text:
    Clarence W. Marks v. William C. Gartside.
    1. Evidence — Lease.—Where plaintiff rented a floor of a buil ling of A, who had rented the entire building from B, and B subsequently conveyed the entire premises to defendant, and at the same time assigned A’s lease to defendant, and plaintiff afterward paid the rent of his portion to def ndant. Iield, that in an action of trespass by plaintiff against defendant for interfering with his possession by entering his premises and making extensive repairs, it was error to exclude the lease of B to A in which the right to re-ent r the premises for the purpose of making improvements, alterations and repairs was reserved to the lessor, and swh reservation by express terms was extended to and made binding upon the assigns of the lessor and lessee.
    2. Recitals in deed — Chain of title — Notice.—Where recitals are contained in a deed in a party’s chain of title, he will be presumed to have seen and read them.
    3. Instruction — Burden of proof. — An instruction which held, in substance, ihat the burden was on the defendant to show that consent to the repairs in question was obtained from the plaintiff fairly and honestly, and after the pi lintiff was fully advised by defendant of the nature and extent of the inconvenience and annoyance to which such repairs a.nd alterations might subject him. Held, erroneous; such consent if given would be prima facie good, and the burden would be apon plaintiff to show it was obtained by frau 1. Plaintiff was only bound to explain fully and fairly the purpose of the entry and the extent and nature of the alterations.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed March 3, 1885.
    Mr. Elbridge Hanecy, for appellant
    Mr. John M. Gartside, for appellee;
    as to when a judgment will not be reversed although there may have been errors in the admission and rejection of evidence, cited Lycoming Fire Ins. Co. v. Dunmore, 75 Ill. 14; Lowry v. Coster, 91 Ill. 182; Stevison v. Earnest, 80 Ill. 513; Crist v. Wray, 76 Ill. 204; Wiggins Ferry Co. v. Higgins, 72 Ill. 517.
   Bailey, J.

This was an account of trespass, brought by William G. Gartside against Clarence W. Marks, to recover damages resulting from an interference by the defendant with the plaintiff’s possession of the second story of a building known as Mo. 6 Washington street, Chicago. It appears that the entire building had been leased by one Pumpelly to one Haskell, and that the plaintiff occupied the second story as a book-store for the sale of school books, under a lease from Haskell. Pumpelly, after making the lease, conveyed the entire premises to the defendant, and at the same time, by an indorsement on the lease to Haskell, assigned said lease to the defendant, together with the rents to accrue thereon. The plaintiff afterward paid the rent of his portion of the building to the defendant.

In May and June, 1882, the defendant, in making certain repairs, took down a board partition which divided the floor occupied by the plaintiff, from the stairway, and replaced the same with a lath and plaster partition, and he also at the same time repaired other portions of the building, and put on it an additional story. In the course of these repairs considerable damage seems to have been done to the plaintiff’s stock of school books, and his business seems to have been considerably interfered with and interrupted.

The defendant pleaded not guilty, and the parties stipulated that he might give in evidence, under that plea, any special matter which would be competent if specially pleaded. At the trial the jury found the defendant guilty and assessed the plaintiff’s damages at $1,000, for which sum and costs the plaintiff had judgment.

The defendant, in endeavoring to establish his defense, offered in evidence the lease from Pumpelly to Haskell, which was excluded by the court, and to the decision of the court excluding said lease, the defendant duly excepted and now assigns the same for error.

By said lease it was provided, that the right of the lessor, his agent or employes, at all times to enter and use the premises leased, without charge, for the purpose of improving, altering or repairing the same or the premises adjoining, -was expressly given to the lessor by the lessee; and it was further provided, that all the agreements in said lease contained should extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.

It is clear, we think, that the exclusion of the lease was error. The right to re-enter the premises for the purpose of making improvements, alterations and repairs, being reserved to the lessor, and such reservation, by the express terms of the lease, being extended to and made binding upon the assigns of the lessor and lessee, such right clearly subsisted as between the plaintiff and defendant. Especially was this so after the recognition by the plaintiff of the defendant as landlord by the payment to him of the rent.

It was competent by the defendant to establish a right of re-entry. Such right may not perhaps have justified an entry against the will of the plaintiff. See Reeder v. Purdy, 41 Ill. 279. But it was at least proper evidence to be considered in mitigation of damages, especially in view of the eighth instruction .given at the instance of the plaintiff, which authorized the jury to award the plaintiff exemplary damages.

It is urged, however, that as there was no evidence of notice to the plaintiff of the provisions of said lease, he can not be affected by the reservation. To this view we are unable to assent. The lease was one of the papers in the plaintiff’s chain of title, and it is a familiar rule of law, that a person must be held to notice of whatever appears upon the face of Lis title. White v. Kibby, 42 Ill. 510. Where recitals are contained in a deed in a party’s chain of title, he will be presumed to have seen and read them. C., R. I. & P. R. R. Co. v. Kennedy, 70 Ill. 350.

We also think the third instruction for the plaintiff is liable to serious objection. The defendant gave evidence tending to show that his entry upon the plaintiff’s premises was made with the plaintiff’s consent, and considerable evidence was given of conversations between the plaintiff and defendant, in relation-to the defendant’s making the proposed repairs, and as to the time it would take to make them, and the inconveniences to which the plaintiff would be thereby subjected. The instruction held, in substance, that the bur-don was on the defendant to show that such consent was obtained fairly and honestly, and after the plaintiff was fully advised by the defendant of the nature and extent of the inconvenience and annoyance to which such repairs and alterations might subject him.

It is undoubtedly true that, if the plaintiff was induced to give his consent by any fraudulent misrepresentations or concealments on the part of the defendant, such consent would be void, and the defendant could not avail himself of it in justification of his entry. But such consent, if shown to have been made, would be prima facie good, and the burden would be upon the plaintiff, in order to avoid its effect as a justification of the alleged trespass, to show that it was obtained by fraud. If the plaintiff were shown to have consented to the entry of his premises, without receiving or requiring of the defendant a word of explanation, it can not be doubted that such consent would constitute a license which would justify the trespass. The burden would then be thrown upon the plaintiff, to show the existence of such facts as would render the license void or inoperative.

But even if it were true, as the instruction seems to hold, that before the defendant could receive from the plaintiff a valid license to enter said premises, it was incumbent on him to explain fully to the plaintiff the purpose for which he desired to make the entry, he certainly was not required to depict to the plaintiff all the probable consequences of the entry. All the defendant was bound to do, in any event, was to explain fully and fairly the purposes of the entry and the extent and nature of the alterations and repairs which he proposed to make. How they would affect the plaintiff’s business, and how far they would inconvenience or annoy him, he knew just as well and probably much better than the defendant. The instruction, however, required the defendant to show, not the nature and extent of the proposed repairs, but the nature and extent of the inconvenience and annoyance to which they would subject the plaintiff.

For the errors above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Davis, P. J.

license: Public Domain

text:
    Chicago and Alton Railroad Company v. James E. Sebring
    1. General reward — Employe.—Where a railroad company offers a reward to any party, who will secure the arrest and conviction of any person who has injured persons or property by throwing stones, and makes no restrictions as to those who may participate in its benefits, an employe of the company who should bring himself within its provisions would not be excluded.
    2. Construction of contract. — The court is of opinion that the most reasonable interpretation to be given to the contract in this case is, that the company would pay the amount offered to any parties who would secure the arrest and conviction of any person who had, up to the time of such arrest and conviction, committed the act complained of.
    3. Who is entitled to reward. — To entitle a person to a reward he must show a rendition of the services required after a knowledge of and with a view of obtaining the offered reward.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed January 16, 1885.
    Messrs. Williams & Capen, and Messrs. Fifer & Phillips, for appellant;
    that the services must have been induced by the offer, cited Howland v. Lownds. 51 N. Y. 604; Marvin v. Treat, 37 Conn. 96; Fitch v. Snedaker, 38 N. Y. 248.

      As to servant not being within terms of reward: Stacy v. State Bk., 4 Scam. 91; Wood on Master and Servant, 170.
    Messrs. Kerrick, Lucas & Spencer, for appellee.
   Davis, P. J.

Sebring brought this action of assumpsit against the Chicago and Alton Railroad Company to recover the amount of a reward offered by that comp my, to which he claimed he was entitled.

The reward which was offered by the company, and which was printed and posted up at different stations along the line of the road is as follows: “ $500 reward will be paid to any parties who will secure the arrest and conviction of any person who has injured persons or property by throwing stones or other missiles at the trains of the Chicago and Alton Railroad Company.

The attention of the employes is called to the fact that Michael Riley has been sentenced to the penitentiary for ten years for throwing the stone at the C. & A. train at Brighton Pari;, which struck brake man Brown and so injured him that he afterward died.

(Signed) C. H. Chappel,

May 22, 1884. General Man. C. & A. R. R. Co.”

Sebring was a brakeman on one of the company’s freight trains, and on the night of June 29,1834, when the train reached Wilmington, several boys who lived at Braid wood, the next station south, jumped on the train at different parts of it, to steal a ride home. A man named Watson got on one of the cars and was riding without leave or license. A difficulty arose between Sebring and the boys and Watson, the former endeavoring to make the latter leave the train, and hard words passed between Sebring on the one side and the boys and Watson on the other. Both sides uttered abusive words, and during the quarrel, some one threw a stone which struck Sebriug in the side, inflicting no serious or permanent injury upon him. Sebring got'down from the train and gave chase to the boys, who had also left the train before the stone was thrown. Shortly afterward he put down his lantern, and following on in the direction the boys had taken, caught two of them named Burns and Rooney and turned them over to a policeman who put them in the city bridewell for the night. Sebring went back to the depot and told the train-master what had occurred and he directed him to go to Bloomington and report to the assistant superintendent; which he did the next morning, and was directed by the superintendent, who furnished him a pass for that purpose, to return to Braid wood and appear against the parties who might be arrested. On his return to Braidwood he found the company’s attorney of Joliet there, who, after determining to have the parties tried at Joliet the next'day, he directed Sebring to appear against them there at that time.

Accordingly Sebring appeared as a witness before the magistrate at Joliet and gave his testimony against the parties at the trial. The result of the trial was the conviction of seven of them for the offense of throwing stones or other hard substances at the railroad car and train of the Chicago and Alton Railroad Company and of a misdemeanor thereby and on account thereof.

The claim of Sebring to recover the amount of the reward is based upon the services claimed to have been rendered by him in securing the "arrest and conviction of the parties who were found guilty and fined by the justice of the peace at Joliet, before whom they were tried.

On the trial of the case in the circuit court the jury found a verdict for appellee and assessed his damages at §500, and a judgment was rendered in his favor for that amount. Appellant seeks to reverse the judgment by this appeal.

It is claimed by appellant that Sebring can not recover in this case, because he was an employe of the company, and as such did no more than he was required to do, and therefore he did not come within the terms of the reward.

The company might have restricted the reward to such persons as it saw proper and might have excluded its employes from all participation in its benefit, but failing to do this, it must be bound by the general offer made to all parties who shonld^br-ing"themselvSs within its provisions. We see nothing in the offer or in the ease which should exclude a brakeman because he is in the employ of the company making the offer. We do not think the case comes within the ruling of the court in Stacy v. State Bank, 4 Scam. 91, cited by appellant.

It is also claimed that the reward was limited to offenses of the kind specified, occurring prior to May 22d, the date of the reward. We do not place that construction upon the offered reward. The most reasonable interpretation to be given is, we think, that the company would pay the amount offered, to any parties who would secure the arrest and conviction of any person who had, up to the time of such arrest and conviction, committed the act complained of. It was no doubt the intention of the railroad company to reward those who should cause the arrest and conviction of any one who might be guilty of doing the wrong after the offer of the reward as well as those who had committed the wrongful act before its publication.

But the most serious objection to a recovery by appellee is, that the evidence fails to show that when he performed the services which he claims entitles him to the reward, he knew that the reward had been offered and that he performed the services with the view of obtaining the reward.

• The only evidence given on the trial, to show when appelpellee first learned of the offer of the reward, and what the reward was, is the evidence of appellee given as a witness in his own behalf. He testified that he saw copies of the reward along the line of appellant’s road. He saw one in the office of Gol. Wood, chief clerk for the general manager. It was posted on,the mantel-piece. That was about the 5th or 7th of July. It was a couple of weeks before this suit was commenced, perhaps longer.

It seems well established that to entitle a person to a reward, he must show a rendition of the services required, after a knowledge of, and with a view of obtaining the offered reward. Fitch v. Snedaker, 38 N. Y. 248; Howland v. Lownds et al., 51 N. Y. 604.

The evidence is clear that the services rendered by appellee, for which he claims the reward, were rendered on the 29th of June, 1884, and on the two or three succeeding days, and it devolved upon him to show that when such services were rendered he knew that the reward had been offered, and that his services were rendered with a view of obtaining the reward. En these latter particulars we think appellee has wholly failed.

The only definite and satisfactory evidence we have as to when he first learned of the offer-of the reward is that about the 5th or 7th of July he saw a copy of the reward in the office of the chief clerk of the general manager. When it was he saw the copies along the line of the road is not disclosed by the testimony, and there is nothing, we think, to warrant the inference that it was before he caused the arrest and conviction of the parties at Joliet. If his first knowledge of the reward was not obtained until the 5th or 7th of July, then of course what he did was without reference to the reward and he has no cause of action against the railroad company.

Judgment must be reversed and the cause remanded.

'Judgment reversed.


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    R. S. Nelson et al. v. Thomas G. Kessinger et al.
    Acknowledgment of chattel mortgage — Officer de facto.— Where a police magistrate who was duly commissioned, and had been acting as magistrate of a village for twelve years, lived in a village which was partly in one county and partly in another, and his office, where he always kept his docket, was in one county, and his residence in another, and the chattel mortgages in question were acknowledged and entered on his docket at his office, and the mortgagor lived in the township in the county where the magistrate’s office was, but not in the village. Held, that the magistrate at the time he took the acknowledgments was an officer de facto, and as such all his official acts were valid.
    Appeal from the Circuit Court of Montgomery county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed January 16, 1885.

      Messrs. Lane & Cooper, for appellants;
    as to officers de facto, cited Trumbo v. People, 75 Ill. 565; People v. Ammons, 5 Gilm. 105; Guyer v. Andrews, 11 Ill. 494; Mapes v. People, 69 Ill. 523.
    As to acknowledgment in such case being valid: Ticknor v. McClelland, 84 Ill.471; Durfee v. Grinnell, 69 Ill. 371.
    Mr. George L. Zink and Mr. James M. Truitt, for appellees;
    as to what is necessary to constitute an officer de facto, cited Pritchett v. People, 1 Gilm. 525; Barlow v. Standford, 82 Ill. 298.
   Davis, P. J.

This was an action of trover by appellees against appellants to recover the value of property claimed by appellees. It is a controversy between the parties as to the ownership of a steam threshing engine; appellants claiming it by virtue of certain chattel mortgages, and appellees under a constable’s sale and execution.

The real and decisive point of the case is, as to the validity of the acknowledgments of the chattel mortgages; it being practically conceded by appellees that if the acknowledgments of the chattel mortgages are valid, the mortgages are prior liens and will hold the property against their claim.

The facts of the case as shown by the record are substantially these: On the 2d day of November, 1882, Taylor Boyce executed to the J. I. Case Threshing Machine Company a mortgage on the property in controversy to secure $1,175, the last note maturing on the 1st of November, 1884. This mortgage was acknowledged before David II. Sample and recorded Nov. 3, 1882. He also, on the 11th of September, 1882, executed to the Northwestern Manufacturing and Car Company a mortgage on the same property to secure $440, the last note maturing Sept. 1, 1884. This mortgage was also acknowledged before David H. Sample and recorded Sept. 15, 1882. Taylor Boyce, at the time he acknowledged the two mortgages in question, was a resident of Harvol township in Montgomery county, Illinois, and David II. Sample, before whom they were acknowledged, was at the time of such acknowledgment a police magistrate in the village of Harvel, duly commissioned as such by the Governor of the State of Illinois, and had been acting as such magistrate in said village for about twelve years, and had served three terms, and was last commissioned by the governor as such police magistrate of said village, and authorized and empowered to execute and fulfill the duties of that office according to law on May 10, 1881. His office is in Harvel, Harvel township, Montgomery county, and he keeps his docket there and nowhere else. He took the acknowledgments of the mortgages and entered the same on his docket in his office in such county. When he took the acknowledgments of such mortgages, Taylor Boyce was a resident of Harvel township, but not of the village of Harvel. The village of Harvel is partly in Montgomery county and partly in Christian county, but the greater portion is in Montgomery and in the township of Ilarvel. The residence of Sample is in Christian county about three hundred feet from the line, but within the corporate limits of the village of Harvel. At village elections he votes in the ■ village of Harvel, Harvel township, Montgomery county, and at general elections he votes in Christian county.

On the trial below, appellants offered in evidence the foregoing facts and the notes and mortgages executed by Taylor Boyce, but the court, on the objection of appellees, excluded the notes and mortgages and refused to permit them to be given in evidence, to which action of the court appellants excepted, whereupon the court rendered judgment against appellants for §600 and overruled their motion for anew trial. To reverse the judgment appellants appealed to this court.

Section 2 of chapter 95 of the statutes of this State, entitled “Mortgages” page 765, provides that chattel mortgages may be acknowledged before a justice of the peace of the town or precinct where the mortgagor resides.

In this case the mortgagor resides in Harvel township3 Montgomery county, and the magistrate who took the acknowledgments resides in Christian county.

Appellees claim that the acknowledgments of the morígages were invalid because the officer who took them, not only did not reside in the township in which Boyce, thefmortgagori resided, but did not live in the same county, but in the county adjoining. On the other hand app-rUants insist that the acknowledgments are valid because the mortgagor lives in the same precinct where the magistrate who took the acknowledgments was an acting justice of the peace.

We prefer not to pass upon these questions, which we concede to be difficult and perplexing, because as we view the case, we deem a decision of them unnecessary. In our view, David H. Sample, at the time he took the acknowledgments of the two mortgages in question, was an officer defacto, and as such all his official acts are valid. Our Supreme Court has defined such an officer to be one who has the reputation of being the officer he assumes to be in the exercise of the functions of the office, and yet is not a good officer in point of law, Mapes v. The People, 69 Ill. 523; Barlow v. Standford et al., 82 Ill. 298. To constitute such an officer there must be some color of right to the office, or an acquiescence on the part of the public for such a length of time as to authorize the presumption at least of a colorable election or appointment. Pritchett v. The People, 1 Gilman, 525.

It seems to us that the facts proved in this case bring Sample within the definition of an officer de facto. He had the reputation of being and was believed to be the police magistrate of the village of Harvel, and had his office of magistrate and official docket in Harvel township, and had been transacting official business as such officer in the township for the period of about twelve years. Appellees concede that he was a police magistrate in the village of Harvel. As such police magistrate he had been transacting his official business in the township of Harvel for the three terms he had been commissioned by the governor. While he may not have been a justice of the peace de jv/re of the township of Harvel during the twelve years he acted as magistrate in such township, by reason of his being a resident of Christian comity, he undoubtedly was an officer de facto of the township during the time he had his office and docket there and acted as such magistrate. As such police magistrate of the village he had authority to take the acknowledgments of the mortgages, and as officer defacto with some color of right under his commission issued to him by the governor of the State as police magistrate, all Ms official acts as such officer defacto, including the acknowledgments of the mortgages in question, are valid and effectual.

Entertaining these views, we think the court below should have permitted the notes and mortgages executed by Boyce to be given in evidence, and in excluding them we think the court erred. For these reasons the judgment mnst be reversed and the canse remanded.

Judgment reversed.


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    Ann M. Little v. Peter Vredenburgh.
    1. Mechanic's lien — Husband and wife. — Where materials purchased for the building of a house on premises owned by a wife were not purchased for her by her husband, nor did he profess to act in her behalf, but they were furnished to the husband on his sole credit and individual responsibility without reference to the wife’s property, no lien will be created upon the premises of the wife, but the material man must look to the husband alone for pay.
    2. Waiveh of lien. — Where the material man does not rely on his mechanic’s lien for his security, but on the responsibility of a third person to whom he gave credit, he waives his mechanic’s lien.
    Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.
    Opinion filed January 16, 1885.
    Messrs. J. C. & C. L. Conkling, for appellant;
    cited Baxter v. Hutchings, 49 Ill. 118; McCarthy v. Carter, 49 Ill. 58.
    Material men have no lien where materials are furnished on credit of a third party: Wetherill v. Ohlendorf, 61 Ill. 283.

      Messrs. Matheny & Matheny, for appellee.
   Davis, P. J.

This was a petition for a mechanic’s lien filed by appellee, to enforce the lien against the premises described in the petition for materials furnished in the erection of a dwelling house thereon for appellant.

Appellee in his petition sets up that appellant contracted with him for the sale and delivery to her of lumber and other materials to be used in the construction of the house to be erected by her on the premises, then and now owned by her. Appellee claims to have furnished to appellant between September 1, 1879, and June 3, 1880, materials used in such house, amounting to $835, on which he has received in part payment the sum of $709.44.

Appellant in her answer admits the ownership of the premises described, and that she caused a building to be erected thereon in 1879 or 1880, but she denies that she entered into any contract with appellee for the purchase of lumber or other material for such house.

It appears by the evidence that prior to any lumber or material having been furnished for the house in question, Thomas S. Little, the husband of appellant, had entered into a written contract, personally, with Alexander Morris, a builder and contractor, under which Morris was to furnish all the lumber and materials required by the specifications, and build the house for the sum of $1,700.40. ■

By the testimony given in the case by appellee, it appears that he was aware of the contract made by Little with Morris, and he sought an interview with the former, and told him that Morris had been at his yard and told him that Little in such contract was to pay all the bills, but was to keep back twenty per cent, of the contract price until the job was completed. The result of the interview was that appellee would not sell to Morris, but agreed to furnish the lumber and materials required, on the responsibility of Little, who was to keep back twenty per cent, of the money until the job was completed. The lumber and materials were furnished, on those terms, from time to time, as required, and checks were given by Little to ppellee, on orders drawn on him by Morris.

No communications passed between appellee and Mrs. Lit. tie witli reference to the building of the house and furnishing the lumber and materials, and no contract was made by appellee with her about the same.

Appellee claimed a balance due him, on the lumber and materials furnished, of $125 or $130.

Thomas S. Little testified that he did not contract for, or purchase any lumber or materials for the house for his wife or on her behalf.

On the hearing of the cause, the court below found the amount due appellee to be $76.45, and that he was entitled to a lien on the lands of appellant for that amount, and decreed its payment by her within twenty day's from date, ora sale in case of default. «=

To reverse the decree so rendered, appellant appeals to this court.

The decree is evidently erroneous and can not be sustained. In Wendt et al. v. Martin et al., 89 Ill. 139, it was held that where a husband purchases materials which are used by him in repairing a house owned by his wife and in so doing does not purchase for her, or profess tp act in her behalf, but buys on his own account and solely on his own credit, giving his note for the price, no lien will be created upon the premises of the wife.

The facts in the case above cited, in the main, are very similar to the controlling facts of the case before us, and the same rule should prevail in the decision of the case. In the one before us, the materials purchased for the building of the house on the premises owned by' the wife were not purchased for her by Thomas S. Little, her husband, nor did he profess to act in her behalf, but the lumber and materials were furnished to him by appellee on his sole credit and individual responsibility, without reference to the property of the wife. In such a case it seems eminently'just and equitable that the material man should look alone to the husband for his pay, if he has not already received it.

It has also been repeatedly held in this State that a vendor of land waives his lien wherever he takes distinct security for the payment of the purchase money, such as a deposit of stock, a pledge of goods, a mortgage on real or personal estate, or the responsibility of a third person, and no difference in principle is perceived between such a lien and the lien of the material man; both are secret liens. Kinzey et al. v. Thomas, 28 Ill. 502; Conover v. Warren et al., 1 Gilman, 498; Cowl et al. v. Varnum, 37 Ill. 181.

In the case before us, it is manifest that appellee did not rely on his mechanic’s lien for his security, but on the responsibility of a third person to whom he gave credit, and therefore it must be held that lie waived his lien on the property of appellant.

Another reason why the decree can not be sustained is, that the evidence does not establish such a contract as the one set up in the petition of appellee.

The decree must be reversed and the cause remanded.

Decree reversed.


text:
    The People, etc., v. John H. Nedrow.
    1. Jurisdiction. — A justice of the peace has jurisdiction in an action of debt to recover the penalty of fifly dollars given by “ An act to regulate the practice of pharmacy in the State of Illinois.”
    2. Evidence — Right to have jury pass upon. — Where any evidence is given to the jury, which tends to prove the plaintiff’s case, he has the right to have the jury pass upon it, and decide the case for or against him as the evidence may justify.
    3. Burden of proof — Negative averment. — Where the subject-matter of a negative averment lies peculiarly within -the knowledge of the other party, the averment is taken as true, unless disproved by that party. In a prosecution for a penalty for the defendant not being or having in his employ a registered pharmacist as required by statute the onus probandi is on the defendant.
    4. Evidence. — The court is of opinion the court erred in not permitting the prosecution to read to the jury defendant’s card published in the newspaper.

      Error to the Circuit Court of Adams county; the Hon. J. H. Williams, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. E. S. Smith, for plaintiff in error;
    that the onus probandi was upon defendant, cited Ford v. Simons, 13 La. Ann. 397; Wheat v. State, 6 Mo. 455; Porter v. State, 58 Ala. 66; Sheldon v. Clark, 1 Johns. 511; Gt. W. R. R. Co. v. Bacon, 30 Ill. 352; Schmidt v. State, 14 Mo. 137; Harbaugh v. Monmouth, 74 Ill. 367; Noecker v. People, 91 Ill. 468; Flora v. Lee, 5 Bradwell, 629; Williams v. State, 35 Ark. 430; Smith v. Adrian, 1 Mich. 495; Haskill v. Com., 31 B. Monr. 343; State v. Woodward, 34 Me. 293; State v. Shaw, 35 N. H. 217; Conn v. Rafferty, 133 Mass. 574.
    When forfeitures or penalties are imposed and no form of action is given, debt will lie: Vaughan v. Thompson, 15 Ill. 39; Partridge v. Snyder, 78 Ill. 519; I. & St. L. Ry. Co. v. People, 91 Ill. 452.
    Mr. Almeron Wheat for defendant in error;
    as to form of action, cited Criminal Code, Division 2, §§ 5, 6; R. S. Ch. 79, §§ 13, 14; Edwards v. Vandemack, 13 Ill. 633; Ward v. People, 13 Ill. 635; Town of Partridge v. Snyder, 78 Ill. 519.
    The ease was not within the rule requiring a defendant to disprove the negative involved in the complaint before the plaintiff established such negative by at least prima facie evidence: Williams v. East India Co., 3 East Reports, 193; Phillips on Evidence, 5th Am. Ed. 810-815; Cheadle v. State of Ohio, 4 Ohio (N. S.) 478; Mehan v. State, 7 Wis. 565; Brown v. People, 4 Gilm. 439.
   Davis, P. J.

This was a prosecution in an action of debt, commenced before a justice of the peace, to recover of defendant in error the penalty of fifty dollars, given by the act approved May 30, 1881, entitled " An act to regulate the practice of pharmacy in the State of Illinois."

An appeal was taken to the circuit court, where a trial was had before a jury, which resulted in a verdict of " not guilty." The court, on overruling a motion made by plaintiff in error for a new trial, rendered a judgment discharging the -defendant in error. To reverse the judgment so rendered this writ of error is prosecuted.

The complaint made was, that the defendant in error not being, or having in his employ, a registered pharmacist, within the meaning of the laws of the State of Illinois, did on the first day of September, 1883, and on each day during the two months last past, keep a pharmacy or store for retailing and compounding medicines, contrary to the form of the statute, etc.

Section 1 of the act under which the prosecution was instituted, Session Laws of 1881, page 120, provides: “ That it shall not be lawful for any person other than a registered pharmacist to retail, compound or dispense drugs, medicines or poisons, or to open or conduct any pharmacy or store for retailing, compounding or dispensing drugs, medicines or poisons, ¡unless such person shall be, or shall employ and place in charge of said pharmacy or store, a registered pharmacist, within the meaning of this act, except as hereinafter provided.”

The act also provides for the appointment, by the governor, of five persons, to constitute a board of pharmacy, whose duty it shall be to examine all applications for registration to grant certificates of registration to such persons as may be entitled to the same and to cause the prosecution of all persons violating the provision of the act.

The act further provides, section 12, that any person, not being, or having in his employ, a registered pharmacist, within the meaning of this act, who shall, within sixty days after this act takes effect, keep a pharmacy or store for retailing or compounding medicines, or who shall take, use, or exhibit the title of a registered pharmacist, shall be liable to a penalty of fifty dollars.

Section 15 of the act provides, All suits for the recovery of the several penalties prescribed in this act shall be prosecuted in the name of the People of the State of Illinois ’ in any court having jurisdiction; and it shall be the duty of the State’s attorney of the county where such offense is committed to prosecute all persons violating the provisions of this act upon proper complaint being made.”

As shown above, the act provides that all suits for the recovery of the penalties prescribed in the act, shall be prosecuted in the name of the people of the State of Illinois, in any court having jurisdiction.

In the case of Indianapolis and St. Louis R. R. Co. v. The People, 91 Ill. 452, brought-before a justice of the peace, in an action of debt, to recover a penalty, it was held that a justice of the peace had jurisdiction in such cases, where the damages claimed do not exceed $200. This case was therefore properly brought before the justice and an action of debt was the appropriate remedy. It being a civil action, the circuit court also had jurisdiction on appeal from the justice of the peace.

The evidence on the trial below strongly tended to provee that defendant in error, not being, or having in his employ, a I registered pharmacist, within the meaning of the laws of this State, did, on the day named, and within the time specified, keep a pharmacy, or store for retailing and compounding medicines.

This evidence the court should have permitted the jury to pass upon and decide whether the defendant was guilty of violating the statute as complained of by the people. But instead of doing so, the court took the case from the jury and instructed them as follows: “The court instructs the jury at the instance of the defendant, that there is not sufficient evidence before the jury to sustain the complaint in this case, and the jury are therefore instructed to find the defendant not-guilty,” which they accordingly did. This was error. The rule is that where any evidence is given to the jury which tends to prove the plaintiff’s case, he has the right to have the jury pass upon it and decide the case for or against him as the evidence may justify. Guerdon v. Corbett et al., 87 Ill. 272; Hubner v. Feige, 90 Ill. 208; Pemberton v. Williams, 87 Ill. 15.

Manifestly the case was tried by the defense and seemingly so by the court, on the theory that it devolved upon the prosecution to prove that the defendant was not, nor did he have in his employ, in charge of his store, a registered pharmacist. This was a mistake, for it devolved upon the defendant to make proof of his registration, or that he had in his employ a registered pharmacist, if either was relied upon for a defense.

The true rule governing such cases is, “ Where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any person except those who are duly licensed therefor, as for selling liquor, exercising a trade orprofession and the like.” 1 Greenleaf on Evidence, Sec. 79, page 92; Great Western R. R. Co. v. Bacon, 30 Ill. 353; Harbaugh v. Town of Monmouth, 74 Ill. 367; Noecker v. The People, 91 Ill. 468; Town of Flora v. Lee et al., 5 Bradwell, 629.

If the defendant was a registered pharmacist, or employed, and placed in charge of his pharmacy or store, a registered pharmacist, it was a matter peculiarly within his knowledge and could have been very easily proved by him by the production of the certificate of registration which the law required him to obtain before he could retail, compound, or dispense drugs, medicines or poisons. Mot having produced such a certificate, the averment of the complaint, of the defendant not being, or having in his employ, a registered pharmacist, is taken as true.

We think the court also erred in not permitting the prosecution to read to the jury the card published in the newspaper. It was written for the defendant by the editor of the paper and by him submitted to and approved by the defendant in error and at his request inserted in the paper.

For the several reasons given the judgment of the court below must be reversed and the cause remanded.

Beversed and remanded.


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    Terre Haute & Indianapolis R. R. Co. v. Jacob Tuterwiler.
    L Negligence — Preponderance of evidence. — The owner of cattle killed at a road crossing must prove by a preponderance of the evidence that his cattle were killed by the negligence of the employes of the road. As the preponderance of the evidence in this case fails to sustain the verdict of the jury, the case is reversed and remanded.
    2. Failing to give .signals. — Even if the bell is not rung or the-whistle sounded, as required by the statute, no recovery can be had for that cause, unless it is made to appear by facts and circumstances preponderating that the accident was the result of such neglect.
    Appeal from the Circuit Court of Clark county; the Hon. Jo W. Wilkin, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. John G. Williams and Messrs. Golden & Wilkin, for appellant;
    cited C., B. & Q. R. R. Co. v. Bradfield, 63 Ill. 220; Q., A. & St. L. R. R. Co. v. Wellhoener, 72 Ill. 760.
    Mr. P. A. Brady and Mr. S. S. Whitehead, for appellee;
    that where there is a conflict of testimony, the verdict will not be set aside even though it be against the weight of evidence, cited Morgan v. Ryerson, 20 Ill. 343; Rogers v. People, 98 Ill. 581; Creote v. Willey, 83 Ill. 444; Conn. Mut. Life Ins. Co. v. Ellis, 89 Ill. 516.
   Davis, P. J.

This was an action brought by appellee to recover damages for two steers, claimed to have been killed through the negligence of the employes of appellant.

The steers were killed early in July on a highway crossing, away from a village or station, at a place where the railroad was not required to fence its road. The cattle were running out on the public commons. Ho evidence was given by appellee showing when or how the cattle were killed. Some evidence was introduced tending to show the cattle were killed by the passenger train going west in the evening. One witness testified lie passed the crossing about three quarters of an hour after the train went by and discovered two red steers lying inside the crossing. Another witness testified she saw the passenger train and saw the cattle running, but don’t think the train knocked them off. The train was near the crossing when she saw it. The cattle were running and got in the way of it. The bell was not rung, nor was the whistle sounded.

The locomotive engineer of the passenger train which went west in the evening, when the steers were claimed to have been killed, testified he struck no stock by his train on that trip. The locomotive engineer of the freight train testified that his train killed the two steers in question at the crossing! When he first saw them they were running from the south and were about fifty feet from the track headed north, and he was about 100 feet from the crossing. He was groins: west and they were ahead of him going north and were running. The bell was rung for the crossing and as soon as the engineer saw the cattle he gave the alarm whistle. He rang the bell from 80 to 90 rods back, up to the crossing. He could not stop the train after he discovered the cattle. The fireman of the same train also testified to their train killing the cattle at the crossing. He rang the bell for about 80 rods up to the crossing. The train could not have been stopped after the cattle were discovered.

The mere fact of cattle being killed at a road crossing, where, of course, the railroad is not required to fence, and can not fence its track, gives the owner of the cattle no right of recovery against the railroad company. The owner of the cattle must prove by a preponderance of the evidence that his cattle were killed by the negligence of the employes of the road. If the cattle were on the highway near the crossing and were running toward the track and were not discovered and could not be discovered by the exercise of reasonable care and diligence on the part of the train men in time to prevent the train striking and killing them, as the evidence in this case very strongly tended to prove, no negligence can be imputed to the railroad company.

Even if the bell was not rung or the whistle sounded, as required by the statute, no recovery could be had for that cause, unless it was made to appear by facts and circumstances preponderating, that the accident was the result of such neglect. Q., A. & St. Louis R. R. Co. v. Wellhoener, 72 Ill. 60.

In this case the evidence preponderated that both the bell was-rung and the whistle sounded. We think the evidence fails to sustain the verdict of the jury, and therefore the judgment of the court below, which was for appellee, must be reversed and the cause remanded.

Judgment reversed.


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    City of Bloomington v. Laura Annett.
    1. Action by wife for injury — What damages recoverable.— In an action by a wife for personal injuries, where she is living with her husband, and supported by him, and it is not shown that she is possessed of separate property or engaged in the prosecution of a separate, independent business, she can not recover for the loss of time caused by the injury, nor for money expended in procuring medical attendance. The court is of opinion that under our statute separate actions would be necessary for the recovery of the entire damages, one for those sustained by the husband and one for those sustained by the wife.
    2. Notice of defective sidewalk. — Where it was proved that the sidewalk in question was on one of the public traveled streets of the city, not over a block from the court house, and had been in a dangerous condition for at least two weeks before the accident occurred. Held, that this brings the case within the rule that the corporate authorities knew, or could .have known by the exercise of reasonable diligence, the unsafe condition of the walk in time to have remedied the defect before the accident.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. T. C. Herrick, for appellant;
    that the city had not built the platform and was not bound to use more than ordinary diligence to discover it, cited City of Chicago v. Starr, 42 Ill. 174; Severin v. Eddy, 52 Ill. 189; City of Chicago v. Murphy, 84 Ill. 224.
    The husband is the only one entitled to sue for the items named: Tuttle v. C., R. I. & P. R. R. Co., 42 Iowa, 518; Thomas v. Town of Brooklyn, 58 Iowa, 438; Meese v. City of Fond du Lac, 48 Wis. 323; Candy v. Coppock, 85 Ind. 594; Freeman v. Holmes, 62 Ga. 556; Spann v. Mercer, 8 Neb. 357; Syme v. Riddle, 88 N. C. 463; Stevens v. Morris, 37 Ohio, 10; Hazelbaker v. Goodfellow, 64 Ill. 238; Cunningham v. Hanney, 12 Bradwell, 437; Flynn v. Gardner, 3 Bradwell, 253.
    Mr. Thomas F. Tipton and Messrs. Stevenson & Ewing, for appellee;
    as to notice, cited City of Sterling v. Thomas, 60 Ill. 264; City of Chicago v. Fowler, 60 Ill. 323; Springfield v. Doyle, 76 Ill. 202; C. & I. R. R. Co. v. Russell, 91 Ill. 302; City of Aurora v. Dale, 90 Ill. 46; City of Aurora v. Hillman, 90 Ill. 61; City of Gilman v. Haley, 7 Bradwell, 349.
    The recovery for loss of time can only be by appellee: Partridge v. Arnold, 73 Ill. 600; Hare v. Pointer, 77 Ill. 543; Haight v. McVeagh, 69 Ill. 624.
   Davis, P. J.

This action was brought by appellee to recover damages from the city of Bloomington, for injuries sustained by her from a fall upon a defective sidewalk.

Appellee fell through a defective covering over a cellar way on Madison street. The sidewalk in front of the building was twelve feet wide. The cellar way, over which the alleged defective covering was placed, extended from the building into the sidewalk about three and one half feet and was about five feet ten inches in width. Substantial iron railings two and one half feet high were on the north and south sides of the stairway, and extended eastward to the top of the stairway. Between each rail and the edge of the opening of the stairway was a distance of about six inches. The manager of the store in front of which the accident occurred, about two weeks before the alleged injury, had a platform built over the stairway, on which to put goods for display. During the daytime it was completely covered with goods,, which were at night taken inside and the platform usually removed. The platform was made of two large box ends or coverings, eacii about three feet square. The east ends rested ón the sidewalk at the head of the stairway, the north and south sides on the space inside the railings, and the west ends, where they met in the middle of the stairway, rested upon a box about a foot square on the end, placed upright on the third step from the top of the stairs. These coverings lacked six or eight inches of extending westward to a line perpendicular to the face of the building. From the sill of the window, which was directly over and about three feet higher than the platform, the frame work slanted westward, so that at the level of the platform was an open space beyond the end of the platform of about three and one half feet. Just before the accident occurred appellee and four other ladies had been in the store, and on coming out appellee’s attention was attracted to some glassware in the window immediately above the platform. She and the lady with her walked upon the platform close up to the window, and appellee fell into the cellar way either by the giving way of one side of the platform or by slipping off the end next to the building. Appellee received such injuries by the fall as to confine her to the house for several months and to require the attention of a physician and nurses in attending upon hei*.

It appears in evidence that appellee is a young married woman, living with her husband and supported by him, and it was not shown that she is possessed of separate property or engaged in the prosecution of a separate independent business.

On the trial below, appellee was permitted to prove, against the objections of appellant, that the services of appellee as housekeeper were worth four or five dollars a week from the time of the injury nntil the trial. Also that it would have cost §15 a week for a nurse during the same period of time. Appellee was also permitted to prove by her physician, against the objections of appellant, that his medical services in attending upon her were worth about eighty or ninety dollars.

The court below, among other instructions to the jury for appellee gave the following:

“ The court instructs the jury that if they find for the plaintiff they may, in estimating her damages, take into consideration all the pain and suffering undergone by the plaintiff, occasioned by the injury, if any is shown by the evidence, and expenses, including reasonable bills for nursing, if any are proved; for all her reasonable doctor bills as shown by the evidence; and if the jury find from the evidence that she was and is permanently injured by reason of the injury, the jury will consider this fact also and allow her all such damages as the jury may determine that she is entitled to under all the evidence in the case.”

The jury found a verdict in favor of appellee for $1,800, and judgment was rendered against the city for that amount and an appeal taken.

Two principal reasons are given by appellant for the reversal of the judgment and errors are assigned covering both. One is, that there can be no recovery in this case because appellant had no notice of the dangerous character of the defect complained of in the sidewalk which occasioned the injury. The testimony introduced of actual notice of the condition of the sidewalk was not very strong or satisfactory, but what little was given to the jury tended to prove such actual notice. It was also proved that the sidewalk in question is on one of the public traveled streets of the city, not over a block from the court house, and had been in a dangerous condition for at least two weeks before the accident occurred. This brings the case within the rule that the corporate authorities knew or could have known by the exercise of reasonable diligence the unsafe condition of the walk in time to have remedied the defect before the accident. City of Aurora v. Dale, 90 Ill. 46.

The other reason for the reversal is, the admission of improper testimony for appellee, and giving improper instructions to the jury in her behalf.

To us it is very clear that the wife can not recover in this action any damages to which the husband alone is entitled. If he has expended money in employing nurses for the wife or in paying the bills of the physician for attending upon her, or if she has lost time by being unable to attend to her household duties, the loss would he a damage sustained by the husband for which he alone could sue, and such damages should constitute no part of a verdict rendered in favor of the wife. At common law the husband was alone entitled to sue for the loss of the services of his wife, through the tortious acts of the defendant, and for the expenses he has incurred in doctors and nurses in curing her of injuries resulting from an assault upon her by the defendant, but when damages were sought to be recovered for the bodily pain suffered by the wife from personal violence, or for injuries to her personal feelings, the wife must be a plaintiff in the action and the husband joined with her for conformity. By the old law, therefore, it was often necessary to bring separate actions for the recovery of the entire damages resulting from an injury to the person of the wife, in one of which the husband alone was made plaintiff and in the other the wife was joined for conformity. 2 Addison on Torts, page 534, paragraph 1294.

And we apprehend that under our statute, now in force, separate actions would be necessary for the recovery of the entire damages, one for those sustained by the husband and one for those sustained by the wife.

In Tuttle v. C., R. I. & P. R. R Co., 42 Iowa, 513, an action brought to recover damages for personal injuries to the wife, it was held under a statute almost a copy of our own, that in such an action the wife can not recover for loss of time caused by the injury, unless she is engaged in the prosecution of a separate independent business which thereby suffered detriment. Nor can she recover for money expended in procuring medical attendance, and other expenses growing out of her injury, the husband alone having the right of action therefor.

It may be that in a case where the wife is dependent upon her own exertions for her support, and has, by contract, made herself liable for medical attendance and for the wages of nurses to care for her when unable, by the injuries received, to take care of herself, she could recover such damages, but not in this case as now presented to us.

We think, therefore, the court erred in permitting such testimony to be given to the jury and in giving the instruction complained of by appellant.

The judgment must therefore be reversed and the cause remanded.

Judgment reversed.


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    The Hoopeston Building Association v. B. S. Green et al.
    Mistake in execution op mortgage — purchase with notice.— Where a mortgage was given upon three lots, and by a mistake of the scrivener and the mortgagor, the mortgage executed covered only one of the lots, and subsequently the mortgagor and wife executed a quitclaim deed of the three lots to appellee. Held, that as the evidence shows that appellee took the quitclaim deed with a full knowledge of all the facts, he can only hold the three lots subject to the lien of the mortgage.
    Error to the Circuit Court of Vermilion county; the Hon, J. W. Wilkin, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. F. Bookwalter, for plaintiff in error;
    as to right to correction of mortgage, cited West v. Madison Co., etc., 82 Ill. 205; Ballance v. Underhill, 3 Scammon, 453.
    Messrs. Mann, Calhoun & Frazier, for defendants in error.
   Davis, P. J.

This was a bill in chancery filed by plaintiff in error to correct a mistake made in the description of land, in a mortgage executed to the Building Association by Charles J, Kelson and wife to secure a loan of money.

Kelson, who is a member of the Hoopeston Building Assoeiation, had borrowed of the plaintiff in error six hundred dollars to build his house on the premises in controversy. lie owned fifty feet off the north end of lots eight, nine and ten, in J. S. MoFerren’s Addition to Hoopeston and by agreement between Nelson and the building association he was to mortgage the whole of the fifty feet of said three lots to secure the money he borrowed. In executing the mortgage, however, a mistake was made by the scrivener and Nelson by which the mortgage only covered fifty feet off the north end of lot eight. After he made the mortgage, Nelson and wife executed a quitclaim deed to B. S. Green for the same fifty feet off the north end of the same three lots, eight, nine and ten, in consideration of six hundred and fifty dollars which he was owing to him. Green was to hold the property as security and he gave Nelson a bond for a deed for the same premises. Nelson told Green,.at the time he gave h,im the quitclaim deed, that there was a mortgage of six hundred dollars to the Hoopeston Building Association then on the property. Green had been over to see Nelson before then and knew all about it.

The house built with the money borrowed by Nelson of the building association was built on the fifty feet off the north end of said lots nine and ten, and the fifty feet off the north end of lot eight have no improvements on them whatever, and are not worth to exceed twenty-five or fifty dollars.

Green and Nelson applied to the scrivener who drew up the mortgage, and who at that time had not learned of the mistake which had been made in the mortgage, to write the quitclaim deed from Nelson to Green, and Green inquired of him what the property was worth, and was told twelve or thirteen hundred dollars. He was also told that the building association had a mortgage on the property of six hundred dollars. These facts were abundantly proved by the testimony given in the case, and it is also proved, almost beyond a reasonable doubt, that Green took the quitclaim deed from Nelson with a full knowledge of all the facts, including the knowledge of the loan of the building association to Nelson of the money with which the house was built, and of the intention of all the parties, mortgagors and mortgagee, that the mortgage which was executed should cover the whole of the premises which were afterward conveyed by quitclaim deed from Kelson and wife to Green. Green can not, therefore, be considered as an innocent purchaser without notice, and can only hold the lots subject to the prior and superior lien of the building association. When Green learned that such association had a mortgage on the whole of the premises which Kelson and wife were about to convey to him, he was put on inquiry, and he did not discharge his full duty by a mere inspection of the record of tlie mortgage, for the record would disclose the same description of the land as the mortgage did, and it was in the description of tine land that the mistake was made. Under the circumstances, with the knowledge which had been imparted to him already, it was his duty, if he desired further light, to inquire of the Hoopeston Building Association, a corporation doing business in the town in which the lots were situated. On such inquiry all the facts, if he was in ignorance of any of them, could have been ascertained by him.

On the hearing below the court found the issues for appellee and dismissed appellant’s bill of complaint. This, we think, was error. The court should have found for appellant and granted it a decree, correcting the mistake and declaring that Green should hold the premises conveyed to him by Kelson and wife, subject to the mortgage of appellant as corrected, and as it was intended to be executed. Moore v. Munn et al., 69 Ill. 591; Clearwater et al. v. Kimler et al., 43 Ill. 272; Erickson v. Rafferty, 79 Ill. 209.

Decree reversed and cause remanded.


author: McCulloch, J.

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    The Jacksonville Gas-Light and Coke Co. v. Thomas Barber.
    Verdict contrary to evidence. — As the evidence discloses that the tar in question, supposed by appellee to come from appellant’s works, did not come from there, since none was allowed to escape, the verdict is contrary to the evidence.

      Appeal from the Circuit Court of Morgan county; the Hon. C. Eplee, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. John A. Bellatti, for appellant
    Messrs. Morrison & Whitlock and Mr. E. G. Wilson, for appellee,
   McCulloch, J.

It is very evident from the whole record in this case that appellee recovered damages lor injury done to a larger piece of ground than that described in his declaration. The allegation in the declaration is, in substance, that appellee was in possession of lot seven in Hocking and Wilson’s addition to Jacksonville. Assuming that the deeds offered in evidence described lots in the same addition, then the proof of title and possession was co-extensive with lots seven and eight which were both embraced within appellee’s pasture. It was upon the whole of this pasture that the alleged injury was done. Had this specific objection been, pointed out and properly presented to the court below, it would have been a valid one unless appellee should have amended his declaration.

The suit was brought to recover damages resulting to appellee from the pollution of a stream running through his land, by the throwing of impure water and refuse from appellant’s works, which, when carried down in time of high water, destroyed his grass and rendered his premises unfit for the purposes of pasturage.

Appellant’s works were erected more than twenty years ago. They are not, of themselves, an obstruction to or nuisance in the stream. It was only the throwing of the refuse matter into the stream by appellant that constituted the cause of action. For injuries thereby caused, within the period off five years next preceding the beginning of the suit, the action is not barred by the Statute of Limitations. Had the works themselves constituted the nuisance, the action would have been barred as to the injury caused by their erection, but for a continuation of the same within the five years the suit might have been maintained under a proper declaration. But this suit is not for the erection of the works nor for their continuance, but for the acts of defendant in throwing impure water and refuse from the works into the bed of the stream. The substance that is alleged to have caused the injury was coal tar or something very similar to it.

The proof is uncontradicted that appellant has not for many years permitted any such substance to escape from its works, but that it has been preserved and sold as an article of commerce. It is true that some volatile oils have escaped, but these were of such a nature as to float upon the surface and not sink. It was a sediment that covered the grass and prevented its growing that caused the injury to appellee’s pas tore.

It is satisfactorily proved by the evidence that the surface drainage of a considerable portion of the city goes into this brook; that a great deal of filth from houses and barns is carried down by it; that a soap factory and an establishment for distilling coal tar for pitch are located above appellant’s works, the latter of which discharges into the stream sixty-five per cent, of all the tar used, and that the sewerage from the jail is discharged into it just below appellant’s works and above the land of appellee.

These things are sufficient to account for the injury to appellee’s land in the manner he has described it. We fail to see from the evidence anything but a supposition of appellee, unsupported by any actual observation, that the tar in question came from appellant’s works. On the contrary, the evidence is very clear that it could not have come from there for the very good reason that none was allowed to escape.

We are therefore obliged to say that the verdict is contrary to the evidence, and the court below erred in overruling the motion for a new trial.

[Reversed and remanded.


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    Terre Haute and Indiana Railroad Co. v. Jacob Jenuine.
    1. Duty op engineer. — If an engineer sees ahúman being upon or approaching the track, he has a right to presume such person will be governed by an intelligent judgment as to the approaching" danger. But he has no right to indulge in any such presumption in the case of a dumb brute. If he discovers an animal approaching the track in an attitude of danger, he must govern himself accordingly. But these rules apply only in cases of known or apparent danger. If an animal comes suddenly upon the track so close to the engine as to render all efforts to save its life unavailing, no action for negligence can be maintained.
    2. Failure to give statutory signals. — Where there is a failure to ring the bell or sound the whistle as required by statute, to create a liability for stock killed, it must be made to appear by facts and circumstances proved, that the accident was caused by such neglect.
    8. Negligence.' — While negligence is a question of fact for the jury, yet it is the province of the court to lay down the rules by which the jury is to be governed in determining what is negligence.
    4. Speed. — The court is unable to discover any omission of duty in regard to the speed of the train. The evidence does not disclose the existence of any special circumstance rendering it necessary for the engineer to adopt any other or higher degree of precaution than at the usual crossings of highways in the country.
    Appeal from the Circuit Court of Cumberland county; the Hon. W. C. Jones, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. John G. Williams, Mr. Levi N. Brewer and Mr. T. J. Golden, for appellant;
    cited C., B. & Q. R. R. Co. v. Bradfield, 63 Ill. 220; Q. A. & St. L. R. R. Co. v. Wellhoener, 72 Ill. 60; C., B. & Q. R. R Co. v. Lee, 68 Ill. 576; I. B. & W. Ry. Co. v. Hall, 106 Ill. 371.
    Messrs. Brady & Whitehead, for appellee.
   McCulloch, J.

This was an action on the case for negligence resulting in the killing of a cow. The place of the killing was in the suburbs, but within the corporate limits of the village of Greenup, at the crossing of the main public highway leading into the village. At the place of the accident the railroad cuts into the north side of a hill, thereby necessitating a deep cut in the highway south of the railroad. East of the highway' there is a curve in the railroad which prevents an approaching train from being seen at a greater distance than one hundred and fifty to two hundred yards. The train in question was approaching from the east, and the cow from the south. The cow could not see the approaching train, nor could the train men see the cow until about the time of the collision.

If the cow had been a human being, reasonable prudence would have required her to look in both directions to discover an approaching train as soon as she could have done so, and, failing in that, her negligence would have been so great as to prevent a recovery. This is the purport of numerous decisions of the Supreme Court and of this court upon that subject. But cows are not governed by human reason but go when and where their instinct leads them. If an engineer sees a human being upon or approaching, the track he has a right to presume such person will be governed by an intelligent judgment as to the approaching danger. But he has no right to indulge in any such presumption in the case of a dumb brute. If, therefore, he discovers an animal approaching the track in an attitude of danger, he must govern himself accordingly. But these rules apply only in case of known or apparent danger. If an animal comes suddenly upon the track so close to the engine as to render all efforts to save its life unavailing, no action for negligence can be maintained. C., B. & Q. R. R. Co. v. Bradfield, 63 Ill. 220; P., P. & J. R. R. Co. v. Champ, 75 Ill. 577; T., P. & W. Ry. Co. v. Bray, 57 Ill. 514; C. & A. R. R. Co. v. Kellam, 92 Ill. 245.

In this case no negligence can be imputed to the engineer for not exercising proper diligence after seeing the cow, for he did not see her at all until she was struck by the engineBor can he be held guilty of negligence in not seeing her, for she came upon the track from the opposite side of the engine from that on which he sat, and the view was obstructed by the smoke stack and forward part of the boiler. The fireman saw the cow as she came on the track but not in time to have done any good, as the train was then running at the rate of from thirty to thirty-five miles per hour.

The questions therefore presented are whether or not appellants servants were guilty of negligence in running the train at a dangerous rate of speed, or in not giving the statutory signals, and whether or not the cow was killed by reason of such negligence.

We are unable to see from the evidence the existence of any special circumstance rendering it necessary for the engineer to adopt any other or higher degree of precaution than at the usual crossings of highways in the country. It is true that this was the main highway leading into the village, and persons were frequently passing over this crossing. The village authorities had not passed any ordinances limiting the speed of trains. It does not appear that there was any necessity for any such ordinance. The crossing in question was not in the populous part of the village, and except for the ordinary travel over it there seems to have been no special call for the exercise of any extraordinary care in approaching it. What the extent or amount of such travel was does not appear from the evidence. We are unable, therefore, to discover any omission of duty in this regard. C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; I., B. & W. Ry. Co. v. Hall, 106 Ill. 371; C. & A. R. R. Co. v. Robinson, 9 Bradwell, 89.

But even if the train was moving at a very high rate of speed the evidence fails to show that that was the cause of the accident. The proof is that the train, moving at a certain rate of speed, came into collision with a'cow crossing the track. If it had been running at a slower rate the cow could have cleared the crossing before the arrival of the train. So if it had been running much faster it would have cleared the crossing before the arrival of the cow. Or if it had started a few moments earlier or a few moments later and ran at the same rate of speed, the collision would not- have occurred; But the same may be said of the cow. Had she walked a little faster or a little slower or started a few moments earlier or later the accident need not have occurred. There is no evidence that the cow had any regular time for crossing the track. So far, therefore, as the evidence shows, there was no necessity for appellant’s regulating its time with reference to hers. In the absence, therefore, of all proof of the existence of special circumstances to show that the accident was the result of a highly dangerous rate of speed, the jury would not be warranted in finding appellant guilty of negligence from the speed of the train alone. Any rate of speed in a railway train is dangerous to cows upon the track, and if the train had been running at a much less rate of speed at the time of the accident, there is nothing to show that in the exercise of reasonable care, after discovering the cow, those in charge of the train could have prevented it.

So in regard to a failure to ring the bell or sound the whistle-as required by the statute. In such cases it must be made to appear by facts and circumstances proved, that the accident was caused by such neglect. Q., A. & St. L. R. R. Co. v. Wellhoener, 72 Ill. 60; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218. What facts and circumstances would be sufficient to create a liability must depend upon the proof in each particular case. Here the train was not in sight until within a short distance of the crossing on account of a curve in the track. In addition to this the cow and the train were hidden from each other by the cut in the highway. If the cow had been in charge of a human being it might reasonably be inferred that if the bell had been rung or the whistle sounded the warning would have been heard and heeded. But what extra precautions is a cow, unattended, expected to exercise under the same circumstances? She is certainly not expected to act as a human being. She can not read the sign board notifying her that she is about to cross a railroad. Can it be any more reasonably inferred that she would know that the ringing of a bell was a warning to her to keep off the track? It is preposterous to suppose that the same rules are to govern in the case of a dumb animal as in the case of a man.

These railroad signals are intended to serve some useful purpose and it would be idle to charge the companies with negligence in respect thereto when that purpose can not be subserved. Thus a sign board is useful to warn mankind against heedlessly approaching a railroad, but it would be idle to charge the company with negligence in not putting them up to serve as a warning for cows. In case of an injury to a cow by reason of such neglect there must be special circumstances shown, such as that the cow was in charge of a human being, who was thrown off his guard by its absence, before any liability would accrue.

So in the case of the ringing of a bell, whilst it is prima facie negligence to omit it, yet before a liability can arise therefrom it must appear in some way from the evidence that the injury was the consequence of such omission. In this case the evidence wholly fails upon that point. It was therefore error to submit it to thejury as was done in the second instruction. This instruction is proper in form hut there was no evidence upon which to base it.

The first instruction is also faulty in allowing thejury to determine for themselves, without any definition of the import of those terms by the court, what was meant by “proper caution” and “ gross negligence.” Strattan v. Central City II. Ry. Co., 95 Ill. 25; Schmidt v. Sinnott, 103 Ill. 160; C., B. & Q. R. R. Co. v. Johnson, Ibid. 512. While negligence is a question of fact for the jury, yet it is the province of the court to lay down the rules by which the jury is to be governed in determining what is negligence. Pennsylvania Co. v. Conlan, 101 Ill. 93; L. E. & W. Ry. Co. v. Zoffinger, 10 Bradwell, 252; Springfield City Ry. Co. v. DeCamp, 11 Bradwell, 475.

For these reasons the judgment of the court below will be reversed and the cause remanded.

Beversed and remanded.


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    James W. Craig v. G. L. Merime.
    Distress — Rent payable in produce. — A proceeding by distress upon a warrant as follows: “ A is hereby appointed my agent, to distrain of the goods and chattels of B, of said county, four and one half tons of broom corn, grown on * *, for amount of §150 damages due me for the nonperformance of the conditions of the lease of B as my tenant, on said land, for the year 1883.” Held, that the warrant is not void upon its face and it was error in the court below to quash it.
    Appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.
    Opinion filed January 16, 1885.
    Messrs. Craig & Craig, for appellant;
    cited Mitsel v. Myers, 91 Ill. 499.
    Mr. Thomas Stoddert, Jr., for appellee;
    that a court of law did not possess the means of enforcing the lien, cited R. S. Ch. 80, §31; C. & V. R. R. Co. v. Fackney, 78 Ill. 116; Richeson v. Crawford, 94 Ill. 165.
   McCulloch, J.

This was a proceeding by distress upon the following warrant:

State of Illinois, 1 Coles County. [ss.

John Millingham is hereby appointed my agent to distrain of the goods and chattels of G-. L. Merime of said county, four and one half tons of broom corn, grown on the northeast quarter northwest quarter, and northwest quarter northeast quarter of section 20, town 13, north, range 10, east, Coles county, Illinois, * * owned hy me, for amount of §150 damages due me for the non-performance of the conditions of the lease of Gr. L. Merime as my tenant, on said land, for the year 1883. James W. Craig.

March 18, 1884.

The bailiff named in the said warrant levied upon the crop grown upon the land therein described, whereupon proceedings were had and a judgment rendered before a. justice of the peace. Upon appeal to the county court, on motion of appellee, the said warrant was quashed, the property levied upon ordered to be released, and judgment rendered against appellant for costs. From that judgment this appeal is prosecuted.

There was no evidence introduced upon the hearing of said motion, but the court seems to have held the warrant void upon its face. It is contended that section 31, Oh. 80, B. S., which gives the landlord a lien upon the crops grown upon the demised premises for the rent thereof, whether the same is payable wholly or in part in money, or specific articles of property, or products of the premises, or labor, and also for the faithful performance of the terms of the lease, gives no right of distress, and therefore a distress warrant issued for damages, due for the non-performance of the conditions of the lease, as in this case, is void. If that were the only section applicable to the case we should probably regard the point as well taken, Bnt section twenty-nine provides that when the rent is payable wholly or in part in specific articles of property, or products of the premises, or labor, the landlord may distrain for the value of such articles, product or labor.

Flow the non-payment of rent according to the terms of the leasing is a non-performance of the conditions of the lease, and if the rent was payable in specific articles of property, or products of the premises, or labor, the landlord would have the right to distrain, not for the specific article agreed to he paid, but for its value. It might possibly have been more technical to have called the sum due, rent; but in an action of assumpsit or covenant for a recovery of the value of the same articles of property or labor, the same would be called damages. Thus, if the tenant had agreed to perform a certain amount of labor in payment of his rent, and had failed to do so, the landlord would have had the right to distrain for the value of the labor. Calling the sum claimed by the landlord damages, instead of rent, we do not think vitiates the warrant.

We are therefore of opinion that the warrant is not void upon its face and it was error in the court below to quash it. Whether or not it can be maintained must depend upon the proof. There are, no doubt, many covenants and conditions in leases which, if broken, might give the landlord a lien upon the crops grown or growing upon the demised premises, by the terms of section thirty-one, and yet he could not distrain therefor. Under that section the lien extends only to the crops. Section twenty-nine is much wider in its scope. It gives the right of distress generally upon all the property, not exempt, of the tenant, for the rent due, whether such rent be payable in property or labor. But the right of distress is confined to the rent and can not be extended to the breach of other covenants or conditions of the lease, although, in the case of farm or other lands, the landlord may have a lien upon the crops grown or growing thereon, for his indemnity.

For these reasons the judgment of the court below will be reversed and the cause remanded.

Beversed and remanded.


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    Alexander Platt v. Maggie Farney.
    1. Landlord and tenant. — Where a tenant who had rented two rooms in a building was injured while passing down a rear stairway in the building, and the negligence alleged in the declaration was for a failure of the landlord to construct the said stairway in a suitable manner and of suitable materials and to so maintain the same as to be safe for persons having the right to use the same. Held, that as the proof fails to show any contract or any such special circumstances as would render it incumbent upon the landlord to look to the safety of the stairway for the benefit of his tenants, the landlord is not liable.
    2. Duty or landlord — Instruction.—In the absence of a contract or proof of other special circumstances imposing that duty upon the landlord, it is not his duty to keep the building safe for his tenants nor to protect it from intruders. As the instruction given holds the opposite, it is erroneous.

      Appeal- from the Circuit Court of Morgan county; the Hon. G. W. Herdman, Judge, presiding.
    Opinion filed January 16, 1885.
    Mr. M. T. Layman and Mr. John A. Bellatti, for appellant;
    as to the duty of the landlord, cited Taylor’s Landlord and Tenant, Ch. 8, Sec. IV, § 327; Ch. 9, Sec. 1, § 343; 3 Sutherland on Damages, 166.
    Mr. Wm. H. Barnes and Mr. Oscar A. De Leuw, for appellee;
    cited Looney v. McLean, Weekly (Bloomington) Jurist, August 12, 1880.
   McCulloch, J.

Appellee’s husband had rented a room from appellant, situated on the first floor of a certain building to be used by appellee as a millinery store, and two rooms on the second floor of the same building to be used as a residence. After appellee and her husband had taken possession, appellant erected a stairway in the rear of the building to be used, as is alleged, by them and other tenants of the same building.

While appellee was passing down said stairway, the same fell and caused the injuries to her person for which this suit is brought. The declaration alleges that appellant was the owner of and had the control and active management of a certain two-story building with the appurtenances, approaches anl stairways thereunto belonging, the rooms and the use of the approaches of which he, for a consideration paid, rented and leased to divers tenants for the purpose of occupation; that appellee’s husband leased and rented of appellant two certain rooms in the second story of said building with the right of use of the said stairway, in common with appellant and his other tenants; that he took possession of the said rooms as his dwelling, appellee living with him as his wife; that said stairway had been erected as one of the approaches to said rooms; that the same was meant for general use asa passage-way in common by plaintiff and other tenants of appellant as a means of access and entry to said second story of said building, and the same was under the control and management of appellant; that it was his duty to construct and build, and to have constructed, built and maintained the same in such manner and of such material that the same should have been safe for those having a right to use it, and to have kept the same in good repair and in a tenautable condition; that he neglected to do so and in consequence of such neglect, appellee, who was then rightfully using the same and in the exercise of due care in going down the same, was, by the fall thereof, precipitated .to the ground and received the injuries complained of.

It is contended on the part of appellee that under the circumstance alleged in the declaration appellant was bound to keep the stairway in question, in a reasonably safe condition for the use of his tenants, and that for an injury occasioned by his neglect so to do, lie is liable in an action for damages at the suit of the party injured.

We do not deem it necessary to enter upon the discussion of this prop >sition, for conceding it to be true the proof comes far short of bringing the case within the rule contended for. Tue declaration alleges that appellee’s husband had rented two rooms on the second floor and the right of use of said stairway; that the same was in common use by appellee and her husband and other tenants of appellant, and that the same was under the control of appellant. The general rule of law is, that the tenant must keep the demised premises in repair for his own use unless the landlord has contracted to do so. So far as the proof shows there was no such contract on the part of appellant. The declaration alleges that the use of the stairway was included within the lease. There is no proof of this fact. In truth the record is wholly silent as to how appellant came to owe any duty to his tenants in respect to either the erection or the maintenance, of said stairway. There is a bare allusion in the testimony of appellee’s husband to the fact that other tenants of appellant used the same in common with himself. But the proof wholly fails to show any such special circumstances as would render it incumbent upon appellant to look to its safety for the benefit of his tenants.

There was proof strongly tending to show that the lot in the rear of the building was unfenced and that some person had hitched a horse to the stairway in question; that when appellee came upon the stairway the horse took fright and in his struggle to get away pulled the same down with the halter-strap. The court thereupon gave to the jury the following among other instructions: “ The court, for the plaintiff,

instructs the jury that the law imposes upon all persons who erect buildings to be used by tenants for hire, the duty of maintaining each and every part of such building reasonably safe and secure for the purposes for which it was intended, and to protect it against use by others in such manner as to render it unsafe. And in this case, if the jury believe from the evidence that the defendant erected the stairway in controversy outside of his house, or caused it to be erected, he was bound to see that they were rea on ably safe for use; and if they were so placed that stock could get to them, and by rubbing against them, or being fastened to them, endangering their security, it was the duty of the landlord to protect such stairway by a proper inclosure; and it is no defense to him that a horse or some other animal pulled or rubbed the stairway so as to make it unsafe, unless you believe, from the evidence, that said stairway was inclosed by a reasonably secure fence or otherwise to keep animals away from it.”

This instruction is faulty in several particulars. In the absence of a contract or proof of other special circumstances imposing that duty upon the landlord, it is not his duty to keep the building safe for his tenants nor to protect it from intruders. It was therefore an error for the court to so instruct the jury.

The only negligence alleged in the declaration was for a failure to construct the said stairway in a suitable manner and of suitable materials, and to so maintain the same as to be safe for persons having the right to use the same. There is no complaint made that it was appellant’s duty to have protected the same against stock or other intruders by fencing the lot, and that he had failed to do so. This was a feature of the case appellant was not called upon by the declaration to meet-There was no allegation in the declaration nor any proof given on the trial which would render appellant liable for injuries occasioned by some other person’s horse having pulled down the stairway. For these reasons and others that might be mentioned this instruction is erroneous. The judgment ot the court below will therefore be reversed and the cause remanded.

¡Reversed and remanded.


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    Glens Falls Insurance Co. v. R. S. Hopkins et al.
    I. Insurance — Agency—Verbal contract. — An agent can not bind his principal in a contract with himself. Where appellees were partners and both interested in the alleged verbal contract by which one partner instructed the other, who was an agent for the insurance company, to renew the policy of insurance on their store, and the latter said it would be all right, but nothing was done toward the renewal of the policy until after the fire, and the partners now sue upon such verbal contract. Held, that such a contract can not be enforced without ratification by the principal.
    2 Same — Authority to agent to countersign. — The authority given in this case to the agent to countersign policies issued to himself, can not be extended so as to cover verbal contracts made with himself or with a firm of which he was a partner. Nor can it be extended so as to cover the policy executed after the fire.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed January 16, 1885.
    Messrs. Gere & Beardsley and Messrs. Paddock & Aldis, for appellant.
    Mr. Francis M. Weight and Mr. J. S. Wolf, for appellees;
    as to dealing with agent, cited Story on Agency, § 210; Francis v. Kerker, 85 Ill. 190.
   McCulloch, J.

This was a suit by appell'ées against appellant, to recover insurance money claimed in consequence of a loss by fire. The declaration counts upon two policies, the first of which had exqiired before the loss, but, as alleged, had been renewed by a parol agreement. The second was issued after the fire and antedated, as is claimed, in pursuance of a parol agreement made before tire fire.

The proof shows that one Whitloclc was general manager of appellant’s business at Chicago with power to appoint sub-agents. In pursuance of this power he had appointed aqipellee Hopkins as the agent of appellant at Homer, Illinois, with power to receive proposals for insurance, to fix and determine rates, to receive moneys and to countersign, issue and renew policies signed by the president and secretary. It was also bis duty to make daily reports to Whitlock of policies issued and renewed, or other business transacted for the company, giving a copy of the written portions of policies issued.

Appellee Hopkins had a store at Homer to which he gave his personal attention, and one at Ogden in company witli appellee H. S. Nichols, who had the principal charge there.

After his appointment as agent, Hopkins wrote up a policy on his own stock of goods at Homer and sent the same to Whitlock to bo conntersignel by him. Whitlock, according to the testimony introduced on the trial, replied in a letter stating that he appreciated his own modesty about countersigning his own policies, aud directing him thereafter to sign them himself.

After that he countersigned several policies on his own stock and reported them to Whitloclc in the usual order of business, and no objection was made.

On August 24, 1882, lie issued policy No. 159,'on the stock of goods, fixtures and furniture in Ogden, owned by himself and Nichols, it being for §1,000, and for the period of one year. Upon receiving the report of this policy, Whit-lock made some objections by letter to Hopkins, that the rate of premium, liad not been given, and that it failed to specify the amounts respectively, upon the store, fixtures and furniture, and asking same to be done. Whitlock also, in his next letter, made some criticisms upon the amount of the risk in comparison with the value of the property insured, and stated that if there was no other insurance, or if there was and it was concurrent with that policy, they would let it stand as written to accommodate him personally, although the practice was not a good one. This is the policy first sued on in this case. The copy in the record fails to show that the correction asked by Whitlock in his first letter to Hopkins had ever been made.

A short time before the expiration of this policy, Nichols went from Ogden to Homer, and had an interview with his partner, Hopkins, about the insurance. At that time one F. 0. Hopkins was.in the employment of appellee E. S. Hopkins, as book-keeper or clerk, and had authority from the latter to transact insurance business and sign policies in his name. The policy on the store in Ogden was then at Homer in the store safe, where:also the surplus funds of the store in Ogden were kept. There was money of the firm there at that time sufficient to pay the premium on the renewals and appellee Hopkins had authority to use it for that purpose.

The substance of that interview, as related by Nichols, is substantially as follows: “ When I got to Homer, met Mr. Hopkins somewhere near the door of his business house. I said, ‘I came over to see about the Ogden insurance. I want you to keep that written up. Be sure of that.’ * * * He said,1 Give yourself no uneasiness, I will see that it is written up and kept written up.’ Give yourself no further trouble about it,’ and he said, ‘ Step back and see F. 0. Hopkins,’ and then drove off. I went hack and saw F. 0. Hopkins. I said, ‘ I want to see the Ogden policy. We kept it in the safe there.’ He handed me the policy, and I looked at it and saw when it expired, and said to him ‘ This policy is all right yet; I want you fellows -to be sure and keep that policy written up; keep it renewed;’ and he said ‘All right.’ ”

After this, nothing was done toward the renewal of the policy until after the fire. No renewal was reported to Whitlock, no money of the Ogden firm was used in the payment of premiums, and E. S. Hopkins had not charged himself with the same in his account with the company.

The fire took place on the 27th day of August, 1883, just three days after the policy had expired. Immediately after the fire appellee Hopkins went to Chicago and saw Whitlock, lie related to him all the circumstances above set forth, and asked him to settle the claim, but he refused to recognize it. He then asked him if a policy could not be issued and antedated so as to correspond with his agreement, which Whitlock also refused.

The fire took place on Saturday. On the Monday following, the second policy sued on, Ho. 181, was made out by F. O. Hopkins, and afterward countersigned by him in the name of appellee II. S. Hopkins. This last policy, before it was signed, the hitter took with him to Chicago, and spoke of it to Whitlock, who refused to recognize any right to its renewal. After some unimportant - correspondence between him and appellees, this suit was brought.

The cause was tried by the court without the intervention of a jury. Objection was made to the introduction in evidence of the alleged verbal agreement between Nichols and B. S. Hopkins on the ground of its being a private conversation between partners in relation to their business. We do not deem it necessary to discuss this point as we are of the opinion that with all the proof there is in this record, apipellecs have failed to show a right of recovery.

The second policy was prima facie void because it was issued after the prroperty had been destroyed by fire. The first one had expired before the fire. The whole case, therefore, depends upon whether or not there was a valid contract for renewal.

It is a general principle of law, that an agent can not .bind his principial in a contract with himself. In this case, appellees were partners and both interested in the alleged verbal contract and both sued upon it. Without ratification by the principal, such a contract can not be enforced. New York Cent Ins. Co. v. Nat. Protec. Ins. Co., 14 N. Y. R. 85; Bently v. Columbia Ins. Co., 17 N. Y. 421; Neundorff v. The World Ins. Co., 69 N. Y. 391; People's Ins. Co. v. Paddon, 8 Bradwell, 447; May on Insurance, 125.

We do not consider the previous authority given to Hopkins to countersign his own policies, covers the ground in question. Had he made out a new policy, countersigned it himself, reported it in the regular course of business and charged himself with the premium in his account with the company, and no objection had been raised by the company until after the five, we do not say the company might not have been hound In such case it is possible the policy would have been good without countersigning.

But the authority to countersign policies issued to himself can not be extended so as to cover verbal contracts made with himself or with a firm of which he was a partner. Hor can it he extended so as to cover a policy executed after the fire. Such a policy must depend for its validity upon a prior agreement or undertaking to issue it, which, as we have just seen, did not and could not exist under the circumstances of this case. The authority of Hopkins was to issue bona fide policies which this policy, Ho. 181, was not.

For these reasons the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.