hill v. David Belasco.
    Trover—Demand and refusal.—A demand and refusal are no evidence of a conversion unless the thing demanded was at the time in the possession of the defendant or under his control.
    Appeal from the Superior Court of Cook county ; the Hon. Elliott Anthony, Judge, pu-esiding.
    Opinion filed November 25, 1885.
    Hr. Egbert Jamieson, for appellant;
    as to demand and refusal, cited Race v. Chandler, 15 Bradwell, 539; Sturges v. Keith, 57 Ill. 456; Hawkins v. Hoffman, 6 Hill, 586; Bowlin v. Nye, 10 Cush. 416.
   Wilson, J.

This was trover brought by appellee against appellant for the alleged conversion of the manuscript of a partially written dramatic play entitled “Lone Pine.” Verdict and judgment in the court below were for the plaintiff for §1,000. The defendant appealed to this court.

The facts in brief, as shown by the bill of exceptions, were that the parties entered into a written contract, by which appellee agreed to write a play for appellant, and, after a test of it should have been had by representing it in certain named cities, if appellant should consider it a success, he was to pay appellee therefor §5,000. The principal character in the play was to be represented by Denman Thompson, and .it was agreed by the parties after the making of the written contract, that the manuscript of the play should be sent to Thompson for his examination and criticism. Appellee furnished a part of the play only and sent the same to appellant, who forwarded it to Thompson for his examination as agreed.

Appellant repeatedly urged appellee to complete the play and forward it to appellant, as he had engaged with several dramatic managers to produce it; which appellee failing to do, appellant finally wrote him, offering to release him from his obligation under the contract, which proposition was accepted by appellee, and the contract was terminated.

In response to a request by appellee for a return of the manuscript, appellant wrote to him that it had been sent to Thompson as agreed, and that he would notify him, which he did. Appellant made diligent search, but was unable to find idle manuscript, except the third act which he offered to return, but appellee refused to accept it.

1 A bare statement of the facts is all that is needed, to show the utter groundlessness of appellee’s suit. There was an entire want of evidence to show a conversion of appellee’s property. It was not in appellant’s possession, nor under his control, at the time demand was made for it by appellee, it having been previously delivered to Thompson for his examination under an agreement between the parties, and never subsequently came into appellant’s possession. Appellant’s possession of the manuscript was originally rightful, and it was delivered by him to Thompson by express authority of appellee. A demand and refusal do not of themselves constitute a conversion, but are only evidence of a conversion. And they are only presumptive evidence, capable of being rebutted by proof of any facts which constitute a legal justification or excuse for non-delivery. Race v. Chandler, 15 Bradwell, 539; Sturges et al. v. Keith, 57 Ill. 456; Borolin v. Nye, 10 Cush. 416; 2 Greenl. on Ev., Sec. 642; 1 Chit. Pl. 160 (11 Am. Ed.).

A demand and refusal are' no evidence of a conversion unless the thing demanded was at the time in the possession of the defendant, or under his control. Knapp v. Winchester, 11 Vt. 351; Addison on Torts, 399. Here the property was neither in defendant’s possession nor under his control.

The judgment of the court below is reversed, and the cause remanded for a new trial.

Reversed and remanded.


text:
    Charles L. Epps et al. v. Frank P. Epps.
    1. Exemptions—Traveling salesman not a “laborer or servant.’’—An employe, who is not- shown to have performed any services except as traveling salesman and book-keeper, .or services of that nature, does not come within the meaning of the words “ laborer or servant ” as used in the statute relating to exemptions.
    2. Statute—Construction.—Provisos and exceptions in statutes, by which their generality is qualified or restrained, or by which something is excluded from their general provisions, are to be strictly construed.
    3. Practice.—It is for the court at the time of rendering judgment, to determine whether the indebtedness for which judgment is being rendered is for the wages of a “ laborer "or servant,” and that question need he no part of the trial.
    Appeal from the Superior Court of Cook county; the Hon. Rollin' S. Williamson, Judge, presiding.
    Opinion filed November 25, 1885.

      Mr. Robert II. McMurdy, for appellants;
    that exemption laws are liberally construed, cited Good v. Fogg, 61 Ill. 449; Washburn v. Goodheart, 88 Ill. 229; Smyth on Homestead and Exemptions, § 519.
    Mr. A. M, McConoughey, for appellee;
    that the damages allowed appellee were due him for wages as laborer or servant? cited 1 Parsons on Contracts, 101; Coffin v. Reynolds, 37 N. Y. 641.
   Bailey, P. J.

This was a suit in assumpsit, brought by Frank P. Epps against Charles L. Epps and Joseph F. Greer, to recover the value of certain services rendered by the plaintiff to the defendants. It appears that on or about October 17, 1881, the plaintiff was employed by the defendants, who were then engaged in certain mercantile business, in the capacity of traveling salesman and book-keeper, and that he served them in that capacity until some time in November, 1883, when the defendants failed in business. No rate of salary seems to have been expressly agreed upon, but the defendants credited the plaintiff from the time he entered their service up to the date of their failure, at the rate of $60 per month. After their failure the plaintiff was continued in their service without any further or different arrangement as to his salary or wages until June 1, 1884, when he was discharged.

The jury found the issues for the plaintiff and assessed his damages at $296.49, for which sum and costs the plaintiff had judgment. With the exception of two credits of $10 each claimed by the defendants, in respect to which the evidence was conflicting, the only controversy at the trial was as to the rate of salary or wages to which the plaintiff was entitled from the date of the defendants’ failure up to June 1, 1884. The jury found against the defendants as to the two disputed credits, and computed the plaintiff’s compensation at the rate of $60 per month.

■ Wo think the evidence warranted the verdict. The two disputed credits were sworn to by one of the defendants and disputed by the testimony of the plaintiff, and a conflict was thus raised which it was the peculiar province of tí to jury to settle, and with their finding we see no occasion to interfere. As to the rate of salary to which the plaintiff was entitled, the practice on the part of the defendant of crediting him each month for two years at the rate of $60 per month, was strong evidence of at least a tacit agreement that his compensation should continue at that rate until notified by the defendants to the contrary. After, their failure, the defendants desired and requested him to continue in their service, probably expecting to be able before very long to resume business, but no new arrangement’seems to have been made as to his compensation. Under these circumstances, the jury had a right to presume that they intended to retain his services under the original arrangement, and that his salary was to continue at the same rate as before.

It is true, after the failure the plaintiff’s work was much lighter. He no longer performed the services of a traveling salesman, and little remained for him to do as book-keeper. Precisely what he did do, and what services he was called upon to perform, the evidence fails to disclose. In the absence of evidence on that subject, it may be presumed that they were of the same general nature as those in which he was engaged prior to the failure. His compensation during this period, however, depended not upon the amount of service he was actually called upon to perform, but upon the contract express or implied, under which he was acting. According to that, as we have seen, he was to receive $60 per month, and we think that, under the circumstances, the jury were justified in awarding him that sum.

The court, after overruling a motion by the defendants for a new trial, rendered judgment on the verdict, and expressed in the record of the judgment a finding that the damages awarded the plaintiff were due him for wages as laborer or servant. This finding is assigned for error.

It is claimed that, as the case was tried by a jury, the question whether the amount due the plaintiff was for wages as laborer or servant, should have been submitted to and found by them. The fourth section of the act in relation to the exemption of personal property approved May 24, 1877, is as follows:

“Ho personal property shall be exempted from levy of attachment or execution when the debt or judgment is for the wages of any laborer or servant; provided the court rendering judgment shall find that the demand so sued for is for wages due each person as laborer or servant; which finding shall be expressed in the record of said judgment and indorsed upon the execution when issued.”

This section has never before, so far as we know, received judicial construction, but the language employed seems to leave little doubt that the legislature intended to devolve upon the court, at the time of rendering judgment, the duty of determining whether the indebtedness for which judgment was being rendered, was for the wages of a laborer or servant. This finding would seem to be required, not at the trial or as a part of the trial, but at the time of the rendition of judgment, and the statute provides in express terms that it is to be made by the court. We think there was no error in not having submitted the question to the jury.

There is greater difficulty in holding that the finding is supported by the evidence. The determination of this question must depend upon the interpretation to be given the words “laborer or servant” as used in the statute. It is well settled that statutes creating exemptions from levy and forced sale under execution are beneficial in their operation, and founded in a wise policy, and should therefore receive a liberal construction. Good v. Fogg, 61 Ill. 449; Washburn v. Goodheart, 88 Ill. 229; Thompson on Homesteads and Exemptions, §§ 4-7 and cases cited. But should the provisions of the exemption law under consideration here receive like construction ?

The general purview of the statute is to grant exemption of a certain amount of personal property belonging to debtors, from attachment, execution and distress for rent. The fourth section creates an exception in favor of creditors whose judgments are for their wages as laborers or servants. It would seem that the same policy which dictates a liberal construction, of the statute in furtherance of its general beneficial purpose would necessitate a restricted construction of an exception by which its operation is limited and abridged.

But apart from this consideration, it seems to be a general rule of statutory construction, that provisos and exceptions in statutes, by 'which their generality is qualified or restrained, or by which something is excluded from their general provisions, are to be strictly construed. Potter’s Dwarris on Statutes, 118, note 11. Thus, in United States v. Dickson, 15 Pet.141, Mr. Justice Story says, that it is “ the general rule of law which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes, that where the enacting clause is general in its language and objects, and a proviso is afterward introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, ajproviso carves special exceptions only out of the enacting clause ; and those who set up any such exception must establish it as being within the words as well as within the reason thereof.” This rule was applied in Roberts v. Yarboro, 41 Texas, 449, where a statute, in the first section, provided that there should be no exclusion of any witness because of his being a party to be interested in the issue tried, and the second section created an exception in certain cases in actions by or against executors, administrators ■or guardians. The court say : “ The general rule is prescribed by the statute that no witness shall be excluded because he is a party to or interested in a suit. The second section is in substance a proviso excepting parties in certain actions from the- operation of the rule. The rule as established extends a privilege to parties, while the exception operates to curtail that privilege or right, and should not therefore be extended by construction.”

There is another rule which should be noticed, viz., that in construing statutes, courts are required to give the language^ ■when the sense will bear it, the usual and popular meaning attached to the words employed. Stuart v. Hamilton, 66 Ill. 253; City of Beardstown v. City of Virginia, 76 Id. 34; Deere v. Chapman, 25 Id. 610.

There is doubtless a sense in which the word “laborer” may be applied to a person who performs any labor of any character, either physical or mental; and there is also a sense in which the word,“ servant ” may be applied to a person who performs for another any kind of service; in which sense the Avord Avould be equivalent to “ employe ” or “ agent/’ but those are not the significations Avhieh are popularly attached to the Avords “laborer ” or “ servant.” A “ laborer ” is popularly understood to be a person who performs manual labor not requiring special knOAvledge or skill, and a “ servant ” is understood to be one avIio is employed to perform an inferior and menial service. There is good reason why persons of these classes, aat1io are usually poor and relatively helpless, and Avliose claims for Avages are usually small, should be excepted from the general-rule as to exemptions.

The decisions of the courts giving construction to these and similar Avords in statutes, so far as Ave have been referred to them, support the view Ave have announced. Thus, in State v. Busk, 55 Wis. 465, a statute provided for the payment by the govern- or out of certain funds,.of the claims of laborers, sub-contractors, and material and supply men, for labor and supplies done and furnished in and about the grading and other work upon a. certain railroad; and it Avas held, that the Avord “laborers ” as employed in the act, Avas intended to designate those only avIio had performed manual labor in and about said road, and that it did not include members of the engineer corps, or the assistant general manager of the company.

In M. K. & T. Ry. Co. v. Baker, 14 Kansas, 563, a statute required a railroad company to take from its contractors a bond conditioned for the payment of all laborers, mechanics and material men and persons avIio should supply such contractor Avith provisions or goods of any kind, all just debts due to such persons. It AAras held that under this statute, a “ timekeeper ” and “ superintendent” Avas not a laborer within the meaning of the word as there used, the court in its opinion quoting Avith approbation the definition of the Avord “ laborer ” given by Webster, viz.: “ One avIio labors in a toilsome occupation; a man who does work that requires little skill, as distinguished from an artisan; sometimes called a laboring man.” The court also holds that this is the same in which the word is used in the exemption laws of the State, it being there used in much the same .connection in which the word is used in the statute now under consideration here.

In Coffin v. Reynolds, 37 N. Y. 640, an act for the formation of corporations for manufacturing, mining and mechanical purposes, provided that the stockholders should he individually liable for all debts due and owing to all their laborers, servants and apprentices, for services performed; and it was held that a secretary of such corporation was not a servant or laborer within the meaning of the act. The court say, that “the scope and prupose of the statute was to protect the classes most appropriately described in the words used as those engaged in manual labor, as distinguished from the officers of the corporation, or professional men engaged in its service ; in short, to furnish additional relief to a class who usually labor for a small compensation, to whom the moderate pittance of their wages is an object of interest and necessity, and who are poorly qualified to take care of their own concerns, or look sharply after their employers’.” See also, Balch v. N. Y. & O. M. R. R. Co., 46 N. Y. 521; S. & N. A. R. R. Co. v. Falkner, 49 Ala. 115; Campfield v. Lang, 18 Ch. L. N. 55.

As the plaintiff in Ibis case is not shown to have performed any services excepyt as traveling salesman and book-keeper, or services of that nature, we are of the opinion that he does not come within the meaning of the words “ laborer or servant ” as used in the statute in relation to exemptions. The judgment, therefore, to that extent, is erroneous. It will accordingly be modified by striking out the words, “ And the court finds that the said damages are due the pfiaintiff for wages as laborer or servant,” and in all other respects the judgment will be affirmed, the aprpellee to p>ay the costs of this appeal.

Judgment modified and affirmed.


text:
    City of Chicago v. Schooner “Queen City.”
    1. Attachment of water craft.—The court is of opinion that section 1 of the act, entitled, “ Attachment of Water Craft ” is not to be read as though the word “used” was preceded by the word “exclusively,” and that the averments of the petition in this cause bring the case within the first clause of the statute.
    2. Same—Jurisdiction.—Where the claim was “for damage done by a vessel to the Adams street viaduct and the stone abutment oil Adams street bridge,” and also “ for damage done to the north approach to Canal street bridge on North Halsted street.” Held, this was not a marine tort, and was properly brought under the State law.
    Appeal from the Superior Court of Cook county; the Hon. Follín S. Williamson, Judge, presiding.
    Opinion filed November 25, 1885.
    Tliis is an attachment proceeding, brought by the city of Chicago against the schooner “ Queen City,” under the provisions of chapter 12 of the Fevised Statutes, entitled “Attachment of Water Craft.” The petition sets forth, in substance, that the city has a claim against the schooner Queen City for §336.33, for damages done to the Adams street viaduct and the stone abutment of Adams street bridge by said schooner, and also a like claim for §21.70, for damages done to the noitli approach to Canal street bridge, on North Halsted street; that said schooner is a water craft of above five tons burden, and was used in navigating the waters of this State when said injuries were done; that said amounts were due and unpaid; that the name and residence of the owner of said schooner -were unknown to petitioner, etc.
    To this petition John Kelderhouse, claiming to be the owmer of the schooner, appeared and filed exceptions, setting up that he was a resident of the city of Buffalo, in the State of New York; that said city of Buffalo was the home port of said schooner; that at the time when, etc., the said schooner was. and ever since has been, enrolled and licensed for the coasting trade by the government of the United States, and was, and ever since has been, and now is employed ' in commerce and navigation upon the Great Lakes and navigable waters connecting the same; concluding with the allegation that the court has no jurisdiction over the said vessel, etc., and praying that the petition be dismissed.
    To this answer or exception the city demurred, which demurrer the court overruled and dismissed the petition. The city duly excepted, and appealed to this court.
    Mr. Hempstead Washburns and Mr. Clarence A. Knight, for appellant;
    that the tort was not a marine tort, cited Johnson v. Elevator Co., 105 Ill. 462; Schooner Norway v. Jensen, 52 Ill. 373; Knisely v. Parker, 34 Ill. 482; Canal boat Col. Mulligan v. Buck, 55 Ill. 425; Barque Great West No. 2 v. Oberndorf, 57 Ill. 168; Tug boat E. P. Dorr v. Waldron, 62 Ill. 221; Williamson v. Hogan, 46 Ill. 504; Tug Montauk v. Walker, 47 Ill. 335; Knisely v. Parker, 34 Ill. 482.
    Messrs. Schuyler & Kremer, for appellee ;
    as to the construction of the act, cited Moore v. Am. Trans. Co., 24 How. 1.
    The Chicago river being capable of floating vessels engaged in inter-state commerce, is, therefore, navigable water of the United States: Escanaba & Lake Michigan Trans. Co. v. City of Chicago, 107 U. S. 7; Ashbrook v. Steamer Golden Gate, Newbury’s Admiralty Reports, 297.
   Wilson, J.

Section 1 of the act entitled “Attachment of Water Craft,” provides that “every sail vessel, steamboat, steam dredge, barge, lighter, and other water craft of above five tons burden, used or intended to be used in navigating the waters or canals of this State, or used in trade or commerce between ports and places within this State, or having their home port in this State, shall be subjected to a lien thereon, which lien shall extend to the tackle, etc., for all damages for injuries done to persons or -property by such water craft, whether the same are aboard said vessel or not, where the same shall have accrued through the negligence or misconduct of the owner, agent, master or employe thereon.”

It will be noticed that the statute specifies three classes of cases: first, vessels used or intended to be used in navigating the waters or canals of this State ; second, those used in the trade or commerce between ports and places within this State; and third, those having their home port in this State. The case confessedly falls within the first class, if either. It is claimed by the counsel for appellee that the words “ used or intended to be used in navigating the waters of this State,” must be read as though the word “used” was preceded by the word exclusively.” And it is argued that if the act had been intended to apply to vessels like the Queen City it would have been unnecessary to create any other class or classes than the first, since all classes would be embraced within the first? if it were broad enough to cover this case.

While the construction contended for is plausible and, perhaps, not wholly without force, we do not feel at liberty to interpolate into the statute words which would essentially change its plain and obvious meaning. The act of 1845 provided that “ boats and vessels of all descriptions built, repaired or equipped, or running upon any of the navigable waters of this State shall be liable,” etc. That act was amended by the act of 1857, which provided “ that steamboats and other water crafts navigating the waters within or bordering upon this State, shall be liable,” etc. In the act of 1874 the language is “ every vessel used or intended to be used in navigating the waters or canals of this State shall be subject,” etc.

The language of these several acts is broad and comprehensive, embracing every and all vessels actually used in navigating the waters or canals of the State, and indicate clearly the intention of the legislature to furnish a convenient remedy for violations of the statute in the State courts. As was said in Knisely v. Parker, 34 Ill. 482, “ vessels of that character are usually owned by non-residents or persons not generally known. To give a speedy and sure remedy for debts they might contract is wise and just, and this, doubtless, was the controlling reason for its enactment.” See also Tug boat Dorr v. Waldron, 62 Ill. 231; Canal boat Mulligan v. Buck, 55 Id. 429. The statute, both before and subsequent to the amendments of 1857 and 1874, has many times come under review by the Supreme Court, but in no case has it ever been held that a vessel having its home port in another State is excepted from the provisions of the Water Craft Act when navigating the waters or canals of this State. Knisely v. Parker, 34 Ill. 482; Tug Montauk v. Walker, 47 Id. 335; Williamson v. Hogan, 46 Id. 504; Schooner Norway v. Jensen, 52 Id. 373; Barque Great West v. Oberndorf, 57 Id. 168; Canal boat Mulligan v. Buck, 55 Id. supra; Tug boat Dorr v. Waldron, 62 Ill. supra; Propeller Hilton v. Miller, 62 Id. 231; Langdon v. Wilcox, 102 Id. 606; Johnson v. Elevator Co., 105 Id. 462. We are of opinion that the averments of the petition bring the case within the first clause of the statute.

In the case of The Hine v. Trevor, 4 Wal. 566-69, the general question as to the jurisdiction of a State court in cases like the present was elaborately discussed, and it was held that the jurisdiction of the district courts of the United States on the lakes and navigable waters connecting the same, was governed by the act of Congress of 1845, and that the jurisdiction is not exclusive, but concurrent with such remedies as may be given by State laws. See also Tug boat Dorr v. Waldron, 62 Ill., supra, where the authorities on this subject are fully reviewed by Breese, C. J.

But aside from this, we think it clear, under the facts alleged in the petition, that the injury complained of was not a marine tort, and therefore was not cognizable in the federal courts. The claim is for damage done to the Adams street viaduct, and the stone abutment of Adams street bridge,” and also “ for damage done to the north approach to Canal street bridge on North Halstod street.” The case falls directly within that of The Plymouth, 3 Wal. 20. There the Propeller Falcon, employed by its owners in navigating our great lakes, anchored beside a wharf in the Chicago river. Owing to the negligence of those in charge of the Falcon, the vessel took fire, and the flames stretching themselves to the wharf and packing houses standing thereon, the latter took fire and with their contents were consumed. The case was very ably argued before the Supreme Court of the United States by the late Mr. Arrington in favor of the admiralty jurisdiction, but the Supreme. Court held that the injury must have been wholly committed upon the water, or at least the substance and consummation of the same must have taken place there to be within admiralty jurisdiction, and the petition was accordingly dismissed. So in Johnson v. The Chicago and Pacific Elevator Co., 105 Ill. 462, a parallel case with the present, it was held by our Supreme Court, that though the cause of the injury originated on the water, its consummation was on the land, and the tort complained of was not a maritime tort.

Here the structures injured, the approaches to the bridge, the abutments and the bridge itself, rested upon the land, and hence the case is not cognizable in an admiralty court, but was properly brought under the State law.

The judgment of the court below is reversed and the cause remanded for further proceedings.

[Reversed and remanded.