text:
    D. C. Edwards, Appellant, v. Frank D. Hudson et al., Appellees.
    1. Partnerships—particular contracts construed as showing a joint adventure. Held, under the terms of the contracts in question in this case, that they did not, strictly speaking, show a partnership but did establish a joint adventure and a community of interest having something of the elements of a partnership, and that the rights and interests of all parties concerned were so complex as to require the intervention of a court of equity.
    2. Pleading—when cross-hill may he maintained. Where the subject-matter of the litigation is within the jurisdiction of the court and all of the parties in interest in a fund are before the court it is proper that a cross-bill be filed and it is the duty of the court to take cognizance of such cross-bill and determine the respective rights and interests of the parties therein and thereto.
    Bill for accounting. Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Spiller & Miller, for appellant; I. R. Spillman, of counsel.
    William H. Warder and W. S. Cantrell, W. H. Williams and A. C. Barnett, for appellee; Len Colp, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

In the year 1907, the defendants, Henry Hudson and Frank D. Hudson, were possessed of options to certain coal rights in Franklin, Jefferson and Hamilton counties, Illinois, and, on July 27 of that year, entered into a written contract concerning the same, with appellant, D. C. Edwards. This contract provided that said Henry and Frank D. Hudson, in consideration of the sum of $300 in hand paid and other good and sufficient considerations, did grant unto said D. C. Edwards “the privilege of purchasing all the coal rights” situated in certain localities in the counties above mentioned and aggregating 100,000 acres more or less, for the price of $37.50 per acre, said privilege of purchase to be in force and effect as long as said options were in force or as long as they might thereafter be extended ; that in case of sale under the agreement, the profits arising from such sale should be divided equally between the three parties to the agreement; that in case of a sale at a figure above the amount named, the said Hudsons were not to share in any of the profits arising from such sale over and above the price of $37.50 per acre and that the profits should be determined by the difference between the price in each of the original options executed by the owners of the land and the sale price; that in the event of a sale being made by complainant, said Hudsons agreed to convey or cause to be conveyed by a good and sufficient warranty deed to complainant, or his assigns, all the coal rights above described, upon the payment of the above stipulated price per acre; that complainant should have the exclusive sale of all the oil and gas rights, held or thereafter acquired, under certain of the premises mentioned in said contract and in consideration of making a sale, complainant was to retain one-half of the sale price received for such oil and gas rights and the two Hudsons should receive one-fourth each. Afterwards on June 24, 1909, ho sales of coal rights having been in the meantime made under the contract above mentioned, said defendant, Frank D. Hudson, and complainant entered into another contract, which provided, that whereas said Frank D. Hudson and complainant had the privilege of purchasing all the coal rights pertaining to certain lands situated in the counties of Franklin, Hamilton and Jefferson, in the State of Illinois, known as the “Hudson option” aggregating 50,000 acres more or less and evidenced by options, contracts and deeds in escrow, taken in the name of Frank D. Hudson for considerations therein named. It was therefore agreed, that so long as said options and escrow conveyances were in force or might thereafter be extended, each of said parties should be entitled to an undivided one-fifth interest therein and to the profits arising from the sale thereof, and that said coal rights should not be sold for less than $38 nor more than $40 per acre; that the profits should be the excess of whatever said coal rights should be sold for, over and above the purchase price, including the field-men’s commission, which should not exceed fifty cents per acre; that each of the parties to the contract should have a like one-third interest in the oil and gas rights pertaining to said 50,000 acres of land; that in case of the sale of the coal rights, the oil and gas being reserved therefrom, the said Hudson would convey unto complainant the undivided one-third interest in all the oil and gas so reserved from such sale. The contract concluded with the following provisions: “It is further agreed that if any extensions of options, contracts or escrow deeds, are made to any part of the 50,000 acres referred to in the contract between the said parties hereto dated July the 27,1907, which has expired and which the said Hudson has not been able to renew, shall be hereafter obtained and renewed in any way, that the same shall go into and be a part of the acreage herein contemplated, as the basis and subject of this contract. It is further agreed and understood that in case the sale of said coal rights is made under this contract, the party making said sale shall immediately notify the other party hereto of the consummation of such sale.”

Subsequently on December 31, 1909, the defendant, Frank D. Hudson, notified complainant in writing that he had sold the coal rights named in said contract of June 24, 1909, to eastern parties through Messrs. Anderson and McGregor of Chicago, Illinois, and notified complainant to withdraw and cancel any offering of said rights he may have made.

No settlement was made between complainant and Frank D. Hudson of profits which may have been derived by the latter from the sale of said options or coal interests and on May 12, 1910, complainant commenced this suit by filing his bill for an accounting.

Defendants to the bill are Frank D. Hudson and Henry Hudson, who are designated as defendants, and Sam T. Brush, Leon Colp, A. Cummins, Arthur Roberts, John Colp, B. H. Taylor, Loren N. Wood, E. Anderson and John McGregor, who are designated as co-defendants.

The bill sets out the contract of complainant with Frank D. and Henry Hudson of July 27, 1907, above referred to and alleges that appellant, relying on said contract, spent large sums of money in endeavoring to interest parties in this and foreign countries, in the purchase of said coal, oil and gas options; that he spent months of time in conferring with parties whom he had interested therein; that he allowed his options on certain large tracts, amounting to 40,000 acres more or less to lapse; that said Hudsons informed him they had been unable to obtain a renewal on the 100,000 acres of land above mentioned, and relying on such statements, appellant, on June 24, 1909, made another contract with defendant, Frank D. Hudson, not relinquishing his rights under the former contract but contracting concerning 50,000 acres of the 100,000 acres mentioned in the former contract npon which the Hudsons represented they had been unable to obtain another option.

The bill then sets out the contract of June 24, 1909, above referred to and further represents that said options on the 100,000 acre tract have not in fact lapsed but are still in force and effect; that he is informed and believes that sales have been made by said Hudsons to E. Anderson and that these interests have been conveyed by said Anderson to Sam T. Brush and from said Brush to Anderson and Cummins and from said Cummins to United States Steel Corporation, or to other persons to the complainant unknown; that some of said interests have been conveyed by the Hudsons to the parties above named as co-defendants and that said co-defendants are now paying the said defendants for said interests; that the defendants claim the purchase money for said lands and refuse to allow the co-defendants to recognize the rights of complainant therein.

The bill prayed for ah accounting from the defendants, and that they be ordered to pay complainant his part of all sums which have been heretofore or may be hereafter collected or received by them on account of said transactions and for an injunction against defendants and co-defendants to prevent further proceedings in said transactions.

The defendants, Frank D. Hudson and Henry Hudson, filed separate answers in which they admit the making of said contract of July 27, 1907, but stated that it had expired by its own terms prior to the making of the contract of June 24, 1909. They both deny various material allegations of the bill and state that they are under no obligations to account to complainant for the reason that he has no interest with them in said lands or options.

Defendants, B. H. Taylor and Leon Colp, disclaimed any interest in said coal, oil or gas rights and the other defendants filed answers setting np their connection with the transaction.

Defendants, Loren N. Wood and A. Cummins, also filed a cross-bill in the nature of a bill of interpleader in which it is stated that Wood was the agent of Cummins and had no interest in the subject-matter of the suit; that Cummins had contracted with Colp-Brush Company for the purchase of coal, oil and gas under certain of the lands in question-and that said company, which is a co-partnership, demands the full amount due for said rights, so purchased, in excess of the amounts paid by Cummins to the record owners of said lands, and that said co-partnership insists that complainant, D. C. Edwards, has no right, title or interest in said sum; also that said Edwards has served written notice upon said Wood and Cummins, notifying them not to proceed with the purchase of said lands, without his consent and that in the event of so proceeding, he will enforce his claim against said lands and coal rights under the contracts hereinbefore referred to; that Wood and Cummins have always been ready and willing to pay the full amount of the purchase price provided to be paid, upon the contract of Cummins with the Colp-Brush Company, and offer to bring said sums into court; that said Edwards on one hand and the Colp-Brush Company on the other each claims said sums of money and insists upon the payment of the same and threatens to bring suit against Cummins in case of his default or failure to make the same.

Answers were filed to the cross-bill by such parties as did not disclaim interest in the transaction. A hearing of the case was entered into and at the close of the evidence for complainant in the original bill, the defendants, Frank D. Hudson and Henry Hudson, and co-defendants, E. Anderson and John McGregor, filed their demurrer to the evidence, which was sustained by the court and the original bill of complaint was dismissed by the court for want of equity.

It was further ordered by the court that the cross-bill be also dismissed for want of equity. Complainant in the original bill appealed to this court and the complainants in the cross-bill of interpleader have assigned cross-errors.

We have set out the pleadings and contracts relied on in this case somewhat at length for the reason that it is largely upon the consideration of them that our disposition of this appeal is based.

It is claimed by appellees that said contract of July 27, 1909, did not give appellant an interest in the options to the coal rights in controversy, but was simply an agreement between appellants and said Hudsons, giving the former the privilege of purchasing certain coal rights then held under the option by said Hudsons and nothing more; that the second agreement of June 24, 1909, was without consideration either good or valuable and therefore a mere nudum pactum; that appellant had a complete remedy at law against appellees Hudson; that no partnership existed between appellant and appellees Hudson and that appellant was not entitled to an accounting.

On the other hand it is contended by appellant that by virtue of the two contracts above referred to, he had an interest in said coal, oil and gas rights known as the “Hudson option;” that said contracts constituted a partnership between him and one of said Hudsons and that a sale of said option having been made by one of the Hudsons, appellant was entitled as a partner to an accounting and to his share of the profits.

We are of the opinion without going into details that a proper construction and interpretation of the two contracts in question, show that appellant had an interest in said “Hudson option,” which he was entitled to enforce. The consideration for the original contract was $300 “and other good and sufficient considerations.” It also appears to us that the second contract of June 24, 1909, was supplemental to and based upon the first contract and that it is not without consideration. These contracts do not either one or both appear to us, strictly speaking, to show a partnership between appellant and the Hudsons, but do show a joint adventure and a community of interests between them, having something of the elements of a partnership, and the rights and interests of all the parties concerned are so complex that they can be much more readily and satisfactorily adjusted in a court of equity, than in a court of law.

But regardless of the question whether appellant has or has not a complete remedy at law to sustain any rights he may have against the defendants or co-defendants below, we are of opinion the decree cannot be permitted to stand for the reason that the court below erred in dismissing the cross-bill for want of equity. That bill alleged that complainants therein, or at least the complainant Cummins, held a fund which was claimed on the one hand by appellant Edwards and on the other by the appellees, composing the partnership known as the Colp-Brush Company, and asked to be permitted to bring said sums of money into court to be paid to the parties to whom the court should adjudge it to rightfully belong. The evidence in the case also fully sustained these allegations of the cross-bill.

We are of the opinion the complainants in the cross-bill, having been brought into court in this proceeding, had a right to file and maintain their cross-bill in order to avoid serious and annoying litigation over a fund which they were willing to pay to the parties entitled thereto.

It is true that a bill of interpleader is generally an original bill and is not often the-proper subject of a cross-bill, as ordinarily the rights of a party who holds a fund which is the subject of conflicting* claims by two or more other persons, may be determined and properly protected by answer. In this case, however, the complainants in the cross-bill of interpleader, could not have properly protected their rights without filing the cross-bill as, had they relied upon their answer, they would have been out of court when the original bill was dismissed for want of equity. The cross-bill therefore should have been sustained and the court having taken jurisdiction of the subject-matter for the purposes of the cross-bill, and all the parties interested in the fund being* in court, the court could then properly determine the rights and interests of all the parties and direct the payment of the fund in question, to the person or persons properly entitled thereto.

The decree of the court below will accordingly be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Taylor Mason, Plaintiff in Error, v. Charles C. Clark et al., Defendants in Error.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where it is not clearly and manifestly against its weight.
    2. Instructions—when improper will not reverse. The giving of an instruction not applicable to the facts of the case will not reverse unless prejudice resulted.
    3. Instructions—when cannot be complained of. A party cannot complain of the vice of an instruction where instructions tendered by him and given contain a like vice.
    Error to the Circuit Court of Wabash county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.

      E. B. Green and Theodore G. Risley, for plaintiff in error.
    P. J. Kolb and George P. Ramsey, for defendants in error.
   Mr. Justice Higbee

delivered the opinion of the court.

This was an action to recover damages for a breach of warranty of the soundness of a stallion sold by defendants in error to plaintiff in error. The jury found the issues for the defendants in error and judgment was entered against Mason, plaintiff in error, who brings the same here by writ of error.

The controversy grows out of the following circumstances: Clark and Price, defendants in error, lived in Allendale, Wabash county, Illinois, and Clark, who seems to have transacted the business in regard to selling the stallion, took the horse to Mason’s farm in Knox county, Indiana, on Thursday, April 11, 1907, and while there sold and delivered the same to Mason for $300. It was agreed that Mason should meet Clark at Allendale the following Saturday and give his note for the $300 to Clark and Price and that they should at the same time give him a written warranty as to the horse. Nothing appeared to be wrong with the horse at the time of the sale but on Saturday the horse had a cough and was running at the nose and when Mason reached Allendale on that day he told Clark the horse had symptoms of distemper to which Clark replied that “No horse on the place had distemper” and that appears to have been all that was said about the condition of the horse at that time. Mason delivered his note for the $300 and Clark and Price gave a written warranty .to him dated April 13, 1907, which stated among other things, “We the said parties of the first part do hereby guarantee the said horse to be sound in every respect.” Mason returned home and from that time on the horse appears to have grown worse until he died on the following Thursday. The horse was treated by a veterinary surgeon during its sickness and on Saturday morning after it died the same veterinarian made a post morten examination and found the lungs of the horse filled with a white tissue, and dry pus and in a decayed condition. He gave as his opinion on the trial that the immediate cause of death was congestion of the lungs, which had been superinduced by a diseased condition of the lungs that must have existed some time before the sale. Clark testified they had owned the horse six months before the sale, that he had never been sick in that time, never coughed or ran at the nose, had good wind and was in good condition when delivered. As to the condition of the horse when delivered Clark was corroborated by the man who went with him, and as to the general condition of the horse before that time, by a number of witnesses.

An instruction given for defendants in error told the jury that a general warranty of the soundness of a horse did not include defects, diseases or blemishes, which were open, visible or apparent to a person of ordinary skill and intelligence. It is said by plaintiff in error that this was calculated to mislead the jury. It is true the instruction was not applicable to the case and was no doubt inadvertently given but it could not have prejudiced the case of plaintiff in error, for the reason that there was no evidence in the case, even tending to show, nor does it appear to have been claimed by defendants in error, that the horse had any open, visible or apparent defect, disease or blemish at the time of the sale.

Plaintiff in error complains that another instruction given for defendants in error stated the law to be that before plaintiff in error could recover in the case, he must prove by a preponderance of the evidence that the horse was afflicted with the disease from which he died at the time he was sold to plaintiff in error by the defendants in error. This instruction appears to us to have declared the law correctly, but even if that were not so, plaintiff in error could not be heard to complain of the instruction, for the reason that one was given at his request which laid down the same rule of law. The guaranty given by defendants in error on April 13, 1907, must be held to have related to the condition of the horse at the time of his sale and delivery on April 11, and the only question of fact for the jury was whether he was sound in every respect at the time of the sale and the delivery. Upon this question there was some conflict in the evidence but the proofs as a whole seem to sustain the verdict.

The judgment of the court below will therefore be affirmed.

Judgment affirmed.


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    The People of the State of Illinois, Defendant in Error, v. Henry Loverkamp, Plaintiff in Error.
    1. Criminal law—section 56 of Criminal Code construed. To warrant a conviction under section 56 of the Criminal Code it is sufficient if the evidence establish that the conduct of the accused was such as to disturb the peace and quiet of the person named in the information where he was at the time the disturbance took place, even if such place is not in the neighborhood where such person named in the information resides.
    2. Evidence—when question fatally involved. A question which calls for a yes or no answer is improper where in reality it embodies three separate questions.
    Error to the County Court of Massac county; the Hon. Lannis P. Oakes, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Val Mulkey and James C. Courtney, for plaintiff in error.

      Fred Smith, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.

This was an information filed by the state’s attorney of Massac county against plaintiff in error, Henry Loverkamp, containing two counts. The first charged that Loverkamp, on April 6, 1909, wilfully and maliciously disturbed the peace and quiet of George Kruger, by tumultuous and offensive carriage, threatening, traducing, quarreling and challenging to fight. The second, that Loverkamp on October 25, 1909, wilfully disturbed the peace and quiet of the neighborhood of Lewis Kruger by then and there swearing, quarreling, challenging to fight and calling him vile names. The jury found Loverkamp guilty as charged in the information and the court assessed a fine against him of $10 upon each count thereof.

Plaintiff in error has brought the record in this case here for review and asserts that the court below erred in its ruling in regard to the instructions and evidence, also that the proofs fail to show a violation of the law.

The information was based upon section 56 of the Criminal Code which provides that “Whoever wilfully disturbs the peace and quiet of any neighborhood or family, by loud or unusual noises, or by tumultuous or offensive carriage, threatening, traducing, quarreling, challenging to fight or fighting, or whoever shall carry concealed weapons, or in a threatening manner display any pistol, knife, slung shot, brass, steel or iron knuckles or other deadly weapon, shall be fined not exceeding one hundred dollars.”

The complaint of plaintiff in error in regard to the instructions is that the court erred in giving certain instructions for the people and in modifying and refusing to give certain others offered by plaintiff in error. Certain of these objections are based on the interpretation given to the section of the law above referred to, by the court below-.

The evidence showed that George and Lewis Kruger, the parties named in the information, lived several miles from the place where the occurrence complained of took place. Defendant in error contended that it was sufficient to establish the charge if the conduct of Loverkamp was such as to disturb the peace and quiet of the two Krugers where they were at the time the disturbance took place, while plaintiff in error contended, that in order to warrant a conviction, the conduct of Loverkamp must have been shown to have disturbed the peace and quiet of the neighborhood where the Krugers resided, or if not, then at any rate the' proof should have shown that the peace and quiet of the neighborhood, that is of the people residing in the neighborhood, where the trouble actually occurred, was disturbed. The court adopted the view of the law presented by defendant in error.

The interpretation of the law given by the court below was, we think, correct. The statute cannot properly be held to mean that if a person is assaulted by another person, who makes use of loud or unusual language, calculated to disturb the peace, the person assaulting is hot liable under the statute in question. The language and acts complained of in this case took place in or near the public highway and in every instance was in the presence of other persons in addition to one of the Krugers. Under such circumstances, we are of opinion that, if the acts were such as those named "in the statute, they were sufficient to constitute a disturbance of the peace and quiet of the neighborhood as contemplated by the statute.

Complaint is also made by plaintiff in error that certain instructions offered by him, stating that plaintiff in error was not on trial for making threats or for blasphemy, were .refused by the court. These instructions were properly refused as the information and the instructions given by the court correctly informed the jury as to the issues to be tried.

Plaintiff in error also complains that the court refused to permit the following question to be answered by George Kruger, one of the complaining witnesses: “You don’t like this man—you are not good friends— hasn’t there been an unfriendly feeling between the families for a long time—for years ? ’ ’ The court properly sustained the objection to this question as it called for “yes” or “no” for an answer and really contained three questions so that it might have been impossible for the witness to answer by either of those words. The question at most was one which only went to test the credibility of the witness and proof of the matters alleged by George Kruger was amply made by other witnesses besides himself.

This brings us to the consideration of the question whether the evidence in the case was sufficient to support the verdict of guilty, that is to show that plaintiff in error was guilty- of the misconduct charged against him beyond a reasonable doubt.

The evidence as disclosed by the record, shows that Lewis Kruger, who had been a road commissioner for many years and was 77 years of age, had undertaken to cut down a hill in front of the house of plaintiff in error, in order to make the public road more level but that being called away on the. day the work was to commence, he placed the same in charge of his son George Kruger; that at the end of the first day, about April 6,1909, when the men had quit work, Loverkamp came out and said he did not want the hill cut down any more, that it was ruining his location; that he told one of the workmen in the absence of Kruger, he would kill the first man that struck a plow or scraper in that hill; that when Kruger and his men came back the next morning, Loverkamp came out and forbade them to work on the road, saying to Kruger, “George, didn’t I tell you not to come back here;” that Kruger said, “Henry, let’s quit talking and you plow to suit yourself and we will do •‘{he scraping;” that Kruger started to say something else when Loverkamp, in an angry and threatening manner, placed his right hand on his back pocket, cursed Kruger and said “Don’t say it;” that the effect of the language used by plaintiff in error together with his angry and threatening manner, was to cause Kruger and the men with him to quit the work immediately; that several weeks afterwards Lewis Kruger went to see Loverkamp about the work, when the latter began to curse him, also saying that he was not “afraid to kill a man” and that he would “wear the road out” with Kruger; that the conversation commenced in Loverkamp’s bam lot but that the latter followed Kruger out on the public highway where he called him a vile name.

It appears to us that the evidence was sufficient to warrant the jury in finding beyond a reasonable doubt that the language used by Loverkamp and his conduct on the occasions mentioned in the evidence, were such as to disturb the peace and quiet not only of the Krugers present but also of the neighborhood and that it warranted the jury in finding the defendant guilty under both counts of the information.

The judgment of the court below will be affirmed.

Affirmed.


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    E. Wayne Ponting, Appellant, v. Frank More, Appellee.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the evidence where it is not clearly and manifestly against its weight.
    2. Evidence—when conversations out of presence of party competent. Held, that a particular conversation had out of the presence of the party sought to be bound thereby, was competent .because the substance of such conversation had been reported to such party.
    Appeal from the Circuit Court of Wayne county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.

      McGinley & Wiley and J. R. Holt, for appellant.
    Boggs, Boggs & Heidinger and Creighton & Thomas, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellant to recover damages for the alleged breach of a contract by appellee. The jury found the issues for appellee and judgment was entered against appellant for costs.

The following facts appear from the proofs: Appellant owned a stock of goods at Laddonia, Missouri, which he proposed to trade to appellee for 220 acres of land owned by him in Wayne county, Illinois. On April 14, 1910, they met at Laddonia, looked over the stock of goods and entered into a written contract for the exchange of property. By this contract appellant agreed to convey to appellee by bill of sale, said stock of merchandise, to be invoiced at first wholesale cost and also the store fixtures, which were to be taken at the fixed price of $1,752.85, the invoice to begin not later than April 20, 1910, in consideration of which, appellee agreed to convey by warranty deed, his said land in Wayne county, Illinois, at a consideration of $75 per acre. It was further agreed that any difference between the invoice of stock and purchase price of land, was to be paid in cash; that each party was to provide for the use of the other within five days proper abstracts of title to the property agreed to be conveyed; that the deed to the lands and bill of sale for stock and fixtures, were to be deposited before the invoice started, with J. J. Alexander, who was also to hold the contract; that either party failing to comply with the contract was to pay the other party $1,000 as liquidated damages; that the contract was made and signed subject to the approval of appellant after inspection of appellee’s land; that all deeds were to be passed and negotiations closed within fifteen days from the date of the contract. Thereafter appellant viewed the land and approved the contract and on April 18,1910, he and a man named Tolly met appellee, who had with him one Jenkins, at Laddonia for the purpose of invoicing the stock.

Appellant deposited a bill of sale of the stock with Alexander, but appellee, who had an abstract of title and deed to his lands with him refused to deliver them to that person, although he showed the abstract to appellant and permitted him to look over it.

Appellee testified that when he reached the store on the morning in question, Alexander, the party who had formerly traded the stock of goods to appellant, told him he had a claim against the stock, for $4,400; that he had the keys to the store and would never give up possession of the stock until he got his money; that he reported his conversation with Alexander, to appellant, who suggested that he, appellee, could keep out part of his lands and take the stock subject to Alexander’s claim but that he told appellant he would not do it.

Appellant while admitting that Alexander had formerly owned the stock and building and that he, appellant, owed him $4,400, stated that Alexander had no lien on the stock and was not in possession of the same, but was working for him; that the stock was in possession of one J. C. Swinney, who was working for appellant. Appellee’s testimony as to his conversation with Alexander, about his claim against the stock of goods and his possession of the store, was corroborated by said Jenkins. Another witness, ■ Taylor, also testified that some' three weeks later he had a conversation with appellant in reference to trading for the stock of goods and that he was asked by the latter to assume a debt of $4,000 against it; that he went with Ponting to see Alexander about the matter; that Alexander was in possession of the stock and said he would not release his claim while he had so much in the stock. Appellee refused to complete the trade and assigned as a reason therefor the failure of appellant to satisfy the claim of Alexander against the stock. Appellant insists the judgment in the case should be reversed because as he asserts, the verdict was not sustained by the evidence, improper evidence was admitted and incorrect instructions given for appellee.

We are of opinion that the evidence in the case was sufficient to justify the jury in finding, as they must have done, that appellant was indebted to Alexander, the former owner of the stock of goods, in the sum of $4,400; that Alexander .claimed a lien upon the stock for that amount and was in possession of the same and holding it for the payment of said lien. These circumstances were sufficient to constitute a failure on the part of appellant to show a “good and sufficient title” to the stock of goods in him as he agreed to do by the contract. Appellee was not required, under that instrument, to take the stock under circumstances showing a claim against it, by a third person, which would be likely to cost him a larg'e amount of money not contemplated by the contract or involve him in vexatious litigation.

In regard to the evidence, appellant complains because the court admitted testimony concerning the conversation between himself, Jenkins and Alexander in the absence of appellant, in which Alexander told them he had a lien upon and possession of the property or the stock of goods. We are inclined to the opinion that there was no error in admitting this evidence for the reason that appellee as stated by him, went to appellant and told him of his conversation with Alexander and appellant then told him he could “keep out part of the land.” The statement of the conversation with Alexander tended to make plain the subsequent conversation based upon it, between appellant and appellee. But at any rate the admission of this evidence could not have prejudiced the case of appellant as other evidence in the case, concerning the admissibility of which there could be ne question, showed the existence of the claim of Alexander. The court properly admitted the evidence of Taylor, concerning his conversation with appellant and Alexander together, some three weeks later, concerning the existence of the debt and the claim of Alexander against the stock, as it plainly tended to corroborate the other evidence introduced by appellee, upon that subject.

Appellant criticises certain of the instructions given for appellee because of certain informalities and rather imperfect statements of the law contained in them. While these instructions were not carefully guarded, yet as applied to the facts in this case, we do not think they could have misled the jury and the instructions as a whole fairly stated the law applicable to the case.

Substantial justice appears to have been done by the verdict in this case and no error materially affecting the rights of the parties is shown by the record to have been committed.

The judgment of the court below will therefore be affirmed.

Judgment' affirmed


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    The People of the State of Illinois, for use, etc., Appellant, v. Frederick Jobusch et al., Appellees.
    Administration of estates—when County Court without jurisdiction. Held, that the County Court has no power to appoint a testamentary trustee.
    Bill in equity. Appeal from the Circuit Court of Monroe county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Joseph W. Rickert, for appellants.
    Roy E. Gauen, for appellees; B. R. Burroughs, of counsel,
   Mr. Justice Higbee

delivered the opinion of the court.

This is a suit in equity brought for the purpose of determining the liability of appellee, Frederick Jobusch, and his sureties upon two bonds, one given by him as executor of the last will and testament of William Bahe, deceased, and the other as testamentary trustee of the legatees of said William Bahe, deceased. The original bill was filed by two of said sureties against Frederick Jobusch, Anna Bahe, who had succeeded him as testamentary trustee, and the other sureties on the two bonds. By an amended bill said Anna Bahe, trustee, is omitted from the list of defendants and “The People of the State of Illinois who sue for the use of Anna Bahe, testamentary trustee,” named as an additional complainant. By a second amended bill, the People of the State of Illinois, who sue for the use of Anna Bahe testamentary trustee, were made only complainants and all of the sureties on said bonds made defendants, with Frederick Jobusch.

The bill as amended alleged that by ah order of the Probate Court of Monroe county, the said Anna Bahe was on February 15, 1910, duly appointed and is now acting testamentary trustee for the “minors and legatees” of William Bahe, deceased; that on February 17, 1906, one Frederick Jobusch was appointed by said court, executor of the last will and testament of said William Bahe, deceased, and entered into a bond which was approved by the court with Jacob J. Koenigsmark, Henry Jobusch, Joseph H. G-auen and D. Wischmeier as sureties, for the sum of $16,000, which bond contained the usual provisions required by law; that thereafter on May 5, 1908, said executor made a pretended final report, showing a balance due said estate of $8,280.54 out of which the court directed that $1,200 be paid to said Anna Bahe and ordered the remainder of $7,080.54 to be paid to Frederick Jobusch as testamentary trustee for Louis, Herman, George, Edward and Otto Bahe and that said testamentary trustee enter into a bond in the sum of $15,000 to be approved by the court; that on July 16, 1908, the said executor exhibited to said court, a pretended receipt from himself as testamentary trustee of the legatees of said William Bahe, deceased, to himself as executor of said estate for the balance above mentioned, and that thereupon the court entered an order discharging him as such executor; that as a matter of fact said executor did not have said sum of $7,080.54 or any part thereof at the time of making said pretended final report nor did the same come into his hands after that date; that said pretended settlement and receipt constituted a fraud upon the court; that said Frederick Jobusch was then wholly insolvent, has so continued from that time and has been adjudged a bankrupt in voluntary bankruptcy proceedings; that on July 9, 1908, said Probate Court of Monroe county appointed said Frederick Jobusch testamentary trustee of the legatees of said William Bahe, deceased, and approved a bond executed by him as such trustee, with Louis Bahe, Jacob J. Koenigsmark and George A. Goeddel as sureties in the sum of $15,000 for the faithful performance of his duties; that on February 10, 1910, said trustee filed his report, showing a balance due said legatees of $7,565.46 and was then removed from his said office by the order of said court; that said Frederick Jobusch misappropriated and squandered the funds which came to his hands while acting as executor of the last will and testament of said William Bahe and did not deliver to himself as testamentary trustee the said amount receipted for by him as such trustee; that neither said Frederick Jobusch nor his bondsmen have paid to said Anna Bahe as such testamentary trustee, the sum due to said legatees, nor any part thereof.

The bill asked that the final receipt and order of the Probate Court, discharging Frederick Jobusch as executor as aforesaid, be set aside and vacated, that an accounting be had of the moneys which came to his hands and that he and his sureties on his bond as executor be charged with such amount as was received by him as such executor and afterwards squandered and misappropriated; that if any amount came into his hands as testamentary trustee aforesaid, that said amount be charged against him and his sureties as such trustee; that payment of the amount due be made by the parties found liable therefor to said Anna Rahe as testamentary trustee aforesaid.

A general and special demurrer was interposed to the bill by the defendants Henry Jobusch, Joseph H. Grauen and D. Wischmeier, which was sustained by the court, and complainants having elected to abide by their bill, it was ordered by the court that the same be dismissed for want of equity. An appeal has been taken to this court by the complainants.

By the demurrer the question was raised of the right to maintain the suit in the name of the People for the use of Anna Rahe as testamentary trustee of said legatees and this raises the question of the authority of the County Court, or Probate Court as it is called in the bill, to appoint her such testamentary trustee, which was undoubtedly done by that court under the act of 1909 entitled “An act to extend the jurisdiction of probate courts and county courts having probate jurisdiction so as to include the complete administration of testate estates” (Laws of 1909, page 175).

Two opinions have been recently filed by the Supreme Court of this state which appear to us to fully settle this question.

In a case entitled In re estate of Mortenson, 248 Ill. 520, it was held, that the terms of section 20 article 6 of the Constitution which provides for the jurisdiction to be given probate courts, did not include the supervision and control of testamentary trusts and that the order of the Probate Court of Cook county, appointing a testamentary trustee under the Act of 1909, could not be sustained.

In Frackelton v. Masters, 249 Ill. 30, the question was raised as to whether the Act of 1909 above referred to, conferred exclusive jurisdiction on the county and probate courts of the state to administer testamentary trusts. It was there held that the legislature had the power to extend jurisdiction of county courts to any matter either of law or equity and that had the act of 1909 in question been limited to county courts, no constitutional objection to the same would exist; but it was further held that the part of the act which conferred jurisdiction in regard to testamentary trusts upon the Probate Court and which was held to be invalid, was so essentially connected with the balance of the act that the whole act must be declared void.

The County Court of Monroe county was therefore without authority to appoint Anna Bahe testamentary trustee of the legatees of William Bahe and a bill brought in the name of the people of the State of Illinois for her use as such trustee, cannot be maintained. The court below properly sustained the demurrer to the bill and the decree dismissing the bill for want of equity will be affirmed.

Decree affirmed.


text:
    Martin J. Gillenberg et al., Appellees, v. William Divers, Appellant.

      Verdicts—when set aside as against the evidence. A verdict will be set aside on review as against the evidence where the Appellate Court is of opinion that it is clearly and manifestly against the weight thereof.
    Assumpsit. Appeal from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.

      Gordon & Detrich, for appellant.
    H. Clay Horner and Sprigg & Gilster, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellant is a dealer in horses and mules and appellees are a number of farmers living on Kaskaskia Island in Randolph county, Illinois.

In January, 1908, appellees purchased a stallion of appellant, who, through Clint Ellis, his agent who sold the stallion, gave appellees the following guaranty, wherein appellees are referred to as “The Pujol Horse Co.” and “Kaskaskia Coach Horse Co.”

“This certifies that William Divers, of Ava, Ill., has sold the Coach Stallion, name Fritz Gladiator, No. 1535, to The Pujol Horse Co., of St. Mary, Mo., and has been registered according to the rules of the Oldenburg German Coach Horse Registry Society. I also guarantee the above named stallion to be a serviceably sound average sure foal getter where he makes the season of 1908; provided the above stallion keeps in a healthy condition, with proper care and exercise, with mares regularly returned; and if said stallion with the above treatment, fails to comply with this guarantee, said Kaskaskia Coach Horse Co. are to, in satisfaction of this guarantee, take in exchange another stallion of same breed and equal value, and return above named stallion to Wm. Divers on or before Jan. 1st., 1909, in as sound and good condition as when sold.
“Said Wm. Divers assumes no risk on account of death, disease or accident of said stallion after this 17th day of January, 1908.
“Wm. Divers,
“Per Clint Ellis, Agent.”

The horse was delivered to appellees, who kept him for service during the season of 1908. In August, 1909, appellees brought suit against appellant in assumpsit on the above guaranty, alleging that said stallion was not a serviceably sound, average sure foal getter, and that appellees had offered to return said horse to appellant before January 1, 1909, in as good and sound condition as he was when sold to them, in exchange for another horse of equal value; and that appellant refused then and there to accept the same when so tendered in return and refused to give plaintiff another stallion of same breed and equal value or any other stallion whatsoever in exchange for the same. There was a plea of the general issue and a verdict and judgment in favor of appellees for $1,600.

Upon the trial the court gave on behalf of defendant, the following instruction which correctly states a principle of law applicable to the case:

“You are instructed that if you believe from the evidence that the plaintiffs did not return or tender a return of the said stallion to the defendant in accordance with the terms of the contract, as set out in the plaintiffs’ declaration, on or before the 1st day of January, 1909, in as good and sound condition as said stallion was when sold by the defendant to the plaintiffs, then you should find for the defendant.”

An examination of the record shows that appellees wholly failed to make proof of a return or tender of a return of the stallion by appellees to the appellant, in accordance with the terms óf the contract on or before the first day of January, 1909. The only evidence on this subject, was the testimony of Bruno Schmerbach in reference to a postal card and letter which he claimed to have written appellant prior to January 1, 1909. He testified: “In the postal card I wrote him that horse did not prove satisfaction, he was to be an average sure foal getter and would like to see the man as soon as I could and I never got no answer; and then I wrote again a letter December 27 in the same year, 1908, and told him we had a meeting in Pujol and we wanted to know what he wanted to do about it, the horse did not prove what his contract read to be, and he should answer as quick as he could.” Appellant denies having received either the postal card or letter referred to and there is no proof whatever in the record that he refused before January 1, 1909, to receive the stallion back.

As a matter of fact the horse was not returned to appellant and the postal card and letter above referred to, even if received by appellant, do not show any offer on the part of appellees to return him. The proofs therefore failed to sustain that allegation of the declaration which states that appellees offered to return the horse to appellant before January 1,1909, in exchange for another horse of equal value and same breed and that appellant refused to accept the same when so tendered in return. This was a material allegation and if appellees failed, as they did, to sustain the same by proof, then as stated in the instruction given by the court above referred to, the finding of the jury should have been for appellant. As the verdict in this case was not sustained by the proofs, the court below should have granted appellant’s motion for a new trial and for the reason that this was not done, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Alice E. Horney, Administratrix, Appellee, v. St. Louis & Northeastern Railway Company, Appellant.
    1. Negligence—what details of evidence competent notwithstanding the application of the doctrine res ipsa loquitur. Notwithstanding the case he one in which the doctrine res ipsa loquitur is applied yet if the defendant has pleaded the general issue, it is necessary for the plaintiff to make out her whole case, and in doing so, it is competent for her to offer and for the court to admit in evidence statements of witnesses and proof of circumstances tending to show defendant’s negligence and the result thereof.
    2. Evidence—what competent upon question of injury. Seld, that it was competent for trained nurses to he permitted to testify as to what part they took and the treatment they assisted in giving the plaintiff when he was operated upon and also to state that the plaintiff complained of a pain in his back.

      3. Evidence—when form, of hypothetical examination will not reverse. While technically it is improper, yet the action of the court in permitting a physician to answer a hypothetical question from the history of the ease given him by another physician, will not effect a reversal.
    4. Witnesses—who not incompetent by virtue of interest. An administratrix who was the wife of her intestate, who sues under the personal injuries statute for the benefit of herself and the next of kin of such intestate, is not incompetent to testify as to the injuries and earnings of such intestate.
    5. Instructions—approved form as to right of jury to consider aggravations resulting from surgical errors. An instruction upon this subject as follows approved:
    “If you further find that through some mistake of the said surgeons or of competent nurses and attendants, that infection resulted from and followed such operation, through no act of said Henry Horney, and thereafter said Henry Horney died on April 23, 1909, from said infection resulting from the wound made by said surgeons in said operation and the treatment thereof by said surgeons and nurses, then the court instructs you that the said acts, mistakes or errors of the surgeons and nurses should be considered by you as a part of the immediate and direct result produced by the injuries received by the said Henry Horney in said collision.’’
    6. Instructions—when refusal of correct will not reverse. The refusal of correct instructions will not reverse if the instructions given fully and fairly give the law of the case to the jury.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied November 10, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Terry & Gueltig, for appellant; George W. Burton and H. M. Steely, of counsel.
    C. H. Burton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought to recover damages under the statute, for the benefit of the widow and next of ldn of Henry O. Horney, deceased, whose death is alleged to have been occasioned by the negligence of the servants of appellant in operating its cars, while running. between Edwardsville arid Granite City, Illinois. On October 27, 1908, Henry C. Horney, who at that time was a man 50 years of age in good health and earning $22 a week, as manager of a ten cent store in Edwardsville, started to go home from that place to Granite City, where he resided with his wife and two unmarried daughters, on one of appellant’s electric cars. While the car was running at from thirty to thirty-five miles an hour, it collided with another car, at a point called Sand Pit Siding. Both cars were badly wrecked and many passengers bruised and hurt.

At the time of the collision, Mr. Horney was sitting near the front end of the car on a bench running lengthwise of the same on the right side thereof. Opposite him on the left side of the front end of the car, was the motorman’s cab and behind it in this part of the car, which was the smoking compartment, was a large trunk, weighing from 500 to 700 pounds. This trunk was thrown against Horney by the force of the collision and the evidence appears to show that when he was seen immediately thereafter, an edge or corner of the trunk was, pressing against his side. As the trunk was pushed away by another passenger who was also injured by it, Mr. Horney cried out “Oh, my side” and afterwards when he was led away by a couple of men he complained of his side and his back. He was taken by another car to Granite City, where he went to a hospital, and after having received treatment from the physicians there and had his arm bandaged, he walked home several blocks. The next day a physician was called and it was then found that his body was discolored and sore and he was evidently suffering from severe pains about his abdomen. He was confined to his bed for about two weeks but afterwards returned to his business. About six weeks later he was discovered to be afflicted with ventral hernia which appeared to the right and above the navel. On February 13, 1909, a physician was called, who advised that an operation be performed and afterwards on March 4, he was operated on for ventral hernia. After the operation the patient failed to improve, dangerous complications were discovered and on April 21, he was again operated on by Dr. Amyx, assisted by Dr. Neidringhaus, who performed the first operation. The second operation failed to effect a cure and on April 23, 1909, the patient died.

The trial resulted in a verdict and judgment in favor of appellee for $7,000. Appellant asserts that the verdict in this ease was contrary to the evidence, that the court erred in its rulings in the admission and exclusion of evidence and also in its rulings in regard to the instructions.

The declaration charged that the collision was caused by the carelessness and negligence of appellant’s servants; that by reason thereof Horney was violently thrown from his seat, that various parts of his body were injured, bruised and wounded from which wounds and bruises ventral hernia resulted, which caused his death.

It was shown on the trial and is conceded by appellant, that the collision of the two cars was caused by the negligence of appellant’s servants and that in the collision Mr. Horney received an injury. Appellee claimed that the hernia, from which Mr. Horney suffered, resulted from injuries received by him in the collision of the cars and that his death was the result of such hernia.

On the other hand appellant contends that the evidence was not sufficient to connect either his death or the hernia with, or to show the same was the result of, the accident. After bis death Alice E. Horney, his widow, was appointed administratrix of his estate and brought this suit.

The proofs in the case appear to us to show that deceased was struck by a heavy trunk in the collision and injured on the body and limbs, as claimed by appellee. They also show that deceased some weeks later, was discovered to be suffering from ventral hernia. The attending physicians, and other physicians who were examined as experts, testified for the respective parties upon the trial. We deem it unnecessary to go into an extended discussion of the professional and scientific testimony given by these witnesses, and content ourselves with saying that the jury was warranted upon consideration of the same, in finding that the hernia of deceased, resulted from the injuries received by him in the collision of the cars; and that deceased had good care and skillful attention from competent physicians and surgeons.

The proofs in the case established the material allegations of the declaration and were sufficient to sustain the verdict.

Appellant complains that certain witnesses were permitted to testify concerning the manner of movement and the speed of the car in which Horney was riding, to give descriptions of the appearance of the headlights of the cars before the cars came together, and that chairs in the other car were torn loose and passengers thrown upon the floor; that lights were put out, windows broken, timbers twisted and passengers injured in said car. The theory of counsel for appellant on this question, as stated by him, is that it was admitted the car in which deceased was riding, collided with a car going in the opposite direction, and that being so, the doctrine of res ipsa loquitur applied, that the act itself spoke as to appellant’s negligence; that this being true the evidence referred to was simply as to collateral facts not affecting the principal matter in dispute and was therefore incompetent. In this case appellant pleaded the general issue to the declaration of appellee; therefore it was necessary for the latter to make out her whole case and in doing so it was proper for her to offer and the court to admit in evidence, statements of witnesses and proofs of circumstances tending to show appellant’s negligence and the extent of the same. The evidence referred to was directly pertinent to these questions and was therefore properly admitted.

Objection is also made that certain trained nurses were permitted to testify as to the part they took and the treatment they assisted in giving Horney, when he was operated upon and also to state that he complained of a pain in his back.. We do not think this testimony objectionable as it tended to throw light upon the subject of the injury of deceased and also to show the treatment he received, which is criticised somewhat by appellant.

Complaint is further made by appellant, that one of the physicians was permitted to answer hypothetical questions, not from the facts detailed in the question, but from the history of the case given him by another physician. It appears that the physician whose testimony is objected to, treated the deceased ahd performed one of the operations on him and on qross-examination he stated that he took into consideration, in answering the hypothetical questions, the conditions he found, and the history of the case given him by another physician. It appears however that !the so-called hypothetical questions asked this physician, presented facts identical with those claimed to have been ascertained by him from examination and the statement of the other physician. While the court might properly, as a technical proposition, have sustained appellant’s motion to exclude the answers made by this physician to these questions, yet this could have produced no practical result, bearing upon the case. It would have only required appellee, if he desired the benefit of such testimony, to have asked the same questions again and necessitated an answer by the physician, based upon the hypothetical questiori, which was identical with those facts which he had otherwise ascertained and therefore it must be presumed his answer would not have been different from that ¡he had already given. There was, therefore, no reversible error on the part of the court in refusing to exclude this testimony.

Other objections were made in relation to the testimony of expert witnesses, which upon consideration do not appear to us to be of material importance in the case.

Appellant further objects that the administratrix was permitted to testify in the case. The administratrix did not bring this suit as such, for the benefit of the estate on account of damages which accrued to Mr. Horney in his lifetime, but she brought it under the personal injuries statute, for the benefit of herself and the next of kin; and the estate of deceased, as an estate, is really not concerned with any amount that may be recovered. She was examined and testified, not as to conversations between herself and husband, but as to facts concerning his injuries and his earnings.

In the case of Lingreen, Admx., v. I. C. R. R. Co., 61 Ill. App. 174, which was a suit similar to this, the widow of the deceased was offered as a witness on behalf of the plaintiff, but her testimony was held to be incompetent by the court as to any fact that occurred at the time of her husband’s death or in respect to any matter or thing leading to it. The Appellate Court said in passing upon this question, “Mrs. Lingreen was not offered as a witness to testify to any admission or conversation of her husband or in an action to which her husband was a party. The husband was dead, and his estate in no wise interested in the litigation. The connection of the administrator with the suit was merely formal. He (she) prosecuted, not for the estate of his (her) intestate, but for the exclusive benefit of the widow and next of kin. The fact that Mrs. Lingreen, formerly sustained the relation of wife to the deceased, had no effect upon her status as a witness, save that she was inhibited from detailing any admission or conversation of her late husband. That her testimony was material is beyond doubt. It was error to exclude her.” See also Gregory v. Gregory, 129 Ill. App. 96.

We are of opinion the widow was a competent witness to testify to the matters concerning which she was interrogated.

Appellant criticises the first instruction given for plaintiff, because after reciting the history of the case, including the operation, it stated, “and if you further find that through some mistake of the said surgeons or of competent nurses and attendants, that infection resulted from and followed said operation, through no act of said Henry Horney, and thereafter said Henry Horney died on April 23, 1909, from said infection resulting from the wound made by said surgeons in said operation and the treatment thereof by the said surgeons and nurses, then the court instructs you that the said acts, mistakes or errors of the surgeons and nurses should be considered by you as a part of the immediate and direct result produced by the injuries received by the said Henry Horney in said collision.”

Appellant asserts that this instruction does not state the law correctly and that it was error to give it. This question has been settled by our Supreme Court contrary to the contention of appellant in Variety Mfg. Co. v. Landaker, 227 Ill. 22, where it is said, “It is next contended that the court erred in giving to the jury the appellee’s second instruction. That instruction announced to the jury that a person who is suffering from an injury is only required to use reasonable diligence to employ a physician of ordinary skill and experience to treat him, and that the law regards the injury resulting from the mistakes of the physician, or from the failure of the means employed to effect a cure, as a part of the immediate and direct damages flowing from the original injury. The doctrine announced in said instruction is fully sustained by Pullman Palace Car Co. v. Bluhm, 109 Ill. 20, and Chicago City Railway Co. v. Saxby, 213 id. 274.”

The fourth instruction was a general one and informed the jury as to the degree of care and caution necessary to be used by defendant in the operation of its road to provide for the safety and security of passengers. It is objected to this instruction that it states an abstract proposition of law and that as deceased was a passenger and was injured by the collision, the doctrine of res ipsa loquitur applied. It is true that the question of the negligence of appellant’s servants in causing the collision was admitted, but as we have above stated, where this same subject was considered in reference to the admission of certain evidence, appellee was nevertheless required to make out his case and this instruction stated a correct proposition of law applicable thereto. The fact that it was general in terms did not of itself make it error for the court to give it.

Other objections are made to instructions given for appellee which do not appear to us to be .of sufficient materiality to require discussion.

Appellant further complains that five instructions offered by it, were refused by the court. The record shows that twenty-two instructions were given on behalf of defendant, which appear to cover every phase of its defense, and all principles of-law correctly stated in the refused instructions, appear to have been contained in those given for it.

Appellant also complains that the damages awarded are excessive. The question of the amount of damages was one for the jury and we are not disposed to find fault with the manner in which they have disposed of it. We find no reversible error in the record in this case and the judgment of the court below will be affirmed.

Affirmed.


author: Mr. Justice McBride

text:
    H. S. Painkinsky, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Common carriers—-what not condition precedent to recovery. If a bill of lading has printed upon the back thereof certain conditions, compliance with such conditions is not essential to the right of the shipper to enforce the common law liability of the carrier, and this rule applies as well to a condition prescribing the time within which proofs of loss must be made as to a condition which limits the common law liability of the carrier.
    2. Common carriers—when conditions printed upon bill of lading not binding upon shipper. Conditions printed upon the back of a bill of lading are not binding upon the shipper unless his assent thereto is established.
    3. Instructions—must not ignore material evidence. An instruction is properly refused which singles out particular evidence and ignores all other evidence.

      i. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its substance is contained in other instructions given.
    5. Instructions—predicated upon evidence. An instruction is properly refused which is not predicated upon any evidence in the cause.
    6. Instructions—when upon liability of common carrier proper. An instruction upon this subject is proper which tells the jury that if the goods in question were lost or damaged while in the custody of the carrier the presumption is that it was through the carrier’s neglect and the burden is upon the carrier to show that the loss arose from causes for which it was not responsible.
    Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    W. W. Barr and Charles E. Feirich, for appellant; Blewett Lee and W. S. Horton, of counsel.
    Charles H. Holt, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action of assumpsit,—tried by a jury in the Circuit Court of Marion county, and resulted in a verdict for appellee for $418.36. A motion for new trial was overruled and judgment rendered upon the verdict, and the defendant brings the record to this court on appeal.

The declaration alleges that the defendant was a common carrier of goods and chattels for hire, and was operating its road from a station called Johnston City to Sandoval, in the county of Marion; that the plaintiff on, to wit, February 21,1910, delivered to the defendant eighteen boxes of ready made clothing, gents furnishing goods and merchandise of the plaintiff of the value of, to wit, eight thousand dollars, to be taken care of and safely carried by it from Johnston City to Sandoval aforesaid, upon its railroad, and to be safely and securely cared for, conveyed and delivered by it to the plaintiff at Sandoval aforesaid, for a certain reward agreed by the plaintiff to be paid to the defendant. Tet the defendant not regarding its duty as such common carrier, nor its said promises and undertaking so made as aforesaid but contriving and intending to deceive and injure the plaintiff, did not care for and safely carry and deliver the said goods and merchandise to the plaintiff at Sandoval aforesaid, but on the contrary it so carelessly and negligently behaved and conducted itself with respect to the said goods and chattels that by and through the carelessness, negligence and improper conduct of the said defendant and its servants in this behalf that the said goods and chattels were wholly lost to the plaintiff.

The second count is substantially as the first, except it avers that the said goods were to be delivered to the plaintiff within a reasonable time, and that such reasonable time has elapsed and one box of the said goods of the value of five hundred dollars was not delivered but wholly lost.

The declaration also contained the common counts. To this the defendant filed the plea of general issue.

The facts in this case, as appear from the record, are that on about February 25, 1910, the plaintiff, by his agent, delivered to the defendant eighteen boxes of merchandise to be carried by it from Johnston City to Sandoval, both of which stations were located upon its road. That after the boxes had been placed in the ear by Goldstone, the agent of plaintiff, he then applied to the agent for a receipt and the agent gave him the bill of lading marked Exhibit “A” and offered in evidence by the plaintiff, which is as follows:

“Form I. C. 195-3 Revised 12-08
D-9-09 4000 pads 100 sets collated.
Illinois Central Railroad Company
(Illinois Central Railroad Central Route—Mississippi Valley)
Shippers No.........
Agents No..............
This Memorandum is an acknowledgment that a bill of lading has been issued and is not the original bill of lading, nor a copy or duplicate, covering the property named herein, and is intended solely for filing or record.
“Received subject to the Classification and tariffs in effect on the date of the receipt by the carrier of the property described in the original bill of lading, at Johnston City, Ill., 2-21-1910.
“From H. S. Painkinsky, the property described below in apparent good order except as noted, (contents and condition of contents of packages unknown) marked, consigned and destined, as indicated below, which said company agrees to carry it to its usual place of delivery at said destination, if on its road, otherwise to deliver to another carrier, on the route to said destination.
“It is mutually agreed as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any part of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written herein contained (including conditions on back hereof) and which are agreed to by the shipper and accepted for himself and his assigns.
“The freight rate from Johnston City, Ill., to Sandoval, Ill., is in cents per 100 lbs.
“If times 1st If 1st class If 2nd class If 3rd class If 4th class If 5th class If class If class If Rule If Rule If special per
“If special per Consigned to H. S. Painkinsky Desination Sandoval, State of Ill. County of Route Car Initial C. N. W. Car No. 20264 No. Packages Description of articles Weights Sub-Special marks ject to cor-18 By Clothing rection. 1 Chair 1 Bdl (2) racks I. C.R.R. 625942 1 Bdl (4) racks O. K. 2940
S. Gfoldstone Shipper. J. S. Evans Agent.”

On the back of the exhibit appears ten sections of conditions, of which a part of section three is as follows:

1 ‘ Claim for loss, damage or delay, must be made in writing to the carrier at the point of delivery, or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”

When the goods reached Sandoval there were but seventeen boxes. The plaintiff by an inventory he had identified the lost goods by lot number.

It is claimed by counsel for appellant that, as the plaintiff introduced the bill of lading in evidence, it devolved upon him to prove a compliance with the conditions printed upon the back thereof providing that, “Claims for loss, etc., must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or in case of failure to make delivery then within four months after a reasonable time for delivery has elapsed, and unless the claims are so made the carrier shall not be liable.” He contends that this clause is reasonable and ought to be enforced as a condition precedent to recovery. In support of this many authorities are cited from other states which seem to support his contention. He also refers to two or three authorities from this state which will be noticed later on in this opinion. The condition above referred to is a part of the bill of lading or receipt given by appellant to the agent of appellee after the goods had been loaded in the car, and as we understand the law of this state, that when the condition or limitation is a part of the bill of lading then it devolves upon the carrier to show that the shipper assented to the terms or conditions of the contract. Even if notice of the restrictions be given, but the shipper does not assent to such limitations, still as the defendant is a common carrier the plaintiff may ship the goods and rely upon the carrier’s common law liability to him as a shipper. The printing of the restrictions on the back of the bill of lading has no more force than if published in a newspaper or posted by notice, and form no part of the contract and need not be noticed in the declaration. The Western Transportation Co. v. Newhall, 24 Ill.466.

“Where a contract limiting the liability of a carrier is contained in a bill of lading which in its entirety constitutes both a receipt and contract, the onus is on the carrier to show the restrictions of the common law liability were assented to by the consignor, * * * and whether there is such assent is a question of fact. The mere receiving the bill of lading without notice of the restrictions therein contained does not amount to an assent thereto.” Wabash Railroad Company v. Thomas, 222 Ill. 344.

The appellant insists that there is a distinction between a condition prescribing the time in which proof of loss must be made, and the condition limiting the common law liability; and that the same rule does not apply in each case. However, it is said by our Supreme Court in the case of Wabash R. R. Co. v. Thomas, supra, page 345: ‘ ‘ The tenth condition in the contract of shipment provides that no action shall be brought for damages, ‘unless a claim for such loss or damage shall be made in writing, verified by an affidavit of the party of the second part or their agent, and delivered to the freight claim agent of the party of the first part, at his office in the city of St. Louis, within ten days from the time said stock is removed from said cars. ’ ’ ’ The court after commenting upon the reasonableness of this condition then says: “But the question of the plaintiff having understandingly assented to that provision having been determined adversely to appellant by the jury and the Appellate Court, he was not barred of his right of action by his failure to comply with it.” In the same case the question was made that the Circuit Court erred in instructing the jury that the burden of proof is upon the carrier to show that the plaintiff had assented to the terms and conditions of the contract of shipment; and one of the conditions herein referred to was, that with reference to the limitation of time in which proof should be made but the Supreme Court held that this was not error. The court seems to have made no distinction between the conditions, as printed upon the bill of lading, but has treated all of them as matters to which the shipper must have in some manner given his assent. These are recognized by the court as mere collateral provisions. As we understand the rule as finally laid down by the courts of this state, it is, that, where the conditions are a part of the bill of lading, it then devolves upon the carrier to show that the shipper assented to such conditions, and it does not seem to make any distinction with reference to the conditions but treats such conditions practically as one class.

“The mere receiving of the bill of lading without notice of the restrictions therein contained does not amount to an assent thereto.” C. & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9, and many other cases there cited; Chicago and Northwestern Ry. Co. v. Simon, 160 Ill. 648; C. C. C. & St. L. R. R. Co. v. Patton, 203 Ill. 376.

Counsel have cited as an authority, the case of C. & A. R. R. Co. v. Simmons, 18 Ill. App. 68, to' show that in an action of assumpsit such a provision is a condition precedent to the institution of a suit for damages. In tins case, however, the court found there was a special contract and in the opinion (p. 71) says: “Appellees consented to make this condition precedent and utterly failed to prove its performance.” Of course, if the appellee consented to make it a condition precedent, then that would bring him clearly within the rule laid down by the Supreme Court in the cases above cited, but if that opinion is to be considered upon the theory that the bill of lading, including this condition, was simply handed to him, then it is at variance with the decisions of our Supreme Court and cannot be followed. In view of the fact that such conditions are not recognized by our court as being part of the contract but only collateral to it, and that it is not necessary to notice such provisions in a declaration, we cannot see that it should make any difference whether the action is in case or upon the contract, and we agree with Judge Baume that the doctrine is as applicable in an action of assumpsit to recover the damages for a breach of an alleged special contract, as in an action of tort to recover damages for negligence. Kirby v. O. & A. R. R. Co., 146 Ill. App. 31.

It appears, as we think, from the evidence in this case that the appellee delivered to appellant eighteen boxes of goods for shipment to Sandoval, and that he only received at Sandoval seventeen boxes. In fact we think the testimony in this respect is practically uncontradicted, and considered in connection with the testimony of appellee that he made an inventory of the goods and was able to give a list, together with the lot number of those that were lost, and these facts being undisputed, makes it pretty clear that the goods of appellee were lost as claimed, and that they were of the value ascertained by the jury.

The appellant also complains of the refusal of some instructions. Its refused instruction marked 1-B attempts to point out a particular thing that may be taken as a circumstance in determining the number of boxes of clothing that were delivered, and ignores all of the other evidence upon that question. It is too general in its terms with reference to what agent is referred to, and, even if properly written, they could only be circumstances to be taken into consideration in determining what credit might be given to the witnesses. It certainly could not be taken as a circumstance determining the number of boxes delivered to defendant.

The second refused instruction complained of, as we think, is fully covered by the defendant’s second given instruction, which is as follows:

“You are instructed that the burden is on the plaintiff to show by a preponderance of the evidence that the goods which he claims were lost were delivered to the defendant, and if you find from the evidence in this case that an error was made in the bill of lading in the number of boxes, and that there were but seventeen boxes of goods delivered in the shipment in question, and that the 17 boxes were delivered to the consignee at Sandoval, Blinois, the point to which they were shipped, then you are instructed that there is no liability on the part of the defendant merely because of an error made in the bill of lading and you should find the issues for the defendant.”

We think there is no evidence upon which to base the third and fourth refused instructions, and the court did not err in refusing them.

It is next contended that the court erred in giving plaintiff’s sixth instruction, in that it cast too much of a burden upon the appellant. We cannot agree with counsel in this contention; the receipt of the agent admits that the eighteen boxes were received and this being true it is not too much of a burden, when the appellant had receipted for them, to require it to show why it did not deliver the number received. Besides, this instruction was approved in almost the exact terms in the case of Great Western R. R. Co. v. McDonald, 18 Ill. 172, and we do not regard the objections to this instruction as tenable.

We see no error in the fourth instruction given on behalf of appellee; it simply lays down the proposition of law that if the goods were lost or damaged while in the custody of the defendant, the presumption is it was through its neglect and the burden was upon the defendant to show that the loss arose from: causes for which it was not responsible. This, we think, is a correct proposition of law. The instructions taken as a whole state the law fully and clearly to the jury and we cannot see how the jury could have in any manner been misled in this case as to their duties.

We are of the opinion that the condition included in the bill of lading or receipt given by appellant to the agent of appellee, and referred to by counsel, was not a condition precedent to appellee’s right to recover, and that the burden of showing appellee’s ass;ent to this condition was upon the appellant, and appellant having failed to so show, and if appearing that the box of goods delivered to appellant was lost, then we are of the opinion that the appellee had a right to recover in this suit, and that it was not error for the Circuit Court to overrule appellant’s motion for a new trial and render judgment upon the verdict; and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Charles Voss, Appellee, v. Chicago Sandoval Coal Company, Appellant.
    1. Watercourses—extent of right of user. A person haying the right to use a stream of water must do so as not to injure such stream for others having a like right.
    2. Watercourses—when pollution confers right of action. It makes no difference how a stream of water was polluted or rendered unwholesome, or how the water was made impure, if it is in fact rendered unwholesome or impure to the prejudice of others, then not only is section 221 of the Criminal Code violated hut a civil right of action is created.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Noleman & Smith, for appellant.
    George W. Smith and Charles H. Holt, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action brought by appellee against appellant, in the Circuit Court of Marion county, for the pollution of a watercourse or stream. A trial was had by a jury and judgment rendered for $160 and costs, to reverse which the appellant prosecutes this appeal.

It is disclosed by the record in this case that, at some time during the summer of 1910, the Lake Oil Company was prospecting for oil and gas in and near the village of Sandoval, and in drilling a hole they went through the workings of defendant’s coal mine No. 2, located east of the Illinois Central Railroad and near the village of Sandoval. The well proved to be a dry one and the oil company removed its easing and attempted to plug the hole so as to prevent salt water, from below the mine, flooding it but this they failed to do, and as a result it is charged that a large amount of salty, acid and other mineral waters escaped in to appellant’s mine, and as a result prevented appellant from prosecuting its work of mining and hoisting coal ; whereupon and about November 15th, the appellant started two high pressure pumps and several water boxes to hoisting water from this mine and continued the operation of these pumps and boxes for about four weeks, pumping approximately about four thousand barrels of water per day; as the water was drawn from the mine by appellant it was thrown into a ditch and thence conveyed to Prairie Creek, a natural stream which extended through appellee’s farm, and had prior to that time furnished appellee’s stock with an abundance of good water, free from poisons, and wets used principally for stock water; that the water thrown in to this creek by appellant was of a yellowish color, acidulous and salty and after its presence it was noted that the fish, turtles and musk-rats in the creek died. The jury found that, as a result of turning this water from the mine into the creek, the appellant polluted the stream of water, rendering it poisonous to stock, and as a result killed a horse and injured a calf belonging to appellee, and this was the basis of the verdict and judgment against appellant.

Counsel for appellant, in their argument, do not deny the pollution of the stream of water, and the injury to the stock of plaintiff but contend that1 there is no liability in this case because the water was cast in to appellant’s mine without its fault and oyer its objection and protest, when it had no means of preventing the same; that it did nothing to contaminate or pollute the water but hoisted and pumped the same from its coal mine in a reasonable, careful and proper manner and adopted the only means which could have been used consistent with proper and careful mining; that it had the right to dump the water on its ¿remises, and although it flowed naturally into Prairie Creek and polluted the waters of the same to the damage of the plaintiff, that his damages resulting therefrom are damnum absque injuria.

The errors assigned by counsel for appellant are, that the court erred in the exclusion of evidence offered by appellant to show the capacity of the mine and the number of men employed; that the oil well was drilled on the premises of a third party without the consent of appellant, and the salt water cast into its mine without its knowledge or consent; that the only method of getting the water out of the mine was the one adopted; that the appellant had no way of preventing the drilling of the hole through its workings. Second, that the court erred in refusing to give the instructions offered by appellant, the effect of which instructions were, that the defendant had a right to operate its mine and pump the water therefrom whenever and as often as it became necessary, and that if the defendant was using its own property in an ordinarily, proper and lawful manner, and damages were caused to the plaintiff by reason of the water pumped from said mine polluting the watercourse, the defendant would not be liable. Third, that the court erred in not giving the peremptory instruction offered at the close of the evidence directing a verdict for the defendant.

These questions, however, are all involved in the one proposition suggested by counsel, to wit: “There is no liability in this case; the appellant had a right to pump the water from its coal mine as a necessary incident to the reasonable and proper use of its own property and the damages resulting to appellee are damnum absque injuria.”

It is not necessary to discuss the several errors assigned, for if the proposition laid down by counsel for appellant is a correct theory of the law of this state, then appellant was entitled to have the evidence offered by it presented to the jury, and was also entitled to its instructions offered bearing out the principles contended for; but if the contention of counsel for appellant upon this proposition is not correct, then the court did right in excluding’ the evidence and refusing the instructions.

According to the evidence offered by appellant, the Lake Oil Company committed a wrong when it drew the casing and cast this acidulous and salty water into apjiellant’s mine, but because an unlooked-for and unusual burden had been cast upon appellant, was it justified in getting rid of this burden at the expense of, or to 'the detriment of appellee? It is said by counsel for appellant that for the purpose of encouraging the mining industries of this state that the owner of a mine or of an oil well, should not be held liable for injuries to property caused by the pollution of the water of a stream with oil and salt water where such pollution is necessary to the enjoyment of the mine or well and the owner is not actuated by malice and has exercised due care to avoid the injury. To establish this proposition counsel has referred to some six or eight cases decided by the courts of different states, and especial attention is called to the case of the Pennsylvania Coal Company v. Sanderson, 113 Pa. 126; and to the case of Ohio Oil Company v. Westfall (App. Court of Indiana), 88 N. E. 354. We have examined these cases, and while they may sustain the position of counsel in this case, we do not believe that they are in harmony with the statute and decisions of the Illinois courts, or with the decisions of the major part of the states upon this question.

It is provided by section 221 of the Criminal Code, that, “It is a public nuisance to corrupt or render unwholesome or impure the water of any spring, river, stream, pond or lake to the injury or prejudice of others.” Under this statute it would make no difference how the stream was polluted or rendered unwholesome, or how the water was made impure; if it in fact was rendered unwholesome or impure to the prejudice of others then it would be a violation of the statute, and this doctrine is fully sustained in the case of Barret v. Mt. Greenwood Cemetery Assn., 159 Ill. 385.

It seems to be a well recognized principle of law that an action will arise where the waters of a stream are rendered unwholesome by the operation of mills and factories, the refuse from which poisons, corrupts and renders unwholesome the waters of a stream, or in some way impairs its usefulness. The deposit of dye' stuffs, whereby a stream is polluted or discolored; the discharge of poisonous and corrosive substances into a stream; the emptying offensive matters from tan yards; deposits of sawdust, waste or refuse from mills have, by many courts, been held to be actionable. A. & E. Enc. of Law, Vol. 28, p. 973 (First Edition).

The same author on page 968, says: “The right of every owner of land through which a stream of water flows, to have the same flow in its natural state, extends to the quality as well as the quantity of water, and therefore one who pollutes or contaminates water may be liable to those injured thereby.”

And in the case of Tetherington v. Donk Bros., 232 Ill. 522, the court says: 1 ‘ The law has been announced in this court in numerous decisions that it is the right of every owner of land over which a stream of water flows, to have it flow in its natural state and with its quality unaffected; that the right to a stream of water is as sacred as the right to the soil over which it flows. It is a part of the freehold of which the owner cannot be disseized except by due process of law, and the pollution of a stream constitutes the taking of property, which may not be done without compensation.” This doctrine is also recognized in the case of the City of Kewanee v. Otley, 204 Ill. 402; Beidler v. Sanitary District, 211 Ill. 628.

If the doctrine contended for by counsel for appellant were adopted as a rule of law, then it would necessarily follow that any person occupying a stream of water above another might engage in a business that in the reasonable and necessary prosecution of which would result in such pollution of the stream of water as to make it injurious and unfit for use for the lower proprietors on such stream. We do not think that this doctrine is tenable; and while it is true that every man should have the right to a reasonable use of a: stream of water, yet he must so use it as not to injure it and destroy it for those below him. It is said in the case of Tetherington v. Donk Bros., supra: “The right of each proprietor to use the stream is subject to a like reasonable right in other riparian owners, and each must submit to such reasonable use by his neighbor, so long as such use does not inflict substantial injury upon the other owners who have a like right.

We think that the contention of counsel for appellant is not sustained by the decisions of the courts1 23of this State, and that the presiding judge did right in rejecting the testimony offered by appellant, in refusing the instructions and denying a motion for a new trial, and the judgment of the Circuit Court is affirmed.

Affirmed.