text:
    Frank J. Wottowa, Appellee, v. Orah D. Ridgly, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. J. H. Fornoff, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Frank J. Wottowa, plaintiff, against Orah D. Ridgly and J. T. Long, defendants, for goods sold and delivered by the plaintiff to the defendants. From a judgment for plaintiff for $4,121.50 against defendant Ridgly, she appeals.
    The suit was begun by filing an affidavit for an attachment against both defendants stating that the defendants were indebted for goods sold and that the defendant Bidgly was a resident of Missouri. A writ of attachment was issued but returned unserved and thereafter notice of the attachment was published.
    A declaration consisting of three special counts and die common counts was filed against the defendant Bidgly. On August 23, 1915, defendant Bidgly tered a limited appearance and moved to quash the •orvice. This motion was overruled. She then filed i plea in abatement of the writ, in which she averred that at the time the affidavit for the attachment was filed she was not a resident of Kansas City, Missouri, but that on August 2nd and for fifteen days prior thereto she was a resident of the City of Chicago. She also filed a plea of the general issue to the declaration. On the trial the court ordered the first and third counts withdrawn from the consideration of the jury, and by an instruction told the jury there was no evidence of damages sustained by the plaintiff under the second count. The case was submitted to the jury on the evidence admitted under the issues on the plea in abatement and under the common counts. The jury returned a verdict finding the issues on the affidavit for the attachment for the plaintiff and a verdict finding the issues for plaintiff and assessing his damages at $4,000. Defendant entered a motion for a judgment non obstante, a motion for a new trial and a motion in arrest of judgment, which were severally overruled, and judgment rendered against defendant Bidgly for $4,000. The defendant Bidgly admitted she was a resident of Missouri prior to July .16, 1915, and testified that on July 16th she moved to Chicago and lived at the Morrison Hotel until July 29th, when she rented and took possession of a flat in Chicago. The lease introduced by her was dated July 30, 1915. Under this lease she rented the flat from September 1, 192.5 to September 30, 1916, at $50 per month, payable monthly in advance.
    Hontie Edwards, a witness called by the defendant Bidgly, testified that she had known Mrs. Bidgly fourteen years, and that she had been in Mrs. Bidgly’s employment. She testified that Mrs. Bidgly did not move into the flat until ten days or two weeks after the date of the lease; that she was in St. Louis during that time getting her furniture to move into the flat and that she received a letter from her from St. Louis in August, before she had moved.
    Taylor & Taylor and Glass & Bottenberg, for appellant.
    Brennan & Burlington, for appellee.
    Abstract of the Decision.
    1. Appeal and error, § 1035

      —When rulings cannot he considered on appeal. Rulings not assigned as error cannot be considered on appeal.
    2. Attachment, § 17*—When evidence shows defendant is a resident of a foreign State. In an attachment suit, evidence held to justify a finding that one of the defendants was a resident of a foreign State at the time of the commencement of the suit.
    3. Sales, § 329*—when evidence justifies judgment for goods sold. In an action for the purchase price of merchandise sold by the plaintiff to the defendants, evidence held to justify a judgment for the plaintiff.
    4. Principal and agent, § 8*—when evidence shows agency to purchase. In an action for the purchase price of merchandise sold by the plaintiff to the defendants, evidence showing, among other things, that one of the defendants arranged meetings between plaintiff and the other defendant, and conducted most of the negotiations in the presence of the latter, held to justify a finding that the former, defendant was an agent of the latter so as to make the former’s statements admissible against the latter.
    5. Trial, § 233*—when refusal to send pleadings to jury room is not error. Refusal of a trial court to send the pleadings to the jury room, held not error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

6. Contracts, § 377 —when evidence of prior negotiations is admissible. Where only a part of a contract sued upon has been reduced to writing, evidence of the negotiations and facts occurring prior to the time of . the making of the contract is admissible in evidence.

7. Attachment, § 237*—when judgment proper on count not covered by affidavit. In an action of assumpsit for goods sold and delivered and for work and labor, in which a writ of attachment had been issued but no property levied on thereunder, where the general issue only was pleaded, held that a judgment including a recovery on the count for work and labor could be sustained, though the attachment affidavit" did not state that anything was due for work and labor.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Dore Wolkau, Appellant, v. Fred Wolkau, Appellee.
    Tenancy in common, § 16*—when statute of limitations begins to run against bill for accounting. The statute of limitations does not begin to run against a bill by one tenant in common against his cotenant for an accounting for rents and profits collected by the latter until after a demand by the former for an accounting has been made or the tenancy repudiated.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 13, 1916.
    Livingston & Bach, for appellant; Sigmund Livingston, of counsel.
    Hart, Fleming & Pratt and Jordan & Jordan, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee and appellant are husband and wife and each own, as tenants in common, an undivided one-half interest in certain real estate in the City of Bloomington, Illinois. They became such tenants in common March 10, 1888. The property is improved with a three story brick building, which has been occupied by various tenants. From the date when appellant and appellee became tenants in common to December 3, 1913, when this suit was instituted, appellee had collected all the rents and profits from said property-and had paid the taxes thereon. On the last mentioned date appellant brought her suit in the Circuit Court in an action of account to recover her share of such rents and profits. At the November term, 1914, of said court, on motion of appellant, the cause was transferred to the chancery side thereof and she was granted leave to file her bill in equity therein. The bill, in substance, avers that appellee has collected all the rents and profits since March 18, 1888, and has paid the taxes on said property out of said rents; that there has never been a settlement or accounting rendered by him and she has never received any rents or profits from said real estate except the sum of $45 paid to her by appellee December 21, 1908; that the amount of rent collected by him is unknown to her, and prays that he may make discovery of all the rents and profits received by bim from said real estate since the date when they became tenants in common; that an accounting be had by the court and appellee be decreed to pay the amount found to be due appellant as the result thereof. Five interrogatories were attached to the bill which, in substance, seek to discover the amount of rent collected by appellee, the names of all the tenants and the rents collected from each, and all taxes and special assessments paid on account of said property during the years specified.

Appellee filed a special demurrer to the bill in which is set out, as a special cause thereof, that a recovery for the rents which had been received by appellee prior to five years before the bringing of the suit was barred by the statute of limitations. The court sustained the demurrer to that part of the bill which sought to recover rents prior to five years before the commencement of the suit. Appellee thereupon filed his answer to the remainder of the bill, in which it is averred that" he has collected as rents from said property during the five years prior to the commencement of the suit, the sum of $9,592.84. The answer also sets out the amount of the taxes paid by appellee on the property during that period of time; but avers that said payments are not pleaded or claimed as a set off to the rents collected by him, and that appellant is entitled to one-half of said rents so collected, or the sum of $4,759.92, which he is ready and willing to pay. The court rendered its decree by which it was adjudged that appellee should pay appellant the sum of $4,759.92 together with $1,148.09 interest due thereon, or a total of $5,857.09.

From this decree appellant has appealed to this court to have reviewed the correctness of the action of the chancellor in sustaining the demurrer to that portion of the bill which asks for an accounting of the rents and profits collected by appellee from the date of the common tenancy to December 1, 1908. Section 1, ch. 2, Hurd’s Rev. St. (J. & A. ¶ 27) provides as follows: “That where one or more joint tenants, tenants in common, or coparceners in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his, her or their interest, each person or persons, his, her or their executors and administrators, shall account therefor to his or their cotenant jointly or severally.” Section 2 of the Act (J. & A. ¶ 28) provides that the action of account may be sustained by a joint tenant, tenant in common, or coparcener, his or her executor or administrator, against the other or others who receive, as bailiffs, more than his or their due proportion of the profits or proceeds of such estate. This statute is a substantial re-enactment of chapter 16 of the Statute of 4 and 5 Anne. At the common law, one tenant in common had no remedy against his cotenant, where the latter had received as rents more than his share of the profits of the common estate unless the latter had been appointed bailiff of the former. For providing a remedy in such eases the Statute of Anne referred to was enacted. Angelo v. Angelo, 146 Ill. 629; Cheney v. Ricks, 187 Ill. 171. This remedy may be pursued in law by an action of account or in equity by a bill for accounting". Section 15, ch. 83, Hurd’s Rev. St. (J. & A. ¶ 7210) provides that all civil actions, not otherwise provided for in the act, shall be commenced within five years next after the cause of action has accrued. It has been held that an action of account comes within this provision and is barred within five years after the cause of action has accrued. Quayle v. Guild, 91 Ill. 378. When courts of equity have concurrent jurisdiction with courts of law and the party proceeds in equity, after having been barred at law, he will also be barred in equity. Bonney v. Stoughton, 122 Ill. 536; Harding v. Durand, 138 Ill. 516; Richardson v. Gregory, 126 Ill. 166; Bates v. Gillett, 132 Ill. 302; Manning v. Warren, 17 Ill. 267.

The question in this case is not whether the statute of limitations applies to an action by one cotenant against another to recover a just share of the rents and profits received by the latter, but is, when does the cause of action accrue and the statute of limitations commence to run against it. It is the contention of appellant that the limitation does not run until after a demand for an accounting has been made or the tenancy repudiated, while the position of appellee is- that a cause of action accrued to appellant every time a payment of rent was received by him.

The issue in controversy has never heretofore been decided in this State. Questions in regard to accounting for rents have mostly developed in suits for the partition of lands, and in a large number of such eases accountings have been ordered covering periods of time far in excess of five years. Cooter v. Dearborn, 115 Ill. 509; Woolley v. Schrader, 116 Ill. 29; Dona-son v. Barbero, 230 Ill. 138; Holderman v. Graham, 61 Ill. 359;, Regan v. Regan, 192 Ill. 589. In none of the cases just cited was the defense of the statute of limitations raised or discussed, although in the case of Regan v. Regan, supra, the court said: “The question whether any items of an account, when taken, will be barred by the statute of limitations, is not before us and is not decided.” This is the only reference to the statute of limitations in cases such as this in this State which we have been able to find. From an examination of other authorities it is apparent that the general rules governing the application of the statute of limitations in suits between cotenants involving the title to the land have not been applied by analogy to suits for an accounting of the rents and profits.

By the statute of this State the tenant who collects the rents and profits is constituted a bailiff. At common law a bailiff of property is not only liable for the actual receipts derived therefrom by him, but also for what he might have received by the exercise of reasonable diligence without wilful fault. Bacon’s Abr. 32; Coke on Littleton, 209b; Woolley v. Schrader, supra; Cheney v. Ricks, supra. A bailiff has been defined to be a servant who has the administration and charge of lands, goods and chattels to get the- best benefit for the owner. (Coke on Littleton, 172a; Barnum v. Landon, 25 Conn. 137); and also a person appointed by private persons to collect their rents and manage their estates. (Elwell v. Burnside, 44 Barb. (N. Y.) 447.) The nature of" the relationship of a bailiff with his principal as applied to cotenants is stated in 17 Am. and Eng. Encyc. of Law, page 696, as follows: ‘ ‘ Since the Statute of Anne, the relation between a tenant in common in the possession and sole enjoyment of the common property and his cotenants has been regarded as that of agent an.l principal, and hence such tenant is not protected by the statute of limitations from .accounting with his eotenants for rents and profits. The statute does not begin to run in his favor until the relationship existing between the parties terminates, as upon partitipn, ouster, or demand and refusal to account. So also the occupying tenant is chargeable with interest only from the date of demand or suit broug’ht. ’ ’

It appears that before bringing an action of account at law against one, to account as bailiff, a demand to render an account is necessary. Barnum v. Landon. 25 Conn. 137; James M. Chadwick & Co. v. Divol, 12 Vt. 499; 1 Cyc. 408, 411. -The relationship has been described in various ways. In the case of Robinson v. Robinson, 173 Mass. 233, Mr. Justice Holmes, who wrote the opinion, says: “However it may have been in its origin, this liability to an action of account long has' been regarded as different from bailment on the one side * * * and from debt or an absolute liability for money on the other. * * * It seems more like the accountability of a trustee,-—a liability for an identified fund, which would be discharged by showing that the fund had been lost without the accountant’s fault. * * * The relation between the parties is fiduciary. * * * But it is plain from the nature of the duty created by the Statute of Anne that the time of limitation ought not to begin to run when there has been no demand or refusal, and nothing to notify the plaintiff that the defendant has repudiated the relation, or that it has come to an end. ” It is further held in this cause that the time of limitation should not begin to run until after a demand is made, for the additional reason that such an account between cotenants is an actual and open account current, based upon the fact that the defendant received the rents and profits on the one side and on the other paid out money for repairs, insurance and taxes in respect to which he had a personal claim against his cotenant.

In the case of Almy v. Daniels, 15 R. I. 312, it was held that the rule was that the statute begins to run from the time a tenant in common denies the right of a cotenant. This denial of right may be shown by refusal to pay on demand or by an ouster. The case of McGowan v. Bailey, 179 Pa. St. 470, holds that one cotenant is a trustee for the other, and the statute of limitations in such cases “is out of the question.” In Ela v. Ela, 70 N. H. 163, it was held that the cause of action did not accrue until after a demand for an accounting had been made and refused and the statute does not run until after the refusal of such demand. The Supreme Court of Georgia, in the case of Huff v. McDonald, 22 Ga. 131, holds that a bailiff is a servant or trustee, and likens such relationship to that of an executor, administrator or guardian, and decides that the statute of limitations does not run until the bailiff begins to hold adversely. Freeman in Ms work on Cotenancy and Partition holds a contrary view, as do also a number of other cases, but we are of the opimon that the weight of the authority and the better reasoning is that the statute will not run until after a refusal of a demand made or a repudiation of the relationship.

In the case of People v. Lefens, 269 Ill. 472, it appears that Mrs. Lefens executed two powers of attorney, by which she constituted her brother, William C. Seipp, and her husband, TMes Lefens, her attorneys in fact and authorized them, jointly and severally, among other things, to collect and receipt for all moneys, rents, demands and choses in action due or to become due her, to represent her in the settlement and administration of her father’s estate; to collect and receipt for all sums of money or personal property of every kind, to which she might be entitled under her father’s will or under the laws of the State; to invest and reinvest all money that might come to their hands for her; to take charge of, care for and manage all the real estate owned by her, pay all taxes thereon, make repairs^ execute leases, collect and receipt for all rent; to sell such real estate" and execute deeds therefor; and, in general, jointly and severally, to do and perform all and every act which she could personally do in regard to all her real and personal property. Thereáfter there came into the hands of her brother and husband large sums of money belonging to her which 'was transferred to her husband’s account. Her husband invésted and reinvested these funds for a number of years and kept a set of books showing all his transactions in regard thereto, which at the time of his death showed a balance due her of $1,571,697.33. Mrs. Lefens filed a claim against her husband’s estate for this amount, and among other defenses interposed thereto was that of the statute of limitations. In the opinion it is held: “By these instruments he was constituted her agent for the investment and management of her estate. He had power to sell and control her property, both real and personal, to the same extent that she could, with the right to reinvest the proceeds. He was under an obligation to account and pay over to her whenever she might demand an accounting or payment, but he was guilty of no breach for which she could bring suit against him until his refusal to account or pay over. As long as the relation of principal and agent existed there was nothing to set the statute of limitations in operation as to claims and accounts between them. (McHarry v. Irvin, 85 Ky. 322; Shepherd v. Shepherd, 108 Mich. 82; Lamb v. Ward, 114 N. C. 255; Patterson v. Lilly, 90 id. 82; Cole v. Baker, 16 S. D. 1.) Payment was not contemplated until Mrs. Lefens requested it. Her money was placed with her husband as agent, to invest, sell and reinvest, and there was no intention that each item received should be paid forthwith to her. The statute of limitations does not begin to run against the principal and in favor of his general investing agent upon each item as received, and where there is a continuing general agency it cannot be terminated during the life of the parties, so as to set the statute of limitations in motion, until an accounting is had or a demand therefor made and refused or there is an express repudiation of the agency. Teasley v. Bradley, 110 Ga. 497; Rucker v. Maddox, 114 id. 899; King v. Mackellar, 109 N. Y. 215; Bacon v. Rives, 106 U. S. 99.” It would appear that, under the powers of attorney mentioned, her husband clearly came within the definition of a bailiff of her property, "although he is not called such in the opinion of the court. In answer to the contention that Mrs. Lefens never had any intention of claiming the property but regarded it as her husband’s because she never did claim it or demand an accounting in her husband’s lifetime, the court said: “It is not surprising that a wife should permit her husband to manage her business for more than five years without demanding an accounting. Payments were made to her and for her account, and in view of the confidence which frequently exists in the conjugal relation, a wife not skilled in business ought not to be regarded as negligent who fails to call a husband who is an able business man to a strict financial accounting at least every five years. We have seen that this is not required in the ordinary case between man and man, and no more does the law require it between man and wife. The evidence is that Mrs. Lefens permitted her husband to manage her affairs as long as he lived, and this was naturally to be expected under the circumstances, so long as domestic harmony prevailed.”

So it can be said in this case it is not surprising that appellant permitted her husband to collect these rents, and the law did not require her to demand an accounting from him every five years. We are of the opinion that the chancellor erred in sustaining the demurrer to the bill, and the decree is therefore reversed and cause remanded, with directions to overrule the demurrer and order an accounting between the parties as prayed for in the bill from the time the cotenancy was created to the institution of the suit.

Reversed and remanded with directions.


author: Mu. Justice Eldredge

text:
    Eliza B. Carney, Administratrix, Appellee, v. George W. Baker, Appellant.
    (Not to foe reported in full.)
    Appeal from the Circuit Court of -DeWitt county; the Hon. Frank H. Boggs, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action of assumpsit by Eliza B. Carney, administratrix of the estate of William E. Carney, deceased, against George W. Baker, defendant, to recover for personal services rendered by deceased to defendant. From a judgment for plaintiff for $384.10, defendant appeals.
    W. F. Gray, for appellant.
    Herrick & Herrick, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mu. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Masteb and sebvant, § 84 —when evidence insufficient to sustain judgment in favor of administratrix for personal services of deceased servant. In an action by the administratrix of the estate of the deceased servant against the master to recover for personal services, evidence held insufficient to sustain the judgment

2. Witnesses, § 132*—what is extent of disqualification of witness against adverse party suing in representative capacity. A party may testify to the extent necessary to admit his books of accounts in evidence, notwithstanding that the adverse party is suing in a representative capacity as administratrix of the estate of the deceased person.


text:
    William M. Mount, Appellant, v. James C. Norman et al., Appellees.
    1. Cancellation of instruments, § 26*—when doctrine of laches cannot he invoiced. The doctrine of laches, because of delay in the commencement of a suit to rescind a contract to exchange property, cannot be invoked by a party who fraudulently concealed the acts of his own fraud in misrepresenting the value of the exchanged property, in falsely representing after the party ascertained the worthless character of exchanged land and demanded reconveyance of the land conveyed by him and the return of notes given in part payment that such land had been conveyed and the notes had been assigned to a bona fide purchaser for value.
    2. Cancellation of instruments, § 2*—when inability to malee restitution to the statu quo not a defense. The inability of the complainant in an action to cancel a contract of exchange of property to place the defendant in statu quo is not available as a defense where at the time complainant gave his note and conveyed land in exchange for the land conveyed by defendant, defendant misrepresented the value of his land and subsequently upon eomplainant’s learning oí such, fraud, fraudulently represented that the land which he had received had been conveyed and the note assigned to a bona fide purchaser for value, and complainant relying upon such statement conveyed the land received from defendant to another.
    3. Cancellation or instruments, § 2

      —When offer to place defendant in statu quo unnecessary. An offer to place a defendant to a suit for the cancellation of a contract for exchange of real property on the ground of fraud in statu quo is unnecessary where the property which complainant received is of no value.
    Appeal from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 13, 1916.
    William A. Potts, for appellant.
    Curran & Dempsey, for appellees; Barry & Morrissey, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same loj>L* iiiid see Lion number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant filed his second amended bill in equity-in the Circuit Court of Tazewell county, which in substance avers that prior to December 6, 1912, he owned in fee 480 acres of land in Arkansas, which was reasonably worth $40 per acre at a fair cash value and was subject to a mortgage incumbrance of $10,000; that he had purchased the same from the appellees Fannie B. and James C. Norman; that on said date mentioned, on account of the many false statements and fraudulent acts of the said Normans and others confederating with them (not necessary to be here set forth), made with the malicious, fraudulent and wrongful intent to deceive him as to the value of certain lots located in the City of St. Louis owned by Fannie B. Norman, and cheat and defraud him out of said Arkansas land, he was induced to convey said Arkansas lands to the said Fannie B. Norman and to execute and deliver to her two promissory notes, one for $10,000 payable in one year and one for $5,000 payable in three years, in exchange for the conveyance to him. of said lots owned by her located in St. Louis.

That said St. Louis property was incumbered by mortgages to an amount exceeding the value thereof and there was no equity in the same; that after he discovered that said St. Louis property had no value and he had been deprived of his Arkansas lands and had executed his promissory notes through the said fraud of the Normans, he demanded of the latter that they reconvey to him the Arkansas lands and return to him the notes, but that said Normans represented that they had conveyed said lands and had assigned said notes to a bona fide purchaser for value. That they had in fact conveyed said Arkansas lands and he believed, on account of their false representations to that effect, that they had so assigned said notes, but in fact they had not assigned the notes, and their representations that they had done so were false and were made for the purpose of deceiving him in regard thereto; that the Normans were insolvent and any action at law against them for damages for fraud and deceit would be unavailing.

That subsequently, still believing that said notes had been assigned as aforesaid, he conveyed the St. Louis property subject to the mortgage indebtedness thereon to the Normans in exchange for certain lands in North Dakota owned by them, which were subject to a mortgage indebtedness of $8,400; that subsequently he exchanged said North Dakota property, subject to said incumbrance, for 360 acres of land in Missouri, which was subject to a mortgage incumbrance of $13,400; that the equity in the Missouri property exceeds the value of the equity in the St. Louis property and equals that in the North Dakota property, but is less than that in the Arkansas property conveyed by him to said Normans as aforesaid; that he still owns the Missouri property; that he is informed that said note for $5,000 contains a provision to the effect that if the interest thereon was not paid annually that the whole.amount of the principal and interest could, at the option of the legal holder of said note, be immediately declared due; that said Normans claim to have sold and assigned said note for $5,000 to one John Stapleton and claim to have sold and assigned the $10,000 note to the Ashley County Bank of Hamburg, Arkansas, and is informed and believes, and so states the fact to be, that neither of the said Normans have in truth or in fact sold or assigned either of said notes; that said notes are under the control of said James C. Norman, either as his notes or the notes of Fannie B. Norman, and that the said Ashley County Bank is not the legal holder of said $10,000 note for value without notice; that said note is without consideration ; that said Stapleton is not the legal holder of said $5,000 note for value without notice that said note is without consideration; that both the bank and Stapleton had full knowledge of the fraud and deceit practiced upon him in procuring said notes to be executed, and full knowledge that said notes are without consideration; that they did not pay value therefor, but hold said notes for the said Normans in fraud of his rights.

That as collateral for said note of $10,000 he assigned to James C. Norman 409 shares of the capital stock of the Farmers Telephone Company of Hopedale, Illinois, which stock is now held by the said Normans or by some person for them; that at the February term, 1913, of the Circuit Court of Tazewell county, Stapleton commenced suit to recover the amount of principal and interest on the $5,000 note; that prior to the 30th day of March, 1914, the bank demanded payment of the $10,000 note; that relying upon the false representations of the said James C. Norman concerning the ownership of said notes, in order to satisfy the same, and believing them to be in the hands of legal holders thereof as aforesaid, at the request and suggestion of the said Normans he executed a deed conveying 280 acres of land in Tazewell county, Illinois, to James M. Eahn, as trustee, and that thereupon the said Eahn by declaration of trust in writing agreed to make sale of said real estate and out of the proceeds thereof to pay the said notes in the manner therein agreed that said real estate should not be sold for less than $75 per acre; that said declaration of trust was not signed by him, was not made a matter of record in said county at the time it was executed and he did not receive a copy thereof until about September 1, 1914, and did not know the contents thereof prior to that time.

That he did not know that the bank and Stapleton were not the legal holders and owners of said notes until after the execution and delivery of the deed of trust last mentioned and until after the execution and delivery to him of said declaration of trust, and that he did not know that the said Normans were the holders and owners of said notes and had not in fact sold the same until a short time prior to the filing of the original bill in this cause; that the execution of said deed by Eahn as trustee was procured upon the false representations of James O. Norman and the false, fraudulent and deceitful conduct of said bank and Stapleton.

He demands the surrender of the $5,000 and $10,000 notes and reassignment to him of the telephone stock, and that.Eahn reconvey to him the Tazewell county land, and tenders back to the said Normans, or to anyone of the defendants who may be entitled thereto, the equity he now holds in the Missouri farm to be used to the extent that may be required in satisfaction and liquidation of any excess in the value of the equity of the St. Louis property over the equity conveyed in said Arkansas property which the court may find to have existed at the time of the trade for said property, or to equalize the equity between him and said defendants at this time.

That the procuring of said deed to Rahn as trustee was a fraud upon him; that he is informed that Rahn is about to sell a portion of said property to one Mary E. Allard pursuant to said declaration of trust and under the direction of James C. Norman, J. J. Morrissey and John Stapleton; that Morrissey has no interest in said notes except as attorney for said bank; that any sale of said property is in fraud of his rights and will operate as a cloud upon his title; that Morrissey, Stapleton and the Normans are threatening and endeavoring to compel Rahn, the trustee, to sell said property to one Mary E. Allard at a price less than $75 per acre in violation of said declaration of trust, and that said Rahn is about to sell property at a price less than $75 per acre to his irreparable loss, etc.

That by reason of the fraud of the Normans he has sustained a loss of more than $9,000, and if they be permitted to compel the payment of said notes, there will be an additional loss to him of more than $15,000, no part of which can be recovered from: said Normans because of their insolvency.

The bill makes the Normans, Stapleton, Morrissey, Rahn, the Ashley County Bank and Mary E. Allard, parties defendant, and prays that the two notes executed by bim. be canceled and delivered up; the said telephone stock be reassigned and surrendered; tenders back to the Normans the Missouri farm to be used in satisfaction and liquidation of any excess of value of the equity in the St. Louis property over the equity in the Arkansas property, if any, which the court may find to have existed at the time of the trade; that the deed executed by him to Rahn be set aside and that Rahn be required to reconvey said premises; that Rahn be restrained and enjoined from selling or in any way disposing of said property, and that the other defendants be enjoined from further assigning or otherwise disposing of said notes and telephone stock and from .prosecuting any suit or proceedings either in law or equity for the collection of said notes.

The bill is sworn to and to it is attached exhibit “A,” warranty deed from the Normans to complainant of the St. Louis property; exhibit “B,” warranty deed executed by complainant and his wife conveying the Tazewell county property to Rahn; and exhibit “C,” the declaration of trust executed by Rahn and signed by Morrissey, Stapleton and the two Normans.

Joint and several demurrers were filed to portions of the amended bill and answers filed to the portions not demurred to. The court found that from the allegations of the amended bill, complainant had been guilty of laches and that he is unable to put the defendants James C. Norman and Fannie R. Norman in statu quo, sustained the demurrers and dismissed the bill in all averments thereof pertaining to the rescission of the contract between the complainant and the Normans, and dismissed the bill for want of equity as to all portions thereof pertaining to any relief prayed for against the defendants Stapleton, Morrissey and the Ashley County Bank. This appeal is prosecuted to review the judgment of the court in sustaining these demurrers.

The appellees insist, and the chancellor in the court below so held, that appellant is not entitled to any relief as against the Normans, Stapleton, Morrissey and the Ashley County Bank, because he was guilty of laches in failing to act promptly on learning of the misrepresentations and fraud averred in the amended bill, and also that having parted with the title to the St. Louis and North Dakota properties, restitution cannot be made to the Normans so they may be placed in statu quo, he is barred from obtaining any relief as to them.

The averments of the bill show a. continued series of transactions made for the sole purpose of depriving appellant of a valuable tract of land in Arkansas through fraud and deceit by inducing him to exchange, the same for property in St. Louis which was already incumbered for more than its value. It is further averred that upon the discovery of this fraud, appellant immediately • demanded a rescission of the contract and a reconveyance to him of the Arkansas land and the return of the notes he had executed, but that through the fraud and deceit of the Normans he was induced to believe that they had sold the notes to a bona fide purchaser for value, which was in fact untrue. The amended bill further charges that Staple-ton and the bank were not bona fide purchasers of the notes but had knowledge, at the time of the pretended assignment to them, of the fraud which induced their execution and that they were without consideration. It is also charged that appellant was induced to execute the deed to Rahn as trustee through the fraud of the Normans, and while he was still in ignorance of the fact that the bank and Stapleton were not bona fide holders thereof. The demurrers admit these facts to be true.

If the allegations in the bill are true, it was a systematic fraudulent concealment of the true facts in regard to the negotiation of the notes up to the time this bill was filed. Equity does not seek to shield perpetrators of fraud from the result of their own misconduct. The doctrine of laches cannot be invoked by one whose fraudulent concealment of the acts of his own fraud has kept his victim in ignorance thereof. Leonard v. Springer, 197 Ill. 532; Linington v. Strong, 107 Ill. 295.

The same principle announced in regard to the doctrine of laches applies with equal force to the rule in equity, that there must be restitution to the status quo before a rescission of the contract will be permitted. In the case of Taylor v. Taylor, 259 Ill. 524, the following doctrine from Pomeroy’s Equity Jurisprudence is quoted.with approval: “In cases of fraud, if the defendant’s act has prevented a complete restoration of the status quo, he cannot, in justice, urge this fact as a defense to the rescission.” In the opinion in the latter case the court further says: “The author further says that many courts, in dealing with the question of rescission, have completely lost sight of the distinction between the equitable remedy and the legal remedy of rescission, and points out why the rule requiring an offer to place the defendant in statu quo before bringing suit is not of universal' application in courts of equity, and says insistence upon it in equitable proceedings would often work a complete denial of justice.” See also, Harris v. Dumont, 207 Ill. 583; Mitchell v. Mitchell, 263 Ill. 165.

Another exception to the rule is that the offer need not be made when it appears that the property is of no value. In Mitchell v. Mitchell, supra, the court said: “There are certain exceptions to this rule, such as where what has been received is worthless, or where, because of peculiar circumstances not the fault of the party seeking rescission, restoration of that received is impossible.” It is alleged in the amended bill that the St. Louis property was worthless, being incumbered with mortgages amounting to more than its value, and also that appellant was induced to make this exchange by the Normans themselves.

We are of the opinion that sufficient equity appears on the face of the amended bill to require it to be answered. The decree therefore, in so far as it sustains the demurrers and finds facts adversely to appellant, is reversed and the cause remanded with directions to overrule the demurrers.

Reversed a/nd remanded with directions.


text:
    Samuel E. Prather et al., Appellees, v. City of Springfield, Appellant.
    1. Nuisance, § 44

      —when unnecessary that declaration aver that injuries to property are permanent. In an action to recover damages for injury to crops and the loss of use of land caused by the illegal construction of a dam in a river, it is unnecessary that the declaration aver that the injury is permanent where the allegations show such to be the fact.
    2. Damages, § 167*—when proof of all elements of damage alleged is unnecessary. A cause of action cannot be defeated .because all the elements of damage alleged are not proven.
    3. Nuisance, § 61*—when dam in river is. A dam which is constructed in a river without authority of law is a nuisance.
    4. Nuisance, § 55*—what are remedies of upper riparian owners for flooding of land due to construction of dam. Where a dam is .constructed in a river by a city without authority of law and is consequently a nuisance, upper riparian owners whose property is injured by flooding may treat the injuries occasioned thereby as permanent or temporary at their election.
    5. Statutes, § 274*-—when judicial notice not taken of private or local acts. The court will not take judicial notice of private or local acts, but they must be pleaded.
    6. Eminent domain, § 9*—how statutes conferring powers of condemnation construed. Laws conferring powers of condemnation are strictly construed.
    7. Municipal corporations, § 799*—when city has no power to erect dams and obstruct natural water courses. Under the provisions of the Cities and Villages Act, relative to the acquisition and condemnation of necessary land for the purpose of acquiring or establishing waterworks beyond the territorial limits of a city (J. & A. 1J 1501) and section 3 of the Act authorizing cities, corporated towns and villages to construct and maintain waterworks (J. & A. f 2014), a city has no power to erect dams and obstruct natural water courses, as laws conferring powers of condemnation must be strictly construed.
    8. Municipal corporations, § 799*—when city may not take or injure private property without making just compensation. Even though in the provisions of the Cities and Villages Act, providing for the acquisition and condemnation by a city for the purpose of supplying or establishing waterworks beyond its territorial limits (J. & A. 1501), and section 3 of the Act conferring on cities the authority to construct dams across natural water courses and condemn property therefor (J. & A. If 2014), they do not have authority to take or injure private property without making just compensation therefor by condemnation or purchase.
    9. Riparian owners, § 18

      —whan dam is nuisance and may be abated. As to a landowner whose property has been damaged or destroyed by the erection of a dam and has not been paid compensation for the damages caused by the fiowage, such dam is a nuisance and may be abated.
    10. Nuisance, § 44*—when count in action to recover for injuries to crops is broad enough to cover damages for temporary injuries. A count in an action by a riparian owner to recover damages for injury to crops and the loss of use of land caused by the illegal construction of a dam in a river, held broad enough to include damages for temporary injuries.
    Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Frank L. Hatch, Roy M. Seeley and Stevens & Herndon, for appellant.
    W. E. Sampson and Clayton- J. Barber, for appellees.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and eectiop number.

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from a judgment entered on a verdict awarding $3,925 recovered by appellees against appellant for damages to crops and the loss of the use of certain lands caused by a dam constructed by appellant in the Sangamon River. The first count avers that plaintiffs were the owners of real estate comprising approximately 1,056 acres lying in one contiguous body to the north of and bounded on the south by a certain natural stream or water course known as the Sangamon River; that said lands are so situated as to allow and permit natural drainage from the surface thereof into the said river and to allow and permit a natural underdrainage thereto by percolation through the soil into said river; but said lands are also so situated as to be subject to overflow from great quantities of water in any manner caused to flow, back up and stand in said river immediately adjacent thereto; that the City of Springfield wrongfully and unlawfully constructed a certain large concrete dam 13 feet high in the bed of and entirely across the natural channel of the river about two miles to the west of and below the lands of the plaintiffs, and has wrongfully and unlawfully continued the same from thence hitherto as a part of a system of waterworks for said city and its inhabitants; and thereby defendant has wrongfully and unlawfully obstructed and stopped the flow of and heightened the stage of the water in the river to a height of 12 feet above its natural and normal stage, so that by reason thereof at various times during the past five years large quantities of water overflowed said premises and thereby were caused to and did enter and spread over and across said lands, and by reason thereof large quantities of water were thereby caused to stand upon said premises during a great portion of each year of said five years, and during the said period the surface and underground drainage aforesaid have thereby been greatly hindered, obstructed and "prevented and said lands thereby greatly damaged and rendered less valuable and less fit for cultivation and farming purposes during the period aforesaid; and plaintiffs have been thereby delayed, hindered and prevented in and about the cultivation of the premises aforesaid during each of said five years, and the crops growing thereon have been greatly injured, damaged and destroyed, and by reason of the premises aforesaid the plaintiffs have been greatly injured and damaged thereby.

The second count makes the charge of negligence in failing to provide the dam with sufficient sluice gates to regulate and control the volume of waters impounded which would have permitted them to flow without damage to the plaintiffs.

The third count avers that there were two sluice gates in the dam'but that defendant negligently failed to operate the same at such periods as were necessary to prevent the impounded water from causing injury to the plaintiffs.

There was no proof of damages on the theory of a permanent injury to the lands, and the instructions given to the jury on behalf of the plaintiffs permitted the assessment of damages for temporary injuries. The second instruction told the jury, in substance, that it was sufficient to entitle plaintiffs to a verdict if they have established their case by the greater weight of the evidence as alleged in either one or more of said counts.

It is contended the court erred in the giving of this instruction for the reason that the first count does not state a cause of action for damages for temporary injuries because the facts alleged therein show that the injury to the land is of a permanent character, and as there was no proof of any damages on the ground of a permanent injury thereto the instruction is erroneous. The determination of this question will also decide all the other errors assigned in this case both as to the evidence and the other instructions.

The evidence tended to show that the construction of the dam caused the water in the river, at time of freshets and heavy rains, to back up and overflow these lands to such an extent during the five years mentioned that the crops on portions thereof were injured and at times a small part thereof was rendered unfit for cultivation. The dam was erected in 1908 and was built about 1,300 feet south of the site of an old dam which had been erected by the city at some time not definitely shown by the evidence, but about or prior to the year 1886. It must be conceded that a dam of the character described is a permanent structure, and it has been held in other cases that allegations of facts similar to those alleged in the first count show a permanent injury to the land, and damages for temporary injuries cannot be recovered thereunder. Wheeler v. Sanitary Dist. of Chicago, 270 Ill. 461; Shaw v. Sanitary Dist. of Chicago, 267 Ill. 216; Vette v. Sanitary Dist. of Chicago, 260. Ill. 432. The first count in the declaration in the case at bar does not aver that the injuries are permanent, but such averment is not necessary if the allegations show such to be the fact. This count does aver, however, injuries to the crops growing on said land in addition to the injury to the land itself. A cause of action is not defeated because all of the elements of damage alleged are not proven. This count is broad enough to cover damages for injury to the crops irrespective of any permanent damages to the land, provided, that taking the count as a whole it need not be construed as applying only to permanent injuries. The test for the solution of this question is whether the dam was a lawful or unlawful structure. In the Sanitary cases, supra, the injuries were caused under authority of law. The declaration in this case, including the first count, charges that the dam was wrongfully and unlawfully constructed. If this dam was constructed without authority of law it was a nuisance, and the plaintiffs lad a right to treat the injuries occasioned thereby as permanent or temporary at their election. In the case of Strange v. Cleveland, C., C. & St. L. Ry. Co., 245 Ill. 246, the court cited the rule as laid down by Sutherland on Damages (sec. 1046) as follows: • “The apparent discrepancy in the American cases on this subject may, perhaps, be reduced by supposing that where the nuisance consists of a structure of a permanent nature and intended by the defendant to be so, or of a use or invasion of the plaintiff’s property or a deprivation of some benefit appurtenant to it for an indefinitely long period in the future, the injured party has an option to complain of it as a permanent injury and recover damages for the whole time, estimating its duration according to the defendant’s purpose in creating or continuing it, or to treat it as a temporary wrong, to be compensated for while it continues,—that is, until the act complained of becomes rightful by grant, condemnation of property or ceases by abatement.”

By an act of the Legislature entitled, “An act to incorporate the Springfield Water Works Co.,” approved February 21, 1861, a body of water commissioners was created with “power to build a dam across the Sangamon Biver at such point as they shall deem most convenient and desirable,” with the right to condemn property therefor. (Private Laws 1861, p. 285.) This act was amended in 1867 (Private Laws 1867, vol. 3, p. 679), and gave additional power to the commissioners to make all necessary excavations and to erect all necessary buildings at said river and to condemn all land necessary for such purpose. It is claimed that in the case of Board Water Com’rs City of Springfield v. People, 137 Ill. 660, that the provisions of these acts were held to be portions of the special charter of the City of Springfield under which the city operated until it adopted the Cities and Villages Act in 1882. And it is insisted that the powers granted to the waterworks company in 1861 and 1867 were not inconsistent with the Cities and Villages Act and were accordingly retained among the powers of the city after its adoption of that act, and that the construction of the dam in 1908 was therefor authorized by the charter powers of the city and was not the creation of an abatable nuisance. One answer to this proposition is that the Acts of 1861 and 1867 were private acts containing no provisions that they should be deemed public acts, and they have neither been alleged nor proven. The court therefore cannot take judicial notice thereof nor give them eonsideration. Illinois Cent. R. Co. v. Ashline, 171 Ill. 313; Gormley v. Day, 114 Ill. 185; Rockford, R. I. & St. L. R. Co. v. Lynch, 67 Ill. 149; Nimmo v. Jackman, 21 Ill. App. 607; Lavalle v. People, 6 Ill. App. 157; People v. Wilson, 3 Ill. App. 368.

It is also insisted that the city had a right to build this dam by virtue of section 2, art. X, ch. 24, Hurd’s Rev. St. 1913 (Cities and Villages Act, J. & A. ¶ 1501), and section 3 of the act entitled, “An act authorizing cities, incorporated towns and villages to construct and maintain waterworks,” in force April 15, 1873. Hurd’s Rev. St. 1913, p. 337 (J. & A. ¶ 2014). The first act provided that a city shall have the power for the purpose pf supplying or establishing waterworks to go beyond its territorial limits and take, hold and acquire property by purchase or otherwise and condemn all necessary lands or property therefor in the manner provided for the taking or injuring private property for public uses. The latter act is substantially the same, and provides that cities may acquire and hold real estate and other property and rights necessary for the location, erection, construction and maintenance of waterworks with the power of condemnation. Neither one of these acts directly gives cities the power to erect dams and obstruct natural water courses unless it can be said that such power is implied from the language used, or as a necessary incident to the construction of a system of waterworks. Laws conferring powers of condemnation are strictly construed. Gillette v. Aurora Rys. Co., 228 Ill. .261. But conceding that these acts, or either of them do confer on cities authority to construct dams across natural water courses and to condemn property therefor, they do not grant any authority or power to take or injure private property without making just compensation therefor by condemnation or purchase. As to a landowner whose property has been damaged or destroyed by the erection of a dam and has not been paid compensation for the damages caused by the flowage, that dam is a nuisance and may be abated. In the case of Wilmington Water Power Co. v. Evans, 166 Ill. 548, it was said: “It has not acquired such right by condemnation, or by agreement with the appellees, or otherwise; and, as it did not acquire the same as successor to the Kankakee River Improvement Company, we are unable to see that it has any authority to continue the flooding of the land of the appellees.” The opinion in this case cites with approval the case of Ackerman v. Horicon Iron Mfg. Co., 16 Wis. *151 (156), in which it is held: “The claim that is really made here, in view of the allegations of this complaint, that the company can keep up its dam and overflow lands not belonging to it, without paying such damages therefor as may be awarded by arbitrators or juries, is one not to be discussed in a government of law and constitutions. The company may maintain its dam upon condition that it pays parties, where lands are overflowed, such damages- as may be awarded. In other words, it must make compensation according to its charter, or take down its dam.”

In so far as the plaintiffs are concerned, this dam is an unlawful structure and a nuisance, and they are therefore entitled to elect to sue for damages for either temporary or permanent injuries. The second and third counts are drawn on the theory of a recovery for damages resulting from temporary injuries, and the first count is broad enough to include damages for temporary injuries, consequently the court did not err in the giving of the instructions complained of nor in admitting evidence of damages for temporary injuries. There being no error in the record, the judgment is affirmed.

Affirmed.


author: Mu,. Justice Eldredge

text:
    The People of the State of Illinois, Defendant in Error, v. Kate Hexton, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of Morgan county; the Hon. William E. Thompson, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Petition by Kate Hexton, convicted for selling liquor in anti-saloon territory and sentenced to imprisonment in the county jail for thirty days and to pay a fine of $200 and costs, and in case the fine and costs should not be paid at the end of the term of imprisonment, ordered that she be required to work out the same at the rate of $1.50 a day. To review the action of the court denying the prayer of her petition and remanding her to jail, the petitioner prosecutes a writ of error.
    The petition set forth that the petitioner had served the thirty days’ imprisonment but that she had no money or property with which to pay the fine and costs, that she was ill and afflicted with a disease which made it impossible for her to work out the fine and costs, that the close confinement in jail had caused an irreparable injury to her and that all legal means of collecting said fine and costs had been exhausted and prayed that she be discharged and released from that part of judgment imposing the fine and costs.
    H. P. Samuell and P. P. Thompson, for plaintiff in error.
    Robert Tilton, for defendant in error.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mu,. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Criminal law, § 626 —when inability to pay fine is no ground for discharge from, prison. Paragraph 455 of the Criminal Code (J. & A. If 4155), requiring that whenever it is apparent to the court that any person confined in jail for any fine or costs has no estate wherewith to pay the same it shall he the duty of the court to discharge such person from further imprisonment, does not apply where the judgment requires the defendant to work out a fine.

2. Criminal law, § 626*—when petition for discharge froiti imprisonment is properly denied. Where a woman was convicted of selling intoxicating liquor in anti-saloon territory and sentenced to the county jail for thirty days and to pay a fine of $200 and costs, and in case of failure to pay such fine and costs to work out the fine at $1.50 a day, a petition filed hy her after serving the thirty days, praying that she be released from further imprisonment on the ground of physical weakness and diseased condition, held properly denied.


text:
    E. Grant Weir, Appellant, v. Cran Crandall, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by E. Grant Weir, plaintiff, against Oran Crandall, defendant, to recover for the value of plaintiff’s dog alleged to have been killed by the defendant. From a judgment in favor of defendant, plaintiff appeals.
    Everett Conhelly, for appellant.

      Graham & S navel y, for appellee.
    Abstract of the Decision.
    Animals, § 43

      —when evidence in action for hilling dog supports judgment for defendant. In an action for value of a dog belonging to the plaintiff alleged to have been killed by the defendant, a judgment for defendant held supported by the weight of the evidence;

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    India Smith, Defendant in Error, v. John B. Norris, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of the Case.
    Action in assumpsit by India Smith, plaintiff, against John B. Norris, defendant, on a promissory note for $400. To review a judgment for plaintiff for $442.22, defendant prosecutes a writ of error.
    The defendant had leased one Wiley Smith, husband of the plaintiff, a ranch which was to be farmed by Wiley Smith and the profits, after certain reimbursements made to the defendant, to be shared by the parties.
    The declaration comprised three counts: The first alleged that the defendant on the 31st day of October, 1912, by one Wiley Smith, his then agent in that behalf, borrowed of the plaintiff, and the plaintiff at the special instance and request of said defendant then and there loaned the said defendant the sum of $400, etc. The second count alleged that the defendant on the 21st day of October, 1912, was doing business by the name of the “J. B. Norris Ranch,” and the plaintiff at the special instance and request of said defend-, ant loaned to the defendant and the defendant then and there borrowed $400 to be paid by defendant when he should be requested; that the defendant by one Wiley Smith, his then agent in that behalf, executed and delivered to the plaintiff his certain written instrument and thereby then and there acknowledged that there was due the plaintiff the sum of $400 for money loaned the defendant by the plaintiff, etc. The third count consists of common counts consolidated.
    The instrument sued on is as follows:
    “Morral, Ohio,-191--
    “Twin Falls Idaho, Oct. 31st, 1912, due Mrs. India Smith, four hundred dollars ($400) for money loaned J. B. Norris Ranch account Bank Draft from Morral,
    Ohio.
    “ J. B. Norris Ranch,
    “By Wiley Smith.”
    Buckingham, MoDavid & Monroe, for plaintiff in error.
    Outten, Ewing, McCullough & Wierman, for defendant in error.
    Abstract of the Decision.
    1. Assumpsit, action of, § 75

      —when action will not lie against a partner. Assumpsit will not lie against one partner on a promissory note signed in the firm name.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same vopic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Assumpsit, action of, § 89 —when evidence in action for money loaned does not support judgment for plaintiff. In an action in assumpsit for money alleged in one count of the declaration to have been loaned to the defendant at his individual request, and in another count alleged to have been loaned to the defendant’s authorized agent, evidence held to show neither a loan to the defendant at his request nor that the alleged agent had authority to borrow money on behalf of the defendant.


text:
    Charles Libro, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Cashiers, § 248*—when evidence in action for loss of shipment does not show carrier at fault. In an action for damages for the, death of calves shipped by the plaintiff over the defendant’s railroad, evidence held to show that the defendant did not load the shipment and that the loss was not caused by any -fault on its part.
    2. Carriers, § 232*—when carrier not liable for loss of shipment of cattle. A railroad company is not liable for loss of part of a shipment of cattle resulting from the cars being overcrowded where it was overcrowded by the shipper or persons acting for him.
    3. Carriers, § 228*—when carrier not liable for death of cattle shipped. A railroad company held not liable for the death of calves shipped over its line where the loss was caused by their own lack of vitality, and not by any fault or negligence of or the violation of any duty by the carrier.
    Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed October 13, 1916.
    George B. Gillespie, for appellant; F. L. Littleton, A. H. Bell and Gillespie & Fitzgerald, of counsel.
    Peebles & Peebles, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee procured a judgment against appellant for the sum of seventy-five dollars in an action of trespass on the case to recover the value of five calves shipped from the National Stockyards at East St. Louis to the Town of Dorchester, Illinois. A trial was had before the court without a jury.

At 11 o’clock on the morning of May 29, 1913, appellee bought sixty-eight head of calves through the commission firm of D. C. Smith Company, at the National Stockyards at East St. Louis. These calves were very poor, thin and weak. They had come from a quarantined area in one of the southern states and had to be dipped in creosote before they could be shipped. The evidence tends to show that this dipping made them still weaker. Appellee paid the commission firm for the calves and for the freight from East St. Louis to Dorchester, Illinois. The commission firm took the calves to the shipping pen in the stockyards from which they were loaded into a car and the stockyards company switched the car onto a siding connecting with the tracks of appellant company, at which point, about 5:20 p. m., the engine of appellant company took the car to what is called the Brooklyn yards, where it arrived about 6:10 p. m. At this point it was attached to appellant’s train and proceeded to its destination where it arrived a few hours later. When the car reached the Brooklyn yards some of the train crew discovered that nine of the calves had fallen down in the car. They succeeded in getting six of them onto their feet but three of them were too weak to stand and theywere removed to one corner of the car. The train arrived at Dorchester about 1:15 a. m., but appellant did not unload the calves until about 6 a. m., at which time three were found to be dead and two others were so weak that they died shortly thereafter.

There is a provision in the shipping receipt, which appellee voluntarily signed, that the cattle should be loaded, fed and watered while being transported, and unloaded at the sole risk and expense of the shipper.

The trial court by its rulings on the propositions of law presented held, in substance, that appellant having failed to prove that appellee knew and consented to these conditions in the receipt, he was not bound thereby and that it must be presumed that the death of the calves resulted from the negligence of appellant on the theory that it is the absolute duty of a carrier to safely carry and deliver all property received by it for transportation.

It is insisted by appellant that the rule, that the burden of showing that the shipper knew and assented to a limitation of a carrier’s common-law liability in a shipping receipt or bill of lading is upon the carrier, is based upon the construction by the courts of section 96, ch. 114 (J. & A. ¶ 8845), and section 1, ch. 27, Rev. St. (J. & A. ¶ 2165), and that said sections have been repealed by implication by the passage of the Universal Bill of Lading Act in force July 1,1911 (J. & A. ¶ 2168) and the State Public Utilities Act in force July 1,1913 [Cal. Ill. St. Supp. 1916, |f 8686(1) et seg.], and is no longer the law in this State. In our opinion it is unnecessary to determine this question for the reason that this rule has no application to the facts in this case.

There is no evidence whatever in the record tending to show that appellant loaded the calves into this car or that they were injured by any act of negligence of its servants. On the contrary, the evidence shows conclusively that the calves were not loaded by appellant nor injured through its fault or negligence. There is nothing in the evidence which tends to show that either the commission firm or the stockyards company acted as the agent for appellant in the loading of the calvés, and appellant is not liable for the fact, if it be a fact, that the car was overcrowded by the shipper or persons acting for him. Ohio & M. R. Co. v. Dunbar, 20 Ill. 624; Pennsylvania Co. v. Kenwood Bridge Co., 170 Ill. 645.

The common-law liability of a carrier has never been applied where the damage to the commodity was the result of any inherent infirmity in the article itself. In the case of Chicago, R. I. & P. R. Co. v. Harmon, 12 Ill. App. 54, it was held: “So,-too, in the transportation of live stock, the carrier in the absence of negligence is not responsible for such injuries as occur in consequence of the vitality of the freight. It would seem that nonliability for injury or damage occurring to live stock under the circumstances supposed, is not to be considered as an exception to the common-law rule of liability engrafted upon it by the courts, since the introduction of railroads into the field of common carriers, but rather as the application of a well-known principle of the common law, as old as the rule itself, to a species of freight which no common carrier, until recent times, transported by land.” In the case of Illinois Cent. R. Co. v. Brelsford, 13 Ill. App. 251, where a recovery was sought for the injury to a mare in transportation, the court said: - “ Thus there was evidence tending to show that the injury, whether from sickness or from violence, was not the effect of any fault or negligence of the defendant in respect to the means or manner of her carriage, and so, by necessary inference, that it was due to her own viciousness or restlessness, excited by the carriage, however careful, or by improper loading or tying by the plaintiff himself, or to other defects or causes originating in her vitality. For injuries thus occurring to live freight the law does not hold the carrier liable, since it is not the effect of a breach on his- part of any promise or duty implied by his business. Hutchinson on Carriers, sec. 218; Wharton on Negligence, 616; I. & St. L. R’y Co. v. Jurey, 8 Bradwell, 160; C., R. I. & P. R. R. Co. v. Harmon, 12 Bradwell, 54; Smith v. Railroad Co., 12 Allen, 531; Mynard v. S. B. & N. Y. R. R. Co., 71 N. Y. 180.”

The manifest weight of the evidence is that the deaths of the five calves were caused by their own inherent lack of vitality and not through any fault or negligence of or the violation of any duty by appellant. For the reasons indicated the judgment is reversed.

Reversed.


text:
    C. T. Bailey, Appellee, v. Murray R. Walters and Sallie A. Walters, Appellants.
    1. Bills and notes, § 293

      —when payment of note by maker is at his peril. When a maker of a negotiable promissory note pays the amount thereof to a person who has not the note in his possession, he does so at his own peril.
    2. Brokers, § 9*-—what does not show authority of loan broker to receive payment. Proof of authority to a broker to loan money does not establish authority to receive payment of either the principal or interest, and proof that a broker who made a loan received the interest from the borrower and paid it to the holder does not show that the broker was authorized to receive payment of the principal.
    3. Principal and agent, § 97*—what is essential to hold principal for unauthorised acts of agent. While it is true that a principal may be bound to the extent of the apparent authority which he had conferred upon his agent by holding him out to the public as possessing such authority, and thus causing others to believe that the agent had greater powers than those actually conferred, yet the acts which amount to such representation of the agent’s authority must be known to the party seeking to avail himself of them.
    4. Bills and’ notes, § 293*—when payment to loan broker is no defense to action by holder. Where the makers of a promissory note, payable to themselves and indorsed by them, delivered it to a loan broker, from whom they had obtained a loan, together with a mortgage to such broker securing the loan, and. thereafter paid the interest and principal to the broker who did not have possession of the note and mortgage, he having delivered them to the party who, unknown to the makers, had furnished the money loaned, held that the makers were liable for the entire principal and interest in a suit by the party who furnished the money, the agent having misappropriated the money paid him by the defendant.
    5. Principal and agent, § 242

      —when evidence is not admissible to prove agency of loan broker to receive payment of principal. Where makers of a promissory note, payable to themselves and indorsed by them, delivered it to a loan broker, from whom they had obtained a loan, together with a mortgage to such brokers securing the loan, and thereafter paid the interest and principal to the broker who did not have possession of the note and mortgage, he having delivered them to the party who, unknown to the makers, had furnished the money loaned, held, in an action by the holder of the note and mortgage for the amount due thereon, the payments by the makers to the broker having been misappropriated by the latter, that letters comprising correspondence between the broker and the holder of the note concerning their business transactions for a number of years prior to the negotiation of the loan in question, which were sought to be introduced in evidence on the theory that they tended to prove the broker’s agency and authority in making the loan for the holder and receiving in payment therefor, were properly refused admittance for the reason that there was nothing in the record tending to show that the makers had a.t any time any knowledge of such acts of agency.
    Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    T. N. Gofer and A. C. Anderson, for appellants.
    Isaac B. Craig and Fred A. Kinzel, for appellee; John H. Chadwick, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action in assumpsit brought by appellee against appellants to recover on a promissory note for the principal sum of $2,000 and interest from July 1, 1913. On motion of appellee made at the close of appellants ’ evidence, the court excluded the evidence and directed the jury to find its verdict in his favor and against appellants for the sum of $2,322.37. On this verdict judgment was entered, to reverse which this appeal is prosecuted.

Appellants are husband and wife, and in January, 1907, desiring to obtain a farm loan on a tract of land comprising forty acres in Coles county, Illinois, applied to R. and R. Cl Alexander to procure the same for them. This firm procured the loan from U. T. S. Rice, who paid over the money by his individual check. To secure the loan appellants executed a promissory note dated January 24, 1907, for the principal sum of $2,000 payable to the order of “myself” in the office of U. T. S. Rice, Mattoon, Illinois (or at such other place as U. T. S. Rice, trustee, or successor in trust, may from time to time in writing designate), with interest at the rate of five per cent, per annum according to ten interest notes with the privilege of paying in sums of $100 or its multiple at any interest period after two years. The note recites that it is secured by deed of trust, executed by appellants to Rice as trustee, conveying said real estate in Coles county, and is indorsed on the back by each of appellants. Rice was a dealer in farm loans at Mattoon, Illinois, and appellants paid the interest on the note to him as it became due and also paid several instalments on the principal at different times, until on June 30, 1910, there was a balance due on the note of $900. On this day Mrs. Walters took the money to Rice and demanded possession of the principal note and trust deed, whereupon Rice executed a release of the trust deed and stated -that the note and trust deed were not in his possession but that he would get them and send them to appellants by mail.

The evidence shows that for several years appellee had been purchasing notes secured by farm mortgages from Rice and that Rice would generally, when he had an application for a loan, notify appellee, who, if he approved of the loan, would send the money to Rice and the latter carried on the transaction, and closed the deal in his own name. When the interest became due appellee would send the interest coupon notes to Rice who would receive payment thereof and remit the same to appellee, although sometimes he would send the coupons to a bank for collection. It also appears that when the principal note was paid to Rice he would notify appellee, who would send the note and mortgage to the former to be delivered to the maker. It does not appear that in any of these transactions between Rice and appellee that the latter’s name ever appeared in the security.

The sums paid by appellants to Rice on the principal of the note in question were never remitted by Rice to appellee but were appropriated by Rice to Ms own use. Neither of appellants ever heard or knew of appellee until suit was brought against them to recover the amount of the note. Appellants contend that Rice was the agent of appellee in the making of this loan and as such agent was authorized by appellee to receive payments on the principal of the note. It is a familiar rule that when a maker of a negotiable note pays the amount thereof to a person who has not the note in his possession, he does so at his own peril. Keohane v. Smith, 97 Ill. 157; Fortune v. Stockton, 182 Ill. 454; Ortmeier v. Ivory, 208 Ill. 577. It has been also uniformly held that proof of authority to a broker to loan money does not establish authority to receive payment of either the principal or interest, and proof that the broker who made the loan received the interest from the borrower and paid it to the holder does not show that the broker was authorized to receive payment of the principal. Ortmeier v. Ivory, supra. While it is true that a principal may be bound to the extent of the apparent authority which he has conferred upon his agent by holding him out to the public as possessing such authority, and thus causing others to believe that the agent has greater powers than those actually conferred, yet the acts which amount to such, •representation of the agent’s authority must be known to the party seeldng to avail himself of them. In this case appellant had no knowledge that there ever was such a person as appellee until this suit was brought. They believed that Rice was the owner and holder of the note and trust deed and therefore in paying the principal to him could not have relied upon and presumed authority in Rice to accept payments of the principal of this note as the agent of appellee. In the case of Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41, it was held: “A party dealing with an agent must prove that the facts giving color to the agency were known to him when he dealt with the agent. If he has no knowledge of such facts he does not act in reliance upon them and is in no position to claim anything on account of them.” Nor does the fact that the agent was also named as trustee in the trust deed and received the payment of the notes and released the trust deed when he did not have the notes in his possession, and without knowledge of the payee, create a presumption that he had authority to receive payment. Fortune v. Stockton, supra; Stiger v. Bent, 111 Ill. 328.

Appellants sought to introduce a large number of letters comprising a correspondence had between Rice and appellee concerning their business transactions for a number of years, on the theory that they tended to prove Rice’s agency and authority in making loans for appellee and receiving payment thereof. The court properly refused to admit this evidence for the reason that there was nothing in the record tending to show that appellants had at any time any knowledge of such acts of agency. The judgment of the trial court is affirmed.

Affirmed.


text:
    R. E. Berry, Appellant, v. W. W. Berry, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action of forcible entry and detainer by E. E. Berry, by Eugene Virden, his conservator and next friend, against W. W. Berry, defendant, for the possession of certain farm lands. From a judgment entered on a directed verdict for defendant, plaintiff appeals.
    More than thirty years before bringing the action, the plaintiff acquired title by purchase to the land in controversy, consisting of about one hundred and sixty acres in Christian county. Fifty acres of the tract in question lies on the south side of the south fork of the Sangamon Eiver, the rest of the tract, consisting of one hundred and ten acres, lies north of the south fork of the river. The evidence showed that between twenty and twenty-five years before the suit was brought, defendant moved into a little cabin located on the north side of the river and plaintiff permitted him to remain there because he was his son and did not like to put him off. Plaintiff asked him several times' to pay rent, and defendant told him that he would settle with him sometime, but never paid any rent. Plaintiff has paid all the taxes on the land during these years. Plaintiff had no knowledge that defendant claimed any title to the lands until about a year before the suit was brought.
    George T. Wallace, for appellant.
    S. H. Cummins, for appellee.
    Abstract of the Decision.
    1. Adverse possession, § 86

      —what is essential to establish adverse possession of child against parent. Where premises owned by a parent are occupied by his child by permission, in order to establish title by adverse possession there must be clear and positive proof of an open disclaimer of the title of the parent and the assertion of hostile title by the child, and the knowledge of the assertion of such hostile title must be brought home to the parent and such hostile possession and assertion of title must be continued for twenty years thereafter.
    2. Forcible entry and detainer, § 31*—when notice or demand is not prerequisite to bringing action. No notice to quit or demand for possession is necessary before beginning an action of -forcible detainer where the relation of landlord and tenant does not exist, or where the tenant repudiates the relationship and claims to be the owner in fee by adverse possession.

      See Dlinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court'.


text:
    Josephine Weakley, Appellee, v. Adolph G. Mizell et al., Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill to foreclose a mortgage filed by Josephine Weakley, complainant, against Adolph G-. Mizell et al., defendants. From a decree in favor of complainant, defendants appeal.
    On a former appeal from a decree entered, after a jury trial, in favor of the complainant, the case was reversed and remanded with directions to the chancellor either to set aside the verdict and grant a new trial or enter a decree based upon his individual judgment derived from the evidence. See Weakley v. Mizell, 193 Ill. App. 494.
    Upon the reinstatement of the cause in the court below, the parties stipulated that the former decree be set aside and a new trial granted; that the chancellor should have read to him the evidence preserved in the certificate of evidence upon the former trial, and that either party might in addition thereto present such further evidence in open court as he saw fit. No additional evidence of material importance was introduced by either party upon the last hearing before the chancellor, who again rendered a decree in favor of complainant.
    W. O. & T. M. Headen, D. G. Thompson and' George B. Rhoads, for appellants.

      E. A. Richardson, Whitaker, Ward & Pugh and W. C. & W. L. Kelley, for appellee.
    Abstract of the Decision.
    Appeal and error, § 1396

      —when chancellor’s findings of fact will not justify reversal. Where the evidence introduced on the trial of a case is in irreconcilable conflict, findings of fact of the chancellor, who saw and heard the witnesses, will not justify a reversal of the decree unless the findings are palpably erroneous.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section ntimber.

   Mr. Justice Eldredge

delivered the opinion of court.