text:
    John A. Keck, Appellant, v. Frank H. Bushway et al., Appellees.

      Subrogation—when guarantor not entitled to. If a note is paid by a guarantor pursuant to a special agreement and not by virtue of his liability as a guarantor, he is not entitled to invoke the rule that where a party guarantees the payment of a note and upon default by his principal pays the same to the holder the law implies a promise on the part of the principal to repay and the guarantor is subrogated to the rights of the holder to whom he makes payment.
    Trespass on the case. ' Appeal from the Circuit Court of Macon
    county; the Hon. William: C. Johns, Judge presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Rehearing denied, opinion modified December 17, 1908.
    A. G. Webber, for appellant.
    Redmon &. Hogan, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

The declaration in this case alleges that upon May 14, 1906, the appellees made their certain promissory note for the sum of $5,"200, payable to the Citizens National Bank of Decatur, on or before twelve months after date, with interest at six per cent, from date until paid, and that appellant and one B. C. Wash-burn, at the request of appellees, endorsed their names upon the back of the said note, and thereby became guarantors thereof; that at the maturity of said note neither the appellees, nor the said Washburn as guarantor, paid the same or any part thereof; that the said Citizens National Bank, the payee and holder of said note, at the maturity thereof demanded payment of the same from appellant; that in consideration of his legal liability as guarantor of the said note appellant was required to and did pay the same to the said payee and that thereupon, in consideration thereof, the said payee of said note assigned the same to appellant, and that appellant is the legal holder and owner thereof; that although requested so to do by appellant, the appellees have not paid said note or any part thereof to appellant, by means whereof, etc. To this declaration appellees pleaded the general issue and four special pleas, which special pleas alleged in varying phraseology that for a valuable consideration moving from the appellees, the appellant together with the said Washburn and the Washburn & Wheeler Manufacturing Company had assumed and agreed to pay the said note, and that the said note had been fully paid and discharged. After replication filed to said pleas the cause proceeded to trial before a jury, and at the close of all the evidence the court gave a peremptory instruction to find the issues for the appellees. Judgment was entered upon the verdict so returned and this appeal followed. The only assignment of error which appellant has argued relates to the action of the court in giving to the jury the peremptory instruction.

The evidence introduced on behalf of appellees tends to show that prior to the execution of the note in question, the appellant together with E. C. Washburn and one Amos Wheeler were the owners of the capital stock amounting to $25,000, of a certain corporation known as the Washburn & Wheeler Manufacturing Company; that thereafter appellees purchased from said Wheeler the shares of the capital stock of said corporation owned by him, being one-third of the total number of shares of said capital stock, and paid for the same in cash which they borrowed in part from the Citizens National Bank upon their note to said bank, being the note in question, and which note the appellant and said Washburn endorsed as guarantors; that before the maturity of said note appellees sold the shares of the capital stock of said corporation which they had purchased from Wheeler, to appellant and Washburn, or to appellant, Washburn, and the said corporation, and that appellant and said Washburn, in consideration of said sale by appellees, agreed to pay the note in question, and upon which they were guarantors; that after the said sale by appellees of said shares of stock, appellant and Washburn, or the Washburn & Wheeler Manufacturing Company paid to the bank the sum of $600 to be applied upon the principal of said note and $208 in payment of the accrued interest thereon, which amounts were then so applied by the bank upon said note; that the Washburn & Wheeler Manufacturing Company then gave to the bank its note for $4,200, endorsed by appellant and said Washburn, in full liquidation of the note in question, which note the bank then surrendered and endorsed as follows.: “Assigned to John A. Keck, without recourse. Citizens National Bank, Q-eo. S. Connard, Cashier.”

Waiving the question as to whether or not the uncontradicted evidence in the case establishes the claim of appellees that appellant and Washburn, or they together with the Washburn & Wheeler Manufacturing Company, assumed and agreed to pay the note in question, in consideration of the sale by appellees of the shares of capital stock of said corporation, it is clear that upon the uncontroverted evidence in the record appellant is not entitled to recover.

Appellant’s only ground of recovery is predicated upon the supposed application, to the facts in the case, of the well-established doctrine, that where a party guarantees the payment of a promissory note and upon default of payment by his principal, pays the same to the holder, the law will imply a promise on the part of the principal to repay, and the guarantor will be subrogated to the rights of the holder, to whom he makes payment. Voltz v. National Bank, 158 Ill. 532. This rule of law cannot be invoked by appellant in this case for the reason that the uncontroverted evidence in the record discloses that the note in question was paid by the Washburn & Wheeler Manufacturing Company, or by appellant and Washburn jointly, in pursuance of the agreement hereinbefore mentioned and that it was not paid by appellant pursuant to his liability as guarantor. In this state of the record the peremptory instruction was properly given and the judgment of the circuit court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    A. J. Keenan et al., Appellees, v. William Blue et al., Appellants.
    1. Negotiable instruments—rights of bona fide purchaser for value before maturity. A bona fide purchaser oí a negotiable instrument with a warrant to confess judgment attached is entitled to recover the principal called for by the note together with his attorney’s fees where judgment has been confessed, in the absence of any competent evidence tending to show that such purchaser had notice or knowledge of the alleged equities sought to be interposed by way of defense.
    2. Negotiable instruments—when assignment passes legal title to. An indorsement upon the back of a promissory note as follows: “For value received I hereby assign all right, interest or title in the within note to I. N. Porter or bearer, March 14, 1905,” passes the legal title.
    3. Negotiable instruments—effect of naming fictitious person as payee. There is no statute in this state forbidding or restricting the use of the name of a fictitious person as payee or transferee of a negotiable instrument, and in the absence of any such statute a negotiable instrument payable to the order of a fictitious person is to be treated as if made payable to bearer and is transferable by delivery.
    4. Witnesses—when incompetent by virtue of interest. In an action upon a promissory note the makers are incompetent to testify upon their own behalf where it is conceded that the adverse parties acquired their title as legatees of the owner of the note.
    Judgment by confession. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.

      T. C. Kerrick, Bracken, Young & Peirce and Earl D. Riddle, for appellants.
    Welty, Sterling & Whitmore, Leslie J. Owen and Barry & Morrissey, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

On October 21, 1905, appellees, A. J. Keenan and L. C. Keenan, doing business under the name of J. Keenan’s Bank, recovered a judgment by confession in the Circuit Court of McLean county against appellants, William Blue and James Vance, and one D. L. Buckworth, for the sum of $4,573.40. The judgment was confessed by M. A. Brennan as attorney for the defendants under a warant of attorney contained in a promissory note for the sum of $4,000, bearing date March 8, 1905, payable two years after date to D. L. Buckworth or order. The warrant of attorney authorized Owen & Owen or any attorney at law to confess judgment on the note in favor of the legal holder for the amount thereof and costs and $400 attorney fees. The note bore an endorsement upon its back as follows: “For value received I hereby assign all right, interest or title in the within note to I. N. Porter or bearer; March 14, 1905. D. L. Buckworth.”

Appellants thereafter appeared and moved to vacate and set aside the said judgment and recall the Execution which had been issued thereon. Upon the denial of said motion appellants prosecuted an appeal to this court where it was held that the facts set forth in an affidavit in support of said motion, if true, constituted a good defense of usury to the note, and that appellants should have been permitted to plead to the merits. Blue v. Keenan, 130 Ill. App. 312. Upon the re-docketing of the cause and the entry of an order opening the judgment, staying execution and granting appellants leave to plead, a demurrer to the declaration was sustained by the court and appellees, by leave of court, amended their declaration, whereby they alleged that the said D. L. Buckworth on March 14, 1905, assigned the said note for a valuable consideration by his endorsement thereon to one I. N. Porter or bearer, the said I. N. Porter being then and there a fictitious person, and that appellees were the bearers and legal holders of said note. After demurrer overruled to the declaration as amended appellants filed several pleas, the first three being verified. The first plea denied the assignment for value by indorsement and delivery; the second denied that the note was indorsed or delivered by appellants for value, and the third denied that I. N. Porter was a fictitious person and was known by Buckworth to be fictitious.

The fourth, fifth and sixth pleas alleged certain misrepresentations on the part of Buckworth affecting the consideration of the note in question, and that when said" note was executed the said Buckworth gave to appellants his note for $4,000 as indemnity against the note in question, which they had signed for the accommodation of Buckworth; that afterwards Buckworth became a bankrupt and appellants filed their claim against his estate, which claim was based upon and represented the said $4,000 note so taken and held by them as indemnity or security for their liability on the note sued on in this ease; that appellants received as dividends from the estate of the said bankrupt upon their claim as allowed, the sum of $906.34, which sum, together with interest thereon from the date of its receipt, they brought into court ready to be paid for the use of Buckworth upon the note sued on if appellees should be adjudged the owners of Buckworth’s right and interest therein; and that Buckworth was discharged in bankruptcy and remained* and was insolvent.

The seventh plea alleged usury as to the attorney’s fees, and presented the defense which upon the former appeal was held to entitle appellants to plead to the merits. Appellees joined issue on the first, second and seventh pleas and replied to the fourth, fifth and sixth that J. Keenan, doing business as J. Keenan’s Bank, and to whom the note in question was negotiated, in his lifetime had no notice or knowledge of the restrictions, promises and representations or any or either of them as alleged in said pleas, but that he purchased the said note in good faith for a valuble consideration.

Upon the trial of the case before a jury two witnesses were called to testify on behalf of appellees, viz., Wesley M. Owen and the appellee A. J. Keenan. Owen testified that he was a member of the firm of Owen & Owen and that at the time of the note transaction his firm had for collection several claims against Buckworth amounting to $700 and $800, among which was one in favor of his half-brother, Thomas Owen, for $400; that Buckworth applied to his firm as brokers to negotiate a sale of the note; that he went to J. Keenan’s Bank and talked with the appellee A. J. Keenan, cashier, and asked him if the Bank would buy the note; that Keenan said they would if the bank’s note against Buckworth of $1,750 was taken out, and if it could be arranged so that Buckworth would not know the bank was getting the note; that Keenan suggested making the assignment to I. N. Porter or bearer; that he told Keenan he would see what could be done about it, and went back and told Buckworth his firm could dispose of the note if Buck-worth would pay them $80 commission and assign the note to I. N. Porter or bearer, and permit Owen & Owen to deduct from the proceeds the amount of the claims held by them, and an additional claim of $1,750; that Buckworth said “Very well,” and he (witness) wrote the assignment on the back of the note and read it to Buckworth who asked in substance if Porter lived near or around here, but that he did not answer the question; that Buckworth executed the assignment without knowing that Porter was not a real person; that Porter was in fact a fictitious person; that he took the note to Keenan, the cashier, who deducted the amount of the note for $1,750 held by the bank against Buckworth, and credited the account of Owen & Owen with the balance of the $4,000; that witness deducted $75 for his firm’s services and the amount of the claims held by them against Buckworth, including the $400 claim of their half-brother, Thomas Owen, and paid over the balance, something like $1,500, to Buckworth.

On cross-examination of this witness appellants sought to show that at the time of the transfer of the note witness had knowledge of its accommodation character, and the restrictions placed upon it, and that its execution had been obtained by false and fraudulent promises and representations. This effort was made on the theory that the witness was also acting for the bank in the matter of the transfer, and that any knowledge possessed by him was a part of the transaction and chargeable to his principal, the bank; but the court sustained objections to the question as not being proper cross-examination.

Appellee A. J. Keenan testified that at the time of the transfer of the note, his father, Joseph Keenan, owned and was operating the J. Keenan’s Bank, and that the transaction was had with him alone; that he was the only person connected with the bank who talked about it; that Joseph Keenan died testate on the 19th day of September, 1905, and the note was an asset of the bank. Appellees also offered in evidence the last will and testament of Joseph Keenan, by the first clause of which all the assets of the bank were given to appellees in equal shares to vest in them absolutely and in fee simple on the date of the testator’s death, and by the last clause of which appellees were appointed executors of the will. The last codicil to the will directed that out of the other assets of the estate appellees should pay to themselves the amount of any loss or depreciation in the notes held by the bank at the testator’s death. It was conceded that appellees never paid anything for the note, but that they took the same as legatees under the will of their father. Appellants objected to the admission of the note and assignment in evidence upon the ground that appellees were not shown to have the legal title to the note and that the assignment did not convey the legal title thereto to their father.

Upon the overruling of such objections and at the close of the evidence introduced in behalf of appellees, appellants moved the court to find the issues for them except as to the sum of $972.42, paid into court, which motion was denied. Appellants thereupon offered themselves as witnesses to prove the facts set up in their pleas, but upon objection as to their competency on the ground that appellees were suing either as legatees or executors of a deceased person, appellants were not permitted to testify. Thereupon the court gave to the jury a peremptory instruction to find the issues for the appellees, and after overruling a motion for a new trial entered as its judgment on the verdict that “the judgment entered herein on the 21st day of October, 1905, in favor of the plaintiffs and against defendants for $4,573.44, stand in full force and effect as of the time of its rendition.” The judgment included the sum of $400 for attorney’s fees as provided in the note and warrant of attorney to confess judgment.

We shall consider appellants’ several contentions in the not altogether logical order in which they are presented. It is first urged that it was admitted by appellees under the pleadings in the case that the note in question was without consideration and fraudulent in its inception; that appellees could only recover upon said note as holders in good faith of commercial paper and then only to the extent of their good faith, which could in no event exceed the face of the note, and that the court therefore erred in including in the amount of the judgment against appellants the sum of $400 for attorney’s fees.

The fourth, fifth and sixth pleas filed by appellants after setting out the facts relied upon as constituting fraud and want of consideration, specifically alleged that Joseph Keenan, the assignee of said note, had notice and knowledge of such facts.

The replication filed by appellees denied that said Keenan had notice or knowledge of the facts alleged in said pleas as a defense, and the burden was thus cast upon appellants to prove the allegations in their pleas in that regard. Bemis v. Horner, 165 Ill. 347. It was established by the evidence that Joseph Keenan, through whom appellees derived title to the note, paid full value therefor and no competent evidence was offered by appellants tending to show that he had any notice or knowledge of the facts alleged in the several pleas filed by appellants. In the absence of any evidence tending to impeach the good faith of Joseph Keenan or the appellees as holders of the note in question, appellees were entitled to recover the amount fixed in the note and warrant of attorney as and for their attorney’s fees, and the court did not err in rendering judgment against appellants therefor.

It is next insisted that the writing on the back of the note signed by the payee Buckworth, viz., “for value received I hereby assign all right, interest or title in the within note to I. N. Porter or bearer, March 14, 1905,” did not constitute such a transfer or assignment of. the note as vested the legal title thereto and right to sue thereon in Joseph Keenan or the appellees. As sustaining this contention appellants cite Aniba v. Yeomans, 39 Mich. 171, and Ellsworth v. Varney, 83 Ill. App. 94, which are typical of other cases cited and relied upon, and in which it is held that the words “I hereby transfer my right, title and interest in the within note,” or like words written on the back of a note, do not constitute a commercial indorsement of the note. In the cases cited the question arising upon such an indorsement was considered with reference to the nature of the liability of the indorser to the indorsee, and not as to whether the legal title to the note passed by such indorsement. The right of the- persons purporting to be the assignees of the notes there involved, to sue thereon in their own names, does not appear to have been questioned or determined. For this purpose it has been held that any form of indorsement is sufficient which manifests an intention to transfer the note. Herring v. Woodhull, 29 Ill. 92; Kistner v. Peters, 223 Ill. 607.

It is next urged that regardless of the language of the assignment, the note itself shows no transfer to either Joseph Keenan or the appellees; that the transfer, if any, was to I. 1ST. Porter or bearer, and that under the statute the legal title to the note could not be transferred by deliver^ so as to cut off defenses or enable the holder to sue thereon in his own name without indorsement by the person named.

The statute invoked by appellants would be decisive here if I. N. Porter named as transferee was a real and not a fictitious person. It is uncontroverted that the note in question was executed by appellants as accommodation paper for the accommodation of Buckworth. No restrictions, conditions or limitations upon the use of the note by Buckworth were imposed by appellants in writing upon the note and there is no evidence in the record tending to show that any such restrictions, conditions or limitations, if made by appellants, were brought to the knowledge of Joseph Keenan at or before the time he became the holder of such note. In Naef v. Potter, 226 Ill. 628, it was said: “The very nature of accommodation paper presupposes that there was no consideration given for it— consequently no cause of action can ever be maintained byvthe accommodated party against the accommodation maker, and if the transferee of accommodation paper gets no greater right than the accommodated party has, the result would be to eliminate accommodation paper from commercial transactions.” The nse which Buckworth might make of the note did not under the evidence concern appellants. It is established by the evidence that I. N. Porter named by Buckworth as transferee of the note was a fictitious person.

There is no statute in this state forbidding or restricting the use of the name of a fictitious person as payee or transferee of a negotiable instrument, and in the absence of any such statute a negotiable instrument payable to the order of a fictitious person is to be treated as if made payable to bearer and is transferable by delivery. 1 Randolph on Commercial Paper, Par. 161. The authorities cited by appellants which hold that under section 4 of chapter 96 Hurd’s Stat. 1905, 1408, the legal title to a note payable to a person named as bearer cannot be transferred by delivery without indorsement under the hand of the person named, so as to give the holder or bearer the right to sue thereon in his own name, can have no application where the person named as payee or transferee is fictitious.

Assuming that the witness Owen, who negotiated the transfer of the note to Joseph Keenan, was the agent of the latter in the transaction, and that his knowledge of any defense to the note was imputable to his principal, there is no evidence in the record tending to show that he had any such knowledge.

It is urged that the trial court improperly sustained objections to questions propounded to the witness Owen upon his cross-examination. An examination of the record discloses that such objections interposed by appellees were sustained by the court upon the ground that the questions propounded to the witness were not proper cross-examination. The ruling of the trial court in that respect was correct.

It being conceded that appellees acquired their title to the note in question as legatees under the will of Joseph Keenan, appellants were incompetent to testify as witnesses in the case on their own behalf, and the court properly refused to permit appellants to so testify. McAyeal v. Gullett, 202 Ill. 214.

"Opon the trial of the issues, after leave given to appellants to plead, the evidence introduced upon behalf of appellees having established their right to a recovery and appellants having introduced no countervailing evidence, the trial court properly gave to the jury a peremptory instruction to find the issues in favor of the appellees. The verdict and judgment were in proper form. Lyman v. Kline, 128 Ill. App. 497.

We perceive no substantial error in the record and the judgment of the circuit court will be affirmed.

Affirmed.


text:
    Joseph Roberts et al., Appellees, v. William Romick et al., Appellants.
    1. Certiorari—when writ premature; when not. Where a tribunal usurps jurisdiction, or acts in the absence of or in excess of authority, the common law writ of certiorari is issuable before the proceedings instituted before such tribunal shall have culminated in a final order or judgment; but where a tribunal possesses jurisdiction to hear and determine the cause the writ will not issue until the proceeding has terminated, and then only if it shall appear that such tribunal has entered an illegal judgment or order.
    2. Certiorari—when issuance of writ premature to determine propriety of vacation of road. A writ of certiorari should not issue to review the proceedings of a board of highway commissioners in vacating a road until a final order of vacation has been entered.
    Certiorari. Appeal from the Circuit Court of Hancock county; the Hon. John A. Cray, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed November 24, 1908.
    William H. Hartzell, for appellants.

      Neece & Elting and Charles J. Scofield, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Hancock county, quashing on certiorari the record of the commissioners of highways of the town of St. Marys, whereby it is alleged in the petition for the writ that said commissioners of highways vacated a certain public road in said town. The transcript of the record sought to be quashed is as follows:

“Plymouth, Illinois, Sept. 5,1905. Commissioners of Highways met in the Town Clerk’s office and allowed the following bill.

“The following petition was presented to the commissioners of highways, of the town of St. Marys, county of Hancock and state of Illinois.

“The undersigned landowners residing in such town within two miles of the road known as commencing at the northwest corner of the east half of the northeast quarter of section twenty-four (24) running south to Brunson Creek, then northeasterly and east to the county line between Hancock and McDonough counties, we do hereby petition you to vacate said road, and your petitioners pray that you proceed and vacate said road accordingly.

“Dated at Plymouth this 28th day of Aug., 1905.

(Here are affixed the names of sixteen individuals.)

“Moved and carried that they meet on Sept. 30, at 10 o’clock a. m. on the site of the said road to act on said petition. Five notices were posted on Sept. 19, 1905, of the said meeting.

“Sept. 30, 1905, 10 o’clock a. m., the commissioners of highways met on the site of the above road to hear reasons for or against the vacating of the said road, and then adjourned to meet in Plymouth at the town clerk’s office at one o’clock p. m., to take final action, and they met at the town clerk’s office at one o’clock p. m., in adjourned meeting and voted to grant the prayer of the said petition to vacate the said road.

They also allowed the following bill.”

Appellants’ motion to quash the writ which was in the nature of a demurrer to the petition, was overruled by the court, and appellants electing to abide said motion, the court entered a judgment quashing the record of the proceedings. Waiving a consideration of all other questions urged on behalf of appellants, we are of the opinion that the writ was prematurely issued and that the judgment of the circuit court must be reversed, because the transcript of the record of the commissioners of highways, as above set forth, fails to disclose that any final order was entered vacating the road in question.

Where a tribunal usurps jurisdiction, or acts in the absence of excess of jurisdiction, it may be that a common law writ of certiorari is issuable before the proceedings instituted before such tribunal shall have culminated in a final order or judgment, but where a tribunal possesses jurisdiction to hear and determine the cause the writ will not issue until the proceeding has terminated, and then only, if it shall appear that such tribunal has entered an illegal judgment or order. “In the latter instance the court has jurisdiction to proceed, and no wrong is done unless an illegal determination is reached.” People v. Superior Court, 234 Ill. 186.

Jurisdiction to consider and act upon petitions for the alteration or vacation of existing public roads and the establishment of new roads, in townships organized under the general law, is lodged by the statute in the board of highway commissioners, and when so acting such board of highway commissioners is not proceeding in the absence of the excess or usurpation of jurisdiction.

Section 35 of chapter 121 of the Revised Statutes provides, as follows: “If the petition is simply for the vacation of a road, and the commissioners, or a majority of them, shall, at such meeting, decide that the prayer of the petitioners should be granted, they shall order such road to be vacated; a copy of which order, together with the petition, shall be by them filed with the town clerk; such order to be so filed within five days after the date of such order.” It will be observed that the decision of the commis-. sioners of highways that the prayer of the petitioners for the vacation of the road be granted, is merely a necessary preliminary step in the proceedings and that such commissioners are thereafter required to make an order formally declaring such road to be vacated, and to file a copy of such order together with the petition, with the town clerk within five days after the date of such decision. Until these several steps are taken as required by the statute, the proceedings pending before a board of highway commissioners for the vacation of a road cannot be said to have terminated, and no final judgment or order to have been entered therein. The transcript of the record of the proceedings of the commissioners of highways here involved merely shows that said commissioners “voted to grant the prayer of said petition to vacate the said road.” It does not appear that said commissioners made any order declaring such road to be vacated, as they were required to do by statute, or that a copy of any such order was filed by them with the town clerk. It appearing from the transcript of the record of the proceedings here involved that the commissioners of highways made no final order in the premises, appellants’ motion to quash the writ should have been sustained, and the judgment of the circuit court quashing the record of said proceedings will be reversed.

jReversed.


text:
    Trustees of Schools of McLean County, Appellees, v. John J. Cowden et al., Appellants.
    1. Appeals and errors—when action of court in sustaining demurrer to pleas not ground for reversal. Even if a demurrer to a plea is improperly sustained, such action of the court will not reverse if upon the trial of the cause the court has accorded to the defendant- all the benefits of the defense sought to be set up by such plea.
    2. Schools—liability of sureties upon bond of treasurer of township school fund. The liability of sureties upon the bond of a treasurer of a township school fund is not limited merely to the term of office of such treasurer and a reasonable time thereafter within which his successor shall qualify, but extends up to and includes the period to the time of the actual qualification of the successor of such treasurer.
    Action in debt. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Sigmund Livingston and William R. Bach, for appellants.
    Jacob P. Lindley, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an action in debt brought by appellees against appellants, sureties upon the official bond of Eobert S. McIntyre as treasurer of the township school fund, to recover the amount of an alleged defalcation by the said McIntyre as such treasurer in his lifetime. The bond is in the penal sum of $10,000, dated September 25, 1903, and conditioned as provided by statute that the said McIntyre, township treasurer of township 23 north, range 2 east, in the county of McLean, shall faithfully discharge all the duties of said office according to the laws which now are or hereafter may be in force, and shall deliver to Ms successor in office after such successor shall have fully qualified by giving bond as provided by law, all moneys, books and papers, security and other property, which shall come into his hands or control as said townsMp treasurer from the date of this bond up to the time that Ms successor shall have duly qualified as township treasurer by giving such bond as shall be required by law.

The declaration contains four counts. The first count recites the conditions of said bond and alleges that the same was approved and accepted by the trustees of schools and filed in the office of the county superintendent of schools of McLean county, and recorded in the office of the circuit clerk of said county; that said McIntyre took upon himself said office of treasurer and was such treasurer until December 5, 1906, when he died; that on December 12, 1906, William M. Beeves was appointed township treasurer as the successor in office of said McIntyre and duly qualified as such by giving bond; that said McIntyre did not faithfully discharge all the duties of said office, according to law, and did not deliver to his successor in office all moneys, books, papers, securities and other property which came into his hands as township treasurer from the date of said bond up to the time that his successor was duly qualified by giving bond as required by law; that said McIntyre, in Ms lifetime, and Ms administrator who was on December 12, 1906, duly appointed, failed and refused though requested to do so, to deliver and pay over to said Beeves Ms successor in office, the sum of $6,437.01 of money, wMch came into the hands or control of said McIntyre as township treasurer from the date of said bond and his said appointment after demand made therefor by said Beeves, his successor.

The second count in assigning the breach upon said bond alleges that at the time of the death of said McIntyre he was indebted to appellees on said bond in the sum of $7,647.94 for school funds and money received by him as such treasurer, which his successor in office demanded of his administrator, and that said administrator failed and refused to deliver and pay over to his successor, except the sum of $1,210.93, which was paid to his successor by said administrator and that the balance of said amount due from said McIntyre was the sum of $6,437.01.

The third count contains the additional allegation that during the period from the date of said bond until the death of McIntyre on December 5, 1906, the said sum of $6,437.01 was received by said McIntyre by virtue of his said office as school moneys and funds of said township, and which during said period said McIntyre unlawfully and wrongfully converted to his own use.

The fourth count further alleges that said sum of $6,437.01 is shown by the books of account of said school funds kept by said McIntyre as such treasurer as required by law, and by his written reports made as required by law to the county superintendent of schools of said county during said term of office, to have been in his hands and possession as such treasurer at and after his said appointment and the giving and approval of' his said bond during his said term of office as such treasurer. After demurrer overruled to the declaration the appellants filed their eleven pleas to all of which pleas except the first appellees interposed a general demurrer, and upon such demurrer being sustained by the court, appellants elected to abide their pleas. By agreement the cause was submitted to the court for trial without a jury and such trial resulted in a finding and judgment against appellants for $10,000 debt and $6,679 damages.

After the commencement of this suit appellants filed a bill in equity for the purpose of correcting certain official reports made by said McIntyre on June 30, 1903, 1904, 1905 and 1906, and to enjoin the prosecution of this suit upon his official bbnd' until said proceeding in equity should be determined. The circuit court' sustained the demurrer interposed by appellees to said bill and appellants having elected to stand by their bill the same was dismissed for want of equity. Upon appeal to this court the decree of the Circuit Court was affirmed (143 Ill. App. 241) and upon further appeal to the supreme court the judgment of this court was affirmed. Cowden v. Trustees, 235 Ill. 604. It was there held that the sureties on the bond of a defaulting township treasurer who has been his own successor for many terms are concluded by his official reports, and that they cannot maintain a bill in equity to correct such reports for certain years for the purpose of showing that the defalcation occurred prior to the term for which they became his sureties.

It is first urged on behalf of appellants that the sureties on an official bond are not liable for acts and defaults of their principal which occur prior to the execution of the bond, and that the court erred in sustaining the demurrer to their eighth plea, wherein they aver that as to the first, second and third counts of the declaration, they ought not to be charged with said debt by virtue of said bond, because the indebtedness and defaults complained of in each of said counts of said declaration did occur and take place prior to September 25, 1903, the date of said bond. By several propositions submitted to the court by appellants to be held as the law of the case, the court held that appellants were not liable for any defalcations or misappropriation made by McIntyre which were made prior to the execution of the bond in question; that the sureties on the township treasurer’s bond are responsible thereunder only for defalcations made by the township treasurer subsequent to the date of entering into such bond; that no recovery could be had from appellants for any defalcations made by McIntyre prior to September 25, 1903, and that the burden of proof was upon appellees to show that the defalcation and misappropriation of funds by McIntyre occurred after September 25, 1903, and during the period of office for which the bond was given. Appellants were thus accorded the benefit as a defense of the rule of law which they sought to invoke by their eighth plea. The demurrer to said plea was however properly sustained because it fails either to deny that the sum of $6,437.01 or any part thereof which is averred in each of the first, second and third counts of the declaration, to have come into McIntyre’s hands after the date of the bond, was in his hands at that time, or to aver that McIntyre lawfully paid out said sum of money or any part thereof.

Appellants’ eleventh plea which was pleaded to the. third and fourth counts of the declaration was bad for the reason stated in Cowden v. Trustees, supra, and the demurrer to said plea was properly sustained.

Appellants’ main contention in the case relates to the defense sought to be interposed by their third and fourth pleas. Upon this question the position of appellants is stated by counsel in their brief as follows: “The liability of sureties on an official bond for a stated period of time or during a particular term of office cannot be continued indefinitely by reason of the failure of the successor of their principal to qualify and it makes no difference whether their principal is re-elected or some other person is chosen in his stead. The liability of the sureties will not terminate immediately upon the expiration of the official term, but will extend for a reasonable time after the expiration of the official term, and said reasonable time is such time as may be ordinarily required under the circumstances for the election of a successor and proper qualification of said successor.”

The third plea avers that appellants ought not to be charged by virtue of the supposed bond in said declaration mentioned because said McIntyre was appointed such township treasurer on April 4, 1902, and his term of office as such treasurer expired by virtue of law on April 4, 1904, and that he faithfully discharged all of the duties of said office during all of said time and for a reasonable time thereafter, and none of the wrongs complained of in said declaration occurred at any time from the date of the said bond, to wit: September 25, 1903, until the end of his said term of office or a reasonable time thereafter. The fourth plea further avers that during all of said term from April 4, 1902, until April 4, 1904, and for a reasonable time thereafter, said McIntyre faithfully discharged all of the duties of his said office, and did account for and deliver all of said moneys and funds coming into his charge as such township treasurer.

Appellants tendered to the court several propositions whereby they requested the court to hold as the law of the case that the bond in question only bound the sureties thereon for all defalcations of McIntyre during his term of office and a reasonable time thereafter, and did not bind the sureties for defaults made during a subsequent term of office; that the term of office of McIntyre was two years and that the bond in question was given to secure defaults for and during the term of office for which it was then given, and a reasonable time thereafter, and not for any defaults that were made by said McIntyre at a subsequent or succeeding term, and which happened more than a reasonable time after the expiration of the term for which the bond was given; that such reasonable time was the time necessary for the successor of the principal in the bond to qualify by giving an official bond for the succeeding term; that one year after the expiration of the term for which a township treasurer is elected is sufficient reasonable time in which such township treasurer must be compelled to re-qualify and give official bond, and the sureties upon the bond of his first term of office are not liable for the conduct of such township treasurer which happened after the ¡expiration of such term of office for which said bond was given and one year thereafter. These several propositions were refused by the court.

Section 23 of article 3 of the Act entitled Schools, provides that the treasurer of the; board of school trustees shall hold his office for two years and until his successor is appointed, and section 4 of article 4 of the same Act, wherein the form of the bond to be given by the township treasurer is specifically designated, provides that the condition of said bond shall be that such “township treasurer shall faithfully discharge the duties of said office according to the laws which now are or may hereafter be in force, and shall deliver to his successor in office after such successor shall have fully qualified by giving bond as provided by law, all moneys, books, papers, securities and property which shall come into his hands or control as such township treasurer from date of this bond up to the time that his successor shall have dudy qualified as township treasurer by giving such bond as shall be required by law.” Construing these provisions of the statute together there is no uncertainty or ambiguity therein regarding the liability of appellants as sureties for McIntyre upon the bond in question and the numerous cases cited by appellants in support of their contention that the sureties on an official bond are only liable for the default of the principal occurring during the term of his office and such reasonable time thereafter as may be necessary for his successor to qualify are clearly distinguishable from the case at bar. While a surety is not to be held liable beyond the terms and letter of his contract and such liability is strictissimi juris and not to be extended by construction or implication (People v. Foster, 133 Ill. 496), a surety cannot avoid liability by adopting a construction of his contract of suretyship which does violence to the language employed in such contract. To absolve appellants from liability, upon the ground urged by them would be to disregard the plain letter of the contract and to indulge in mere judicial legislation. The form, of the bond prescribed by the legislature was doubtless so prescribed to protect the integrity of the school fund in precisely such a case as the one at bar.

The amount of McIntyre’s defalcation and shortage as determined by the trial court is abundantly established by competent evidence in the record consisting of the several official reports made by him as township treasurer and the books required by law to be kept by him as such township treasurer, and which were so kept by him or by his direction. Counsel for appellants do not indicate wherein any error exists in the amount of the defalcation as ascertained and determined by the court and we are unable from an examination of the abstract of the record to find any error in that regard.

The finding and judgment of the Circuit Court is right and will be affirmed.

Affirmed.


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    Frank Trainer et al., Appellants, v. Louis Johnson, Appellee.
    Appeals atto ebbors—of lúhat complaint cannot be made. A party cannot complain of a theory of recovery adopted by the trial court where he himself by his instructions has adopted such theory.
    Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Hogan & Wallace, for appellant.
    J. C. & W. B. McBride, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This suit was originally instituted by the appellants, Prank Trainer and J. E. Bramblett, partners doing business under the firm name of Trainer & Bramblett, against appellee, Louis Johnson, and one Leroy Martin, as partners, to recover certain commissions for their services in securing a purchaser for certain real estate, and wherein appellants recovered a verdict and judgment against said defendants for $644. Upon appeal to this court said judgment was reversed and the cause remanded for a new trial. Martin v. Trainer, 125 Ill. App. 474. Thereafter, appellants dismissed their suit as to the defendant Martin and another trial of the cause resulted in a verdict and judgment in favor of appellee, Johnson, and against appellants for costs.

The evidence discloses that one Hull, a customer of appellants, desired to purchase a farm of about 200 acres, and that appellee had for sale a tract of land containing 160 acres owned by one Mitchell and another tract containing 47 acres owned by one Lyman; that Hull was induced to agree that he would purchase the Mitchell tract at $110 per acre and the Lyman tract at $90 per acre. The terms of the contract whereby appellants were to receive a commission upon the sale of the land to Hull are sharply disputed, appellants claiming that they were to receive as their commission one-half of the proceeds of the sale of the Mitchell tract over and above $100 an acre, less the sum of $200, and that such commission should be payable to them upon their procuring a purchaser who was ready, able and willing to purchase said land at the stipulated price. It seems to have been understood between appellants and appellee, that appellee should procure a conveyance of the lands to himself from Mitchell and Lyman, with whom he had verbal agreements to that effect, and thereafter convey the lands to the purchaser, and it is claimed on behalf of appellee that the agreement for the payment of a commission to appellants was expressly contingent upon the ability of appellee to procure conveyances from Mitchell and Lyman. After the terms of the purchase of the land by Hull had been agreed upon appellee signed in duplicate two blank contracts for the sale of said land to Hull and left the same with appellant Bramblett to be filled out by him, and while he (appellee) should drive out in the country to see Mitchell for the purpose of procuring a deed to the land or a written contract for its conveyance, or for some other purpose in connection with the transaction. Bramblett filled out the blank contracts which were signed by appellee, and thereby equivocally bound appellee to convey the lands involved to Hull upon the payment by the latter of the purchase price, and such contracts were then signed by Hull and one copy given to Hull and the other retained by Bramblett. Hull then .also made his check for $1500 payable to appellee as a part of the purchase price of the land. Appellee was thereafter unable to procure' a conveyance of the land from Mitchell, and upon his representation to Hull that he was unable to procure such conveyance Hull surrendered his copy of the contract to appellee and appellee returned to Hull his check for $1500.

A careful consideration of the evidence leads us to the conclusion that the jury were not unwarranted in finding that appellee’s liability to pay a commission to appellants was contingent upon the ability of appellee to procure a conveyance of the land from Mitchell.

As tending to support their claim appellants offered in evidence the contract for the purchase and sale of the land signed by appellee and Hull, and appellee was then permitted to show the circumstances under which such contract was signed and drafted, and was also permitted to testify that the contract actually entered into with Hull was contingent upon the ability of appellee to procure a conveyance from Mitchell, and that appellant Bramblett in drafting said contract in the absence of appellee neglected to embody the terms of such contingency in the contract. It is urged that such evidence was improperly admitted because it tended to vary and contradict the terms of a written contract. The contract in evidence was merely collateral to the alleged contract upon which a recovery is sought in this case and the appellants were not parties thereto. The admission of the evidence complained of did not contravene the rule sought to be invoked by appellants. Martin v. Trainer, supra.

It is urged that the first instruction given at the instance of appellee is erroneous because it makes appellants’ right of recovery dependent upon the terms of the written contract between appellee and Hull. While this objection is not without force as applied to said instruction, appellants are not in a position to urge such objection because the third, fourth and seventh instructions given at their instance substantially predicate their right of recovery upon such written contract.

It is said that the second instruction given at the request of appellee is abstract in form and, therefore, misleading. An instruction which informs the jury that in order to recover the plaintiff must prove his case by a preponderance of the evidence is not objectionable as being abstract in form.'

The principal objections urged by appellants to certain of the other instructions given at the instance of appellee are met by what we have heretofore said, and while some of such instructions are in other respects not wholly free from minor infirmities we are satisfied that they could not have operated to prejudice the appellants.

There is no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


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    N. T. Kirby, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Common carriers—burden to show assent of shipper to restrictive conditions of bill of lading. The rule that where a contract limiting the liability of the carrier is contained in a bill of lading constituting both a receipt and a contract, the burden is upon the carrier to show that the shipper assented to the terms and conditions of the contract, is as applicable in an action of assumpsit to recover damages for the breach of an alleged special contract as in an action of tort to recover damages for negligence.
    2. Common carriers—when contract predicated upon published tariff schedules does not arise by implication. Held, under the facts of this case, that a contract between the shipper and the carrier based upon the rate made by the carrier to the shipper according to the published tariff schedules, did not arise by implication.
    3. Interstate commerce—what does not render contract discriminatory. A contract of shipment made by a railroad company which contains a provision providing for carriage by a particular train or within a particular time, is not discriminatory and void within the meaning of the Interstate Commerce Act; and this rule applies as well to actions arising in contract as to those sounding in tort.
    Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Patton & Patton, for appellant; F. S. Winston, of counsel.
    Graham & Graham and Albert Salzenstein, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit by appellee against appellant to recover damages for the breach of an alleged special contract to transport fourteen horses from Springfield to Joliet and to make connection at Joliet with a train on the Michigan Central Railroad known as the “Horse Special,” for through shipment to New York City, for the agreed rate of $170.60. The declaration alleges that appellee delivered the said horses to appellant on January 24, 1906, and that appellant then and there received the same for transportation upon the terms of said special contract, and that it then and there became the duty of appellant to have carried the said horses and to have promptly delivered the same to the Michigan Central Railroad Company so that the said horses could have been carried by said company on its said fast train known as the Horse Special; that appellant wholly disregarding its duty in that behalf did not deliver the said horses to the said Michigan Central Railroad Company so that said horses could be carried on said Horse Special to New York, whereby said horses would-have reached New York on the, morning of January 27, 1906, at or about 7 o’clock, but failed so to do, whereby appellee was obliged to arrange to have said horses carried to New York the best way he could, which was by inferior and slower means of transportation, and whereby said horses were delayed in transportation and did not reach New York until January 29, 1906, at or about 12 o’clock noon, and too late to be put in proper condition for exhibition and sale at the horse sale at Madison Square Cardens, as was contemplated by the parties at the time of the making of said special contract; that by reason of such delay and inferior transportation all of said horses were damaged and depreciated in value and several then became sick and one of them seriously sick, whereby said horses did not bring as much on the said market as they otherwise should and would have done; that such difference in the market price of said horses at said time and place amounted to $4,900; that in addition appellee was obliged to and did pay $29.90 in excess of the rate stipulated to be paid for the transportation of said horses under and by the terms of said special contract. Upon a trial by jury in the Circuit Court of Sangamon county there was a verdict and judgment against appellant for $4,200.

It is first urged on behalf of appellant that the evidence does not warrant the finding of the jury, that a special contract was entered into between appellee and appellant whereby appellant undertook to deliver a shipment of horses at Joliet for transportation by the Horse Special train operated by the Michigan Central Railroad Company, and this contention is mainly predicated upon the insistence that the agent of appellant with whom appellee claims to have made the contract was without authority to make a contract binding upon appellant in that regard. The evidence introduced on behalf of appellee tends to show that the purpose of appellee to ship a lot of horses from Springfield to New York was known to one Conner, the passenger agent of appellant at Springfield, who solicited appellee to make such shipment over the railroad of appellant, and that appellee signified his willingness to do so if he could make the right arrangements; that Conner then offered to send one Eggleston, the freight agent of appellant, to interview appellee, but upon appellee’s objection, based upon some reason personal to himself, to dealing with Eggleston, Conner said he would send the live stock agent of appellant to see appellee; that shortly thereafter Stuttsman, the live stock agent of appellant, called upon appellee for the purpose of inducing him to make the shipment over appellant’s railroad; that appellee then told Stuttsman that he had a fine lot of high-bred horses which he had catalogued to sell at a big horse sale to be held at Madison Square Gardens, New York, and which he wanted to get there as soon as possible; that he wanted the shipment to connect at Joliet with the fast horse train operated by the Michigan Central Railroad, which train left Chicago at 3 p. m., upon certain days of the week, bound directly for New York; that Stuttsman accompanied appellee to the office of appellant for the purpose of ascertaining the rate to he charged and there interviewed Eggleston, the freight agent; that Stnttsman then told Eggleston to fix appellee out and order a car, and that appellee said he did not want a car ordered until he had been given a rate; that he had a rate from the Wabash and the Illinois Central; that Stuttsman then said he would get a rate for appellee; that upon the following day appellee called Eggleston up by phone but was unable to get a rate and upon the next day he again called Eggleston up by phone, who quoted him a rate of $170.60 to New York, whereupon he told Eggleston to order a car; that a few days later Stuttsman said to appellee that the latter was shipping at the right time; that the Horse Special left Chicago, Tuesdays, Thursdays and Saturdays of each week, and that if appellant made the shipment Wednesday night as appellee had proposed, it would get the car to Joliet at 6 o’clock the next morning and transfer the same to the Horse Special, when the latter arrived at the transfer point at about 5 o ’clock in the afternoon; that appellant provided appellee with an Arms Palace Horse Car in which appellee loaded his horses and which left Springfield in the evening of Wednesday, January 24, 1906, and arrived at Joliet the following morning; that the way-bill issued by appellant for the shipment bore an indorsement as follows: “In care fast horse train out of Chicago on M. C. By. about 3 p. m., Thursday, January 25, 1906;” that when appellee went into the office of appellant to get his shipping contract, immediately before the train left Springfield, he was told by Byers, the bill clerk of appellant, that the contract was all made out ready for signature; that Byers passed the same partly open through the opening in the wire grating and indicated to appellee where he should affix his signature; that appellee then asked Byers if all arrangements had been made at Joliet for the shipment and was told that the matter had been attended to.

The evidence further tends to show that upon the arrival of appellant’s train at Joliet the car containing the horses was switched upon the tracks of the Michigan Central Bailroad Company; that appellant had made no arrangements for the car to be attached to the train known as the Horse Special, and for that reason or because the Michigan Central Bailroad Company would not accept the transfer of a car to its said train at that place, said car was not attached to said train but was carried to New York on a meat train operated by said railroad, which train by reason of its frequent stops and slower schedule did not arrive at New York until 48 hours after the arrival of the Horse Special. It is conclusively established by the testimony of Eggleston and Stuttsman that appellee persistently insisted that the horses should be carried by appellant to Joliet to connect with the train known as the Horse Special, notwithstanding their efforts to induce appellee to permit appellant to carry the horses to Chicago and to have the car there attached to the Horse Special. We have no doubt from the evidence that appellee prevailed in his insistence upon the route of carriage designated by him and that Eggleston and Stuttsman, acting for appellant, agreed that the horses should be carried as required by appellee. The indorsement upon the way-bill and the conduct of appellant in switching the car upon the tracks of the Michigan Central Bailroad Company at Joliet confirms this view. Stuttsman was employed by appellant as its live stock agent to solicit shipments of live stock over its railroad by extolling the advantages of better service and quicker connection to be obtained by shipment upon that road. The insistence of appellant that Stuttsman had no authority to make any contract with a shipper with reference to the shipment of live stock would deprive Stuttsman of the very authority which his official title and the performance of the duties imposed upon him impliedly imported. The existence of the alleged special contract in this case, does not, however, wholly depend upon the authority of Stuttsman to make such a contract, but is based as well upon the knowledge and acquiescence of and ratification by Eggleston, the freight agent of appellant, who acted in conjunction with Stuttsman in making the arrangements with appellee for the shipment of the horses. We think the jury were fully warranted in finding that appellant by its duly authorized agent entered into a special contract with appellee as alleged in the declaration.

It is next urged by appellant that as a matter of law the contract entered into with appellee was either that signed by appellee or that implied by the law from the rate made, and was not that set out in the declaration. The paper signed by appellee as presented to him by Byers, a bill clerk in the employ of' appellant, immediately before the car left Springfield was what is generally known as a “Limited Liability Live Stock Contract” or a “Uniform Live Stock Contract,” which contained, among other things, an agreement on the part of the shipper that the value of each horse shipped did not exceed $100, also a release by the shipper of any and all causes of action or claims for damages that may have accrued to him by reason of any written or verbal representations made to bim prior to the execution thereof, and whereby all such prior representations are declared to be merged therein, and whereby the shipper releases all claims for damages which may arise by reason of delay in transit and agrees that the live stock to be transported is not to be transported to its destination, or to be delivered to any connecting carrier within any specified time, or at any particular hour, or in season for any particular market, and that the agents of the carrier are not authorized to agree so to do.

We perceive no substantial reason why the rule last announced in Wabash R. R. Co. v. Thomas, 222 Ill. 337, that where a contract limiting the liability of a carrier is contained in a bill of lading constituting both a receipt and a contract the burden is upon the carrier to show that the shipper assented to the terms and conditions óf the contract, is not as applicable in an action in assumpsit to recover damages for the breach of an alleged special contract, as in an action in tort to recover damages for negligence. In the case at bar appellee testified that he did not read the paper signed by him; that he had never read a similar paper; that he had no knowledge of its contents and that he did not assent to the restrictive provisions contained therein.

Upon its part appellant offered no substantial evidence tending to show that appellee assented to the terms of the contract signed by him, and applying the rule as above stated it must be held that the paper signed by appellee did not constitute the contract between the parties, and that appellee was not bound by the restrictive provisions therein contained. There is no proof in the record that an alternative rate was submitted to appellee, and the insistence of appellant that the contract in fact entered into was such as was necessarily implied by law from the rate made to and paid by appellee, is merely a specious endeavor to avoid the effect of the holding of the court in Wabash R. R. Co. v. Thomas, supra, because the contract which appellant insists is implied by law from the rate made is identical in form with that signed by appellee.

In all the cases in which it has been held that an application of the rule stated operated to relieve the shipper from the restrictive provisions of a shipping contract signed by him, the rights of the shipper and the liabilities of the carrier have been determined as fixed by the common law or statute and not by the terms of a contract which appellant insists is necessarily implied by law from the rate made in accordance with certain published tariff schedules.

It would seem to necessarily follow that if the so-called Uniform Live Stock Contract did not constitute the shipping contract between the parties, because of the failure of appellant to show that appellee assented to the restrictive provisions of such contract, and it appears from the evidence that the parties entered into an express special shipping contract as alleged in the declaration, there is no place in the case for a contract between the parties arising by implication of law based upon the rate made to appellee according to the published tariff schedules, unless it must be held that such express special contract was void as being discriminatory and ultra vires the appellant corporation.

Appellant introduced in evidence the joint interstate tariff rate sheets and official classification which were on file in its freight depot at Springfield at the time of making the contract of shipment here involved and which had been duly filed with the Interstate Commerce Commission and published in accordance with the rules of such commission.

According to said joint interstate tariff as so filed and published the rate from Springfield to New York on horses in carload lots was 65 cents per 100 pounds on a minimum car load weight of 20,000 pounds subject to the Uniform Live Stock Contract and the regulations contained in the tariff sheets and official classification.

In the official classification referred to appears, among other things, the following:

“1. (a) Unless otherwise provided in this classification, property will be carried at the reduced class rates specified herein, if shipped subject to the conditions of the uniform bill of lading. If consignor elects not to accept the said reduced class rates and conditions, he should so notify the agent of the forwarding carrier at the time his property is offered for shipment and if he does not give such notice it will be understood that he desires his property carried subject to uniform bill of lading conditions in order to secure the reduced class rate thereon. Property carried not subject to the conditions of the uniform bill of lading will be at the carrier’s liability, limited only as provided by the common law, by the laws of the United States and of the several states so far as they apply. Property thus carried will be charged twenty (20) per cent, higher (subject to a minimum increase of one (1) cent per one hundred pounds), than if shipped subject to the conditions of the uniform bill of lading, and the cost of marine insurance will be added over any part of the route that may be by water.

1 ‘ When the consignor gives notice to the agent of the forwarding carrier that he elects not to accept the reduced class rates and conditions, but desires a carrier’s liability service at the higher class rate charged for that service, the carrier must print, write or stamp upon shipping receipts and bills of lading a clause reading: ‘In consideration of the higher rate charged the property herein described will be carried at the carrier’s liability, limited only as provided by the common law and by the laws of the United States and of the several states, in so far as they apply.

“Agents will be expected to thoroughly familiarize themselves with the following and will take particular care to acquaint consignors or their agents with the requirements of the company before accepting live stock for shipment.

“Live stock will be taken at the reduced rates fixed in the tariff only when a uniform live stock contract is executed by the station agent and the consignor, and when the release on the back of the contract is executed by the man or men who are to accompany any said live stock. If consignor refuses to execute a uniform live stock contract, the live stock will be charged twenty (20) per cent, higher than the reduced rates specified herein; provided, that in no case shall such higher charge be less than one (1) cent per one hundred pounds.

“The rates and classification of live stock as given in this tariff are based upon the following maximum valuations: If horses or mules (including stallions or jacks), not exceeding $100 each; if a full chartered car, on the entire contents of each car, not exceeding $1200.

“The company does not agree to transport live stock by any particular train, within any particular time, nor in time for any particular market, and agents must not give receipts containing such guarantee.

“Neither will the company be responsible for any loss or damage occurring by the refusal, failure or inability of a connecting line to receive and forward the stock after tender of delivery.

“Race horses, stallions and other high priced animals, when consignors are unwilling to have the same transported at the above list of values, will be taken only by special arrangement at one and one-half first class rates, calculated at the estimated weights named below, but agents must not accept for shipment such valuable animals without first communicating with the general or division freight agent.”

‘Section two of the Interstate Commerce Act prohibits a carrier from collecting a greater or less compensation for any service to be rendered than it collects from any other person for a like and contemporaneous service, and declares such discrimination to be unlawful. Section six of said act provides for the making and publication of schedules “which shall contain the classification of freight * * * and any rules and regulations which in any wise change, affect or determine any part or the aggregate of such aforesaid, rates and fares and charges. ’ ’ Said section further provides for the publication of joint tariffs and for the measure of publicity to be given the same, and further provides: “And when any such common carrier shall have established and published its rates, fares and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares and charges as may at the time be in force * * * It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of persons or property, or for any service in connection therewith, between any points as to which a joint rate, fare or charge is named thereon than is specified in the schedule filed with the commission in force at the time.” Section 8 of said Act provides civil penalties for a violation of the same, and Section 10 of the said Act provides penalties against both the carrier and the shipper and declares that any person “who shall knowingly and wilfully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor,” etc.

By the amendatory Act of February 19, 1903, it is provided among other things, as follows: “It shall be unlawful for any person, persons or corporation to offer, grant or give, or to solicit, accept or receive any rebate, concession or discrimination in respect of the transportation of any property in interstate or foreign commerce by any common carrier subject to said Act to regulate commerce and the Acts amendatory thereto, whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said Act to regulate commerce and the Acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced. * * *”

Upon a consideration of the foregoing tariff rate sheets and the several provisions of the official classification and the Interstate Commerce Act above quoted and referred to, the position of appellant, assuming that the evidence warrants a finding that the parties made a special contract for the carriage of the horses as alleged in the declaration, concretely stated, is, that appellee must be presumed in law to have known the contents of such classification and tariffs and what service he was entitled to receive in consideration of the payment of the rate of 65 cents per 100 pounds, and that for that rate he was not entitled to contract that his stock should be carried upon any particular train, or within any particular time, or in time for any particular market, or upon a basis of a valuation in excess of $100 for each horse; that the tariff rate depends among other things upon the character of the service; that appellee not having paid a tariff rate which entitled him to any special privileges or services required by the special contract alleged in the declaration such contract was discriminatory and therefore void and that the contract being void appellee cannot obtain any redress for its breach.

In the principal cases cited and relied upon by appellant in support of its position the primary question involved related to the rate chargeable by a carrier upon an interstate shipment, and the binding effect upon the shipper and carrier alike of the rate for such shipment as fixed in the tariff schedule filed by the carrier pursuant to the Act to regulate commerce.

In Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, a carrier had fixed a rate in a bill of lading for an interstate shipment, which was less than the rate established under the provisions of the Act to regulate commerce. Upon the arrival of the shipment at destination the carrier refused to deliver on tender of payment of the rate fixed in the bill of lading and demanded and collected the higher rate established by the tariff schedule. Proceedings were brought against the carrier under a statute of the State of Texas imposing a penalty upon a carrier for charging a rate in excess of that fixed in the bill of lading. A judgment of the State Court enforcing the penalty was reversed upon the ground that the State statute as applied was repugnant to the act to regulate commerce and the court said : “The carrier cannot obey one statute without some times exposing itself to the penalties prescribed by the other. Take the case before us: If, in disregard of the joint tariff established by the defendant and the St. Louis & San Francisco Bailway Company and filed with the Interstate Commerce Commission, the latter company, as a matter of favoritism, had issued this bill of lading at a rate less than the tariff rate, both the defendant company and its agent would by delivering the goods upon the receipt of only such reduced rate subject themselves to the penalties of the national law; while, on the other hand, if the tariff rate was insisted upon, then the corporation would become liable for the damages named in the State Act. In case of such a conflict the state law must yield.”

In Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242, the agent of the railroad at the point of shipment quoted to the shipper a rate upon an interstate shipment which was less than the rate fixed in the schedule filed under the provisions of the Act to regulate commerce. Upon the arrival of the shipment at destination, the shipper was required to pay the higher schedule rate, and in an action in the State Court a recovery was allowed of the excess collected over the rate quoted. The judgment of the State Court was reversed and it was held that the rate fixed in the schedule filed pursuant to the Act to regulate commerce was controlling, that it was beyond the power of the carrier to depart from such rates in favor of any shipper and that the erroneous quotation of rates made by the agent of a railroad did not justify recovery, since to do so would be in effect enabling the shipper whose duty it was to ascertain the published rate to secure a preference over other shippers contrary to the Act to regulate commerce.

It will be observed that none of the restrictive provisions limiting the liability of appellant as a common carrier, which are contained in the written contract signed by appellee and incorporated in the schedule filed in pursuance to the Act to regulate commerce, are to-be found in the Act itself.

In C., M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, it was held that a state statute providing that no contract, receipt, rule or regulation shall exempt any corporation engaged in transporting persons or property by railway from liability of a common carrier or carrier of passengers, which would exist had no contract, receipt, rule or regulation been made or entered into, was not void as an attempt to regulate interstate commerce, as applied to a contract of interstate transportation whereby the carrier attempted to limit its liability for personal injuries resulting from the negligence of its servants to the sum of $500, and the plaintiff was permitted to recover $1000 as damages for a personal injury, notwithstanding a clause in the contract which limited the liability of the carrier to a sum not exceeding $500.

In Penn. R. R. Co. v. Hughes et al., 191 U. S. 477, the defendants in error brought suit in the court of common pleas of Philadelphia against plaintiff in error to recover damages for injuries to a horse shipped by defendants in error from Albany, New York, to Cynwyd, Pennsylvania. The contract of shipment embodied in the bill of lading issued by the initial carrier provided, among other things, that neither the initial carrier nor any connecting carrier should be liable in any event for any loss or damage beyond the valuation therein fixed, as follows: “If horses or mules-^-not exceeding $100 each.” The through rate of freight was collected by the agent of plaintiff in error at Cynwyd and was the reduced tariff rate usually charged on like shipments under bills of lading which contained the limited liability clause above recited. The horse was transported in safety to the end of the line of the initial carrier and delivered to plaintiff in error, as the connecting carrier, and injured while the car was standing on the track of plaintiff “in error in Philadelphia. A trial by jury in the Court of Common Pleas resulted in a verdict and judgment against plaintiff in error for $10,000. There was no statute in Pennsylvania prohibiting common carriers from making a contract of shipment upon the basis of an agreed valuation for the purpose of establishing a rate, but the policy and law of Pennsylvania as declared by her courts of last resort did not permit such limitations on the liability of common carriers. The judgment of the State Court was affirmed.

Referring to the several provisions of the act to regulate interstate commerce as bearing upon the question involved, the court said: “While under these provisions it may be said that Congress has made it obligatory to provide proper facilities for interstate carriage of freight, and has prevented carriers from obstructing continuous shipments on interstate lines, we look in vain for any regulations of the matter here in controversy. There is no sanction of agreements of this character limiting liability to stipulated valuations, and until Congress shall legislate upon it, is there any valid objection to the state enforcing its own regulation upon the subject, although it may to this extent indirectly affect interstate commerce contracts of carriage.” “It is well settled that the state may make valid enactments in the exercise of its legislative power to promote the welfare and convenience of its citizens although in their operation they may have an effect upon interstate traffic.”

The court further quoted approvingly from the opinion in C., M. & St. P. R. Co. v. Solan, supra, as follows: “A carrier exercising his calling within a particular state, although engaged in the business of interstate commerce, is answerable, according to the law of the state, for acts of nonfeasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place, or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another state, the right of action for the consequent damage is given by the local law. It is equally within the power of the state to prescribe the safeguards and precautions foreseen to be necessary and proper to prevent by anticipation those wrongs and injuries, which, after they have been inflicted, the state has the power to redress and to punish. The rules prescribed for the construction of railroads, and for their management and operation, designed to protect persons and property, otherwise endangered by their use, are strictly within the scope of the local law. They are not, in themselves, regulations of interstate commerce, although they control, in some degree, the conduct and the liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the state to regulate the relative rights and duties of all persons and corporations within its limits.” Continuing, it is said: “It is true that this language was used of a statute of Iowa enacting a rule of obligation for common carriers in that state. But the principle recognized is that, in the absence of Congressional legislation upon the subject, a state may require a common carrier, although in the execution of a contract for interstate carriage, to use great care and diligence in the carrying of passengers and transportation of goods, and to be liable for the whole loss resulting from negligence in the discharge of its duties. We can see no difference in the application of the principle based upon the manner in which the state requires this degree of care and responsibility, whether enacted into a statute or resulting from the rules of law enforced in the state courts. The state has a right to promote the welfare and safety of those within its jurisdiction by requiring common carriers to be responsible to the full measure of the loss resulting from their negligence, a contract to the contrary notwithstanding. ' This requirement in the case just cited is held not to be an unlawful attempt to regulate interstate commerce in the absence of Congressional action providing a different measure of liability when contracts, such as the one now before us, are made in relation to interstate carriage. Its pertinence to the case under consideration renders further discussion unnecessary.”

Counsel for appellant insist that the doctrine announced in the Solan and Hughes cases, supra, is only applicable in cases where negligence is the gravamen of the action but we are unable to appreciate any substantial reason for the distinction sought to be made. The language of the court in the Solan case, supra, heretofore quoted, as follows: “A carrier exercising his calling within a particular state, although engaged in the business of interstate commerce, is answerable according to the law of the state, for acts of nonfeasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place, or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another state, the right of action for the consequent damage is given by the local law,” suggests that the doctrine announced is as applicable to cases involving the breach of a contract as it is to cases arising in tort.

In the case at bar the alleged special contract was entered into in this state and the alleged breach of such contract whereby damages are alleged to have accrued to appellee occured in this state. So long as the doctrine announced in Wabash R. R. Co. v. Thomas, supra, is adhered to it must be held in the absence of proof that a shipper assented to the restrictive provisions of a shipping contract, that the common law liability of a common carrier is not limited and that a common carrier is bound by the terms of a special contract such as is here involved. In none of the leading cases cited do we find any authority for holding that a special contract of carriage, such as is here involved, is discriminatory and void within the meaning of the act regulating interstate commerce. If the nullification by a state statute or declared law of the provision of a shipping contract limiting the extent of the liability of a carrier for loss or damage, where such contract is based upon a lower schedule rate, does not operate to render such contract discriminatory, how can it be held that a provision in a special shipping contract requiring the shipment to be transported by a particular train or within a particular time operates to render such special contract discriminatory.

It is not argued by appellant that the damages awarded to appellee are excessive.

There is no substantial error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Robert F. Crabb, Appellant, v. Charles Young, Appellee.
    1. Appeals and errors—what justifies pro forma reversal. If an appellee fails to file a brief and argument, it is within the power of the Appellate Court of the Third District, pursuant to its rules, to reverse and remand pro forma.

    2. Venue—of action to recover statutory penalty for cutting timber. Such an action is local and not transitory and must be instituted in the county in which the land upon which the timber in question was cut was situated.'
    Action in debt. Appeal from the Circuit Court of McDonough county; the Hon. John A. Cray, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Vose & Creel, for appellant.
    No briefs filed by appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an action in debt brought by appellant against appellee in the Circuit Court of McDonough county to recover a statutory penalty for cutting timber upon the lands of appellant, alleged in the declaration to be situated in the county of Fulton. Appellee interposed a general demurrer to the declaration, which demurrer was sustained by the court, and appellant having elected to abide his declaration judgment was entered against him in bar of the action, and for costs of suit. Appellee has filed no brief and argument in this court and the judgment might, therefore, be reversed and the cause remanded, pro forma, but we have chosen, as we have the right to do, to consider and determine the case upon its merits.

Section 5, Chapter 136 of the Revised Statutes provides as follows:

“Any person who shall cut, fell, box, bore or destroy, or carry away any black walnut, black, white, yellow or red oak, whitewood, poplar, wild cherry, blue ash, yellow or black locust, chestnut, coffee or sugar tree, or sapling-, standing or growing upon lands belonging to any other person or persons, without having first obtained permission so to do from the owner or owners of such lands, shall forfeit and pay for such tree or sapling so cut, felled, boxed or bored or destroyed, the sum of $8; and every person who shall cut, fell, box, bore or destroy any tree or sapling not herein above named and enumerated, standing or growing upon land belonging to any other person or persons, without permission as aforesaid, shall forfeit and pay for every such tree or sapling so cut, felled, boxed bored or destroyed the sum of $3.”

Section 6 provides that the said fines shall be recoverable, with costs of suit, either by action of debt in the name and for the use of the owner or owners of the land, or by action qui tarn in the name of any person who will first sue for and recover the same.

It is admitted by counsel for appellant that the trial court sustained the demurrer to the declaration upon the ground that the cause of action therein alleged was local and not transitory, and that an action to recover the fine imposed by the statute could only properly be brought in Fulton county, where the lands were situated.

Section 6 of the Practice Act provides in part, as follows: “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions in law where there is more than one defendant, the plaintiff commencing his action where either of them resides, may have his writ or writs issued directed to any county or counties where the other defendant, or either of them may be found.”

In Cooley on Torts, 2nd. Ed. 451, the distinction between local and transitory actions is stated thus: “If the cause of action is one that might have arisen anywhere, then it is transitory, but if it could only have arisen in one place, then it is local; and for the most part, actions which are local are those brought for the recovery of real estate or for injuries thereto, or for easements. ’ ’

In Howard v. Ingersoll, 17 Ala. 780, it was held that an action to recover damages for overflowing a min was local.

In Eachus v. Trustees, 17 Ill. 534, an action for flooding land was held to be local and required to be brought in the place where the land lies. In the City of Marysville v. North Bloomfield, 66 Cal. 343, an action in relation to a nuisance which causes injury to land was held to be local. In Nashville Ry. Co. v. Weaks, 13 Lea. 148, an action to recover damages for wilfully burning corn, trees and fences was held to be local and required to be brought where the land lies.

It is conceded by counsel for appellant that trespass guare clausum fregit, as well as an action to recover damages for waste, are local actions. The action in debt which the statute provides may be brought by the owner of land to recover a fine for cutting timber thereon is so nearly akin to the class of actions last named that we are unable to appreciate any substantial reason why the same rule should not be applied.

The demurrer to the declaration was properly sustained and the judgment will be aErmed.

Affirmed.


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    Amanda J. Wikel, Appellee, v. City of Decatur, Appellant.
    1. Notices—when notice under act entitled “An Act concerning suits at law for personal injuries against cities, villages and towns,” sufficient. A notice given pursuant to the act above is sufficient as to the description of the place where the accident in question occurred if such description is such as will enable the municipal authorities to ascertain the place in question by the exercise of reasonable diligence and such description may be by reference to particular buildings or to another street or to natural objects.
    2. Personal injuries—when municipality liable for, happening upon public street. If a municipality has assumed the duty of constructing and keeping in repair the sidewalk upon which a party is injured, for a considerable length of time prior to the accident in question, and has treated the same as a public sidewalk, it is liable for damages for an injury resulting from its failure to exercise reasonable care to keep said sidewalk in a reasonably safe condition for travel, irrespective of whether title to the street has been legally acquired by condemnation, grant, prescription or dedication.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    W. Nay Boggess, for appellant,

      Whitley & Fitzgerald, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant for $950 as damages for injuries resulting from a fall upon a defective sidewalk.

In its assignment of errors in this court appellant does not question the action of the trial court in overruling its motion for a new trial, neither is it assigned for error that the verdict of the jury is not supported by the evidence. In this state of the record we are precluded from considering and determining the question mainly argued by appellant that the verdict of the jury is against the manifest weight of the evidence.

It is urged that the notice given by appellee to appellant as required by section 2 of “An Act concerning suits at law for personal injuries against cities, villages, and towns,” in force July 1, 1905, is insufficient in this, that it does not designate the place or location where the injury occurred with reasonable certainty. The notice designates the sidewalk in question as “being situate upon the west side of a certain public street originally laid out and designated as Chisholm street but now courmonly known as and called East avenue; said street being between Stone and Stock streets in the said city, and that the place where the said sidewalk was out of repair was at a place where a certain alley intersects said street between the Wabash railroad right of way and East Eldorado street and near the residence of the undersigned Amanda J. Wikel; that her residence is 541 East Avenue, Decatur, Illinois.”

The sufficiency of the notice was a question of law for the court and not a question of fact to be submitted to the jury. The' objection to the notice urged by counsel for appellant is hypercritical. A description in such notice of the place where the injury occurred is sufficient if it will enable the municipal authorities to ascertain the place by the exercise of reasonable diligence, and such description may be by reference to particular buildings, or to another street, or to natural objects. 15 Am. & Eng. Ency. of Law (2nd ed.) 485.

Twelve instructions tendered on behalf of appellant were refused by the court. The 1st, 2nd, 3rd, 4th, 8th and 9th of said instructions relate to the duty of appellee to exercise reasonable care for her own safety, and as drafted they infringe the province of the jury and contain inaccurate statements of the law upon that question. The 5th and 6th of said instructions relate to the manner in which a public highway may be established. Appellant having assumed the duty of constructing and keeping in repair the sidewalk upon which appellee was injured, for a considerable length of time prior to the accident and having treated the same as a public sidewalk, it was liable for damages for an injury resulting from its failure to exercise reasonable care to keep said sidewalk in a reasonably safe condition for travel, irrespective of whether title to the street had been legally acquired by condemnation, grant, prescription or dedication. Village of Mansfield v. Moore, 124 Ill. 133. Said 5th and 6th instructions were, therefore, properly refused. The 7th and 10th of said instructions relate to the sufficiency of the notice of appellee’s injury which was served upon appellant. As heretofore stated questions relating to the said notice were for the court and not for the jury. The 11th and 12th of said instructions were peremptory in form and were properly refused. There is no reversible error in the record and the judgment is affirmed.

Affirmed.


author: Mr. Justice Ramsay

text:
    John Weimer, Appellant, v. John C. Leiding, Appellee.
    Appeals and errobs—when nothing presented for review. Where trial is had before the court without a jury «and no propositions of law are submitted and the bill of exceptions does not show that any exceptions were saved to the rulings of the court as to the admission of evidence or to the action of the court in finding the issues for the successful party and in rendering judgment in his favor, there is nothing in the record for the Appellate Court to review and the judgment will be affirmed.
    Assumpsit. Appeal from the Circuit Court of Mason county; the Hon. Gut R. Williams, Judge presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    I. R. Brown, for appellant.
    Lyman Lacey, Jr., for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

John Weimer brought suit in the Circuit Court of Mason county against John C. Leiding to recover commissions alleged to have been earned by Weimer in the sale of real estate owned by Leiding. There was a judgment in favor of Leiding and Weimer appealed. .

A jury was waived by agreement and the cause submitted to the court for trial. Upon the trial no propositions of law were submitted and as the bill of exceptions does not show that any exceptions were saved to the ruling of the court as to the admission or exclusion of material evidence or to the action of the court in finding the issue's for Leiding and rendering judgment in his favor there is nothing in the record for us to review and the judgment will be affirmed.

Affirmed.