author: Baker J.

text:
    Fred Bennitt et al. v. The Wilmington Star Mining Company et al.
    1. Mechanic’s lien—As against purchaser.—A party purchasing property against which a petition for mechanic’s lien has been filed, where such purchase is made from the owner and defendant, after the petition was filed but before jurisdiction of the person of the defendant owner was acquired by service of process or otherwise, does not take the title of the property free from the lien of the statute relating to mechanic’s liens.
    2. Same—Trustee should be a party.—In mechanic’s lien suit against property incumbered by a trust deed, both trustee and cestui que trust should be made parties.
    3. Res adjudicata.—The doctrine of res adjudicata embraces not only what has actually been determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it.
    .4. Same.—And this rule has a still broader application, and will sometimes include persons who are not parties to the record and have not acquired interests pendente lite, binding them by the judgment or decree. Persons on whose behalf and under whose direction the suit is prosecuted or defended, in the name of some other person, fall within this category.
    5. Evidence—Parol—Real parties in interest.—In such cases parol evidence is admissible to show who are the real parties in interest, and that they conduct the litigation in the names of other persons.
    Appeal from the Circuit Court of Grundy county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed January 7, 1886.
    Messrs. Jordan & Wing, for appellants.
    Mr. George S. House, for appellees.
   Baker J.

The facts involved in this case are very numerous and quite complicated, and in the view we take of the merits of the controversy, it is necessary to state but comparatively few of them, and these may properly be referred to in connection with the points it is deemed essential to consider and decide.

1. The Coleman Gas Works Manufacturing Company filed its petition for a mechanic’s lien in the Circuit Court of Grundy county, on the 14th day of September, 1875, against the Coalfield Coal Company, Charles H. Goold and H. LeBoy Thayer : and it is admitted that this was within the six months after the last payment for labor and' materials became due and payable, that is allowed by section 28 of the lien law, for the institution of a suit for the purpose of enforcing such lien in order to make it effective as against other creditors and incumbrancers. .It appears, however, that the Coalfield Coal Company parted with its title to the hotel premises in question after the petition was filed, but before jurisdiction of its person was acquired by the service of process or otherwise. We understand the claim of appellees, made in this behalf, to he that in such case one who purchases from the owner of the land and defendant to the petition, takes the title to the property forever freed from the lien created by the statute. This position is not tenable, and for several reasons. In the first place, a purchaser is not within the protection of this section, as he is neither a creditor nor an incumbrancer; it was expressly so held in Dunphy v. Riddle, 86 Ill. 22. In the second place the statute saves the right of the holder of the lien, if suit is instituted to enforce such lien within the six months limited, for such purpose; and it has been decided that the proceeding under the statute of liens is a chancery proceeding, and that the filing of the petition is the institution of the suit. Work v. Hall, 79 Ill. 196 ; Dunphy v. Riddle, ante. And, in analogy, where an amendment is allowed making a new party defendant to the petition, the suit is brought as to.him at the time of the amendment. Crowl v. Nagle, 86 Ill. 437. If the rule were as is urged, then this lien law would afford but scanty protection to those whom it is intended to benefit, for the owner might in every instance by simply evading service of process have both power and opportunity to either sell or incumber to the full value of the land, and thereby render nugatory the plain intent of the statute.

2. It is objected by appellees to the validity of the decree that was entered in the mechanic’s lien suit as affecting their rights, that on the 27th of July, 1875, and prior to the filing of the petition, the Coalfield Coal Company executed to Frank Goudspeed, as trustee, a trust deed, to secure the payment of 81,750 to Go old and Thayer, and that while Goold and Thayer, the cestwis que trust, were made parties to the proceeding, yet the trustee was not, and that they were each and all necessary parties. We understand the general equity rule to be as is claimed. McGraw v. Bayard, 96 Ill. 146; Scanlan v. Cobb, 85 Id. 296; Story’s Eq. Pl., Sec. 207. The first cited case is directly in point, and it was there decided that where a trustee is interposed between lender and borrower merely for the purpose of enabling the lender to obtain payment through the exercise by the trustee of powers conferred upon him, both trustee and cestui que trust must be made parties. It is also true, that it was held in Crowl v. Nagle and Dunphy v. Riddle, that where there is an existing incumbrance at the time the suit is brought and the incumbrancer is not, within six months after the last payment becomes due, made a party to the petition, then the lien of the mechanic will be postponed to that of the incumbrancer.

In order to properly apprehend this matter of the omission of the trustee as a party defendant in the lien proceeding, it is necessary to briefly state a few additional facts that appear in the record. On the second day of May, 1876, Goodspeed made a sale, under the provisions of the trust deed, of the-premises, and conveyed them to Goold and Thayer, who were purchasers at such sale. On the third day of October, 1876, Goold and Thayer entered into a written contract with Ira F. Benson for the future conveyance of the property to him, Benson. On November 22, 1876, Benson assigned his interest in the contract and made a quitclaim deed of the premises to the Wilmington Star Mining Company, one of the appellees herein. On the the 18th day of December, 1878, the mechanic’s lien suit, a former decree therein having been reversed by the Supreme Court and the cause remanded, was still pending and undetermined in the Grundy Circuit Court. At that time the three defendants to the petition, the Coalfield Coal Company, Goold and Thayer, filed answers to it, for the first time; and the only persons who then had any interest in the premises upon which the lien was sought to be enforced, were the two latter and the Wilmington Star Mining Company. The title of the Coalfield Coal Company had long prior been divested by the sale under the trust deed. The- suit had become Us pendens in respect to Thayer, on the 28th of October, 1875, by the service of process on him; but it is questionable whether it became Us jpendens with reference to Goold and the Coalfield Coal Company before their answers wore filed. Assuming that Goold and Thayer, by the failure of the petitioners to make Goodspeed, the trustee, a party to the proceeding, and by the conveyance from such trustee, were in a position to insist the lien could not be made effective to their prejudice, then it was their bounden duty to interpose such defense in the pending litigation. The petition charged that Goold and Thayer were interested in the real estate covered by the lien as mortgagees or otherwise, and prayed for a lien and that the lots might be sold clear of all incumbrances. If these parties to the suit had a valid defense to the enforcement of the -lien as against any rights they were vested with, they should have disclosed it, and if they either did or did not do so, the binding force of the lien is res judicata as between them and their privies, and all parties claiming under the decree. That decree necessarily affirmed the validity of such lien as against whatever right or title the defendants therein possessed, for the court expressly found and decreed that the “petitioner is entitled to a first lien upon said premises,” and it is conclusive upon the parties and their privies. The doctrine of resjudicata embraces not only what has actually been determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it. Hamilton v. Quimby, 43 Ill. 90; Rogers v. Higgins, 57 Id. 244; Kelly v. Donlin, 70 Id. 378; Ruegger v. I. & St. L. R. R. Co., 103 Id. 449. In Bigelow on Estoppel, p.46, note, it is said: “It follows, also, from the authorities considered, that a valid judgment for the plaintiff sweeps away every defense that should have been raised against the action; and this too, for the purposes of every subsequent suit, whether founded on the same or a different cause.” See, also, Gage v. Ewing, 107 Ill. 11, and Scates v. King, 110 Id. 456.

This rule of the binding and conclusive effect of a former adjudication has a still broader application than we have thus far stated, and will- include not oily Goold and Thayer, but the Wilmington Star Mining Company. Sometimes persons who are not parties to the record, and have not acquired interests pendente lite, are bound by the judgment or decree. Persons on whose behalf and under whose direction the Eut is prosecuted or defended in the name of some other perron, fall within this category; and in such cases parol evidence is admissible to show who are the real parties in interest and that they conducted the litigation in the names of other persons. Freeman on Judgments, Sec. 174, and authorities cited in notes.

In the case of Cole v. Favorite, 69 Ill. 457, the Supreme Court (f this State recognize 1 and approved this extension of the principle of res judicata, and there said: “Tim suit in the federal co rt, although in the name of appellee, was prosecuted at the request of and for the benefit of appellant ; he advised and directed it, was a witness therein, and while he was not formally a party to the record, he was a party in interest and must be regarded a privy.” The parol evidence conclusively shows that the Wilmington Star Mining Company employed the attorney who sued out and prosecuted the writ of error from the Supreme Court to bring before it the record of the first decree entered in the hen suit, and upon which it was reversed; and employed the attorney who made the defense that was interposed both before and at the .time the decree, now in question, was rendered, and who afterward litigated the matter, on error, in the appellate court; and not only paid the fees of such a'torney but all the other expenses of the defense.

One or two other matters may properly enough be noted in this connection. The rights of the Wilmington Star Mining Company are based upon and have their origin in the Goold, Thayer and Benmn contract of October 3, 1876, and it was possessed of such rights when it employed counsel and made defense to the suic for mechanic’s lien. The corporation also had a claim or color of title to the hotel property, through a quitclaim deed executed by the Coalfield Coal Company on the 22d of November, 1876. This supposed title we have ignored in our consideration of the case, and for the simple reason that all right and title of the coal company l ad passed out pf it .on the 2d of May, 1876, by virtue of the sale and conveyance made by Goodspeed under the deed of trust, so that nothing was conveyed, by this deed of November 22d. Mary S. Buchanan, the other appellee herein, derives her interest in the premises as follows: On January 3, 1880, Goold transferred his interest in the land, and in the Goold, Thayer and Benson contract, to Isabella Clark and Bacon Wheeler; onthe28thof March, 1881, Isabella Clark transferred her interest so acquired therein to said Wheeler, and Wheeler died on the 26th of May, 1882, having devised the interest vested in him to her, the said Mary S. Buchanan; and Thayer, by deed dated December 5, 1883, also conveyed his interest in the premises to her.

Our conclusion, then, upon this branch of the controversy is, that in respect to the right and title now held by the Wilmington Star Mining Company, the validity of the mechanic’s lien, as a first lien, is res judicata ; that with reference to the right and title of. Mary S. Buchanan derived through Goold, the. rule of lis pendens will apply, as the transfers from the latter were made in 1880, and tlie mechanic’s lien proceeding became Us pendens as to Go old on the 18th of December, 1878, if not sooner, and continued to be such until the entry of final decree on the 20th of December, 1881; and the law of lis pendens is that an alienation of the subject-matter of the controversy made pendente lite is void against the judgment or decree finally rendered in the suit. In respect to the title derived by Mary S. Buchanan from the Thayer deed of 1882, it is sufficient to say that conveyance was executed long after the decree, for the lien was entered in a suit to which the grantor was a party, and, of course, such title was subject to the lion of the decree.

3. It appears from the record, that at the time the mechanic’s lien petition was filed, one of the five incumbrances in the nature of either mortgages or trust deeds that had been placed upon the hotel lots and were then subsisting liens, was a mortgage to H. Leroy Thayer, dated April 1,1875, to secure eleven notes of $1,000 each, and one note of $1,500, making $12,500 in all. The point is made as against the binding force of the mechanic’s lien decree so far as the rights of appellees are concerned, that four of the notes for $1,000 each, and the note for $1,500 were sold and transferred by Thayer prior to the filing of the petition, and that the holders of said notes were not made parties to the bill within six months from the time the money was due for the work and material furnished ;* and that afterward, the amounts due on. said notes were included in the decree entered in the Grundy Circuit Court, in the cause of the bill filed by the Wilmington Star Mining Company against Thayer for specific performance, and wherein specific performance was awarded upon payment of the amounts due Thayer; which amounts were there determined and decree therefor rendered, and which decree was subsequently, upon payment by her of the full amount thereof, assigned to Mary S. Buchanan. It is urged that the assignees and then holders of each of these notes, stood in the light of a mortgagee, and should, within the time limited by the statute, have been made parties to the petition. We do not, from the testimony as abstracted, understand it to be a fact that said five notes were, when petition was filed, held by assignees. The evidence does show they were assigned after the day of their date and prior to the third day of October, 1876, the time the Goold, Thayer and Benson contract was entered into, but proof they were in the hands of other parties at and just before this latter date, does not establish they were assigned prior to the 14th day of September, 1875; and in the absence of evidence to the contrary, the presumption of fact would be that they continued in the hands of the person to whom they were executed and delivered, and were owned by him when the petition was filed. However this may be, we do not deem it an essential matter; for the testimony shows that Thayer assigned these notes without any consideration, to one J. D .Bennett “ without recourse,” and then claimed them as his own and sought to have them returned; and in fact did get two of them back on October 3,1876, and afterward, during October and November, 1876, obtained the others. They were all back in Thayer’s hands, as mortgagee, and he continued to hold them as such mortgagee during the residue of the time the petition was pending, and still held them at the date of the decree for the amounts due on them, which was rendered in the suit for specific performance. So we must hold with reference to these five notes as we hold in regard to the matter of omitting Goodspeed, the trustee, as a defendant—that the defense should have been availed of by those through whom the appellee, Mary S. Buchanan, claims, in the proceeding for the lien.

4. The lots in controversy were sold on the 13th day of January, 1883, under the decree for a mechanic’s lien, and were purchased by H. H. 0. Miller, to whom a certificate of purchase was executed, and which he subsequently assigned to Charles Goodspeed. The property was not redeemed by the appellees, the owners of the equity of redemption, within the twelve months allowed by law. H. Leroy Thayer had at the September term, 1877, of the "Will county Circuit Court, recovered a judgment by default against the Coalfield Coal Company for $5,963.21 damages, and costs; and on January 15, 1884, he assigned this judgment to -Fred Bennitt, one of tho appellants, who, as such assignee, on the same day, sued out an execution on the judgment directed to the sheriff of Grundy county. Bennitt thereupon redeemed from the master’s sale, and the sheriff executed and delivered to him as a judgment creditor of the Coalfield Coal Company a certificate of redemption, and caused said real estate to he advertised for sale under said execution. Appellees then exhibited the present bill, alleging they arc the owners of the real estate in controversy, the said Mary S. Buchanan holding the legal title, and the Wilmington Star Mining Company holding the equitable title and being in actual possession and occu pianey of the premises under agreement of purchase ; and alleging the invalidity of the lien obtained in the decree of December 20, 1881, on the ground already considered by us; and further alleging that Bennitt is not the owner of the Will county judgment in good faith and for value ; and that said judgment is in part fraudulent (setting forth the matters of alleged fraud) and as to the matter not fraudulent had been paid in full. The bill prayed for an injunction and for a removal of the cloud from their title, and that the levy made by virtue of the execution from the Will Circuit Court be set aside and annulled. On the hearing, all the material allegations of the bill were found to be true; and a decree was entered substantially as prayed for, and making the injunction perpetual.

It is insisted by appellants that if the decree in the me chanic’s lien case concludes the appiellees, then the question of the validity or invalidity of the judgment under which Ben nitt seeks to make redemption can not be raised by them, and that it is wholly immaterial whether the Will county judgment was fraudulent or not. If we properly apprehend the pioint made, it is that if the decree is of binding effect as to apipellees, then as the twelve months allowed them by statute in which to redeem have expired, the bill can not be maintained by them for want of interest in the subject-matter of the suit. Of course, appellees must have an interest in the subject-matter, in order to give them a standing in court; but we do not understand the authorities cited by appellants to go to the extent of holding that in the case suggested, appellees would have no such interest. Meyer v. Mintonye, 106 Ill. 414, is an authority to the contrary. There land had been sold under a decree of foreclosure, and the twelve months in which the owner might redeem had passed and no redemption had been made, and thereupon a void execution was issued on a judgment at law against the owner, and the purchaser at the master’s sale accepted the redemption money tendered and the premises were re-sold on the void execution; and it was held that the acceptance of the money necessary to redeem from one having no right to redeem, after the expiration of the twelve months given the owner for redemption, had the effect simply to extinguish all rights under the first purchase, and relieve the land of the incumbrance of the mortgage. It would seem a similar result would follow in this case, if the process upon which the redemption was made was issued upon a void judgment.

5. The appellant, Bennitt, is not an assignee of the Will county judgment in good faith and for value; his own testimony shows that he paid nothing for the assignment, and is under no obligation to pay any thing; that it was made at the suggestion of Thayer, who told him that any title that he, Thayer, might acquire would inure to Mrs. Buchanan, and that a court of equity would not permit him to hold such title. We are satisfied from the evidence as a whole that Bennitt is but a mere volunteer or nominal party, and has no real interest in the judgment.

6. We think it would subserve no useful purpose to discuss the very voluminous facts and circumstances upon which the charge of fraud in the obtension of the judgment in the Will Circuit Court is predicated. Suffice it to say, that in the present case, the court below found that that judgment “ is now, and at the time of the rendition of the same, was, fraudulent and without any consideration whatever as to the greater part of the damages awarded and reserved therein, and as to such part of said damages judgment ought not to have been recovered, and that as to the remainder of said damages the same had been paid in full at and prior to the date of the assignment of said judgment,” and that with this finding we are content. The judgment was a fraud to the extent of §3,000, and the residue included in it was also embraced in the amount assumed by Benson in his own contract, and was afterward included in the decree rendered in the suit with the Wilmington Star Mining Company, and which was paid by the appellee, Mary S. Buchanan. It would be inequitable and unjust to permit Thayer, the real party in interest, to have from her á second satisfaction of the amount so paid. Besides, in his deed to her, Thayer expressly covenanted that he had not done or suffered to be done anything whereby the lands in question were or might be in any manner incumbered or charged, and that he would warrant and ever defend the premises against all persons lawfully claiming or to claim the same through or under him. These covenants should estop him, in equity, from making his judgment out of this property.

7. But the appellant, Fred Bennitt, after the time within which appellees could redeem these lots from the master’s sale had expired, did redeem them, and the redemption money was accepted by the holder of the certificate of purchase, and such redemption has freed the real estate of appellees from a binding and subsisting lien. It is a maxim of tire courts of chancery that those who seek equity must do equity. As appellees have voluntarily sought the assistance of the equity court, they should be compelled to observe the requirements of the maxim we have cited.

The decree of the circuit court is reversed, and the cause remanded with these directions: That if appellees shall be so advised, they have leave to amend their bill by tendering to appellant, Bennitt, the sum of money paid by him for redemption, with six per cent, interest thereon from January 16, 1884, and that they be required to pay the same into court, and that upon their so doing a final decree be entered herein in accordance with the prayer of the bill, and making the injunction perpetual; but that in the event appellees should decline and refuse so to do, then their bill of complaint shall be dismissed at their own proper cost.

Reversed and remanded.


source: Caselaw Access Project

author: Baker, J. Lacey, P. J.

license: Public Domain

text:
    Peoria & Pekin Union Ry. Co. v. Thomas O’Brien, Adm’r, etc.
    1. Instructions.—Where an instruction is given authorizing a recovery against a railroad company for injuries caused by negligence of its servants which contains no requirement of care or caution on the part of the injured party, the error will not be cured by other instructions which do contain such requirement.
    2. Instructions.—Damages.—The instruction as to measure of damages to widow and next of kin for deceased’s death is erroneous in that there was no evidence that deceased was fitted by nature or education or by disposition to furnish to his children instruction or moral, physical or intellectual training.
    Appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    Opinion filed January 7, 1886.
    This was an action on the case brought by appellee against apjiellant to recover damages for the death of Edward Burk, his intestate, alleged to have been caused by the negligence of the servants of the railway corporation, in charge of a switch engine and train upon its tracks on Grove street, in the city of Peoria. Each of the several counts of the' declaration avers that at the time the injuries were received, which resulted in his death, the deceased was exercising reasonable- care and caution for his personal safety. The evidence shows he was in the employment of the company as a laborer and track repairer, and on the occasion of the accident, was working upon one of the numerous tracks on Grove street, at or near the intersection of Cedar street. The appellant had about four miles of main track and thirty-five miles of side-tracks with 'n the city limits; and its principal business consisted in handling and switching freight and passenger cars of other railroad companies, employing in such work from six to eight switch crews, both day and night. From twenty to twenty-five regular trains passed in day time over the crossing in question, and switch trains were constantly passing and repassing. When the deceased and one O’Lauglilin were put to work there to pick out the dirt from the crossing, they were cautioned by the section foreman and told they must keep a lookout for themselves. At the time he started to work there, and up to the time he was hurt, the switch engine was at work in plain sight of deceased; and the evidence shows that when struck he was at work in a stooped position, with his face in the opposite direction from the approaching engine.
    It is unnecessary to state the evidence of facts tending to prove the negligence of those in charge of the engine and train.
    The only item of testimony that is claimed to bear, even remotely, upon the matter of the personal fitness of the deceased to render assistance in the moral and intellectual education of his children, was the answer made by tire widow to the question asked her as to whether the minor children had been dependent upon the father for support and education, and that answer was: “Yes, sir. I had not any other way:”
    Among the instructions given to the jury at the instance of the appellee, were the two following:
    “1. If the jury should find from the evidence, that the deceased is guilty of the wrongful act, neglect or default, as charged in the plaintiff’s declaration and explained in the instructions given them, and that the same resulted in the death of Edward Burk, then the plaintiff is entitled to recover in this action for the benefit of the widow and next of kin of said Edward Burk, deceased, such damages as the jury may deem from the evidence and proof a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from such death, to such widow and next of kin, not exceeding the amount of five thousand dollars.”
    “ 2. The jury are instructed that in estimating the pecuniary injury which the widow and children of the deceased have sustained by his death, if the jury believe from the evidence that they have sustained any injury for which defendant is liaVe, as explained in these instructions, then the jury have the right to take into consideration the support of the widow and minor children, and the instruction and physical, moral and intellectual training, as well as the age of the said minor children so far as these matters have been proved in determining the amount of damages in this case.”
    The verdict and judgment were for appellee, for $5,000 damages.
    Messrs. Stevens, Lee & Horton, for appellant;
    as to instructions, cited C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88 ; C. & N. W. Ry. Co. v. Dimick, 96 Ill. 42; W., St. L. & P. Ry. Co. v. Schacklet, 105 Ill. 364 ; C. & A. R. R. Co. v. Mock, 72 Ill. 141; Chicago City Ry. Co. v. Lewis, 5 Bradwell, 242 ; W., St. L. & P. Ry. Co. v. Rector, 104 Ill. 296; City of Peoria v. Simpson, 110 Ill. 294.
    Mr. Lawrence Harmon, for appellee;
    as to instructions, cited Kendall v. Brown, 86 Ill. 387; La Salle v. Thorndike, 7 Bradwell, 282; Stratton v. C. C. H. Ry. Co., 95 Ill. 25.
   Baker, J.

We feel constrained to reverso the judgment in this case, for the errors of the circuit court in giving the first and second instructions for appellee.

It can not be said that there was no evidence before the jury tending to show a want of ordinary care on the part of the deceased; and it was therefore requisite it should have been submitted to their consideration whether plaintiffs intestate had in fact used the degree of care imposed by law upon him, or on the contrary, had been guilty of such negligence as to preclude a recovery. The first instruction directed a verdict for the plaintiff in the event it was found that the defendant was guilty of the wrongful act, neglect, or default charged, and that the same resulted in the death of the intestate, and wholly ignored the element of care or caution on the part of the deceased. It is suggested that this objection to the instruction is obviated by the words of limitation contained in it, i. <?., “ as charged in the plaintiff’s declaration and explained in the instructions given them,” when considered in connection with the averment of reasonable care found in the declaration, and the requirements of ordinary care as stated in the instruction given on behalf of appellant; but it will be noted from the context that the qualifying words we have quoted have reference only to the wrongful acts, neglect, or default of the defendant, and that the conduct of the deceased at the time of the injury is not by implication or otherwise made a subject-matter of the instruction.

The jury were told in the series of instructions given for appellant, that to entitle the plaintiff to recover he must flu,w by a preponderance of the evidence that the deceased was injured by the negligence of defendant’s servants, while he was exercising that decree of care for his personal safety which an ordinarily careful and prudent man would have exercised under the circumstances proven. Were it an open question in this State, we would be inclined to hold that the omission in the instruction of which complaint is made of the requirement of the care by the person injured, was cured by the charge given on motion of appellant, and that the instructions when considered as a whole, properly laid down the law. But it has repeatedly been otherwise decided by the court of last resort. In C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88, it was expressly held that Avhere one instruction is given authorizing a recovery against a railroad company for injuries caused by negligence of its servants, which contains no requirement of care or caution on the part of the injured party, the error Avill not be cured by other instructions Avhicli do contain such requirement. In C. & N. W. Ry. Co. v. Dimiek, 96 Id. 42, the decision was to the same effect. See, also, Denman v. Bloomer, 11 Id. 177; Keokuk Packet Co. v. Henry, 50 Id. 264; I. C. R. R. Co. v. Maffitt, 67 Id. 431; C. B. & Q. R. R. Co. v. Lee, 60 Id. 502; and C. B. & Q. R. R. Co. v. Payne, 49 Id. 499.

If this Avas a clear case for appellee upon the evidence, the judgment might properly be affirmed, notwithstanding this error; but the testimony is conflicting, and it is a close case upon the facts.

The second instruction may next be considered. The fair intendment of the answer made by the widow to the question propounded to her was that her minor children wore dependent upon the labor and earnings of their father for the pecuniary-assistance necessary for their support and education. It does violence to the plain meaning of the question and answer to say that they tend in any degree to show that the deceased was fitted by nature or education, or by disposition, to furnish to his children instruction, or moral, physical or intellectual training. The case of I. C. R. R. Co. v. Welden, 52 Ill. 290, is therefore in point; it was there held that an instruction almost identical in language with that under consideration was, in the absence of evidence upon which to base it, a misdirection of the court, and erroneous.

The third instruction of appellee is also made the subject of criticism, but we think no fair or just objection can be made to it.

The modifications of the court to several of the instructions asked by appellant, were substantially correct; and the instructions given for it were as favorable to it as the circumstances of the ease required, or even justified.

For the errors in the first and second instructions for appellee, the judgment is reversed and the cause remanded.

Beversed and remanded.

Lacey, P. J.

Instruction Bo. 1 is not as accurate and guarded as it should be, and is undoubtedly open to criticism as not clearly callingthe attention of the jury to the duty of the appellee’s intestate to exercising ordinary care at the time of the injury, but I think the instruction fairly considered is sufficiently explained on that point by the clause “and explained in these instructions.” Other instructions given for the appellant expressly tell the jury that the appellee’s intestate should have been in the exercise of ordinary care at the time of receiving the injury, in order to entitle appellee to recover. I think the explanation spoken of in the instruction must mean, fairly considered, the care, or want of care, required by each party, as well the deceased as appellant. Such, I think, the jury would have naturally understood it.

As to instruction Bo. 2, I think erroneous according to the views held in I. C. R. R. Co. v. Weldon, 52 Ill. 290. The court seems to hold that in order to authorize the giving of such instruction there should have been some peculiar personal fitness by nature, education or disposition on the part of deceased to furnish such instruction and education as spoken of in the instruction proven, and in the absence of such proof it was error to give it.

In this case there is an entire absence of any proof of the peculiar fitness, and it was therefore error to give it.

And as one of the errors assigned is that the verdict of the jury was excessive, the judgment should be reversed.

Judgment reversed.


author: Pleasants, J.

text:
    Edward Y. McQuown v. Perry G. Law et al.
    1. Husband and ■wine—Conveyance.—The court is of opinion that the conveyance of the husband, who was in failing circumstances, to his wife, of the land in question, was based upon a sufficient consideration, as it was in return for money she had loaned him, and that the consideration bore a reasonable proportion to the value of the property conveyed.
    2. Injunction—Damages.—Upon dissolution of an injunction it is error to allow damages for solicitor’s fees where there is-no evidence of the value or rendition of any services having distinct reference to the dissolution of the injunction.
    Appeal from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Wiley & Heal, for appellant;
    cited Patrick v. Patrick, 77 Ill. 555; Payne v. Miller, 103 Ill. 442.
    As to damages in case of dissolution of injunctions: Elder v. Sabin, 66 Ill. 126; Jevne v. Osgood, 57 Ill. 340; Rees v. Peltzer, 1 Bradwell, 316.
    Mr. Horace S. Clark, for appellees.
   Pleasants, J.

In the fall of 1870, Perry G. Law purchased 106 acres off the west side of the N. E. ¼ of Sec. 21, T. 14 N., R. 9 East, in Coles county, for $2,230, paying $1,000 down and the residue soon afterward, with money borrowed of the Eastern Illinois Loan Co., and secured by deed of trust thereon; and in August, 1877, conveyed the same to Keziah Law, his wife, for her life, and remainder in fee to his three children, of whom two were heirs also.

In July, 1878, appellant recovered judgment in the county court against him and another for $537.87 and costs, on two joint notes of August 12, 1875, for $300 each, payable respectively in October, 1876, and February, 1877, on whicli several executions successively issued were returned no property found, and the same remains unpaid. On the 17th of November, 1881, the land being about to be sold under the power contained in the trust deed, ho filed the bill herein to set aside said conveyance from Law to his wife and children, as made without valuable consideration and to defraud creditors, and thus to reach for application upon his judgment the proceeds of said sale, if any, in excess of the amount due the Loan Go.; to which end an injunction was obtained restraining the trustee from paying them over. The amount due said company was about $1,200, and the proceeds of the sale $3,200, though the highest bid offered and the sum actually received by the trustee was on'y $2,200.

- On final hearing in December, 1884, the injunction was dissolved and the hill dismissed. The court also, upon suggestion filed, awarded $280 damages against complainant, of which $100 was for solicitors fees and the residue for interest on the money enjoined. Thereupon he took this appeal. From the depositions of defendants, Perry G. and Keziah Law, which concur in their statements and are uncontradicted, the following facts appear:

In October, 1864, before their marriage, he borrowed of her, without note or security, of moneys derived from the estate of her deceased husband, the sum of $1,000, which in November following he applied on a purchase he made of a tract of eighty-five acres in Coles county for $2,000, taking the deed therefor to her and himself with her consent, and giving back a mortgage to secure the deferred payment. In January, 1865, he married her. In the fall of 1870 he sold this tract, subject to the mortgage, which the purchaser assumed, for §1,000, and with the proceeds bought the land in controversy and made the cash payment thereon as herein above stated, taking a deed to himself alone. When he conveyed the latter to his wife and children he was in failing circumstances, and intended thereby to pay the debt he owed her. They both say that debt was the consideration for the conveyance, and she says for the whole of it, though the deed expressed it to be §1,000 and love and affection. They further say that no part of it was ever paid in any other manner.

Appellant testified that the notes on which his judgment was obtained were given for the rent of a farm in Douglas county, which the makers cultivated under the lease ; that the contract for renting was made at Law’s house in presence of his wife and family; that he, appellant, on that occasion stayed there all night; that Law then claimed the land in controversy, but said he was owing a small balance on it; that he spoke also of his other indebtedness as small, and mentioned the creditors, but said nothing of any claim of his wife. At what time during the evening these statements were made, and whether she was then present, or paying any attention to them, or said anything on the subject herself^ does not appear. And this is the whole case.

The question presented is, whether the deed from Law to his wife and children was supported by a sufficient consideration, or still more specifically, by the consideration of an actual, subsisting and legal indebtedness to her.

There was never any pretense that he made it in execution of a resulting trust—that he acquired the land with her means and therefore the case is not within the principle of the opinion in Hockett v. Bailey, 86 Ill.., 74, cited by counsel. Always admitting that it was his, acquired witli his own means and subject to all consequent liabilities, the defense is that before the. lien of appellant’s judgment attached he conveyed it, bona fide, in payment of an honest debt. If he did, then although made in failing circumstances and to his wife, the conveyance will be sustained to the extent of such actual consideration. Payne v. Miller, 103 Ill. 445.

In our opinion - the evidence warrants the conclusion that the $1,000 he received from her in 1864 was strictly a loan, and that the conveyance in question was made to pay it. His procuring the deed of the land he first purchased to be made to her with him was not a payment of that debt, because not so intended as between themselves, and there were no equities to control the operation of their intention. Appellant’s claim did not arise until five years afterward.

The object of that arrangement was not directly shown, nor was it asked ; but if not a payment it must have been a gift or a security, and the probability as between these is clearly indicated by the circumstances. The parties doubtless were then affianced. He had no means besides what she had loaned him on his naked promise. These were all put in the land and yet paid only half its price.

That he intended to give her all he paid for and yet owe her all he paid is not to be supposed; but that he should pledge it for her security temporarily, with special reference to the possibility of his failing to marry her, was entirely proper.

She could then surrender or release it without at all impairing the obligation of the debt; and consistently with this view it seems to have been regarded by both, after her right as wife had attached to all he had or could acquire, as no longer subsisting. He disposed of all the land and re-invested all the proceeds in his own name.

Did the debt, which was the alleged consideration, bear a “reasonable proportion” to the value of the property conveyed ? Patrick v. Patrick, 77 Ill. 555. With interest at the rate of six per cent, per annum from October, 1864, to the time of conveyance, August, 1877, it amounted to $1,700. No evidence was offered to show the value of the land at that time. It was bought in the fall of 1870 for $2,200, but what he paid did not exceed $1,200, which, with interest at the same rate, would then amount to about $1,500. He had received the equivalent of interest in the use of the land, and so received from his wife for the land itself §500 more than it had cost him. In the absence of proof there is no presumptior that its actual appreciation then exceeded that sum. Tested by the prices brought it had amounted in the spring of 1881 to §1,000, but what proportion of this increase occurred before the fall of 1877 does not appear, and she was entitled to all that occurred after. Another view is that at the trustees’ sale it brought §2,000 in excess of the incumbrance, and her debt with interest would then have been §1,980.

If then the debt amounted to the full value of the land and was the consideration of the conveyance, it paid for all that was conveyed—the remainder to the children no less than the life estate to the wife. Having paid full value for the entire estate the presumption is that the interest granted to them was according to her direction, and not a voluntary settlement by the grantor.

In the light of these views, the decree dismissing the bill and dissolving the injunction was right and will be affirmed to that extent. We think, however, the allowance of damages to defendant for solicitor’s fees was improper. Ho evidence of the value or rendition of any services, having distinct reference to the dissolution of the injunction, is preserved in the record. Albright v. Smith, 68 Ill. 181; Hamilton v. Stewart, 59 Ill. 330.

It was not dissolved on a separate motion but upon final hearing, and its disposition necessarily followed that of the conveyance attacked, which must have been determined, and upon the same grounds, if the injunction had not issued. In the nature of the case no service with special reference to it could have been required, or should have been charged to the complainant. Jevin v. Osgood, 57 Ill. 346-7; Elder v. Sab'n, 66 Ill. 126. As to this allowance, therefore, the decree will be reversed and the cause remanded with directions to modify it as above indicated.

Affirmed in part and reversed in part.


text:
    C. H. Becker v. William Brawner.
    Warranty.—Where appellant bought ricks of hay as they stood and the property in them passed to him at once, and ne was in no way hindered from examining the hay and there were no false representations or express warranty. Held, that there was no implied warranty.
    Appeal from the Circuit Court of Sangamon county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. James E. Dowling, for appellant.
    Messrs. Patton «fe Hamilton, for appellee.
   Pleasants, J.

On appeal from a J. P., appellee recovered judgment upon a verdict for §70, the balance claimed on a sale to appellant of two ricks of hay; and the court refused a new trial.

It appears that after personal examination of the ricks appellant called on appellee at his barn, half a mile away, and proposed to buy them. They were offered to him at a stated price per ton, but he preferred to take them in mass at §80. Before concluding, however, he desired to examine them again, and did so, after which he returned, made the bargain, paid ten dollars down and promised his check for the balance when he should send to haul off the hay. Having hauled three loads he became dissatisfied on account of its condition and refused to take or pay for it. Some attempts at a compromise failed and then this suit was brought.

Appellant claimed that the hay purchased was represented to be of the same quality as that then shown him in the barn. Appellee denied it, and testified that upon being asked how much clover it contained he answered “about the same as that in the barn, which was cut from the same meadow; ” that this was true, and that no further representation was made concerning it.

Appellant also claimed that because it was in stack the law implied a warranty that it was merchantable—citing Fish v. Roseberry, 22 Ill. 299, where something like it was said of wheat.

In that case, however, the contract was not for the stack, but for eight hundred bushels of wheat to be thereafter threshed and delivered at a warehouse nine miles distant; and we apprehend the meaning of the court by the remark referred to was that a warranty was implied, not because the wheat was in stack, but because being in’stack the purchaser could not know from any examination of it in that condition in October what it would be when delivered, as it was, in the following spring. In other words the contract was executory and made without opportunity to the purchaser for examination of the article contracted for. Certainly in such case the warranty is inr plied. Misner v. Granger, 4 Gilm. 74; Babcock v. Trice, 18 Ill. 420; Doane v. Dunham, 65 Id. 512.

But here appellant bought the ricks, as they stood, and the property in them pissed to him at once. It was an executed contract of sale and made after actual examination by him as full as he desired. He does not pretend that he was in any way hindered or misled, and the jury appear to have found there was no false representation or express warranty. In such a case none is implied. Misner v. Granger, supra; Nichols v. Guibor, 20 Ill. 285; The Carondelet Iron Works v. Moore, 78 Id. 65; Morris v. Thompson, 85 Id. 16.

The instructions were proper and the finding was supported by the evidence.

Judgment affirmed.


text:
    Thomas W. Means v. Minnie E. Jenkins, Ex., etc.
    Statute oe Limitations.—In case of money collected by an agent, the Statute of Limitations begins to run from the receipt of the money. Fraudulent concealment to take a case out of the Statute of Limitations must lie founded upon some affirmative act; mere silence is not enough. The court is of opinion that appellant did not use reasonable diligence to discover his cause of action before it was barred by the statute.
    Appeal from the Circuit Court of Logan county; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Blinn & Hoblit, for appellant.
    Messrs. Beach & Hodnett, for appellee.
   Pleasants, J.

This case was heard by the court below without a jury, upon appeal from the county court, on a claim filed therein December 29,1883, for $1,011, being for $667 alleged to have been collected by deceased as agent for appellant on March 1, 1875, with interest from that date. There were no written pleadings but the only real issue involved was made up as follows: Appellee interposed the defense of the Statute of Limitations; appellant replied that deceased fraudulently concealed the cause of action so that he had no knowledge of its existence until within five years, although he used reasonable diligence to discover it, and appellee traversed the allegation of such diligence. It appears that on December 5, 1874, appellant, then a resident of Boyd county, Kentucky, sold 280 acres of land in Logan county, Ill., in parcels to different parties, among whom were George llentschler who took eighty acres, and Peter Arnfeldt who took forty, at $50 per acre, each giving a note for one third the price, payable March 1, 1875, with interest at the rate of ten per cent, per annum after maturity, and a series of others for the residue in equal installments due respectively in one, two, three, four and five years from March 1, 1876, with interest at eight per cent. The deceased, who then was and for many years had been county clerk of said county and with whom appellant had been well acquainted since 1860, was present and assisted him in making these sales. Appellant further employed him to collect the two of said notes first falling due—that of Eentschler for $1,334, and that of Arn.feldt for $667—which he then indorsed in blank and delivered to him for that purpose, taking his receipts therefor, and paid him for all his services rendered and to be rendered in the premises, the sum of $50 ; hut in his presence and that of the makers delivered said receipts to John Means, a son of appellant, who also resided in Boyd county, Kentucky, and directed the deceased to correspond with him in relation to the business.

The Eentschler note was fully paid before due and the proceeds promptly remitted. That of Arnfeldt was paid at maturity, but no information of the fact was given by deceased to appellant or to John Means, nor any reference made to the matter for more thon a year afterward. lie wrote to John, Feb’y 26, 1876, inclosing draft for the amount of other collections but was silent as to this. In his reply of March 6th acknowledging its receipt, John made express inquiry about the Arnfeldt note. Getting no answer to this he wrote again on April 17th. The first word he received in reference to it was in a letter of May 1st, containing a remittance on other accounts, and which deceased closed with the statement, “ The Arnfeldt note will be paid and remitted by June 15th next and this was the last that passed between them on the subject until November, 1880, when Arnfeldt, having in the meantime regularly paid to John Means by mail his series of notes for the residue, for $266.60 each, sent him the amount due upon the last and requested a release of the mortgage. Then John addressed several letters to Arnfeldt and the deceased, calling attention to the fact that he had never received the money due on the first note, but got no answer. He then wrote to Fred. Dittos, who had also purchased one of the parcels at the same sale, and was informed in reply, on Jan’y 5, 1881, that Arnfeldt had paid it in full to the deceased on the day it became due and liad ever since had it, duly canceled, in his possession. Then followed two or three letters to Jenkins informing him of what he had learned, demanding a settlement and threatening legal proceedings, to which no answer was made. He wrote to Dittos in Hay, 1881, and again in October, asking the address of some suitable lawyer, but got no reply. And then the matter again rested until December, 1883, shortly after the death of Jenkins, when he em¡Joyed attorneys to prosecute the claim and it was filed as hereinbefore stated.

The finding upon the issue joined was for the defendant and judgment was entered thereon in her favor for costs; to which the plaintiff duly excepted and which are the only errors here assigned.

From the foregoing it appears that appellant’s cause of action against the deceased arose March 1, 1875, when the Arnfeldt note was paid. Cagwin v. Ball, 2 Bradwell, 70. International Bank v. Bartalott, 11 Id. 625. Prima facie, then, it was barred by limitation when this suit was brought. It was, however, kept from his knowledge, by mere silence of the deceased, until May 1, 1876, and then concealed by his written declaration, an affirmative act designed and adapted to deceive, and therefore a fraudulent concealment within the meaning of the 22d section of the statute (R. S. Ch. 83). International Bank v. Bartalott, supra. But this fraud was not of a character to perpetuate its immediate effect. Its operation was limited to the 15tli of June then next, when, by the terms of the declaration, the money would be paid and remitted.

Conceding, then, that until that time appellant was justified in using no means to discover the cause of action, the single question presented by the record is whether, after that time and until Dec. 29, 1878, five years before the claim wasfiled, he used reasonable diligence to that end, or, if none, was still justified in his neglect by any act of the deceased.

Upon that question he held the affirmative and was bound to maintain it by a preponderance of evidence. Yet he prodnced literally none at all. The proof was all the other way. During that entire period of two and a half years, so far as appears he did absolutely nothing to discover his claim, either in person or through his son, who by his direction occupied his place in this behalf and whose negligence is therefore his own. John received from Amfeldt directly, according to the original arrangement for payment, and regularly as they became due, the amounts of the other notes of the same series, though maturing later and bearing a smaller rate of interest. The natural presumption would be that the one previously due had been previously paid, and there was nothing to rebut it except the fact that he had not received the proceeds from the deceased, to whom by the same arrangement it was to be paid. Yet he made not so much as an inquiry about it of either of them or of anybody else. Indeed it is conceded that no effort of any kind or degree was ever used in this direction by 'appellant or his son. The discovery, when made to them, and which was not until the winter of 1880-81, was made without any agency on their part; and seeing that they could have made it so easily at any time after June, 1876, diligence of any sort, in that behalf, is conspicuous only by its absence.

All of this apparent negligence is claimed to have been justified or excused on the ground of confidence said to have been reasonably reposed in the integrity of the deceased. But such confidence, to excuse the want of diligence, must be founded upon some affirmative act done by him with reference to the particular matter in question. His official position, his general reputation, their long acquaintance—these will not suffice. In reference to this matter he had done nothing after May 1, 1876, but was simply silent, and mere silence is not enough. Conner v. Goodman, 104 Ill. 365. Wood v. Carpenter, 101 N. S. 135. In this case it should have created anxiety and led to inquiry. His previous neglect to report for more than a year after the time for payment had passed, his delay to notice their express and repeated- request for information, his failure to explain the apparent default of Arnfeldt or his own negligence when he did notice them, and his positive assurance of payment and remittance by the loth of June, forbade his silence on and after that day. It was not necessary that they should suspect his integrity before they would he called upon to seek an explanation. To say nothing of the disappointment, his conduct from the first and especially at the last was so grossly unbusiness-likc as to challenge their attention and demand inquiry. Their confidence in him was not justified by facts well known. In the exercise of ordinary diligence the first day of July, 1876, would have been none too soon to remind him of his promise and press him for report. More than four years elapsed without a step taken or a question asked in reference to the matter, and during all this time Arnfeldt himself was within easy reach.

We see no error in the finding and the judgment will be afin-med.

Judgment affirmed.


author: Conger, J.

text:
    Terre Haute & Indianapolis R. R. Co. v. Thomas J. Black.
    Negligence.—It is prima faeie negligence on the part of those running trains to omit giving the statutory signals, and if such failure is the cause of injury while the one injured is exercising reasonable care and caution, the railroad company is liable.
    Appeal from the Circuit Court of Clark county ; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed, December 4, 1885.
    Messrs. Golden & Wilkin and Mr. J. G. Williams, for appellant.
    Messrs.Whitehead & Jones, for appellee.
   Conger, J.

This suit was commenced in the Circuit Court of Clark county, to recover damages for the killing of a team of mules and destruction of a wagon, at a place where a public highway musses appellant’s railroad. Trial and judgment for appellee for $325.

It is insisted by appellants—first, that the verdict of the jury was contrary to the law and the evidence; second, that the court gave improper instructions.

Appellee’s wagon and team at the time of the accident were in charge of his two sons, aged respectively seventeen and fourteen years, who were familiar with the crossing in question, being in the habit of passing it three or four times a day.

The injury occurring at the crossing of a public higlnvay over appellant’s track, the duty of both parties is well defined in Chi. & N. W. Ry. Co. v. Hatch, 79 Ill. 138. “ The law imposes upon both parties the duty of using reasonable and prudent precaution to avoid accident and danger, and while it was incumbent upon the railway company to run its train on the occasion referred to and to give the required signal by ringing the bell for eighty (80) rods before reaching the crossing, it was also the duty of the plaintiff to look out for the approach of the train and to observe all reasonable precautions, before attempting to cross the railway track.”

We have examined the evidence with great care, and we can not say that the jury were not warranted in finding that the sons of appellee were using reasonable and prudent precaution at the time of going upon the track, and that the required signals were not given by those in charge of the train.

The evidence upon these points, especially the latter, is quite voluminous, and as usual, contradictory.

The jury, having the witnesses before them, were better prepared to judge of the degree of credit to be given to their respective statements than we can possibly be, and in such case it is our duty to take their finding upon controverted facts, as conclusive, unless we can see clearly they have erred.

Appellee’s second -instruction of which complaint is made is as follows: If the ji;ry believe from the evidence that the

defendant’s agents or servants in charge of the engine in question omitted to ring the bell or sound the whistle continuously for the distance of eighty rods before reaching the highway crossing, such omission constitutes a prima facie case of negligence on the part of defendant, and if the jury further believe from the evidence that the plaintiff’s team was struck and killed at the railroad crossing in question, as charged in the declaration, in consequence of the omission to ring the bell or sound the whistle while the persons in charge of the team were exercising reasonable care and caution, if the proof shows they were so doing in that behalf, then the defendant is liable to the plaintiff for the loss and damage sustained by the plaintiff by reason of such injury, if any such loss or damage has been proved.

It is urged that the effect of this instruction was to mislead and confuse the jury. It is prima facie negligence on the part of those running trains to omit giving the statutory signals, and if such failure is the cause of an injury, while the one injured is exercising reasonable care and caution, there is a liability. St. Louis J. & C. R. R. v. Terhune, 50 Ill. 157.

The foregoing instruction contains all these essential elements, and we think is not open to the objection made.

Perceiving no error in the record the judgment will be affirmed.

Affirmed,


text:
    L. H. Chapin v. C. & E. I. R. R. Co.
    1. Release—Joint tort.—In case of a collision of trains of two railroad companies where plaintiff was injured and had a right of action against either company. Held, that whether he could have maintained a joint action or not, a release to one discharged both.
    2. Pleading.—Where special pleas to which a demurrer was overruled and which remained unanswered presented a bar to the whole action and would, if sustained by the evidence, have defeated a recovery, it can not be assigned for error that the court rendered judgment for defendant with plea of general issue on file.

      Error to the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. W. H. Barnes, for plaintiff in error;
    that both could not be sued jointly, cited Yeazel v. Alexander, 58 Ill. 262; Portenheimer v. Van Orden, 20 Barb. 479; Westgate v. Carr, 43 Ill. 454; Dolman v. Barber, 1 Scam. 254; Olsen v. Upsahl, 69 Ill. 274; Gray v. Tobeas, 17 Wend. 562; Russell v. Fordman, 2 Conn. 206; Adams v. Heals, 22 Vt. 9; Buddington v. Shearer, 10 Pick. 477; Lynch v. Nurdin, 4 P. & D. 672; W., etc., R. R. Co. v. Shacklett, 105 Ill. 367; Thorogood v. Bryan, 8 C. B. 131; Lockhart v. Lichtenthaler, 46 Pa. St. 151; Robinson v. N. Y. Cent. R. R. Co., 66 N. Y. 11; Colegrove v. N. H. Ry. Co. & H. R. Co., 20 N. Y. 492.
    Mr. William Armstrong, for appellee;
    cited Cooley on Torts, 133, 140; W. St. L. & P. R. R. Co. v. Shacklett, 105 Ill. 364.
   Conger, J.

The declaration in this case alleges that on May 1, 1880, the defendant company had a switch which crossed the Wabash, etc., company’s track a mile or two east of Danville, so situated that by reason of a curve on the Wabash track, buildings, etc., the crossing of the switch was not visible from the engine of a Wabash train running west toward the crossing^ until within 300 feet of it; that the Wabash trains did not stop when approaching the crossing, but ran over it at full speed. This had been done for months, and the custom was well known to the employes of the defendant company. That on the day alleged the employes of defendant were backing up grade a long freight train over that crossing, at the moment a regular passenger of the Wabash was due. The Wabash train ran into defendant’s freight train and was wrecked. Plaintiff was a passenger on the Wabash, and by the collision was injured. To this declaration there were filed eight pleas. The first, the general issue. The second, third and fourth all substantially the same, setting up as a defense to the action, a release executed by plaintiff to the Wabash company for the injury complained of, as follows:

Wabash, St. Louis & Pacific Railway Co.

Dr. To

L. H. Chapin,

Jacksonville, Ill.

Physician’s bill............................. .. $125.00 Wastage of bedding and clothes....___........ 15.00 Drug line................................. 10.95 Regular nurse............................. 140.00 Additional nurses.......................... 30.00 Loss of time and salary..................... moo Amount $1, 090.95 Charge to 1880. Loss and damage. Injuries to persons.

I hereby agree to accept and do accept of the Wabash, St. Louis and Pacific Railway Co., the sum of ten hundred and ninety 95-100 dollars as evidenced by my signature to the receipt annexed in full satisfaction of all claims for damages that I now have or may hereafter have against said company, on account of personal injuries received by me, by reason of the Wabash, St. Louis and Pacific Railway Co.’s train No. 5 colliding with train of Chicago and Eastern Elinois R. R. at crossing about one and one-half miles east of Danville, Elinois, Ohio and Ind. Div. on the line of the Wabash, St. Louis & Pacific Railway, on or about the 20th day of April, A. D. 1880. And also in full of all claims whatsoever for loss or damage to personal property in consequence of said accident. And it is hereby further expressly agreed that in case suit has been instituted for said claim, said suit shall be dismissed at the cost of L. H. Chapin, and said company forever discharged from all liability, growing out of said injury.

Received St. Louis Aug. 9, 1880, of the Wabash, St. Louis & Pacific Railway Co., the sum of $1,090 95-100 in full for the above settlement as per agreement recited.

L. H. Chapiu. [seal.]

The 5th, 6th, 7th and 8tli pleas set out that the collision occurred within the limits of Germantown, and that the Wabash train was running faster than the ordinances permitted, failed to ring the bell and failed to stop at the crossing, etc.

Issue joined on plea of general issue and demurrer to the others, which demurrer was by the trial court overruled, and such decision is assigned for error, together with the decision of the court rendering judgment against plaintiff, with issue joined upon the first plea.

Some objection is made to the form of the special pleas in that they are repugnant, containing contradictory matters and tender an immaterial issue.

We think the objection not well taken. The principal question arising upon the record, is, did the release executed to the Wabash company have the effect of discharging the defendant company from all liability to the plaintiff.

It is conceded that the action in this case is brought to recover for the same injury for which settlement has been made with the Wabash company, but it is insisted that the two companies were not joint tort feasors, were therefore not jointly liable, and that the release of one does not have the effect of discharging the other from liability to tho plaintiff. Whether they were joint tort feasors or not, we do not deem it important in the view we take of the case, to decide. It is enough if they were both liable for the same injury.

“It is an ancient doctrine that a release to one joint trespasser,. or a satisfaction from him, discharges the whole. The same doctrine applies to all joint torts, and to torts for which the injured party has an election to sue one or more parties severally. When, for example, a master is liable for the tort of his servant, a satisfaction from one discharges both, though they can not be sued jointly. If it were not so, a party having a claim against several persons on account of a single tort might sue one and settle the suit, receiving damages; he might then sue another and settle in the same way, and repeat the proceeding as to all but one, and then sue him and recover the whole damage, as if nothing had been paid by the others. A door would thus be opened to a class of speculations that do not deserve encouragement. The rule of law which makes one satisfaction or release a bar to further claims for the same tort is founded in good reason.” Brown v. City of Cambridge, 3 Allen, 474.

It is insisted with great earnestness that the case of W. St. L. & P. Ry. Co. v. Shacklett, Adm., 105 Ill. 364, does not hold that the two companies in that case were liable in a joint action for the injury occasioned by that collision.

This may be conceded, but that case very clearly announces the doctrine that both companies were liable and an action would lie against either. And we think it is ample authority for saying, that plaintiff, in this case, had a right of action against either company for the injury he received, whether he could have maintained a joint action or not. If this be so, then a release to one discharges both. This case is unlike those cited by counsel for plaintiff in error, where cattle of different owners trespass at the same time. In such case, there is not only a several and distinct trespass, but a several and distinct result flowing therefrom, while in the case at bar, the immediate and direct cause of the injury to the plaintiff was the wreck of the train upon which he was riding ; although in tracing back for the original cause it is found in the negligence of both companies. Hence, both would be liable, and whether jointly or severally is not important.

In the recent case of Liddy v. Barney, Mass. Sup. Court, reported in Northeastern Rep. Vol. 2, No. 1, page 107, the court go much further and hold that, “The rule that a release of a cause of action to one of several persons liable operates as a z’elease to all, applies to a release given to one, against whom a claim is made, although he may not be in fact liable. The validity and effect of a release of a cause of action do not depend upon the validity of a cause of action. If the claim is made against one and is released, all who may be liable are discharged, whether the one released was liable or not.” Citing Brown v. Cambridge, supra, and Goss v. Ellison, 136 Mass. 503.

The third assignment of error questions the correctness of the court in rendering judgment for defendant with plea of general issue on file. In this there was no error. The special pleas, to which a demurrer was overruled, and which remained unanswered, presented a bar to the whole action, and would, if sustained by the evidence, have defeated a recovery; and in such case the judgment of the court was proper. Ward v. Stout, 32 Ill. 399 ; Mt. Carbon & C. R. R. Co. v. Andrews, 53 Ill. 176.

Perceiving no error in the record the judgment of the circuit court will be affirmed.

Affirmed.


text:
    Wabash, St. Louis & Pacific Ry. Co. v. Arnold Schevers, Adm’r, etc.
    Negligence.—The court is of opinion that the verdict of $6,000 for the death of defendant in error’s intestate, caused as is alleged by a misplacement of the rails, due to a defect in the switching apparatus, is sustained by the evidence.
    Error to the Circuit Court of Sangamon county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Greene, Burnett & Humphrey, for plaintiff in error.
    Messrs. Bradley & Bradley, for defendant in error.
   Pleasants, J.

On the 2-lst of January, 1833, a locomotive engine of plaintiff in error, on which the deceased was employed as fireman, while backing up east on the main line, jumped the track at the Heeleyville switch, and after running upon the ties some seventy-fiveffieet turned over into the ditch, killing .him instantly; for which his administrator brought this suit, resulting in a verdict and judgment for plaintiff of $5,000.

It was claimed that the accident was caused by a displacement or misplacement of the sliding rails, due to a defect in the switching apparatus, which the defendant, by using ordinary care, might have discovered and remedied. The switch was what is called a stub switch and the particular defect complained of was in the steel pin by means of which the collar and crank attached thereto holds (and rotates) the upright shaft connected with these rails. It passes through this shaft and the circular collar around it, at right angle with the crank.

Immediately after the accident these rails were found out of line with those of both the main and the switch tracks, about “half over” as it is described, and this pin broken in two places. Just where these breaks occurred was not shown, but they were both within the outer surface of the collar, and so not discoverable by the eye alone. It was therefore claimed that even if they had occurred before and been the cause of the accident, there was no proof that the defendant, by using ordinary care, might, have discovered it then. On that ground the court was asked to direct a finding for the defendant, and its refusal is the first error assigned.

According to the testimony, the breaking of this pin might allow the collar to slip on the' shaft and the crank to have too much play, in which case, the shaft failing to rotate in strict correspondence with the movement of the crank, the rails would not be carried quite to their place nor firmly held where placed. These indications at the stand might not appear, or not to the same extent, with every operation of the crank, but whenever it failed, because of a break of the pin, to move the rails as intended, it would be in this way, and it was a fair question whether they would be observed by an ordinarily attentive operator.

No other defect was discovered in this apparatus. It was of the most approved pattern, well made, comparatively new, and at first answered its purpose perfectly ; but on several occasions shortly before the accident in question it had failed for some reason, so that it was necessary to pound the rails into place—a necessity which does not otherwise arise except in warm weather, when they are so tightened by expansion as to prevent the operation of the crank at all in the usual way. This condition in midwinter therefore, would also serve to show that something was out of order at the switch stand.

It further appeared that one piece of the pin was not found, or not exhibited when the others were seen by the witnesses just after the accident, but one end of the middle piece, which then remained in and was punched out of the shaft, indicated by rust that the break at that point had occurred “a month or two” before.

In view of so much evidence touching the cause of the accident, the length of time it had existed and the means and opportunities for its discovery by the defendant, the court would not have been justified in taking the ease from the jury-

It is next complained that certain hypothetical questions were allowed to be asked upon a subject not admitting of expert testimony, and upon the supposition that the rails were bent, which was contrary to the evidence ; hut because counsel do not suggest and we are unable to see how it did or could prejudice the defendant, we give it no further consideration.

Again it is said there was some proof that the accident was attributable to the negligence of deceased’s fellow servant, the engineer, as that he was running too fast and kept no lookout for the target, and that plaintiff’s instruction ignored this defense.

In relation to the rate of speed we have only such inference as may be drawn from the distance run by the engine after it jumped the track, and the statement of one witness that his hoy called his attention to it by the remark that it was “ going awful quick; ” but he did not state the fact as observed by himself, and if the boy’s remark may he regarded as evidence it conveyed no definite idea of the matter referred to. The switching apparatus should have been sufficient to admit of the speed of an express passenger train, and there is nothing to warrant the inference that this engine, which was hacking up for water with only a tender attached, was going any faster.

Nor does it appear that any observation of the target would necessarily have suggested any difference in the conduct of the engineer. We understand that the target would not show whether, if in line, the sliding rails were firmly held there. It was testified that a given displacement will some times throw a car off and sometimes will not—depending, it seems, upon other circumstances. Here the tender passed the switch safely, keeping on the main track. Whether some other cause, aiding the displacement as to the locomotive, but not as to the tender, or a change in the position of the Tabs produced by the momentum of the tender, if either made the difference, can not be known. But the evidence of negligence on the part of the engineer contributing to the accident, if any, was exceedingly slight. And yet we think the defendant received the full benefit of it.

If ignored by the single instruction given for the plaintiff, it was clearly submitted to the jury by the following, which was given for the defendant: “ That if they believe from the evidence that the cause of the accident in question was the negligence of the engineer, Allen, in driving said engine at too rapid a rate of speed for safety or in not keeping a proper lookout, then the jury should find for the defendant, not guilty.” There was no antagonism between the two. They simply presented different hypotheses of the cause of the accident: the one that of a defective switching apparatus, the other that of negligence of the engineer. The jury could not have been embarrassed by them as to the law, nor have discovered from them any supposed opinion of the court upon the facts. They must have felt not only at liberty but in duty bound to consider the defense referred to, and doubtless did consider it. We add, with reference to the instructions as a whole, that they were uncommonly few and brief, and largely for that reason, in our opinion, stated all the law that could' have been helpful to the jury to know with like uncommon clearness. What has been raid disposes also.of the further point urged by appellant, that the verdict was contrary to the evidence.

Judgment affirmed.


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    Marshall Field et al. v. N. H. Ridgley et al.
    Assignment—Jurisdiction.—Where parties execute a voluntary assignment and the assignee takes possession ot the property, and under an order of the county court sells it and reports the proceeds to the court, complainants, who have proved their claims before the assignee, as required by law, can not file a bill in equity to investigate the good faith and validity of prior judgments. The jurisdiction of the whole subject is in the county court.
    Error to the Circuit Court of Sangamon county; the Hon. W. L. Gross, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. James C. Conklins, for plaintiffs in error ;
    that equity has concurrent jurisdiction with a court of law in all cases of fraudulent assignments, cited Willard’s Equity Jurisprudence, 468; Strong v. Goldman, 8 Bissell, 552.
    County courts can not have exclusive jurisdiction of transactions which are properly cognizable in common law or chancery courts: Constitution of 1870, Art. 6, S. 12 ; Myers v. People, 67 Ill. 504 ; Weatherford v. People, 67 Ill. 520 ; Wilson v. People, 94 Ill. 426.
    Messrs.PALMERS, Robinson & Shutt, foredefendants in error ;
    cited Freydendall v. Baldwin, 103 Ill. 380 ; Conkling v. Ridgely, 112 Ill. 36.
   Conger, J.

It appears from the bill filed in this case that on the 12th day of January, 1883, Kimbler, Ragsdale & Co. executed a voluntary assignment, and that the assignee took possession of the property, and under an order of the County Court of Sangamon county sold it and reported the proceeds to the court.

That the complainants in the bill have proved their claims before the assignee as required by law, and now by this bill seek the aid of a court of chancery to investigate the good faith and validity of prior judgments obtained by Eidgley & Co., against Kimbler, Eagsdale & Co., and pray that the court will assume jurisdiction over the fund and make a proper and equitable distribution thereof.

We are of opinion that this can not be done. The jurisdiction of the whole subject is in the County Court of Sangamon county. The whole matter is so fully and clearly discussed in the cases of Freydendall v. Baldwin, 103 Ill. 325, and Hanchett v. Waterbury, Legal News of August 15, 1885, that for us to do more than call attention to those cases would be a work of supererogation. See also Mersinger v. Yager, 16 Bradwell, 260.

We are therefore of opinion that the circuit court committed no error in sustaining the demurrer and dismissing the bill.

Affirmed.


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    Western Union Telegraph Co. v. E. W. Valentine.
    Telegbaph company—Delay in delivebing dispatch.—An action on the case against appellant, a telegraph company, for damages for delay , in delivering a dispatch. Held, that as appellant, through its agent, had full notice of the importance of the prompt, delivery of the dispatch, appellee can recover the damages he lost by its negligence, viz., the difference between the year’s salary he would have received from the party he had contracted with, and for whom he would have worked had he received the telegram in time, and what he made during the year.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Stevenson & Ewing, for appellant.

      Messrs. Porter & Hughes, for appellee.
   Pleasants, J.

In December, 1882, appellee, a resident of Bloomington, was employed as a traveling salesman of tobacco and cigars for a Chicago house. Early in that month, on the train from Bloomington to Chenoa he fell in with Mr. P. M. Schwartz, a cigar manufacturer of Pontiac, and an acquaintance of several years, who, having learned in conversation with him that his engagement was about to expire and would not be renewed, asked how he would like to work for him. The subject was then talked over but no conclusion reached. Appellee told him he had not thought of it and was negotiating with some parties in Chicago, but would consider it and see him again. A -week later he stopped off at Pontiac for the purpose and had some further conversation with him, in the course of which Schwartz said if he employed him it would be necessary to make" some change in his route as he already had a traveling man over part of it. Mo contract was then made between them, but the subject was left under consideration.

On the 21st appellee sent him, by mail, the following letter:

“ Office of E. Hoffman, 183 and 187 Madison street.

Chicago, III., December 21, 1882.

P. M. Schwartz, Esq., Pontiac, Ill.

Dear Sir:—I am settled up here and ready for further, etc. I was over to look at the stock of Straus and Hamburger and find they have very fine stock. They left word for me to be sure and be here on the 24th. But I have concluded I would prefer to travel for you for I feel confident if everything goes O. K. that I will do better. Of course I may keep my appointment with them and pay them the visit they desire.

I have never sold goods for a factory and, as you say, may do better than with a jobber. I will contract my first year with you for thirteen hundred dollars, and if I am worth more money for the year after we can. determine that afterward, and I will endeavor to sell all the goods for you in my power. I would want one or two five-cent brands, also unflavored, to take my route up January 1st to 15th. I think your goods will please my trade and if not I can’t be blamed for it. Hoping to hear from" you by first mail or telegraph to Blooming-ton, Ill., so I may know what to do,

Tours truly,

E. W. Valentine.

P. S.—How many brands have you. to carry regularly? I can give you all the personal and bank reference you want. ”

Schwartz ac o.Jingly telegraphed him to Bloomington as follows:

“ Dec. 23, 1882.

E. Valentine, Bloomington, Ill.

Can you come up to-morrow? Have to make some changes in route. Answer.

P. M. Schwartz.”

Appellee, however, was detained by business in Chicago and did not receive it until his return home, on the 20th, but on the 23d he wrote out a dispatch for defendant to transmit to Pontiac, as follows :

Chicago, III., Dec. 23d.

P. M. Schwartz, Pontiac, Ill. Hot heard from my letter. Please answer. Canal and Adams.

Valentine.”

This he delivered on the morning of that day, between ten and eleven o’clock, to D. J. Shine, telegraph operator, for the Pennsylvania Company, at the union depot, corner of Canal and Adams streets, where dispatches were received to be sent over the Western Dnionlines for the telegraph company. It is the railroad telegraph office proper, but also the Western Hnion office for the receipt of messages, which are sent from it to the central office of the telegraph company and thence directly transmitted to the party addressed. Messages by the telegraph company from other places to persons in Chicago are also first received at the central office and thence sent, either directly to the party, or repeated to a distributing office for delivery from it, by the messenger boys there employed. The railroad telegraph office at the Hnion Depot was not a distributing office of the telegraph company. The one nearest to it was at the Washington Hotel, about a block and a half distant.

Its agency for the company was limited to receiving messages for it and transmitting them to the central office. When this dispatch was delivered to Shine he was fully informed of its object, of the negotiation pending between appellee and Schwartz, and of the contents of the letter referred to in it. He and the other operator in the office were acquaintances and friends of appellee. The evidence tends to show that he was told by appellee that he wanted the answer sent to that office and therefore directed him to add to it, for that purpose, the words “ Canal and Adams,” as they appear thereon. He says that as an operator he understood they meant his office, and that the messenger boys at the Washington Hotel were in the habit of bringing there dispatches so addressed.

This dispatch he promptly transmitted to the central office, whence it was sent to Schwartz at Pontiac and there received by him during the same forenoon. After dinner on the same day Schwartz delivered to defendant’s operator at Pontiac for transmission, the following:

“ Pontiac III., Dec. 23, 1882.

To E. Valentine, corner Canal and Adams streets.—All right if we can arrange route. Have some changes to make. Can you come down to-morrow ? Answer.

P. M. Schwartz.”

This was received at the central office in Chicago at two o’clock p. m. of the same day, but not by appellee until the 1st of January when he called there to inquire for and obtained it. He remained in and about the Union Depot office during all day of the 23d December, after he sent his to Schwartzj frequently inquiring of Shine and the other operators if any answer had been received. So also throughout the following day until evening, when he engaged with Straus and Hamburger by the month, at $100 per month; worked two months for them and was discharged; remained without employment, though he diligently sought and expended something like $200 to find it, until the following fall, when he went to work for a Peoria house, at $75 per month, and received therefor $300, making in all the sum of $500 for that year’s labor.

He brought this action, in ease, to the November term, 1883, to recover the difference between what he so received and what he claims he would have received from Schwartz, as damages for alleged negligence of the company in not promptly delivering the dispatch of December 23d, above quoted. The cause was tried by jury, on a plea of not guilty, at the May term, 1884, and a verdict rendered for the plaintiff for §500, which was set aside. A new trial by the court without a jury, at the February term, 1885, resulted in a finding and judgment thereon, for plaintiff, for §650 damages and the costs ; exceptions were duly taken, and the record is brought here by appeal-

A brief statement of our view upon what we regard as the controlling points in the case must suffice for answer to those more specifically urged by counsel. If the dispatch of December 23d, from Schwartz to appellee at Chicago, had been delivered promptly, it would have made, in fact, a contract between the parties, in the interest of appellee. That is to say, his offer by the letter of the 21st having been made without reservation as to route, and with the distinct information that if he should be employed some changes must be made in it, was a concession to Schwartz of the right to dictate them, at least within reason, and Schwartz’s answer all right ” was an acceptance, at least upon that condition; so that, although he added “if we can arrange route; have some changes to make,” and whatever may be its effect, in technical strictness, there was in fact no “if” about it. Any change to be reasonably anticipated was a matter of indifference to him, and his obtaining the employment upon the terms he proposed was reasonably certain.

It is unnecessary to refer particularly to the other facts in proof—the expectation and conduct of Schwartz with reference to it—tending to support this conclusion. The value of this contract is also certain. It was not for gains or profits, which might be speculative or contingent, but for a salary definite, fixed and sure.

Its loss to appellee was the direct, proximate and natural effect of the failure to deliver promptly the dispatch in question.

Of the importance of this dispatch and of its delivery on that day, if not sufficiently apparent on its face, appellant, through its agent, had full notice, and the damages claimed were such as ought to have been within its contemplation.

The questions of negligence on the part of appellant and also on the part of appellee in respect to the address given, his efforts to obtain employment or otherwise, were questions of fact, upon which -the finding of the court is sufficiently supported by the evidence. Holding these views there is no occasion to notice the points of law presented or the authorities cited.

Judgment affirmed.


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    Carl Prante v. Frederick Schutte.
    Statute oe Frauds.—Although part of the subject-matter of an agreement is personalty, yet where it embraces a sale of land as well, and the agreement must be regarded as entire, this would bring the whole within the Statute of Frauds. Partial execution would not, at law, take it out.
    Appeal from the Circuit Court of Adams county; the Hon. J. H. Williams, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. A. E. Wheat and Mr. C. A. Babcock, for appellant.
    Messrs. Carter & Covert, for appellee.
   Pleasants, J.

Assumpsit brought by appellee on the common counts for materials and labor in repairing ice house and brewery of ajipellant; plea, the general issue; verdict for plaintiff for $1,086.50; new trial denied and judgment entered.

It is conceded that appellee did the work and furnished the materials to an amount at least equal to that found by the jury, and the only defense set up is that it was a,ll done under a special contract which has not been fully performed.

The buildings in question were partially destroyed by fire on the night of the 30th of January, 1882. Appellee, who was a carpen! er, was employed first to repair the ice house, which he did in a few days at a cost of about $150. Appellant claims that thereupon and on or about the 6th of February it was agreed between them that the brewery should be re-built at their joint and equal expense, and that appellee should pay him , $3,300, on the 1st of June next following, or interest thereon at six per cent, per annum from that date until the principal should be paid, and upon payment in full should have a deed entitling him to an undivided half of the lot and premises, including a dwelling house thereon, then occupied by a tenant of the whole, and one half the rents from the date of the agreement; that the work and material sued for were done and furnished in pursuance of that agreement; that appellant provided other work and material to the same end and also put in an engine, some kettles, and perhaps other machinery; that on the 1st day of June he was ready and willing to deliver the deed, and that appellee refused to pay the money, give his note for it or have any interest in the property.

It sufficiently appears from the evidence that they talked of an arrangement to the general effect above stated ; that they intended and expected to make it, and that they proceeded with the work accordingly. But it was a fair question for the jury whether they absolutely did make it or only left it, with this intention, to depend on other conditions to be thereafter settled, but which never were settled.

Thus, it was not reduced to writing; the only talk they had about it was unexpected, brief, without previous reflection or consultation by either with any other person, or that consideration at the time which its importance demanded, and there was no such provision for necessary details and inevitable contingencies as rational men, intending to be bound thereby, would almost certainly have made. The whole extent of it as claimed is above set forth, and it is manifestly so ineompíete as to be hardly susceptible of execution without further, agreement upon material points.

Another question was whether there ever had been a meeting of their minds upon the price to be paid. Appellee was positive that $3.000 was the amount, whether payment was made at the day mentioned or the time was extended. Appellant was equally positive that unless paid in cash at the time specified, it was to be $3,300, and accordingly he demanded a note for the larger sum. How was the jury to determine what the agreement really was, or reconcile, this difference except by finding the fact of a mutual misunderstanding ?

There was also some evidence tending to show acquiescence by appellant in an abandonment of the agreement. It was nearly two years after he was notified of the refusal to carry it out that this suit was brought, and although he protested at the time, he never afterward ■ pressed the matter nor took any step to show or equalize the difference between the amounts of their respective contribution to the expense of rebuilding, but collected the entire rent without offering to account for it or any portion thereof to the appellee.

With the finding of the jury upon these questions, or either of them, we should not be disposed to interfere. If for the plaint-i.f, their verdict would be supported by the evidence; but if otherwise, there is another reason why it should, nevertheless, be sustained. The alleged agreement was such that, until fully executed, the appellee might avoid it at his own sole option, and he did avoid it; although part of its subject-matter was personalty yet it embraced a “ sale of land ” as well, and since it must be regarded as entire, this feature brought the whole within the Statute of Frauds. Meyers v. Schemp, 67 Ill. 471. Partial execution would not, at law, take it out. Fleming v Carter, 70 Id. 286; Wheeler v. Frankenthal, 78 Ill. 124; Strehl v. D’E vers, 66 Id. 77 ; Meyers v. Schemp, supra. Appellee could avail himself of it under the evidence. Beard v. Converse, 84 Ill. 515-6, and cases there cited.

We think the trial below was-rather loose and that some errors intervened, but it would serve no useful purpose to indicate them. They were mostly immaterial or obviated, and upon his admission of the truth of plaintiff’s accountno verdict more favorable to the defendant could have been properly rendered. There is no particular hardship in his paying for labor and materials, the full benefit of which he has confessedly received.

Judgment affirmed.