text:
    Coal Run Coal Co. v. Mary Jones.
    1. Mining. — The court is of opinion that the fourth section of the statute entitled 11 Health and Safety of Miners” (Sessions Liws 1883, p. 114) is applicable to this case; that the place where the accident occurred was a mine within the meaning of the statute, and the fact that the miners were not actually mining coal at the time, does not affect the question.
    2. Same. — Where the cause of action was in part based on the statute- and in part on the failure of appellant to use due care by proper appliances to keep the shaft clear of fire damp, it was not error to refuse instructions as to the doctrine of fellow-servants.
    3. Evidence — -Marriage.—In an action on the case by a wife for damages for the death of her husband the party sued offered the evidence of another woman to prove that the latter was the wife of deceased and not the former. Held, that it was proper to exclude such evidence.
    Appeal from the Circuit Court of La Salle county ; the Hon. Geo. W. Stipp, Judge, presiding.
    Opinion filed February 20, 1886.
    This was an action on the case to recover damages' on account of the killing of Thomas D. Jones, the husband of appellant, by reason of the wrongful act of the appellant, as is claimed in the first count, he carelessly and negligently permitting explosive gas to fill the coal shaft, in which deceased was engaged as the employe of the appellant in repairing it, fifty-three feet below the surface of the ground on a platform, to a distance above said platform so that the explosive gas was ignited by the lamp of deceased while in the exercise of care, and exploding, killed him by throwing him against the sides of the shaft, whereby appellee has been deprived of her means of support, and in second count, same as first, and also charges that appellant did - not cause the mine to be examined by a competent person . with a -safety lamp and did not provide means of signaling between the top and bottom of said mine. Verdict for appellee $3,500, upon which judgment was rendered. The facts are in substance as follows, to wit:
    The appellant had just completed his coal shaft, or rather the extension of one from a second vein of coal which it had been operating. The shaft altogether was from 150 to 200 feet deep. The lower vein of coal had been reached and dug through and a pit dug several feet below it for the purpose of catching the drainage of the mine called a “ sump.” The shaft, which, in all, is about eight by sixteen feet in size, had been timbered up from the bottom to within five or six feet of the floor of the first vein of coal some fifty-seven feet below the surface of the earth. This shaft is divided into three compartments, each of which is boarded up water-tight, and about five and a half to six feet one way and about eight the other, and when entirely finished from the bottom to the top, the east one is used for carrying the air from the bottom of the mine to the surface, the other two for carrying the air down for ventilating purposes to the bottom of the mine, and for hoisting coal and working the mine. The current of air is created by a furnace and a chimney stack at some distance from the top of the mine connected by an air-tight flue under ground to the east compartment, and causes, by tho heat in the furnace rarifying the air in the stack, a current of air to be set in motion from the bottom of the shaft passing up through the furnace and a corresponding down current to the bottom of the mine through the other two compartments. This removes noxious gases and supplies the mine with pure air. The one compartment that carries the air up is called the “ up cast ” and the other the “ down cast.” In this instance when the accident occurred there was no fire in the furnace, nor was any needed, because the air was supplied at the mouth of the old mine where deceased was at work at the first vein by a slope entrance running from the mine entrance at the perpendicular shaft and opening at the surface of the earth some 803 or 1,000 feet from the mouth of the last-named shaft. Over the shaft compartment completed from the bottom of the third vein of coal which had not yet been worked, on the morning of the 19th November, 1883, just at the floor of the mine in the first vein of coal a platform was placed, almost; but not quite, air-tight, covering all the three apartments in the shaft, in preparation for mining coal out of the first vein, which they were engaged in that morning, to keep coal, and the workmen there engaged, from falling down the shaft below, and to make standing room for the men who were engaged with the deceased in making a double wall of wood at the four sides of the shaft at the mouth of the mine, between which clay walls were being tamped in order to close the old mine so that water, which, when high, was accustomed to flow in from the Vermillion river through the said slope entrance, could not get into the new mine. There was a cage being •worked by machinery from this first vein entrance to bring .down material to make this wall and to take up coal from this platform. The deceased was more particularly engaged under the supervision of one Hillger, who was superintending the work of completing the shaft, and had been from the time it was commenced at the bottom at the third vein, together with four or five other men, some in helping him and some in mining and raising coal to make way for the wall. While so engaged, his light becoming dim on account of the wick in his lamp becoming too low, he attempted to raise it in the lamp as was customary, by striking or jarring his lamp on the toe of his shoe while in a position several inches above the platform, his heel resting on the floor, and in doing so the gas ignited and the fire running down into the accumulated gas below the platform, it exploded with great violence and threw him against the walls of the shaft or the roof of the old mine with such force as to instantly kill him. John Shanks, Ifanahan, deceased, Jones, David James, Irvin Tiffany, and Hillger, the boss, were at work on this shaft at the time of the explosion. In sinking the shaft from the second vein to the third vein Shanks and Manahan, who did the work of sinking this shaft by contract, testify that they found gas or “ fire damp,” as it is called, all the way down from the second vein, but most of the gas was making in the fourteen feet of slate and soapstone above the coal.
    It was not making extra quantities; a little would come from it when they would go through it. The vein of slate, about twenty inches thick, laid about fourteen feet above the coal. In going down from the second vein the gas would generate all the way through the drill hobs. John Hillger superintended the timbering up the shaft, the sinking of which was completed some eight days before the explosion. The platform covering all the compartments, though air-tight, there being spaces in it from one fourth inch to an inch wide, was put down about seven to eight o’clock in the morning, and they worked about three and a half hours before the accident. There was a good current of air above the platform coming through the old worked-out mine from the slope entrance which ascended to the top of the shaft. There was none below, the current having been cut off by the removal of a section of the “ up cast ” and “ down cast,” and by reason of the allowing of the water at the bottom of the shaft to accumulate and rise above the foot of the timbering and sections of the “ up casts ” and “ down casts,” thereby preventing any circulation. If the water had not been allowed to accumulate and to rise, as stated by witnesses for appellee, there would, in their opinion, have been sufficient circulation of air to have carried all the gas out, provided the platform had not interrupted it. The day the accident occurred was the third day deceased had been at work. He had nothing to do with putting in the platform. Whether the question of gas was discussed during the three days which Jones, deceased, was there, witness Shanks could not testify “ for. sure.” If the platform and water had not been there, there would have been a circulation at the bottom. Colon Manaban testifies that in case there had been no water at the bottom, that if part of the platform over the air-chamber had been removed and the air left to travel up the air-chamber, there could have been a circulation of air. “ I think there would have been sufficient draft to remove the gas that was making if the water had been out.” “If the water had heen removed, as I have said, I don’t think there would have been the accident.” “ Gas will rise, because it is lighter than air.” Witnesses for appellant state that if no water had been in the mine it would make no difference, as there could have been no circulation of air any way, whether there had been an opening there or not. (Testimony of Alex. Ronald, inspector of mines.) This witness thinks the platform might have been made tight enough to prevent the gas from accumulating above it, and been safe. There was no “ down cast.” The slope was the “ down cast.” Hillger testifies for defendant that he knew there was a little gas making, but didn’t expect there was any more than was escaping through the platform. The platform was just on a level with the bottom of the first vein of coal. He told Jones, deceased, just what was making in the shaft. Thinks all the gas came from the coal —more out of the coal than the slate. They often lighted the gas when digging the “ sump,” and worked all day by it. After the accident Hillger inspected the mine every morning with a safety lamp before sending the men in.
    The appellant introduced the evidence of M. J. Evans and others, tending to show that she was the wife of deceased; that she was married again, but never had a divorce from deceased, and had two children by Jones, deceased, one a boy, seventeen, and a girl thirteen years old. Evans and she had separated. She claimed to be the wife of deceased by marriage prior to appellee’s. The court excluded all this evidence from the jury, to which exception was taken. The object was to show that Mrs. Evans, and not appellee, was the widow of Jones, deceased.
    Mr. Walter Reeves and Mr. E. F. Bull, for appellant ;
    that the evidence that appellee was not deceased’s wife, should have been admitted, cited Quincy Coal Co. v. Hood, 77 Ill. 68.
    Messrs. Fowler Bros, and Mr. J. B. Rice, for appellee;
    that the above evidence was inadmissible, cited T. W. & W. Ry. Co. v. Brooks, 81 Ill. 248; R. R. I. & St. L. R. R. Co. v. Delaney, 82 Ill. 199; Conant v. Griffin, 48 Ill. 410.
   Lacey, P. J.

The appellant, by counsel, urges various causes for error.

1st. That Sec. 4, Chap. 93, of the law of 1883, in regard to the examination of the working place of miners, does not apply to a case like this, but that appellant was sinking a shaft preparatory to opening a coal mine and that the men were not mining.

2d. The court refused to give the appellant’s 6th and 14th refused instructions, which raised .the question of whether the deceased did not come to his death by the negligence of fellow servants, where reasonable care had been exercised by appellant in selecting them.

3d. The verdict was against the weight of the evidence, and especially on the point that the deceased was not in the exercise of ordinary care at the time of the accident in this, that he was negligent in tapping his lamp on the toe of his shoe in the manner he did.

4th. The court excluded the evidence of Mary J. Evans. In the first place we shall consider the first point of objection in regard to the applicability of the statute. The 4th section of the statute entitled “ Health and Safety of Miners,” in force July 1, 1883, Sessions Laws 1883, page 114, as far as applicable to this case provides as follows: “The owner, agent or operator of every coal mine, whether operated by shaft, slope or drift, shall * * * in all mines where fire damp is generated, every working place where such fire damp is known to exist, shall be examined every morning with a safety lamp, before any other persons are allowed to enter.” In the first place, it is insisted that this is not a mine within the meaning of the statute. That the statute only contemplates a case where the miners are engaged in mining coal, and that the working spoken of in the statute means the place at the point of digging the coal. With this construction we can not agree. We think the word “mine” includes a work like this, and although the workmen were not actually mining at the time, they still had a working place and were working in a mine, and exposed to be injured by the explosion of fire damp. The lower vein was ready to work except for the stopping up of the entrance to the first vein, and the gas was generated from the coal in the mine. There was just as much necessity for the protection of the workmen who were working in this mine as though they had been actually mining coal, and the statute does not provide that the workmen in the mine shall be mining coal. Evidently any workman in a mine, at whatever employment he may be engaged, is included in the language of the statute. Besides this the evidence sliowsthat these workmen we e actually engaged in mining coal from the first vein when the accident occurred, and the fact that such mining o peration was to becarriedonrequiredmoreoftheshafttobecovered than otherwise would have been required. The deceased himself was about to pick up and place in the cage a lump of coal at the time the explosion took place. Judging from the evil intended to be cured by this act and the dangers to be guarded against we can not doubt but it was the intent of the legislature to cover a case like this. To hold otherwise we think would be to place too narrow a construction on the act. We see no error then in the court below holding as it did on this point.

But the instruction of the court below on this point is objected to on another ground, as we understand the objection, and that is, there was no evidence on which to base it. It is said in argument that “Appellee in his brief argues that it was the duty of appellant to cause said shaft to be examined by a suitable person with a safety lamp in the morning before the men went to work in the shaft. * * On that question we remark, that the theory of both sides in this case is that until a platform was erected across said shaft there could be no accumulation of gas in said shaft, and as said platform was erected the morning of the day the accident occurred by the men themselves, who were then re idy to go to work, that such examination would have been a fruitless search for gas and a task wholly unnecessary, * * and could have resulted in no additional safety "x" to the employes.” If this Were so and perfectly clear, the court erred in calling the attention of the jury to the statute, for unless some injury could have resulted on account of this neglect, the instruction would only have tended to mislead the jury. We have examined this evidence with care to see if this statement is correct, and we are unable to say that it is. The most that we can say is that it leaves the matter doubtful in our minds as to whether a search for gas in the morning before the platform was erected would have disclosed any dangerous quantities, such as would have created a sense of danger in the mind of the overseer and induced him to adopt preventive remedies, or to have shown him it would be dangerous to set men to work as they were.

It was the object of the statute to surely exjiose and make known by such an examination all danger from fire damp. Where the evidence tends to show that an examination might have prevented the injury, the instruction would be proper to be given.

According to some of the evidence all circulation of air from the bottom of the mine to the first vein was cut off by means of the accumulation of the water in the bottom of the mme before this platform was put in, and in view of the intention of putting in the platform, it would be important to know how much was accumulated in the shaft below that point to know how soon the danger point would be reached after the platform was put in place. And the fact of there being an accumulation of gas below the first vein before the platform was erected is strengthened by Hillger’s testimony that the gas escaped very slowly — was almost stopped by the water; otherwise there could not have sufficient quantity accumulated to cause an explosion in three and one half hours after the platform was erected. The evidence, we think, was sufficient to justify the instruction. In finishing the work afterward, Hillger complied with the statute in regard to the examination with a safety lamp before the men went to work. As to the refusal of the court to give the sixth and fourteenth instructions, on the question of fellow servants, we see no error. This was a cause of action in part based on the statute and in part on the failure of the appellant to use due care by proper appliances to keep the shaft clear of fire damp, and the doctrine invoked by the instructions would not have been applicable and the giving of them mischievous. The question of whether the appellee’s decedent was in the exercise of ordinary care to prevent injury was a question of fact that under all the circumstances we would not say that the jury were not justified in finding as they did. That the court excluded the evidence of Mary E. Evans is the last assigned error. The precise point seems to have been held against the claim of appellant in Conant v. Griffin, 48 Ill. 410. The court below refused the defense the permission to show that Ann Barber was not the widow and Frank Barber not the legitimate son, the same as, in the present case, the court refused appellant the claim he made to have the right to show that Mary Jones was not the widow of deceased and her children not legitimate. The court said that “ the averment that Ann Barber was the widow and Frank the son was surplusage, the requirement of the statute being met by the allegation that the deceased left a widow and next of kin. This was the gist of the action. * * * Whether she or Ann Barber was the widow was wholly immaterial. The fact would be important when the administrator is called upon to make distribution. The validity of the marriage will have to be passed upon by the probate court,” etc. In T. W. & W. R. W. Co. v. Brook, 81 Ill. 248, this case was cited and approved, and a similar doctrine held. In R. R. L. & St. L. R. R. Co. v. Delaney, 82 Ill. 199, the case of Conant v. Griffin, supra, was again cited and approved, and a similar doctrine held. We can not find that the Supreme Court has ever said or intimated that the doctrine in Conant v. Griffin has been doubted or overruled. The case cited by appellant,-of the Quincy Coal Co. v. Hood, Adm’r, etc., 77 Ill. 68, was a suit where the declaration averred that John Allen Hood, a minor, left surviving him his father, the plaintiff, to whom the damage recovered can be distributed. He asked the court to instruct, and it did instruct, the jury, that if they found the defendant guilty then they should assess the plaintiff’s damages at the amount of the pecuniary loss sustained, if any, by the next of kin to the deceased; “ that is to say, his father, brothers^ mother and sisters.” The court held this to be erroneous.. The court reversed the judgment for the reason that the instruction enlarged the scope of the plaintiff’s damages on the. trial and. instructed the jury to .take into consideration other next of kin whose right to damages must be based on another and different. ground from that of the father — and it was calculated to take defendant by surprise. The evidence showed, against objection, there was a mother and five brothers and sisters., The court held that the naming of the father specifically compelled the plaintiff to prove it as laid, but . if he had named the. widow or next of kin generally then the rule would have been different. In this it seems to oppose the decision in Conant v. Griffin, as in that the name of the widow was treated as surplusage ; yet that case is .not overruled by reference. As the Conant-Griffin case has never been .overruled, but referred to and approved since in the Hood cuse,-supra, we adhere to the rule announced in the former case. The most serious objection that we :see to the Conant case or the doctrine of the. Hood case (77 Ill.), and the same, principle found in other, cases, is that the court seems to decide that the measure of the recovery is limited-to .the circumstances of the. particular individual— his or her ■ interest in the life of the deceased — not the full value of the life, as a whole. In .the Oonant case the opinion necessarily presupposes that the life was worth just the same to one widow and set of children as another; that is, the entire value of a life as.a .whole. In such-case it .would be indifferent to defendant whether one or another was entitled to ifj as the measure of recovery would be the same no matter who got the proceeds. In the. Hood case, above, the next. of kin were collateral, and not the direct heirs. They were the father, .mother, brothers and sisters of the deceased, and not entitled as a matter of law to anything for support by virtue of their relationship. Hence the proof might show them to be entitled to something or nothing, according to circumstances. But in the case before us the law imposed on the father the duty of support to his wife and minor children. It may be, and from expressions in the Hood case we are induced to believe, that the court regards that as a material difference. The facts in this case are in effect the same as the facts in the Conant-Griffin case, and from the fact that that decision is of long standing and has often been approved, we can not doubt that the doctrine will be adhered to as there announced. Again, the point of the decision in the Hood case was one of pleading simply, and the question here not involved. There being no error in the record the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Lacey, J".

license: Public Domain

text:
    Andrew Dillman v. John W. Nadelhoffer.
    1. Sale op letters patent — Warranty—Fraudulent representations.' — Appellee sold certain letters patent to appellant, and the only warranty given was that appellee held and retained the full and absolute; title to the letters patent. The agreement between the parties set forth that appellee did not warrant the validity of the patents or that they were not infringements. Appellee represented that the patents were genuine and novel, and that he had been offered $25,000 in cash for them. The patents were invalid. ■' Held, that the contract in this case can not be avoided for such false representations.
    2. False statements as to value. — False statements made by a vendor of property, as to its value or the price he has been offered for it, will not support an action' for deceit
    Appeal from the Circuit-Court of Will county.
    Opinion filed February 20, 1886.
    This was a bill in equity by the appellant against appellee seeking to enforce the collection of the sum of §7,000, paid by the former to the latter, and also to enjoin the collection and assignment of one promissory- note dated April 18, 1885, due July 1, 1885, for the sum of §8,000, payable to appellee and executed, by Edward it. Knowlton and Andrew Dillman, and indorsed by Galvin Knowlton and Louis E. Dillman.
    This money was paid and note given, with other notes, for and in consideration of the assignment to two certain patent rights, and one at the time of the agreement not yet issued, but subsecjuently issued, and numbered 270,095 and 201,839, being patents on barbed wire, and the one afterward issued to appellant number 231,120. The cause of action was set out in the bill, which was demurred to, the demurrer sustained and an appeal taken to this court. The agreement is as follows, viz:
    “Articles of agreement made and entered into, this, the 18th day of April, A. D. 1883, between John W. Kadelhoffer, of the] city of Joliet, in Will county, and State of Illinois, party of the first part, and Andrew Dillman and Edward B. Knowlton, of said place, party of the second part.
    Witnesseth: That the parties hereto have agreed as foHows, to wit: That for and in consideration of the sum of twenty-three thousand dollars, paid by the party of the first part to the party of the second part, the receipt of which is hereby acknowledged, the said party of the first part has, and does by these presents, sell and convey unto the party of the second part, their heirs and assigns, the following property, to wit:.
    First. AH the right, title, interest and claim of the party of the first part in and to the business and co-partnership in the firm John W. Kadelhoffer and Company, of Joliet, Ill., which firm or c )mpany are in the business of manufacturing barbed wire, together with all right or claim for any accounts, notes, dues or demands, due or owing to the said firm or com-pa-ny. _ _
    _ _ Second. All the right and title of the said party of the first part, in and to all the machinery, tools, fixtures, goods manufactured and not manufactured, stock on hand, and to every species of property owned by and belonging to said company, the receipt of which property by the said party of the second part is hereby acknowledged.
    Third. The party' of the first part also does hereby grant and sell and convey unto the party of the second part all his rights and titles in and to the following patents, to wit:
    The patent of the United States, 201,889, granted to the .party of the first part April 2,1878, for certain improvements in barbed wire for fences. The patent of the United States, 270,098, granted to the party of the first part January 2, 1883, for certain improvements in barbed wires for fences ; also the invention, and all right, title and interest in and to a certain machine, or any and all improvements thereof and thereon, for manufacturing the barbed wire described and ¿'aimed in said letters patent, for which the party of the first part did, on the 27th day of February, 1883, make application, number 86,465, for letters patent of the United States, and the party of the first part hereby authorizes the commissioner of patents to issue said letters patent, when granted to the party of the second part, as the assignees of his entire right, title and interest therein, and the party of the second ¡Dart does hereby agree to pay all the necessary charges, fees and expenses for obtaining said letters patent, and making application therefor.
    The party of the first part covenants and warrants that he holds and retains the full, complete and absolute title to said letters patent and each of them.
    That he has not made conveyance of the same or any part thereof, or has he granted any licenses thereunder.
    The said party of the first part, however, does not warrant the validity of either of said patents, or that they are not infringements on any other patents now existing, and the said party of the first part shall not be required to defend any suits now pending, or hereafter to be instituted, wherein the validity of said patents are called in question, but the party of the first part agrees, when required in any such suit, to attend as a witness and produce any evidence or information in his power that may be required or necessary to sustain the validity of said several patents, but the party of the second part to pay his necessary expenses for so doing.
    The party of the second part do hereby assume and agree to pay any and all debts and liabilities now existing and owing by said company, and do hereby agree to keep and save harmless the party of the first part forever therefrom.
    The party of the first part hereby covenants and agrees that he has made no such debts not now known to the party of the second part, on account of which said firm may be charged.
    That the consideration 'hereinbefore named consists of seven thousand (§7,000) cash down, and the balance in two notes for the sum of eight thousand (§8,000) dollars, each signed by the party of the second part, and the collection thereof at their maturity guaranteed before their maturity by Calvin Knowlton and Lewis E. Dillman.
    ■ The first of said notes to become due July 1,1884, and the second to come due July 1,1885, and each to bear annual interest at six per cent, per annum, the cash payment of seven thousand dollars to be paid as follows: Two thousand dollars at the date thereof, and fhe remainder within ten days from this date.
    Witness our hands and seals, the day and year first above written.
    Witnesses:
    Thos. II. Hutchins, [Seal.]
    Geo. S. House, [Seal.]
    John H. Hadelhoffeb, [Seal.]
    Edwabd E. Knowlton, [Seal.]
    Andbew Dillman. [Seal.] ”
    The bill sets up certain statements and representations on the part of appellee as grounds of fraud in the procuring of the contract. In substance, in the year 1882, appellee represented that he was the. owner of letters patent from the United States, being Ho. 201,889, issued to him for certain improvements in barbed wire fence, and had made application to have certain letters patent of like kind issued to him, all of great value. That they were valid and the invention therein described new, useful, and had not been issued before, and could be used without being an infringement of those controlled by Washburn & Moen Manufacturing Co. and Elwood or their licensees, and relying upon the representations appellant went into partnership with HadelhofEer under the firm name of John W. Hadelhoffer & Co., for manufacture and sale of barbed fence wire, and sets out the terms of the partnership agreement. They proceeded in business under the agreement until, some time in February, 1883, in violation of his agreement, appellee refused to continue the partnership, having received the patent Mo. 270,098 January 2, 1883, threatened to sell the patents and endeavored to do so. On account of his circumstances and investments in the barbed wire business appellant would suffer great loss if the patents were sold to other parties and unless the business should continue. That said Madelhoffer represented that the two patents were valid, and represented that he had been already offered upward of $25,000 in cash for the said two letters patent and threatened to accept that sum and transfer and assign the patents, unless he should be able to make sale of them to appellant, and appellant, relying on such representations, and for the purpose of avoiding loss, purchased them as aforesaid.
    That on the 18th of April, A. D. 1883, appellee, by proper deed, conveyed the said letters patent to the appellants, and his right, title and interest in said machine inventions, for which applications for letters patent had been made mentioned in the contract. The bill charges that the said two patents were the chief and almost entire consideration for said contract and assignment. That the representations of appellee were false. That each of said letters were, and now are invalid and void in this, that the inventions were not and are not new, and had been in public use more than two years prior to the application for either of them, and were a mere change of proportions and devices long before in general use. That the representations as to the appellee’s being offered §25,000, etc., was false and fraudulently made, and that the representation that the patents were not an infringement of the letters patent owned and controlled by Washburn & Moen Manufacturing Co, and I. L. Elwood were also fraudulently false.
    That the letters patent Mo. 281,120, issued to appellant as assignee of appellee, was invalid and utterly void in this, that it is not new, and has been in public use more than two years prior to the application for said letters patent, and is a mere change of devices and proportions in general use prior to said application, and is an infringement the same as the others. That the consideration for the notes and cash paid had entirely failed. That appellee was insolvent, etc.
    Messrs. House & Fey, for appellant.
    Mr. 0. Dunham, for appellee.
   Lacey, J".

It is sought by this bill to annul the agreement and recover the money paid, and perpetually enjoin the note last due, the other being in suit, and pleas entered claiming failure of consideration, and is not in controversy in this suit.

The ground of such relief as set up in the bill is, that the execution of the agreement, the payment of the seven thousand dollars in money and the execution of the notes in question, was procured by the fraudulent misrepresentations of the appellee.

The main and chief cause of complaint is that the appellee represented that the patents were genuine and not an infringement of other patents, and that they were new, and that he had been offered the sum of $25,000 in cash for the two patents by other parties, and by implication, at least, that the patents were worth that sum.

Was the first of these representations fraudulent in such a manner as to avoid the contract; and in considering that we must look to the contract to see what was actually sold to the appellant.

It will be observed that the deed of assignment of the letters patent and the assignment of the claim for the one applied for was only a quit claim. It was not a warranty. The only warranty was that appellee held and retained the full and complete absolute title to each of said letters patent; that is all the title that he ever held ; that he had not conveyed or incumbered it. That this warranty has failed is not contended. The agreement then expressly says that the appellee did not warrant the validity of said patents, or that they were not infringements of any other patents now existing, and the said party of the first part shall.not be required to. defend any suits now pending or hereafter to he instituted wherein the validity of the said patents are called in question, etc. So it will be seen that appellant was fully notified that he was buying the patents at his own risk — that he took his chances as to their being infringements and as to their novelty. Whether they were genuine or not was to a great degree a mere question of opinion and as to whether they were infringements or not was the same. The mere representations that the patents were genuine and novel, and not infringements, should be regarded as mere matter of opinion and are not such false representations as would avoid a contract. As to the patents being worthless, depends apparently upon the fact of their being genuine or not. If they are genuine and not infringements, there is no charge in the bill but that they were fully as valuable as claimed by appellee, or worth the amount given. Therefore there could be no failure of consideration under the agreement, there being no warranty of genuineness, unless the contract can be impeached for fraud. It remains now to be considered whether the representation by appellee that he had been offered $25,000 in cash for the patents was such as to avoid the contract on account of fraud. The material effect of such statements would be to induce the belief on the part of appellant that as others prized the patents they must be very valuable, and might induce the belief that they were genuine, as parties would not make such offers unless they so believed. But as to the value of the patents there is no dispute, in the case of their being genuine and not infringements.

That may be laid out of the question, as appellant waived any warranty. Then the other part of the implication, that parties believed that the patents were genuine, would rest on the same foundation as the representations made by the appellee directly; that the patents were genuine and not infringements is a mere matter of opinion of a party not known to have any peculiar knowledge.

It would be the folly of the appellant to use any such implication or to be influenced by such statements. Then we would conclude that such false statement would not be sufficient grounds upon which to declare the contract void. In the case of Noetling v. Charles H. Wright, 72 Ill. 390, it is held, that statements made by a vendor of property, as to its value or the price he has been offered for it, or the good qualities of the property,” etc., * * * are not such statements, if proven false, upon which an action for deceit could be maintained * * * such statements are regarded as mere gratis dicta, and as is well said by Kerr in his work on Frauds and Mistakes, page 84, “A man who relies on such affirmations, made by a person whose interest might so readily prompt him to invest the property with exaggerated value, does so at his peril, and must take the consequences of his own imprudence.” But this rule would not apply in case a party should state that he had been offered .an exaggerated price for an article by a third party, and by collusion with that party the third party should falsely state that he had in fact made such offer when he had not in good faith done so. By such a conspiracy a source of information to which plaintiff had a right to resort and rely on would be corrupted, and he be prevented from obtaining correct information, so he would be morally and legally defrauded.” Keener v. Harding, 85 Ill. 264. But such is not- the case here. Ho such conspiracy is alleged. As authority bearing on the same doctrine, and sustaining it, see Schramm et al. v. Mary E. O’Conner et al., 98 Ill. 539. We therefore conclude that no such representations were made in this case as would amount in law to fraud. The appellant had been manufacturing the barbed wire under this patent, and was as well acquainted with its value as appellee, and such representations ought not to have deceived him.

Another point in the case that would prevent the appellant from sustaining his bill is, that he should have offered to re-deed the patents to him, which he did not do. It is claimed that the patents are worthless and not genuine; hence this offer need not be made. We think, in good faith, it should be. This is not a suit directly to annul the patents, and notwithstanding they are admitted by the demurrer to be infringements, yet they might have some value to appellee, and they should be returned. They are at least grima facie good, and the appellee might be able to realize, something for them if he had them.

What excuse can there he on the, part of appellant for not making the offer ? If he procures the contract to be annulled, if there can he anything realized out of the patents, appellee, and not appellant, is entitled to it. . Eor these reasons we think the decree should be affirmed.

Decree affirmed.


author: Baker, J.

text:
    Alexander Long et al. v. William P. Long et al.
    1. Advancement — Distinction—Evidence.—There is a distinction between an advancement as provided for in the statute and an agreement to take a conveyance in prcesenti in full satisfaction of all claim in expectancy in the residue of the estate of the ancestor. A bill is maintainable to enforce such an agreement, and parol evidence is admissible to show the agreement. Such agreement is unaffected by the statute of 1872 requiring advancements to be evidenced in writing.
    2. Evidence. — Section 2 of Chapter 51 of the R. S. does not apply where the controversy is am mg heirs respecting their relative rights in the distribution of the estate in proceedings by which-the estate itself is in no event to be reduced or impaired.
    8. Declarations of grantor, — Admissibility.—Statements of the grantor made in the absence of the grantee after the execution and delivery of the deed, are inadmissible against the grantee but such statements would be proper evidence against the heir of the grantor claiming adversely to the grantee.
    Appeal from the Circuit Court of Lee county.
    Opinion filed February 20, 1886.
    Messrs. W. & W. D. Barge and Messrs. W. E. Ives & Son, for appellants;
    cited Galbraith v. McLain, 84 Ill. 379; Bishop v. Davenport, 58 Ill. 105; Deniston v. Hoagland, 67 Ill. 265.

      All agreements by expectant heirs in regard to their future contingent estates, when fairly made will be enforced in equity: Parsons v. Ely, 45 Ill. 232; Kenney v. Tucker, 8 Mass. 142; Hobson v. Trevor, 2 Peere Williams, 191; Whethered v. Whethered, 2 Eng. Ch. 184; Lewis v. Madison, 1 Munf. (Va.) 303; Fitch v. Fitch, 8 Pick. 479; Bayler v. Commonwealth, 40 Penn. 37; Vanck v. Edwards, 1 Hoffman, 382; Quarles v. Quarles, 4 Mass. 680.
    The declarations of a party to the record are admissible in evidence against him: Ashlock v. Linder, 50 Ill. 159; 1 Greenleaf on Ev., §§ 171, 172; Robbins v. Butler, 24 Ill. 387; C. & N. W. Ry. Co. v. Boon Co., 44 Ill. 240.
    Mr. John B. Crartree, for appellees;
    that oral testimony is inadmissible to prove an advancement, cited Barton v. Rice, 22 Pick. 508; In re Ashley, 4 Pick. 21; Bigelow v. Poole, 106 Gray, 104; Sherewood v. Smith, 23 Conn. 516; Wheatherhead v. Field, 26 Vt. 665.
    As to declarations: Hatch v. Straight, 3 Conn. 3; Faulkner v. Watts, Atk. 407; Bulkeley v. Noble, 2 Pick. 337.
   Baker, J.

William Long died intestate on the 4th day of July, 1877, leaving certain children and grandchildren as his heirs at law. William B. Long, one of his' sons, was appointed administrator of his estate, and on the 13th day of September, 1880, presented to the County Court of Lee county his-amended final report, to which exceptions were filed by William P. Long, a grandson, and one of the heirs of the deceased. A hearing was had upon said amended report and exception thereto, which resulted in a statement of the accounts of the administrator by the court, and, an order and judgment to the effect, among other things, that said administrator, within thirty days from that date, pay to said William P. Long the sum of $5,240 in full of his distributive share of the estate of the deceased. From this order of the county court the administrator took an ap2Deal to the Circuit Court of Lee county, where the cause is still pending.

Thereupon the appellants, who are children and grandchildren and heirs at law of said William Long, deceased, exhibited their bill of complaint in said circuit court, wherein it was alleged, among other things, that on or about the 3d of June, 1876, and after the death of James Long, son of William Long, and father of William P. Long, said William Long conveyed to William P. Long, his grandson, by warranty deed, certain tracts of land described in the bill and containing 249.46 acres, as his full share of the estate, real and personal, of the grandfather, and in lieu of his expected portion, and that the said deed of conveyance and land were accepted by William P. Long as his full share of the estate, and that it was at the time of the conveyance agreed between the grandfather and grandson, that the residue of the property of the grandfather, both real and persona1, should at the time of his death pass to his other heirs free from any claim of William P. Long; and it was alleged that the lands thus conveyed Avere of the value of about §15,000, and more than the eighth part of the entire estate, and more than the intestate was able to give to each of his other heirs, and that it was therefore agreed that William P. should pay to William Long §4,000 in one, two, three and four years, with interest at eight per cent, in order that William Long might be able to give to each of his- other heirs, a share equal to that given his said grandson; and that such notes, and a mortgage on the land to secure them, were executed and delivered, and that William P. took possession of and still holds the premises. The bill then stated at considerable length the proceedings in the matter of the administration of the estate, and made both said William P. Long, and the administrator, William B. Long, defendants, and prayed that the former might be compelled to release all claim to the residue of the estate, that he should be perpetually enjoined from making any claim or prosecuting any suit for any part of said residue, and that he should be compelled to stand to and abide by the agreement between himself and William Long, deceased; and that the latter, as administrator, should be perpetually enjoined from paying said §5,240 or any part thereof, or of the estate,to said William P. Long.

The answer of the defendant William E. Long, administrator, admitted the bill to be true. The answer of the defendant William P. Long admitted the making of the deed of June 3, 1876, but denied that the conveyance of the land was either made or accepted in lieu of his expectant portion of the estate, or that they were worth $15,000. The answer claimed that in 1864 his father1, James Long, since deceased, was desirous of purchasing 200 acres of said land, but not being able to pay for it, William Long, father of Jamos, proposed to purchase and pay for the same and take the deed to himself, and afterward convey to James, whenever he became able to buy, and to then let him have it at the same price he paid for it, the rent of the land in the meantime affording him, William, interest on his money invested; and such arrangement also enabling James to secure the land. The two hundred acres were thereupon purchased for $3,600, and deeded to William, who rented them to James. That James was killed on the 26th day of January, 1870, and that William then agreed to carry out with William P. the arrangement made with the father, James, and to convey the land to William P. when he became able to purchase it and for the same price paid for it, and that William P. paid rent for the 200 acres to his grandfather to the time of the conveyance to him in 1876. That early in 1875 William P. was desirous of buying an adjoining tract of 49.46 acres, and his grandfather agreed to purchase it for him and take the deed in his own name, and when the grandson was able to buy to convey it to him at the price paid for it, with ten per cent, interest added; that thereupon it was bought from one Ingalls for $1,000, and deeded February 2, 1875, to William. That William P. settled the interest on the $1,000 to June 3, 1876, and on that date his grandfather conveyed both the 200 aeres and the 49.46 to him for the consideration of $4,600, that being the exact price he had paid for the lands, $600 of the consideration being paid in cash, and notes and mortgage being given for the $4,600, which were subsequently paid off.

Replication was filed, and proofs taken ; and upon a hearing in the circuit court the bill was dismissed for want of equity.

A preliminary question is raised by appellee, and it is claimed that the court of equity will not take jurisdiction of this case for the reason that the controversy relates wholly to the distribution of personal property, and that the county court had ample power to pass on and determine all the questions involved. On the other hand, it is urged by appellants that the bill is for specific performance of an agreement, and to enforce an equitable estoppel, and that therefore the jurisdiction is properly in the chancery court. Suffice it to say, that we think there was jurisdiction in the county court to settle the present controversy ; but as appellee did not object below to the form or to the maintenance of the bill, but filed his answer and submitted the questions at issue to the court of equity, he can not now, in the appellate court, be hoax’d to raise that point for the first time, as in any view of the case the subject-matter involved is not so wholly foreign to the jurisdiction of a chancery court that the objection that there is an adequate remedy at law may not be waived.

The sevcxxth section of the Statute of Descents, in force July 1, 1872, provides that no gift or grant shall be deemed to have been made in advancement unless so expressed in writing or charged in writing by the intestate, "as an advancement, or acknowledged in writing by the child or other descendant. It is urged by appellee that as no writing is produced made by the intestate stating the land 5 were deeded by way of advancement, or charging them as an advancement, or signed by appellee and acknowledging an advancement, a bill of the character here in question can not be maintained. Parsons v. Ely et al., 45 Ill. 232, Bishop v. Davenport, 58 Id. 105, Galbraith v. McLain, 84 Id. 379, and Kershaw v. Kershaw, 102 Id. 307, are all authorities to show there is a distinction between an advancement as provided for in the statute, and an agreement to take a conveyance in presentí in full satisfaction of all claim in expectancy in the residue of the estate of the ancestor, and that a bill of this kind is maintainable, and that parol evidence, is admissible, to show the agreement. In Kershaw v. Kershaw it was said: “ Here there was no advancement, but an executed contract, whereby an heir released his expectancy in his father’s estate in consideration of a present grant of real estate. ”

In Galbraith v. McLain it was expressly held such agreement might be shown by oral testimony, and that decision was approved in the Kershaw case. It is suggested the present statute, requiring advancements to be evidenced in writing, was not in force at the time of the transactions involved in the cases cited; but it is sufficient to say the decision in Bishop v. Davenport was made in 1871, and in that case it was said, “The sums received were not charged to the heirs by the intestate, nor can they properly be said to have been received by way of advancement; they were received in full payment and satisfaction of their shares and portions of the estate by express agreement; ” and it must be presumed the legislature in employing the word advancement, used it in the sense the Supreme Court had given it when interpreting the former statute on the same subject. Our conclusion on this point therefore is, that a bill of this kind lies as to transactions occurring subsequent to the statute of 1872, and in the absence of written evidence of the contract.

The merits of this suit would seem to depend upon the weight of the evidence; and a number of questions arise upon the record with reference to the admissibility of testimony.

It is claimed by appellants that the appellee is not a competent witness as to the transactions and agreement between his grandfather and himself, and this claim is based upon the alleged ground that appellants sue as heirs, and that he is therefore disqualified by section two of chapter 51, R. S., from testifying in his own behalf as to such matters. The point is not well made, as this is a contest between the heirs, among themselves, regarding the distribution of the estate. The statute relied on was intended to protect the estates of deceased persons from the assaults of strangers, and relates to proceedings wherein the decision sought by the party so testifying would tend to reduce or impair the estate, and does not relate to controversies among heirs respecting their relative rights in the distribution of the estate, in proceedings by which the estate itself is in no event to be reduced or impaired. Pigg v. Carroll, 89 Ill. 205; Mueller v. Rebhan, 94 Id. 142; Kershaw v. Kershaw, 102 Id. 307. All the heirs, including William P. Long, are competent witnesses.

Appellants also insist that the declarations of William Long concerning the disposition he had made of his property are admissible in evidence. There is no question but that the declarations and admissions of privies in estate made before parting with their interests, are competent evidence against the parties succeeding to their estate. The record, however, contains the testimony of several witnesses who testify to statements of William Long, made in the absence of William P. Long, after the execution and delivery of the deed of June 3,1876. This evidence is merely hearsay, and is inadmissible; such statements can not be regarded as in any sense declarations against either the proprietary or pecuniary interest of the party making them. We do not understand the case of Cline v. Jones, 111 Ill. 563, to go to the extent of holding that statements of a grantoi in a deed, made after its execution and delivery, are competent evidence against the grantee for the purpose of showing what the consideration for the conveyance was. The declarations that were held to have been properly received were introduced on behalf of the grantee in the deed, and against the objections of those of the heirs who claimed the gift was an advancement.

While the statements of a grantor made after conveyance are inadmissible as aga nst the grantee, they would be proper evidence against the heir of the grantor claiming adversely to the grantee.

The evidence in this case is quite conflicting, and is far from being entirely satisfactory. The testimony of appellee and of his mother, Margaret Long, if it is to be relied upon, would seem to fully establish the matters of defense set up in the answer of appellee. Them statements do not appear to be unreasonable, and they are corroborated by various circumstances in proof. On the other hand they are to some extent impeached by other witnesses, who testify to statements made by them which are in conflict with their sworn evidence. The point apparently most relied upon by appellants is, that William P. Long, at the date of the conveyance to him, executed and delivered to his grandfather a quitclaim deed to 355.81 acres of other lands. There is no claim that he at the time had any title to, or interest in, any of this land, except a small undivided interest in an eighty-acre tract, the legal title to which had stood in the name of a deceased son of William Long.

It seems the grandfather had furnished the money to purchase this eighty acres, and after the death of his son had always claimed and treated it as his own. The title to the remaining 275.81 acres stood in the name of the grandfather. Appellee is described in this quitclaim deed as “ a grandson and heir of William Long.” If the transaction between the grandson and grandfather was merely a purchase of land by the former, it is difficult to see why it was that he gave to the latter a quitclaim deed for other lands to which he had no title, and which were already vested in the latter, or why it was that he was described in the quitclaim deed as “a grandson and heir.” The only explanation given by appellee in his testimony is that his grandfather had the quitclaim deed drawn up and asked him to sign it, and that he did so; and that nothing was said between them either at that time or before or afterward with reference to it; and that there never was any understanding or agreement ihat he should receive the lands deeded to him, the grandson, in full of his interest in the estate. The circumstances would seem to suggest a probability that the grandfather supposed the quitclaim deed would have the effect of releasing the expectant interest of appellee either in the lands described in the quitclaim deed or in the whole residue of his estate. But this is mere surmise, and the quitclaim deed could have no such legal effect. These lands described in the quitclaim deed were subsequently conveyed by the grandfather, some of them to various of his children, and some to third parties — and the present controversy is in respect to the distribution of a quite considerable amount of intestate personal property left by the grandfather, and it would be illogical to say that the fact appellee made a quitclaim deed to certain specified tracts of land, is proof that he released his expectant share of his grandfather’s personal property.

The testimony is voluminous, and, as we have said, conflicting; the bill is for the specific performance of an alleged contract, and not only is the burden of proof upon appellants, but they are required to make out their case by a clear preponderance of evidence.

Without going into the details of the testimony, we may say that we have been unable to come to the conclusion that it was error in the circuit court to find the facts for appellee and dismiss the bill of appellants.

The decree is affirmed.

Affirmed.


text:
    Patrick F. Dooley v. Sarah M. Dooley.
    1. Alimony pendente lite — Practice.—-The court is of opinion that it is not necessary that the facts to justify an order or decree for the payment of moneys pending a divorce proceeding; for the maintenance of the wife and children of the husband, should appear either upon the face of the decree or in the record. B ut, whatever the rule may be, sufficient evidence appears in this record to sustain the order made.
    2. Same. — Decrees for alimony pendente lite are interfered with by courts of review only where it is affirmatively shown that the amount allowed is. excessive.
    Appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    Opinion filed April 5, 1886.
    Messrs. Haley & O’Donnell, for appellant.
    Messrs. Flanders & Shutts, for appellee.
   Baker, J.

Sarah M. Dooley exhibited in the Will Circuit Court her bill for a divorce, charging her husband, Patrick F. Dooley, with habitual drunkenness for a period of more than two years; and afterward presented two supplemental bills alleging matters of threatened misconduct upon his part, and praying for injunctions. Answers were filed to these several bills. At the January term of the court, 1885, a rule nisi was entered against appellant that he should pay to appel lee §100 as alimony pendente lite, and $50 as solicitor’s fees, or show cause; but the rule was not either complied with or made absolute. At the May term of the court and on the 27th day of June, 1885, the rule, upon a hearing, was modi7 tied by the court, and an order entered of record to the effect that the court, having heard read the affidavits in support of the application of the complainant for alirnony pendente lite, and having heard the evidence and arguments of counsel, and being fully advised in the premises, doth order that the defendant pay to complainant’s solicitors for the use of said complainant and her children the sum of two hundred and fifty dollars on or before July 15, 1885, and fifty dollars per month on the 15 th day of each month thereafter, during the pendency of the suit.

The objections urged to the order are two — that the amount allowed by the decree as alimony pendente lite and solicitor’s fees is excessive; and that there is no evidence in the record to sustain the decree.

There is in the decree no finding of the facts upon which it is based; but' it does appear therefrom that evidence and affidavits in support of the application made by the complainant were heard by the court. It may also be noted that it is further shown, by the order of the court allowing this appeal, that leave was' given to file certificate of the evidence within twenty days; but it would seem such certificate was not filed.

By section 15 of the Divorce Act, it is provided that in every suit for a divorce the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit, and that the. court may also require the husband to pay, during such pendency, such sum or sums of money as may enalfle her to maintain or defend the suit. The 13th section of the act gives the court power to make such order concerning the custody and care of the minor children of the parties during the litigation as may be deemed expedient and for the benefit of the children. In Foss v. Foss, 100 Ill. 576, the court held that this power to make an order concerning the care-of minor children very clearly included power to make an order for the payment of a sum reasonably necessary for their support.

It may well be doubted that it is necessary that the facts, to justify an order or decree for the payment of moneys pending a divorce proceeding for the maintenance of the wife and children of the husband, should appear either upon the face of the decree or in the record. In Parker v. Parker, 61 Ill. 369, a decree for alimony was affirmed, although the facts upon which the decree was based were not found therein, or the evidence otherwise preserved in the record. That such evidence or facts did not appear in the record is indicated by various statements found in the opinion of the Supreme Court, and fully appears from an examination of the transcript of the record on file at Ottawa. In that case it was said of the appellant: He is in the same situation precisely as is any debtor against whom a decree for the payment of money in installments is required to be made. It can not be that the court would have no power to decree alimony in money simply because the defendant has no productive property, or even if he was destitute of property. Mere want of means does not release a father from the duty of supporting his helpless infant children, or from contributing to the support of a wife, and especially so when he may have obtained a large amount of means from his wife.”

But even if the rule be otherwise, yet we think sufficient evidence appears in this record to sustain the order made by the court. The original bill and supplemental bills are sworn to, and there are in the record affidavits of the truth of the matters stated in them. From the statements found in these bills, in connection with that which appears from the answers or otherwise in the record, these facts, among others, are deducible: Appellee is the mother and appellant the father of eight minor children, the. oldest of whom is sixteen years of age, and the youngest but one year old, and the elder four of the children are girls; and the mother and eight children are living by themselves in a little house some distance from that occupied by the father, she claiming that she was forced to leave his house and take the children with her; the husband is the owner of a considerable amount of' real estate and personal property, but its value does not appear, either from the bills or answer; the wife claims that a portion of the property, the title to which is in the husband, was purchased with moneys obtained from her after their marriage ; and the husband claims the possession and control of the eighty-acre tract of land owned-by her, for a period of three years yet to come, to recompense him for expenditures and improvements made thereon ; and the order making the allowance was entered six months after the bill for divorce was filed, and four months after the wife and children had ceased to reside with the father.

We are unwilling to hold it was an abuse of judicial discretion in the circuit court to adjudge that appellant, who is engaged in active business affairs and is the owner of considerable real estate and personal property, the amount and value of which he has not disclosed, although they are matters especially within his own knowledge, should pay, in discharge of legal duty, the sum of §50 per month- during the limited period of the pendency of the divorce suit for the support of his wife and eight childrem, all of which latter, either by reason of sex or age, or both, are in need of a mother’s care, and presumably unable to maleé provision for themselves. How, under the circumstances, can an allowance of §250 for their past maintenance, at a domicile other than his own, for a space of four months, and for the solicitor’s fees and expenses of litigation which had involved the filing of three bills of complaint and the obtaining of two writs of injunction, and had already lasted six months without coming to trial, be regarded as such abuse of discretionary power as to demand the interference of an appellate tribunal ?

The question, of allowances of the kind here under consideration is largely a matter of judicial discretion to be exercised by the court of original jurisdiction. The rule in this ¡State is that the appellate court is only authorized to reverse on the ground such allowance is excessive, when the differerence in judgment between the appellate and circuit courts is strong and decided. Foote v. Foote, 22 Ill. 425; Jenkins v. Jenkins, 91 Id. 167; Foss v. Foss, 100 Id. 576; Parker v. Parker, 61 Id. 369. In the case last cited it was said: “ But for aught that appears in the record, plaintiff in error may have been in the receipt of a large income.” It would seem from an examination of the reported cases that decrees for alimony %e%dente lite are interfered with by the courts of review only where it is affirmatively shown that the amount allowed is excessive. The husband, if he deems himself aggrieved, always has it in his power to remedy an improper or excessive decree by taking a certificate of the evidence. Besides this, the allowance is but temporary and subject to modification by the court below. Appeals in matters of this sort should only be sustained when they are clearly meritorious, as their evident tendency is to defeat the just and equitable intention of the statute, which is to make a temporary provision for the support of the wife and children.

"We see no good cause for disturbing the order and decree of the circuit court, and it is affirmed.

Affirmed.


author: Lacey, P. J.

text:
    John S. Rand v. Charles D. Wilber et al.
    Injunction. — A bill in equity to enjoin the rebuilding of a privy by appellant within five feet of appellees’ line, contrary to the ordinance of the city. Held, that in such a case, where the injury resulting from a nuisance is in its nature irreparable and would result in the loss of health and permanent ruin of property, a court of equity will interfere by injunction.
    Appeal from the City Court of Aurora; the Hon. A. H. Barry, Judge, presiding.
    Opinion filed April 5, 1886.

      Mr. A. C. Little, for appellant.
    Mr. M. O. Southworth, for appellees.
   Lacey, P. J.

This was a bill in equity, brought by appellees against the appellant, seeking to enjoin the latter from erecting a privy within five feet of appellees’ line, or that will injure appellees or their premises, or be a nuisance, under ordi. nance of the city, or that will injure the well, or health of the family.

The bill charged that the appellee, Nancy Wilber, was the owner in fee of a certain lot in the town of Aurora; that she had a dwelling house on said lot that had been occupied by them as their dwelling for several years last past; that appellant was the owner in fee of the west eighty feet of the lot; that appellees’ house was within six feet of the west line of said lot and a few inches from the south line of the lot; that six feet from the west lino of said lot is appellees’ well, which is also fifteen feet from the south line ; that this well supplied them with water for domestic purposes. It further charges that appellant had dug a vault several feet deep up to the east line of said lot with'n a few inches of the south line, and that appellant was constructing a vault for a privy, and was going to put on it the structure heretofore used and use the same for a privy, and will use the same for a privy unless enjoined. The bill charges that it was within six feet of the kitchen door of appellees and within twelve feet of their well, and if built and used as a privy will become a nuisance to appellee and family, prevent the enjoyment of the premises and depreciate the value of same. The appellant has room on his own lot for a privy and if this is completed irreparable injury will be done to appellees. The appellant refuses to stop building and claims that he has a right to build a privy anywhere on his own lot. An injunction was granted temporarily. The appellant, in his answer, denied that he was building a new privy or any privy, but.that where the old privy vault yuis, lie having covered the same and made it part of his dwelling house, will use it for an ash pit.

A supplemental bill was filed showing that appellant had completed the vault and privy and inclosed it and would use it unless enjoined, and asks an additional inj unction. Appellant answered denying that he intended using the vault and privy for the purpose of a privy. Upon a hearing of the case the court entered up final decree, finding the material allegations of the bill to be sustained and true, and perpetually enjoining appellant from using the said vault and building as a privy, and from erecting and using a privy within five feet of complainants’ line, from which decree this appeal is taken.

It is contended as ground of reversal that a court of equity had no jurisdiction in such a case. It is claimed by counsel for the appellant that, the appellees had an adequate remedy at law, and besides, before a court of equity would take jurisdiction, the question of nuisance must be determined in a trial at law that a nuisance exists. This position is not tenable. In a case like this, where the injury resulting from a nuisance is in its nature irreparable and would result in the loss of health and permanent ruin of the property, a court of equity will interfere by injunction in the furtherance of justice and to prevent the right of property being violated. The question in a case similar in its facts to this has been decided by the Supreme Court of this'State in Wahle v. Reinback, 76 Ill. 322, and the question is no longer an open one. Besides there was no demurrer to the bill, and the defense of jurisdiction was not raised and insisted on in the answer-, which should have been in order to enable the appelant to raise the question on the hearing of the case in the court below or here.

We are satisfied from the evidence preserved in the record that the allegations of the bill are well sustained, and that it was the intention of the appellant to use the vault and structure for the purpose of a privy, and that it would have created a nuisance to the property of appellees and endangered their liealth, and that the damage would have been irreparable. The nature of the structure itself strongly indicates that it was the purpose of appellant to use it as a privy, it being peculiarly fitted for such purpose. From this and the fact that lie told appellee, C. D. Wilber, and others, that such was his intention, is enough upon which to base the decree and finding of the court below, and his mere denial would not he sufficient under the circumstances to overcome the evidence. Having told appellees that such was his intention, and the fact that he was constructing a vault fitted for such purpose, should estop appellant from denying it afterward to escape costs.

The old structure situate there, and used as a privy at the time of the sale from appellant to appellees of their portion of the lot, had become a nuisance, and had been torn down by appellant, and he had no mire right to construct a new one than if the old one had not been there at the time of the sale to appellees. The appellant can not be disappointed or injured by the granting of the injunction, as he did not, as he declares in his answer, and testified to, intend to use the structure as a privy. The costs are really the only matter in question, and his statements to appellees prior to the commencement of the suit, that he intended to build the privy in the place where this vault was located, was cause enough to justify the appellees in bringing this action.

Being fully satisfied with the action of the court below we affirm the decree of that court.

Decree affirmed.


author: Baker J.

text:
    Mary McManus v. John Mills.
    1. Husband and wipe. — Where a husband in failing circumstances makes a conveyance to his wife, if such conveyance is made in good faith it will be sustained to the extent of the consideration actually paid.
    2. Mortgage to wipe. — Where appellee levied upon certain property claiming it belonged to his debtor, the husband, and appellant, the wife, claimed it as her own, and on the trial in the court below offered to show that she had loaned her husband $800 received from her father’s estate, and offered in evidence a promissory note and chattel mortgage given to her by her husband on the property in question, held, that it was error to exclude the evidence from the jury and direct a verdict for appellee.
    Appeal from the Comity Court of La Salle county; the Hon. Hiram T. Gilbert, Judge, presiding;
    opinion filed April 5, 1886.
    Messrs. Bicholson & Gentleman, for appellant;
    cited Tomlinson v. Matthews, 98 Ill. 178.
    Mr. B. D. -Snow, for appellee;
    cited Simmons v. C. & T. R. Co., 110 Ill. 340; Miller v. Payne, 4 Bradwell, 112.
   Baker J.

A constable held an execution against Archibald McManus, husband of appellant, and levied it on certain horses. The property was claimed by her and a trial of the right of property before a justice of the peace resulted in her favor.

On appeal to the county court, a jury was impaneled to try the case de novo. Appellant introduced in evidence a promissory note executed by her husband to her for $1,679.32, dated December 27, 1884, and a chattel mortgage of the same date from him to her on the horses in question and some other stock, given to secure said note ; and also provided that in 1872, and subsequent to her marriage, she received the sum of eight hundred dollars in money from the estate of her deceased father. - She also introduced evidence tending to prove that shortly after her receipt of the $800 she loaned it to her husband, who used it in making payment of a note of his for $1,000 and drawing ten per cent, interest, that had been given for a part of the purchase money of his farm ; and that the note and mortgage to her were executed in order to secure the payment of this $800, borrowed by the husband, and interest thereon. She testified positively that the money was loaned, and produced the $1,000 land note that had been paid off, and testified she took possession of it at the time of the transaction in order to show that she had loaned her husband the money to make payment. She also stated she had asked her husband at different times for the money, and told him she must have it; that she held the $1,000 note as the money belonging to her, and it was all she had to show for it until the note and mortgage in issue were given ; and that she knew her husband was heavily in debt when she took the latter. The testimony of appellee was quite fully corroborated by that of her brother, John Kerns.

Thereupon, appellant having closed her case, all the evidence introduced by her was, on motion of appellee, excluded from the jury, and the jury directed to return a verdict against her. A verdict was so entered and judgment rendered thereon.

The action of the court was erroneous. The jury should have been permitted to pass upon the caso. The $800 and interest thereon, if they amounted to the face of the note of December 27, 1884, and if it was a honafide loan, made with intention it should be paid back, and believed by the jury to be such, afforded an ample consideration for the note and mortgage; and it would seem the note and mortgage and other evidence introduced, if the transaction appeared to the jury to be in good faith, made out a -prima facie case.

In Whitford v. Daggett, 84 Ill. 144, it was held that since the Married Women’s Act of 1861, money of the wife loaned to the husband, either before or after marriage, is a proper charge against him while living, and against his estate after his death. In Payne v. Miller, 103 Ill. 402, it was said: “ With respect to the right of a husband to make a conveyance to his wife when in failing circumstances, the law is well settled he may do so when made upon a full, fair consideration, and where such conveyances are made in good faith they will be sustained to the extent of the consideration actually paid and no further.” In Tomlinson v. Matthews, 98 Ill. 178, the moneys included in the two promissory notes there involved had been loaned by the wife to the husband from time to time and in various amounts, some of them as much as eight, nine and even ten years prior to the execution of said notes; and when the moneys were got nothing was said about paying them back. In that case the authorities in this State bearing upon the matter involved were discussed, and the court deduced therefrom three principles:

“ 1st. The husband may prefer the wife (she being a creditor) to other creditors, provided the preference is based upon a valuable consideration, and is made in good faith.
“ 2d. As to the property of the wife, protected as her separate property by the statutes in force in reference thereto, the husband occupies the .same relation as over a stranger. She may sell it or loan it to him, or constitute him her agent for its management and disposition; but a gift of it by her to him will not be presumed in the absence of proof to that effect.”

Of course these conclusions, formulated by the Supreme Court, are to be taken as subject to the restrictions imposed by section 9 of the statute, relating to husband and wife; and also to the principle that the relation of the parties may be considered with reference to the weight to be given or inference drawn from their conduct and dealings with regard to the separate property of the wife. See Patten v. Patten, 75 Ill. 446.

The cases of Wortman v. Price, 47 Ill. 22, Patton v. Gates, 67 Id. 164, Kahn v. Wood, 82 Id. 219, and Hockett v. Bailey, 86 Id. 74, cited by appellee, we do not understand to be authorities in point in the present litigation. The doctrine of a line of cases of which those cited are samples, is-that if the wife allows the husband to use her capital in his. business or as his own, and invest and re-invest it in his own-name, and thereby obtains credit on the faith of his being the owner of the property, she will not be permitted to interpose her claim thereto, to the injury of the creditors of the husband. Here, there is no question of the ownership of particular property, claimed by the wife to have been bought with her means; but, the title of Archibald McManus to both the farm, in part payment for which the §800 was paid, and to the horses and stock on which the chattel mortgage was given, is conceded by appellant. The judgment is reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    W. W. Cook, use, etc. v. John Harrison et al.
    1. Pabol authority to execute chattel mortgage. — Parol authority to execute a chattel mortgage is sufficient. Where one who has parol authority to execute a chattel mortgage, executes it under seal, the seal is surplusage.
    2. Agency — Referring act to power. — In order to uphold the instrument courts will refer the act to the power that the agent had.
    Appeal from the Circuit Court of McHenry county ; the Hon. Charles Kellum, Judge, presiding.
    Opinion filed April 5, 1886.
    This was a suit commenced by the appellee against the appellant on a replevin bond dated June 6, 1881, in a suit wherein the appellant'Harrison was plaintiff and the usee, and Asad Hdel was defendant, and who was the sheriff holding the property hereafter named on an execution in favor of Elizabeth Coggin v. Frank F. Coggin, and appellee was the coroner to whom the writ was directed and the payee of the replevin bond. The appellant Limley was the security of Harrison on the replevin bond. The court at the January, term, 1885, adjudged that the said property be returned, the appellant Harrison failing in his said suit; and the property not being returned to the sheriff, this suit was brought on the replevin bond to recover the damages, and appellee recovered of appellants the sum of $1,300 debt, the amount of the bond, and $322-.16 the amount of the damages, debt tobe satisfied in payment of ' damages and costs of suit, from which judgment this appeal is taken. The appellants pleaded that the merits of the replevin suit had not been tried, and that the property in question, being sixteen head of cows, belonged to the appellant Harrison. The question of Harrison’s right to the property was the main issue tried. A jury was waived, and trial by the court and the finding of the court under ilie evidence is assigned for error.

      Mr. B. N. Smith and Mr. C. P. Barnes, for appellants ;
    as to authority to execute chattel mortgages, cited Jones on Chattel Mortgages, 2 Ed. § 52; Dispatch Line v. Bellamy Mfg. Co., 12 N. H. 205.; 1 Parsons on Contracts, 6 Ed. 569; Sherman v. Fitch, 98 Mass. 59; Topley v. Butterfield, 1 Met. 515.
    If an agent, constituted such by parol, executes an instrumcnt for his principal which the law does not require to be under seal, his use of a seal will be treated as surplusage: 2 Parsons on Contracts, 6 Ed. 721; Beidler v. Fish, 14 Bradwell, 29; Truett v. Wainwright, 4 Gilm. 411; Story on Agency, Note 1, § 49.
    Messrs. Sherwood & Johes, for appellees.
   Lacey, P. J.

The appellant Harrison claims the property, by virtue of a chattel mortgage executed by Frank F. Coggin, the defendant in the execution, by his agent M. M. Clothier, it being executed and acknowledged by Clothier, claiming to be the agent or attorney in fact of said Coggin, in Coggin’s behalf. The debt which the mortgage was made to secure being due from Coggin to appellant Harrison, was $275. It seems that appellant Harrison held an old note and chattel mortgage on the cows from Coggin, and that the note and mortgage in question was executed by Clothier as the agent or attorney of his principal, and by the advice and consent of the mother of said Coggin, who is the same person who afterward obtained a judgment against her son and ordered out an execution and had the cows levied on to pay it. On account of this levy and seizure the replevin suit originated in which the bond in question was given. The mother’s name was Elizabeth Coggin. The mortgage in question was executed.in October, 1883. Before the mortgaged indebtedness had matured or the time for which the mortgage was made to run had expired, the mother, about March, 1884, obtained a judgment against her son by confession on a j udgmant note. There appears to be but one question in this case for our solution, the determination of which settles the rights of the parties herein, and that is, was the mortgage so executed by Clothier valid and binding on Coggin. If it was, then the appellee should have recovered no more than nominal damages; if it was invalid, then the judgment of the court below should stand. The mortgage was duly recorded, and no other question arises than the one stated.

The appellant Harrison showed that Clothier had full and complete parol authority from Coggin, the owner of the cows, which had never been revoked, to execute the mortgage in question; and this fact is not denied by appellee’s attorneys in their brief, nor is it seriously controverted that parol authority to execute a chattel mortgage is sufficient. Upon this point we think there can not be much doubt. It is laid down in Jones on Chattel Mortgages that “an agent, constituted such by parol, may execute a valid mortgage of his principal’s personal property, it not being necessary that such mortgage should be executed under seal.” Jones on Chattel Mortgages (2 Ed. Sec. 52, 102) and authorities cited in note. The mortgage in question, it appears, was executed under seal by Clothier, but this would not vitiate it.

The exercise of an excess of authority would not vitiate and render nugatory the act for that reason, if he had authority to, and did perform the act which, without the excess, would have been sufficient. The chattel mortgage did not become a specialty on account of the seal. Clothier had no right to attach the seal, it being beyond his authority. The mortgage should be treated as having been executed without a seal, and in this form it was valid. Beidler v. Fish, 14 Bradwell 29; Truett v. Wainwright, 4 Gil. 411. Other authorities might be cited but we think it is unnecessary. In executing the mortgage Clothier signed as “ attorney in fact ” for Coggin instead of signing ■ it as agent.

The evidence shows that at the time he executed the mortgage he had a power of attorney concerning some real estate only. This fact is relied on almost wholly by counsel for appellee as being fatal to the validity of the mortgage.

We do not think that the point is well taken.

Erom the evidence it does not appear very clear whether Clothier thought the parol authority was a power of attorney or whether he thought he had power by virtue of his real estate power, nor do we think it makes any material difference. He did execute the mortgage, and he did have the power by parol, and did not have it by virtue of any power of attorney. In order to uphold the instrument, courts will refer the act to the power that the agent had. The execution of the instrument was done under claim by Clothier of a power of attorney —a more comprehensive agency than the parol authority; yet he had an agency, and one that was ample authority for what he did. Coggin had told appellant Harrison that he had given such agency to Clothier, and he in fact had done so, and a mistake as to the nature of it should not vitiate the act. The agent intended to execute a valid mortgage, and it was accepted as such by Harrison, and we think the mortgage was valid. For the reason that the finding of the court on the question of the rights of appellant Harrison under the chattel mortgage is manifestly against the weight of the evidence, probably arising from a mistaken notion of the law as to the validity of the mortgage, we reverse the judgment of the court below and remand the cause for a new trial.

Reversed and remanded.


text:
    The People, etc., v. Eddie Stevens.
    1. Bastardy Act. — A prosecution under the Bastardy Act is a civil proceeding.
    2. Same — Jurisdiction.—A bastardy proceeding is properly and primarily within the jurisdiction of county courts at their probate term.
    Error to the Circuit Court of DeKalb county ; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed April 5, 1886.
    Mr. J. B. Stephens, for plaintiff in error ;
    that a prosecution under the Bastardy Act is a civil proceeding, cited Mann v. People, 35 Ill. 467; Pease v. Hubbard, 37 Ill. 257; Maloney v. People, 38 Ill. 62; People v. Noxon, 40 Ill. 30; Allison v. People, 45 Ill. 37.
    Mr. D. J. Carnes, Mr. G. H. Denton and Mr. N. F. Nichols, for defendant in error.
   Baker, J.

This was a bastardy proceeding. Defendant in error was tried at the March term, 1885, of the County Court of DeKalb county, it being a probate term of the court, and upon being found to be the real father of the bastard child of the complainant, Lizzie Elfmann, and adjudged to pay §100 for the first year and §50 yearly for nine years thereafter, for the support, maintenance and education of the child, and also to pay the costs of prosecution, he perfected an appeal to the Circuit Court of the county. At the June term, 1885, of the DeKalb Circuit Court, the cause was, at the instance of defendant in error, dismissed for want of jurisdiction, upon the ground that the county court had no legal authority to try a bastardy case at a probate tezun. The propriety of this ruling of the circuit court 1 is the only question to be decided upon this writ of error.

Prior to 1872 circuit courts had exclusive jurisdiction in prosecutions for bastardy, but by the act in force July fii'Bt of that year the county courts were given jurisdiction in such cases. The third section of the Bastardy Act provides that justices of the peace before whom the complaint is heard shall, if sufficient cause appears, bind the putative father in bond, with sufficient security, to appear at the next comity court to be liolden in the county, to answer the charge, add that the wari'ant and bond shall be returned to that court. The fourth section provides that the county court, “at its next teiun, shall cause an issue to be made up, whether the pei'son charged is the father of the child or not, which issue shall be tried by a jury.” An act to increase the jurisdiction of the county courts also went in force at the same date, whereby those courts were given concurrent jurisdiction with the circuit courts in all that class of cases where justices of the peace have jurisdiction, where the amount claimed or-value of the property in controversy did not exceed $500, and in appeal cases, and in certain criminal cases and misdemeanors. All matters within the jurisdiction of the county court were at that time cognizable at all its terms; and there was no distinction of its terms into law terms and probate terms. So from July, 1872, to July, 1874, the county court had jurisdiction in bastardy proceedings, and it was exercisable at any of its terms; and this jurisdiction was vested by the act of 1872 concerning bastardy, as was expressly held in People v. Woodside, 72 Ill. 407.

The County Court Act of 1874, in force July 1 of that year, repealed the County Court Act of 1872, made provision, for both probate terms and law terms of county courts, and gave such courts law jurisdiction the same, with the single exception of appeal cases, as that which had been conferred by the act which was repea1ed; and it provided that the criminal and law cases should all be cognizable at the law terms. The fifth section conferred upon these courts jurisdiction in all matters of probate and in certain-other specified matters, and also decreed they should have “such other jurisdiction as is or may be provided by law.” “All of which,” it was further there enacted, “except as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate terms.” The matters referred to by the clause “except as hereinafter provided,” are the matters specified in the seventh section of the act, and are that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, where the amount claimed or the value of the property in controversy does not exceed $500, and criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death. It is clear that a bastardy proceeding does not come within the provisions of this section seven, or of the exception contained in section five. Justices of the peace do not have jurisdiction to try bastardy eases; they merely have power to hold preliminary examinations, and for good cause shown, bind over for trial before another tribunal. ¡But it is contended that bastardy cases are to be classed with criminal offenses and misdemeanors, and tried only at the law terms of the county court. This does not seem to he the law in this State. In McCoy v. The People, 71 Ill. 111, the cases were quite fully discussed, and it was there heM a prosecution for bastardy is a civil proceeding. In Rawlings v. The People, 102 Ill. 475, it was said: “It is well settled by the decisions of this court that a prosecution under the Bastardy Act is a civil and not a criminal proceeding.”

The County Court Act of 1874 provides that the terms of the court for probate matters shall commence on the third Monday of each month except the months in which law terms are to be held, and that the law terms of the court shall commence on the second Mondays of certain specified months in the several counties of the State. Section 110 makes provision for juries at the law terms, and section 111 for juries at the probate terms whenever it shall be necessary for the trial of any matter pending before the court. Section six not only provides that probate terms shall not be held for the months for which law terms are established, but also that “all matters cognizable at the probate terms shall also be cognizable at the law terms.”

A bastardy proceeding is not, either primarily or exclusively, cognizable at the law terms, as it is neither a criminal case, nor of that class of civil cases in v Inch justices of the peace have jurisdiction. Such proceeding is properly and primarily within the jurisdiction of the county courts at their probate terms, for the jurisdiction to try such cases is expressly given to these courts by the Bastardy Act, and the fifth section of the County Court Act enacts that not only all matters over which jurisdiction is conferred by that section, but also all such other jurisdiction as is or may be provided by law for the county courts, except that given to try criminal prosecutions and the class of cases wherein justices of the peace have jurisdiction, shall be considered as probate matters, and be cognizable at the probate terms. There is no jurisdiction to try bastardy cases at the law terms, except by virtue of the last clause of section six, and then it is only by reason of their being cognizable at the probate terms. The conclusion is, that such cases may be tried indifferently either at the law or at the probate terms of the county court.

It follows that the judgment of the circuit court dismissing the proceeding and ordering it to be stricken from the docket was erroneous. The judgment is reversed and. the cause remanded, with instructions to reinstate it upon the docket.

Reversed and remanded.