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    M. J. Ganey et al., Appellants, v. Edward Hohlman et al., Appellees.
    Principal and surety—when alteration of original undertaking does not release latter. Where the alterations in the terms of a contract did not operate to the prejudice of the surety, or put him in worse position, or increase his risk, or impair the ultimate liability over to him, such alteration does not operate by way of discharge.
    Action of debt. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Amos Miller, L. V. Hill and Jesse Peebles, for appellants.
    Jett & Kinder, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action of debt on a penal bond in the sum of $2,000 executed by appellees Mohlman and Mil-nor, to appellants, conditioned upon the faithful performance by Mohlman of a certain contract entered into contemporaneously therewith between appellants and Mohlman, by the terms of which Mohlman agreed to furnish all the material and do all the work necessary in the construction of two brick buildings in the city of Gillespie, according to certain plans and specifications. The breach of the bond charged in the declaration is that appellee Mohlman did not pay for all the material necessary to complete the two buildings, by reason whereof appellants were compelled to pay for such materials the sum of $1,404.93. Both defendants filed pleas alleging performance and denying that the plaintiffs had been compelled to furnish or pay for materials as alleged. Appellant Milnor filed two further pleas, alleging, first, that the plans and specifications had been modified and changed by the parties to the contract, without his knowledge, whereby he was released; and second, that he had notified appellants not to pay Mohlman any further sums on account of said buildings until all materials had been paid for, and that at the time of such notice there was more money due to Mohlman from appellants than they had since been compelled to pay.

Issue was joined on the several pleas, and a trial had before the court without a jury, resulting in a judgment against appellees in debt for $2,000, and for $1 damages. The evidence discloses that Ganey and the bank owned adjoining lots having a total frontage of 66 feet, upon which they arranged to erect two buildings jointly, that of the bank to be 20 feet and that of Ganey to be forty-six feet in width. Plans and specifications were prepared, and the contract for erecting the buildings let to Mohlman at $9,998.77, of which the bank was to pay $3,666.97 and Ganey $6,331-.80. Before work was begun on the buildings, it was decided to build the bank building two feet narrower, which was done. With this exception the buildings were completed in accordance with the original plans and specifications. Thereafter additional work was done by Mohlman upon both buildings, the materials for which were paid for by him. Mohlman failed, however, to pay a balance of $1,000 due for lumber used in filling the original contract, and a decree for a lien for that amount was obtained against appellants, which they were compelled to pay, together with the sum of $301.32 costs of the proceeding.

We are of opinion that the change in the contract whereby the width of the bank building was lessened two feet, did not serve to release the surety Milnor upon his bond. The evidence shows that although as a result of the change, the actual cost to Mohlman, the contractor, was less than had he built the building the full width prescribed by the original contract, he was paid the full original price therefor. The alteration in the terms of the contract did not operate to the prejudice of the surety, or put him in worse position, or increase his risk, or impair the ultimate liability over to Mohlman to him, one or more of which elements must be present before a surety will be released. Appellees contend that inasmuch as the contract and the bond did not state specifically that the contractor was to pay for the materials, but used the words “furnish all the material and labor therefor,” Mohlman was under no obligation to pay for the materials, and consequently there was no breach of the bond. We construe the language quoted to mean that Mohlman was to furnish the materials necessary, free of cost to appellants. In the cases cited by appellees in support of the contrary view, it will be observed that the actions were brought by or for the benefit of third parties.

Under the foregoing views it will be unnecessary to determine the sufficiency of the cross errors assigned.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    Rogers Grain Co., Appellant, v. S. W. Jones, Appellee.

      1. Contracts—what aids construction of. The construction of a contract placed thereon by the parties will be considered by the court in determining the true meaning and effect thereof.
    2. Verdict—when not disturbed as against the evidence. A verdict not clearly against the weight of the evidence will not be set aside on review.
    3. Vendor and vendee—remedy for refusal to accept. If a vendee refuses to accept and pay for merchandise at the contract price, the vendor has the right to resell such merchandise and charge the vendee with the difference between the contract price and that realized by sale.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Rearick & Meeks, for appellant.
    Acton & Acton, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit by appellant, for the recovery of money alleged to have been advanced by it to appellee for oats purchased by it and which appellee failed to deliver. A trial by jury resulted in a judgment for the defendant, from which the plaintiff appeals. The evidence shows that the parties entered into a written contract whereby appellee sold to appellant 4,000 bushels of white oats at thirty-two cents a bushel to be delivered at Collison, Illinois, on or before September, 1906, “in sound and good condition.” Appellant then advanced to appellee $400 on account of the purchase. On August 28th appellee began delivering oats on account of the contract. After 279 bushels had been received and weighed, Rogers, the vice-president of appellant, declined to accept the oats yet undelivered, claiming that they were damp, stained, bleached and musty. Appellee then hauled the remainder of the oats to Muncie and sold them at twenty-six and one-half cents per bushel. He afterwards submitted a statement to appellant, in which he charged it with the oats delivered, the difference between the contract price for those refused, and the price realized for the same at Muncie, together with the expense of hauling them to Muncie. He credited appellant with the $400 advanced, which left a balance due of $36.35, which sum he tendered to appellant. Appellant refused to accept the same and brought the present suit. The tender was admitted on the trial, and the main issues of fact involved were as to what quality of oats was required to fill the contract, and whether or not those tendered by appellee met such requirement.

Appellant claimed upon the trial that it had a right to demand strict performance of the exact terms of the contract, and that the grain tendered should have been white oats “in sound and good condition,” while appellee insisted that a reasonable, substantial performance was all that was essential, and that he was bound only to furnish white oats in reasonably sound and good condition. A number of witnesses called by appellant testified that in the grain trade there was a distinct difference in meaning in the two expressions, and that they represented different grades. There is also evidence in the record tendingto show that white oats in sound and good condition would grade as No. 2 in the market, and that those which were at least seven-eights white and in reasonably clean, sound and dry condition, would grade as No. 3. Smith, the general manager of appellant at Collison, testified that under instructions of appellant, No. 3 oats were uniformly received by him under contracts like the one in question.

Appellee testified that at the time Rogers, the vice-president of appellant corporation, objected to receiving the oats, he, witness, asked him what grade he wanted on the contract, and that Rogers replied he wanted No. 3 white. Notwithstanding Rogers denied that such conversation occurred, the jury, who were the sole judges of the credibility of the witnesses and the weight to be given to their testimony, doubtless believed appellee. Under the construction thus placed upon the contract by both the vice-president and general manager of appellant, which may properly be considered in determining the true construction of the language of the contract (Coal Co. v. City of Bloomington, 234 Ill. 90) it was only necessary that the oats should grade as No. 3 white oats; that is, should be seven-eights white and in reasonably sound, clean and dry condition. There was evidence tending to show that they were. We cannot say that the finding of the jury that the oats tendered filled these requirements was manifestly contrary to the evidence, and are therefore not at liberty to disturb the same.

One Swisher, a witness called by appellant, testified that the oats tendered by appellee were damp and bleached. For the purpose of impeaching the witness by showing that he had expressed a different opinion as to the same oats, appellee was permitted to prove that a few days after the tender, a load of the same oats and in the same condition, was delivered at appellant’s elevator where Swisher was employed, and that Swisher stated that “if all the oats that come in were like those, they would be all right.” It is insisted that such evidence was incompetent. We do not think so. The variant statement was directly connected with a fact that tended to establish appellee’s case, and was thus relevant. Its incompetency as substantive evidence did not render it irrevelant for the purpose of impeachment. We are satisfied that the jury did not understand that appellee’s first instruction as to agency applied to the statement in question, but to the acts of Rogers. If appellant wrongfully refused to accept and pay for the oats at the contract price, appellee had-the right to re-sell them and charge appellant with the difference between the contract price and that realized at the sale. The jury was not unwarranted in finding that the re-sale at Muncie was made in good faith and in the mode best calculated to procure the real value of the oats (Morris v. Wibaux, 159 Ill. 627), and further, that Muncie was the best available market. Appellee also had the right to set off the additional and necessary expense of transporting the oats to Muncie. He was permitted to testify, without objection, that such expense amounted to $70, and there is no evidence that such sum was unreasonable.

The judgment of the circuit court is affirmed.

Affirmed.


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    Reliable Plumbing and Heating Company, Appellant, v. William C. Dallenbach et al., Appellees.
    This case is controlled by the decision in Brokaw v. Tyler, 91 Ill. App. 148, and by that of Haas Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 452.
    Mechanic’s lien. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908;
    modified December 16, 1908.
    F. M. & H. I. Green, for appellant.
    H. Leonard Jones, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree sustaining a demurrer to and dismissing the interpleader of appellant in a mechanic’s lien proceeding instituted by appellee Boyer, for the purpose of establishing a lien against a certain building, for materials furnished and work performed thereon. The interpleader avers that during the year 1896, several of the appellees, who were at the time the owners of the premises in question, leased the same to appellee Keller for use as a theater only; that the lease contained the following-provision: “Privilege is accorded to the second party (lessee) to make alterations and repairs to the exterior and interior of said building, all of which is to be paid for by the second party * * * .” It is further averred that the building as then constructed was wholly unfit to be used as a theater, and that its construction and interior arrangement had to be remodeled; that the lease to Keller was made with the specific understanding between the owners of the property and the lessee that he should remodel the interior of the building so as to make it suitable for theater purposes, the only purpose for which it could be used under the specific terms of the lease; that the heating and plumbing system was entirely inadequate to be used in the building when the changes were made, without altering and remodeling the same, and that it was understood by the owners that the same should be remodeled and changed by the lessee to fit the premises for use as a theater; and further, that the owners agreed that in remodeling the heating and plumbing system, so much of the old material in the building might be used as was available; that Keller thereupon entered into a contract with appellee Boyer to do the carpenter work in the general construction of the interior, and with appellant to so remodel and repair the heating and plumbing systems in the building, as to fit the same for use as a theater; that appellant thereupon entered upon and completed the performance of the said contract; that during the progress of the work the owners of the building were frequently in the building and saw that the heating and plumbing system was being changed and installed and well knew what was being done, and by whom; that after the contract was prosecuted to completion, the then owners sold and conveyed the premises to the defendants Coffin and Dallenbach, and assigned to them the'lease to Keller; and further, that appellant had filed a claim for lien with the circuit clerk within the time required by the statute.

The vital question involved in this case is whether or not appellant can enforce a lien against the title of the defendants Coffin and Dallenbach to the premises in controversy, or whether its only relief is against the leasehold interest of Keller. Under the views expressed by this court in Brokaw v. Tyler, 91 Ill. App. 148, and by the Supreme Court in the recent case of Haas Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 452, the chancellor erred in not granting the relief asked by appellant’s interpleader. The decree will therefore be reversed and the cause remanded,

Reversed and remanded.


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    The Sanganois Club, Appellant, v. General Lane et al., Appellees.

      Injunctions—when should not he awarded without notice. An injunction should not be granted without notice where it does not appear from the bill or affidavit supporting the same that the rights of the complainant would have been unduly prejudiced if notice had been given to the defendants of the application. This rule is not affected by the fact that some of the defendants named in the bill reside in another county from that in which the application was made.
    Bill for injunction. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Rehearing denied December 16, 1908.
    L. A. Jarman, for appellant.
    Milton McClure, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Appellant, a corporation organized for the purpose of carrying on a hunting club, filed a bill to restrain appellees and others from going upon its land for the purpose of hunting, shooting, or other purposes. A temporary injunction was ordered by the master in chancery, without notice to the defendants, -and the writ served upon ten of their number. Upon motion of all the defendants such injunction was thereafter, upon hearing, dissolved by the chancellor. Written suggestions of damages were thereupon filed by the defendants. After hearing evidence in support thereof, a decree was entered against the complainant, in favor of all the defendants, for $100 solicitor’s fees, and in favor of Kelly and Morris for $9 each. The complainant appealed.

The bill avers in substance that the complainant was and had been for several years, in possession of the land in question as owner and lessee; that the defendants had not and never had claimed any title or interest in or right to possession of said lands; that the same being overflowed were only valuable for hunting and fishing purposes; that the complainant had expended several thousand dollars for and upon said lands that it and its members might use the same for such purposes; that the defendants had been repeatedly warned, by public and personal notice, not to hunt or trespass upon said land, but that they had repeatedly and almost continuously for a year then last past, and were from day to day, against the protest of the complainant, wilfully, illegally and maliciously trespassing upon said lands, with boats and decoys, hunting and shooting thereon, and would continue without cessation to so trespass unless restrained; that they were insolvent, and that the damages from such trespassers were of such a nature as are incapable of ascertaiment in a court of law; that the defendants were not residents of Cass county and could not conveniently be served with notice, and that they had threatened to continue to so trespass.

No objection is raised to the amount of the damages assessed as solicitor’s fees. The other damages are too insignificant in amount to warrant discussion or consideration. The remaining errors argued are that the injunction was improperly dissolved, and that damages should not have been assessed before a final hearing of the cause upon the merits. We think the temporary injunction was properly dissolved, for the reason that it does not appear from the bill or affidavit supporting the same, that the rights of the complainant would have been unduly prejudiced if notice had been given to the defendants of the application. It is manifest that no actual or substantial injury could have resulted from further trespasses of the character threatened. The fact that some of the defendants resided in another county did not obviate the necessity of notice. Henderson v. Flanagan, 75 Ill. App. 296. It was not error to assess damages for solicitor’s fees before the final hearing, inasmuch as the same were for services rendered solely upon the motion to dissolve.

The decree of the circuit court is affirmed.

Affirmed.


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    Ira S. Powell, Appellant, v. Robert W. Huey, Appellee.
    1. Appeals and errors—when finding of chancellor not disturbed as against the evidence. Where a chancery cause is heard in open court on oral testimony and the evidence is conflicting, the finding of the chancellor will not be reversed unless error is palpable.
    2. Specific performance—when awarded; when not. The specific performance of a contract will only be enforced where the terms are clear, certain and unambiguous, either admitted by the pleadings or proven with a reasonable degree of certainty by the evidence. Even in cases where all of these requirements are present, specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances of the particular case.
    3. Foreclosure—what does not bar relief. A bill of foreclosure, although it does not show the real consideration for or the precise amount due upon a mortgage, will authorize a decree, although the proofs may show a less sum to be due than was claimed, or a state of facts not averred in it, if these facts are not incompatible with the allegations in the bill.
    4. Mortgage—when matures prior to express date of maturity. A mortgage given for purposes of indemnity matures when the person indemnified is required to meet the principal debt, such maturity taking effect to the extent of the obligation paid by the person indemnified, regardless of the date of maturity named in the mortgage.
    Foreclosure. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed December 23, 1908.
    Statement by the Court. This is an appeal from a decree of the Circuit Court foreclosing a mortgage given by appellants, William A. Powell and Martha M. Powell, to appellee.
    Two suits in equity and one at law involving the same series of transactions, but distinct as to the relief sought, were tried together by the circuit court without a jury upon the same evidence, with the agreement of counsel that separate judgments or decrees should be rendered, and that in the decision of each cause such part only of the evidence as was applicable to that particular cause should be considered. Separate appeals from the judgment and decrees rendered were perfected. Although not consolidated the same will be considered together.
    The litigation grew out of the following state of facts: On September 24, 1903, for the purpose of indemnifying Robert W. Huey against liability as surety upon a note for $800 given by William A. Powell to one Talbot and due August 18, 1904, and any further suretyship liability that might thereafter be incurred by him for the benefit of said Powell, William A. Powell and Martha M. Powell, his wife, executed a mortgage to said Huey upon two tracts of real estate owned by Powell one of which was known as the “home place” and the other as the “Coke farm.” The mortgage upon its face purported to secure the payment of a promissory note for $7,000 signed by the mortgagors and due September 24, 1908: also 5 interest notes for $350 each, of even date with the mortgage, due in one, two, three, four and five years respectively. The mortgage provided in substance that if default was made in the payment of the principal sum or the interest thereon as it became due, then the principal note and all accrued interest and all indebtedness secured thereby should at once, at the option of the mortgagee, become due and payable, and the mortgage might at once be foreclosed. The mortgage further provided that the same was given subject to a prior mortgage to one Brown, to secure the payment of a note of William A. Powell for $12,000 due September 24, 1908.

      Thereafter and prior to September 13, 1905, Powell and his wife conveyed the premises in question to their son, Ira S. Powell. On that day a written agreement was entered into by and between said parties, .as follows, to-wit:
    “Macomb, III., Sept. 13, 1905.
    “This is to certify that William A. Powell and Martha M. Powell have given Robert W. Huey a note and mortgage of $7,000.00, dated September 24, 1903, to be held by said Robert W. Huey as security on notes given to him by Ira S. Powell and William A. Powell, and also for notes endorsed or signed by him with Ira S. Powell and William A. Powell. It is agreed that when all the notes owed by W. A. or Ira S. Powell or both of them to Robert W. Huey, and also the notes endorsed or signed by Robert W. Huey with Ira S. and W. A. Powell, are paid and canceled, then this mortgage and note are to be delivered to Ira S. Powell.
    R. W. Huey,
    I. S. Powell,
    W. A. Powell.”
    At the same time Huey executed his note to the Union National Bank of Macomb for $5,000, due September 13, 1906, with interest at 6% for the benefit of Ira S. Powell and William A. Powell, who in turn and in consideration thereof executed their joint note to Huey for $5,000, due September 13, 1906.
    Afterward, on August 4, 1906, Huey became surety for Ira S. Powell upon his note for $4,541.37, payable to the Hancock County National Bank, and due November 4, 1906, which said note was given in renewal of a prior loan, the proceeds of which were received by William A. Powell. On September 10, 1906, a written contract was prepared which was signed by Huey in person, and purported to be signed by William A. Powell as agent for Ira S. Powell, by the terms of which Huey agreed to purchase the “Coke farm,” consisting of 150 acres, for the sum of $18,750, the taxes of 1906 to be paid by Powell, and possession of the premises given September 24, 1906. It further provided that as part of the purchase price Huey was to assume Powell’s note for $4,541 to the Hancock County National Bank and that he should pay the balance in cash on or before September 24, 1906, upon receipt of a deed for the premises.
    There is evidence tending to show that it was verbally agreed by the parties that in payment of the remainder of the purchase price Huey was to assume and pay the Talbot note and interest amounting to $848, and to cancel the $5,000 note representing the note of Huey to the Union National Bank and upon which there was $300 accrued interest due, and to assume the indebtedness to Brown to the extent of the balance; the remainder of said Brown mortgage indebtedness to be carried by Powell upon the “home place.” On September 12, 1906, Ira S. Powell signed the said contract in person, thus ratifying the same. On September 24, 1906, Huey repudiated the alleged contract, claiming that his signature thereto had been procured by fraud and circumvention, whereupon Powell formally tendered a deed to him in accordance with said contract which he refused to accept. On October 6, 1906, Huey instituted an action in assumpsit against William A. and Ira S. Powell upon their $5,000 note to him bearing date September 13, 1905, and on January 21, 1907, filed a bill to foreclose the mortgage given to him as aforesaid, purporting to secure the payment of a note for $7,000. By his bill he alleged an absolute indebtedness upon the notes described in the mortgage. William A. Powell, Martha M. Powell and Ira S. Powell, who were made defendants to the bill, by their answer set up that there was no consideration for the giving of said mortgage; that the same was given to indemnify Huey against any loss he might sustain as surety for William A. Powell and for no other consideration or purpose; that Huey had not sustained any loss on said account, and that all of said notes were theretofore fully paid. On March 2, 1907, Ira S. Powell filed a bill against Huey praying specific performance of the contract of sale in question. Huey answered the bill denying the payment of the note for $4,541, which the bill averred had been made on account of said contract; denied that a deed was tendered, and asserted that the payment of said note for $4,541 was made as surety for Powell, and that he, Huey, had paid divers other notes as surety for Powell, greatly in excess of $7,000 and the interest thereon, and that said mortgage was a valid lien on the premises. Upon the hearing of all of said cases together, the court dismissed the bill for specific performance, rendered a decree of foreclosure and sale against the premises included in said mortgage, for the sum of $8,483.61, and rendered judgment in favor of the plaintiff in the action of assumpsit for the sum of $2,424. From said decrees and judgment appeals are prosécuted by the unsuccessful parties, the present appeal being from the foreclosure decree in question.
    David E. Mack, William H. Hartzell, John W. Williams and John D. Miller, for appellants.
    Charles J. Scofield and Apollos W. O’Harra, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Although the evidence relative to the execution of the alleged contract sought to be enforced is in close conflict, we are of opinion that the testimony of appellee and S. H. Ferris was sufficient to warrant the chancellor in finding that the same was not knowingly executed by Huey, but that he understood he was signing an application for a loan upon his farm and the Coke farm, in case he decided to take the land, and that he was induced to sign the same through trickery and device practiced by William A. Powell. Furthermore there is evidence tending to prove that the terms thereof were so unconscionable and inequitable as to justify the chancellor in refusing to enforce the same. The Coke farm was valued in the alleged contract at $125 an acre, while the evidence tends to show that it was worth not to exceed $80 per acre.

Where a chancery case is heard in open court on oral testimony and the evidence is conflicting, the findings of the chancellor will not he reversed unless error is palpable. Dyas v. Dyas, 231 Ill. 367.

“A specific performance of contract will only be enforced where the terms are clear, certain and unambiguous, either admitted by the pleadings or proven with a reasonable degree of certainty by the evidence. Even in cases where all of these requirements are present, specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances of the particular case. Specific performance is an equitable remedy which compels such substantial performance of the contract as will do justice between the parties. Inflexible rules cannot be laid down for the exercise of the power of a court of equity in granting specific performance. Every case of specific performance necessarily depends in a large degree upon its own special circumstances. In such proceedings the inquiry must be whether in equity and good conscience the court should specifically enforce the contract, and the decision involves the hearing of evidence of extrinsic facts. It is never decreed as a matter of course, even when a legal contract is shown to exist.

“If then the contract itself is unfair, onesided, unjust, unconscionable, or affected by any other inequitable feature; or if its enforcement would be oppressive or hard on the defendant, or would prevent his enjoyment of his own right, or would work any injustice; or if the plaintiff has obtained it by sharp and unscrupulous practices, by over-reaching, by trickery, by taking undue advantage of his position, by non-disclosure of material facts, or by any other unconscientious means, then a specific performance will be refused. It necessarily follows that a less strong case is sufficient to defeat a suit for a specific performance than is requisite to obtain the remedy.” Sugar v. Froehlich, 229 Ill. 297, and cases cited.

Without extending this opinion by further detailing or discussing the evidence contained, in the record, we are impelled to hold that the chancellor did not err in dismissing the bill for specific performance.

It is urged as ground for the reversal of the decree of foreclosure that there is a variance between the allegations of the bill and the evidence; that the bill being in the ordinary form of bills to foreclose, does not correspond with the proofs, which show that the mortgage and notes were given for the purpose only of indemnifying Huey against any loss or damage by reason of his having signed a note or notes as surety for William A. Powell.

“A bill of foreclosure, although it does not show the real consideration for or the precise amount due upon a mortgage, will authorize a decree, although the proofs may show a less sum to be due than was claimed, or a state of facts not averred in it, if these facts are not incompatible with the allegations in the bill.” Collins v. Carlile, 13 Ill. 254.

It is also insisted that the mortgage which it is sought by the bill to foreclose was not due at the time the bill was filed, nor at the time of the entry of the decree of foreclosure; that notwithstanding the interest notes had matured, the mortgage having been given for the purpose of collateral security, did not mature until September 24, 1908.

By the express terms thereof, the interest notes payable on September 21, 1904, 1905, and 1906, respectively, were past due on January 21, 1907, upon which date the bill was filed. Appellee therefore had the right to exercise his option under the terms of the mortgage and declare the principal sum also due. If the mortgage be treated as one of indemnity only, as we think it should, and its literal effect disregarded, it is obvious that when the mortgagee was compelled to pay any part of the indebtedness against which he was indemnified, the real mortgage indebtedness may be properly held to have, to that extent, matured, without regard to its express terms.

The evidence shows that prior to the time the bill to foreclose was filed, appellee was compelled to pay the Talbot note of $800 upon which he was surety for William A. Powell; that on September 25, 1905, he paid the sum of $2,884.90 on account of the note given by him to the Union National Bank as collateral to the note of William A. and Ira S. Powell upon which there was then due with interest the sum of $5,310; the balance due being the basis of recovery in the assumpsit suit hereinbefore referred to, and that he on November 2, 1906, paid the note to Ira S. Powell for $4,541.27 to the Hancock County National Bank upon which he was also surety. It follows that under either theory, the bill to foreclose was not prematurely filed as contended by appellants. The aggregate of said payments represents the amount for which the decree was rendered.

There is no merit in the contention that the note of Ira S. Powell to the Hancock County National Bank should not be held to be covered by the indemnity. The evidence shows that William A. Powell received the proceeds thereof and in such case it can be properly held that he is equitably liable therefor.

Under the foregoing views there was no valid defense to the assumpsit suit and the judgment therein entered for the balance due appellee on account of his payment of the Union National Bank note was proper.

The decree of foreclosure was warranted and is affirmed.

Affirmed.


author: Per Curiam :

text:
    Robert W. Huey, Appellee, v. Ira S. Powell et al., Appellants.
    This case is controlled by the decision in Huey v. Powell, ante, p. 477.
    Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed December 23, 1908.
    David E. Mack, William H. Hartzell, John W. Williams and John D. Miller, for appellants.
    Charles J. Scofield and Apollos W. O’Hasra, for appellee.
   Per Curiam :

This is an appeal from a judgment in assumpsit in favor of appellee and against appellants.

The issues of fact and of law involved are fully detailed, discussed and determined in the opinion of this court in Huey v. Powell et al., ante p. 477.

In accordance with the views and conclusions there expressed the judgment of the circuit court in the assumpsit suit is affirmed.

Affirmed.


author: Per Curiam:

text:
    Robert W. Huey, Appellee, v. Ira S. Powell et al., Appellants.
    This case is controlled by the decision in Huey v. Powell, ante, p. 477.
    Bill for specific performance. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed December 23, 1908.

      David E. Mack, William H. Hartzell, John W. Williams and John D. Miller, for appellants.
    Charles J. Scofield and Apollos W. O’Harra, for appellee.
   Per Curiam:

This is an appeal from a decree dismissing a bill for specific performance brought by appellant against appellee.

The issues of fact and of law involved are fully detailed, discussed and determined in the opinion of this court in Huey v. Powell et al., ante p. 477.

In accordance with the views and conclusions there expressed the decree of the circuit court will be affirmed. Affirmed.


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    Theresa Wullner, Appellee, v. Smith-Lohr Coal Company, Appellant.
    1. Pleading—when question of existence of declaration to support recovery waived. By participating without objection in the trial upon the merits upon the issues formed, the non-existence of a declaration, because of demurrer sustained, cannot be urged on review.
    2. Trial—when conduct of counsel ground for reversal. The conduct of counsel in bringing by indirection to the attention of the jury the fact that the defendant had been indemnified with respect to the pending action by an insurance company, is prejudicial and ground for new trial, notwithstanding the trial court by its rulings sought to prevent such fact being shown.
    3. Evidence—when conclusions of experts invade province of jury. After expert witnesses have given the basis for the foundation of the conclusion as to whether a particular room in a mine .was safe or otherwise, it is not competent to permit such witnesses to state their opinion as to whether such room was safe or unsafe.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of Pana; the Hon. Josiah P. Hodge, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed December 23, 1908.

      J. C. and W. B. McBride, for appellant; McQuigg & Dowell and Mastin & Sherlock, of counsel.
    J. W. Priehs, E. A. Humphrey and Hogan & Wallace, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action by Theresa Wullner to recover damages alleged to have been sustained by reason of the death of her hnsband, Antone Wullner, who, it is alleged, was killed in the coal mine of Smith-Lohr Coal Mining Company, by reason of the wilful violation by said company of certain provisions of the Miners Act. The issues were tried by jury and a verdict returned in favor of the plaintiff. Motions for a new trial and in arrest of judgment were interposed by the defendant and overruled, and judgment rendered upon the verdict for the sum of $4,000, to reverse which this appeal is prosecuted by the defendant.

The first count of the declaration is predicated on section 18 of said statute, and after setting forth, practically in the language of the statute, the duties of the defendant under said section, avers that dangerous conditions existed in the room where decedent was required to work, by reason of the insufficient thickness of one of the pillars or ribs thereof, the same not being sufficient to support the weight resting thereon. The second count is also based on section 18 of said statute and charges that the room in which decedent was injured was dangerous by reason of the insufficiency of said pillar and that it was the duty of defendant not to allow decedent to work therein, except under the direction of the mine manager, while said room was in such unsafe condition, and that the defendant wilfully violated said duty. The third count is based on paragraph “a” of section 16 of said act, and sets forth the provisions of the statute and that it was the duty of the mine manager of defendant to instruct its employes who were engaged in the room where decedent was engaged and the room adjoining thereto with reference to their duties, and particularly with reference to the said pillar or rib, and also that it was the duty of defendant’s mine manager to visit said rooms as often as practical, but that the defendant wilfully violated the provisions aforesaid, and that said mine manager suffered said pillar to be constructed in an unsafe and improper manner. The fourth count is based on paragraph “d” of section 16 of said act, and after the formal parts and after setting out the provisions of said clause, charges that it was the duty of defendant’s mine manager to see that all dangerous places above and below in said mine were properly marked, and to display danger signals wherever they were required, and charges a wilful violation of said duty, and in each of said counts it is averred that as a direct result of the wilful violations which are charged, the decedent was killed.

At the close of all the evidence the court overruled a motion by the defendant to direct a verdict in its favor. During the progress of the trial appellee filed an amendment to her declaration. Appellant then filed a demurrer to the declaration as thus amended; whereupon appellee withdrew such amendment and the trial was continued as upon the original amended declaration.' It is urged as error that inasmuch as the demurrer was broader than the amendment itself and went to the declaration in its entirety, the effect of sustaining the same was to eliminate the entire declaration, and that therefore no issues remained to be tried and' determined. Having participated without objection in the trial of the issues formed by the various counts of the original amended declaration, appellant must be held to have thereby waived the alleged want of a declaration.

The evidence introduced by the plaintiff tended to show that on April 10, 1907, Antone Wullner, her husband and intestate, was engaged in mining coal in room number 8 of the second south entry of the defendant’s mine, which was being worked eastward and was at the time about 30 feet in width and about 180 feet in depth from the neck of the room to the face of the coal. Next to room 8 and separated therefrom by a pillar or partition of unmined coal was room 7. In driving the two rooms in the same direction the courses of the same had not been continued parallel, room 8 diverging north toward room 7, with the result that as the rooms progressed the pillar between them was gradually narrowed. About 60 feet from the necks of the rooms an air course had been cut through the intervening pillar. Beyond the air course the pillar had narrowed to a width of from 7 to 8 inches to 2 feet, and holes had been mined through in several places. On the previous day the center of the face of the coal in room 8 had been shot down by a “buster” shot. The coal on the south side of the opening thus created in the face of the coal had been removed, with the exception of some of the bottom coal, leaving a body of solid coal standing on the south side, extending eastward about 50 feet from the face. On the following day Haynes, Wullner’s buddy, proceeded to drill holes therein preparatory to blasting the same. While he was so engaged, two large pieces of coal fell from the face of the solid coal near the center of the room, one of which struck Wullner and so injured him that he shortly thereafter died.

Several expert coal-miners testified that the effect of leaving insufficient pillars between rooms was to create what is called in mining parlance a “squeeze,” which, by reason of the additional pressure placed upon the coal, had a tendency to cause it to become loose and fall; and further, that the usual width of pillars left in mines of this character is about 15 feet. There is evidence tending to show further that prior to the accident Wullner and Haynes had sounded the face of the coal and found no dangerous conditions there existing, and that on that morning prior to the time the men entered the mine, the mine examiner had inspected the room and made his mark of the day and month of his visit on the face of the coal near the center, but found no unsafe condition. As the cause must be remanded for reasons hereinafter stated, we do not deem it necessary to further recite or discuss the evidence. It will suffice to say that there was evidence tending to support one or more counts of the declaration. The trial court therefore did not err in refusing to direct a verdict.

The witness Haynes, who was called in behalf of appellee, testified on the trial that Bogle, the superintendent, requested him to sign a certain paper. When asked to state what the paper contained the witness replied, “He told me that the insurance company required such a paper. ’ ’ The court refused upon motion of appellant to exclude such answer, whereupon counsel for appellee remarked that “Mr. Haynes stated that the witness had testified that the statement was for the benefit of an insurance company.” Exception was taken to such remark but no ruling was made by the court. Counsel for appellee then asked the witness: “Did he say anything in that conversation about the insurance company?” to which question the court sustained an objection. These questions and the remark of counsel were doubtless intended to and probably did lead the jury to infer that an insurance company had indemnified appellant against the payment of damages in cases of this character. They were therefore prejudicial to appellant, and we are not satisfied that their harmful effect was wholly removed by the ruling of the court. Emery v. DeHart, 130 Ill. App. 244; McCarthy v. Coal Co., 232 Ill. 473.

The court permitted several witnesses who were experienced coal miners to testify in substance that in their respective opinions the conditions surrounding the room in question at the time of the accident were such as to render it an unsafe place in which to work. The rulings of the court in this respect are assigned as error. We are of opinion that with the aid of the competent testimony, of such expert witnesses who were acquainted with the room in question and the immediate surroundings in the mine, the facts upon which the ultimate conclusions of such witnesses that the room was unsafe were predicated, were made intelligible to the court and jury. The conclusions of such witnesses that the conditions surrounding the room were unsafe were therefore incompetent. Yarber v. C. & A. R. Co., 235 III. 589.

Other errors are assigned and argued which will doubtless be corrected upon another trial. For the reasons stated, the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Mabel Hancock, Administratrix, Appellee, v. The Chicago, Burlington & Quincy Railroad Company, Appellant.

      Verdict—effect of inspection by jury. A jury cannot return a verdict upon their own knowledge unsupported by other evidence, whether such knowledge was acquired in or out of court, by a view or otherwise, and a verdict based exclusively on knowledge so acquired will be set aside for want of substantial evidence to support it.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed December 23, 1908.
    J. A. Connell, George Edmunds and David E. Magic, for appellant.
    William H. Hartzell, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by which appellee seeks to recover damages resulting from the death of her husband and intestate, through the alleged negligence of appellant. Upon the trial of the cause the jury found the issues for the plaintiff and assessed her damages at $3,000. Motions for a new trial and in arrest of judgment were overruled and judgment entered upon the verdict. The first count of the declaration charges that the deceased, Roy E. Hancock, was on August 23,1907, in the employ of the defendant company as switchman in its switch yard at Galesburg, Illinois; that it was his duty to assist in making up and switching trains; that said switch yard contained numerous tracks for switching cars; that it was the duty of the defendant to furnish reasonably safe cars and appliances; that defendant in disregard of said duty caused to be switched in said yard by said Hancock a car the beams of which were rotten, defective and insufficient to hold the bumpers; that while Hancock was riding on the front of said car the same came against an engine with great force, and by reason of the defective beams on said car the bumpers were not sufficiently held to prevent the front end of the car from being smashed and jammed by said engine ; and that by reason thereof the said Hancock was killed.

The second count charges that it was the duty of the defendant to keep its tracks in said switch yard free from obstructions and engines while cars were being handled in said yard; that the defendant suffered a certain switch engine to remain on one of its tracks; that while Hancock was riding on the front of a car which was being switched, the said car came in contact with said switch engine with great force, and by reason of defective bumpers on said car said bumpers were not sufficiently held to prevent the front end of said car from being jammed against said engine; by reason of which Hancock was caught between said engine and car and killed.

The evidence tends to show the following facts: In August, 1907, the defendant company for the purpose of handling and operating its freight trains, maintained two sorting yards at Galesburg, Illinois, in each of which they ran a track upon an inclined plane from an elevation about 7 feet in height, called a hump. One of such tracks ran from a hump in the east yard into the west yard, and the other from a hump in the west yard into the east yard. The method of sorting and placing the cars from incoming freight trains was as follows: When a train arrived at the yards each car was examined in detail by two inspectors, to ascertain the condition of its various parts. It was then pushed to the top of one of the humps by a switch engine, where the place the same was to be set in the yard was determined and indicated. After the brakes on the car were tested the car was uncoupled from the switch engine and allowed to run by gravity from the hump down the track at an incline of about 7 feet in 10 car-lengths, and thence by means of switches thrown upon tracks running into various parts of the yards, to be there connected with outgoing trains. Such cars running down the incline were ridden by a brakeman called “the rider,” whose duty it was to control the car by means of the brakes until it reached the car or cars to which it was to be attached. Prior to August 23, 1907, appellee’s intestate, Roy Hancock, had been employed by the company as a switchman, and for several days prior to that date had been riding cars down the west hump into the west sorting yard. On the morning of that day two Arms Palace horse cars arrived at the yards, one of which was numbered 5008, and was constructed similar to a baggage car, having a platform and brake upon either end. Shortly after their arrival the cars were pushed to the top of the west hump, and with Hancock acting as rider, No. 5008 was released and allowed to run down the inclined track. Upon such track at the distance of about 35 car-lengths from the hump, stood a switch engine attached to a train of loaded freight cars. When about seven car-lengths from the switch engine and train, the horse car had attained the speed of about 15 miles an hour. Hancock then for the first time endeavored to slacken the speed by the use of a brake, but was unable to do so, and his car collided with the switch engine with such force that the car and switch engine were badly damaged and Hancock was crushed between them and killed.

The evidence further discloses that at each end of the car in question, were two oak draft timbers 10 feet in length and 5 by 10 inches in diameter, which extended 28 inches beyond the body and sills of the car, and were fastened to the end beam and center sill of the car by bolts; that between the draft beams was a malleable iron draw-bar which weighed 160 pounds and projected about two inches beyond the platform. On top of the draft beams and fastened thereto' by bolts to keep them from spreading, were two oak blocks. Besting transversely on top of these was the buffer beam which was mortised into the draft timbers and constituted the outside end of the platform of the car. Within the draw-bar pocket was a spring with a follower at either end between which the draw-bar operates, having a play of two inches. The testimony of expert witnesses developed that the impact of an approaching car would be received first by the draft timbers and that until the same had been broken off or displaced the beam across the end of the platform would not receive or be affected by the shock.

An inspection of the car in question after the collision disclosed that one of the draft timbers was broken off at the body of the car, and the other split off at the draw-bar pocket; the top platform beam was broken off, and the under one shoved up at the end. The king bolt by which the car was fastened upon the truck was broken and the draw-bar forced out of its position between the draft timbers and had fallen down. The draw-bar of the switch engine was broken, and the head-light, window plate and boiler head badly damaged.

The testimony relied upon by counsel for appellee to establish the averments of the declaration as to the defective condition of the car, was the following: Elmer Duncan, a witness for appellee, testified in part as follows:

“I saw that car the next day after it happened. I went up and examined it (referring to platform). It was kind of doty looking timber. By doty timber I mean timber that isn’t sound; timber that will kind of crumble in your fingers. I found that condition in those timbers one or two places. I just walked around and touched the timbers with my fingers and picked out some of the punk and rotten wood and crumbled it up in my fingers. It was in the timber next to me. The conditions I have noted were not in the timbers that support the bumper platform. They were in the cross-beam that holds the platform. The draw-bar sets between the two sills and this beam goes across .the top of the bumpers. I think they are bolted to the bumper beams. The beam across the end is the one I refer to.” On cross-examination: “The piece of wood I refer to as being defective is right across the end of the platform and underneath. I wouldn’t swear that this is bolted to the draft timbers. I didn’t examine to see if it was bolted or not. I didn’t "notice at that time where the draft timbers were. The platform was broken down partly. This timber I speak of was right across the end of the car. Part of the platform was standing up and part of it was down. I can’t exactly tell which part was standing up. It was the part that was next to me as I was going toward the depot. The platform projected from the end of the car door in a manner similar to the way the end of the table projects from the table and this beam was across the end of the platform. Part of the platform was broken off. The platform was not all there. I don’t know how much of it was off. I do not think the pieces which projected out at the side of the car just before the steps come down were there. I don’t know whether the draft timbers were there or not. I didn’t examine the draft timbers. I just examined this one piece. I just crumbled a piece out of the end of the beam.”

Nels Larson, a witness called by appellant, on cross-examination testified in part as follows: “I call those timbers sound. I call it sound (referring to the timber). You might call it a little rotten from water seeping. I saw the car repaired. I saw these timbers taken out; as to soundness these timbers were sound. I have experience in examining different kinds of timber. There was nothing broken in the car.” (The witness then detailed the pieces that were broken and stated that there was nothing broken in the car, other than what he had mentioned.) “Now, in regard to the water sweeping through, and the timber affected by it, what we call the rises of the steps were over it. It was covered. There is nothing that covers the crack. There is a board goes over this place with three long screws and the water can seep in there behind the crack, and this little place you speak of that water seeped into was covered up. This is the only place of the kind that I noticed in the whole piece. I didn’t consider it rotten at the place where the water seeped in.”

Appellee produced upon the trial and offered-in evidence the timbers which were claimed to be defective, and the same were inspected and examined by the jury.

Evidence was adduced by appellant which tended to show that the draft timbers in the car were placed there in June, 1905, and were at that time new and sound; that the car was carefully inspected at the shops of the horse car company at Chicago, on August 2, 1907, and thoroughly repaired; that on August 7th following it was thoroughly and carefully inspected by employes of the appellant company at the Union Stock Yards at Chicago and found to be in good condition, and that a similar inspection was made upon the arrival of the cars at Galesburg on the morning of the accident, with like result. The foregoing evidence is manifestly insufficient to sustain the averments of the declaration that the beams of the car “were rotten, defective and insufficient to hold the bumps,” or that “by reason of defective beams on said car the bumpers were not sufficiently held to prevent the front end of the car from being smashed and jammed by said engine and said car.”

It is obvious that the timber described by the witnesses Duncan and Larson as being doty was the buffer beam which formed the front of the platform, which was not a part of the draft rigging and in no way supported the draw-bar or the draft timbers and would and could not receive the force of the impact of other cars until the coupling had been driven back twelve inches and broken entirely loose from the draft timbers and the front ends of the draft timbers demolished. This being so, the defects in the buffer beam could not have contributed to the accident. It is, however, insisted by counsel for appellee that because the jury saw the timbers which cannot be seen by this court, if anything is lacking in the evidence to sustain the verdict it must be presumed that it was supplied by such inspection. “It has never been held in this state that a jury might return a verdict upon their own knowledge, unsupported by other evidence, whether such knowledge was acquired in or out of court, by. a view or otherwise, and a verdict based exclusively on knowledge so acquired would be set aside for want of substantial evidence to support it.” Seaverens v. Lischinski, 181 Ill. 358.

For the reason that the verdict was manifestly against the weight of the evidence, the judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.


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    John Wiemer, Defendant in Error, v. George W. Temple, Plaintiff in Error.
    1. Replevin—upon what recovery must he predicated. A plaintiff in replevin can only recover upon the strength of his own title and the burden is upon him to establish his right.
    2. Instructions—must not ignore material issue. An instruction which concludes with a direction to find a verdict one way or another, must not exclude from consideration any material issue of the case.
    3. Instructions—must he predicated upon the evidence. Instructions are improper where their hypotheses are unsupported by evidence in the cause.
    Replevin. Error to the County Court of McLean county; the Hon. Rolland A. Russell, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 24, 1908.
    Miles K. Young and Ed Peirce, for plaintiff in error.
    Hart & Fleming, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in replevin by John Wiemer against George W. Temple for the recovery of the possession of a lot of household goods and furniture, the title to which is claimed by Weimer by virtue of a bill of sale from one Albert Henninger. A trial by jury resulted in a verdict and judgment in favor of Wiemer, whereupon Temple sued out this writ of error. The declaration charges the wrongful taking and detention of the property. The pleas upon which issue was joined were of property in the defendant in Albert Henninger and that the chattel-s were held by the defendant in pledge.

There is evidence tending to show the following facts: One William K. Bracken owned a house and lot in Normal, Illinois, which was subject to mortgages aggregating $3,250, together with certain household furniture used therein. The premises were occupied by Temple and were used as a boarding house under a contract with Bracken by the terms of which Temple was authorized if the opportunity. arose to sell the property, both real and personal, for $6,500. In the event of his being able to do so he was to receive as commissions - the sum of $300. Albert Henninger was a real estate broker and had in his hands for sale a farm of 120 acres in Mason county, Illinois, which he was authorized by the owner, George Henninger, his uncle, to-sell at $75 an acre, his commissions to be $1 an acre. The farm was heavily encumbered by mortgages and George Henninger was otherwise indebted to practically the full value of the equity of redemption. Negotiations for the exchange of the two properties were begun between Albert Henninger and Temple acting for the respective owners. Such efforts were unsuccessful and arrangement was thereupon entered into between all the parties including Temple, whereby George Henninger was to deed his farm to Albert Henninger upon condition that Albert and Temple would furnish such sum as might be necessary to pay the unsecured indebtedness of George Henninger; that upon such conveyance the farm should be .traded to Bracken for the Normal property and furnishings. Temple claimed that it was agreed •between him and Albert Henninger that the property so acquired by them should be owned by them equally; that the title to the Normal real estate was to be conveyed to and held by Henninger, and that the title to and the possession of the furnishings should remain in Temple until such time as the entire property could be sold to advantage, when upon an accounting between them Temple was to be charged with one-half of the money advanced by Henninger in futherance of the deal.

Henninger contends that no such agreement was made but that prior to the consummation of the trade he made a conditional offer of sale to Temple of one-half interest in the property; that Temple had never accepted the same or made payment for such interest and that after having made repeated efforts to induce Temple to comply with such conditional sale, he sold the property to defendant in error. Be that as it may, the farm was thereafter conveyed to Albert Henninger who exchanged the same with Bracken for the city property. A bill of sale for the furnishings was made to Henninger and delivered to Temple who remained in possession of the property and continued to use the same in connection with the boarding house until the issuance of the writ herein. At the time when the deed and the bill of sale were delivered Temple, who was sick and unable to be present, wrote to Albert Henninger saying: “In regard to the Normal deal I will say that you had better send me a written statement as to my half interest in that property and after the deal is closed you can give me a deed to a half interest in the equity.” In reply Henninger wrote a letter to Temple which was introduced in evidence as “Exhibit A” and reads as follows:

“Mason City, Illinois, June 21, 1906. George W. Temple, Esq., Bloomington, Illinois,

Dear Sir: I hereby acknowledge that you have an undivided one-half interest in the residence property situated at 306 West Ash Street, Normal, Illinois, and in the furnishings within said residence itemized in a certain bill of sale made to me by W. K. Bracken, that I shall execute a warranty deed to you at such time as a settlement is made of such amount as shall be due me in the acquiring of the property above. To fully protect you I shall have deed made out at once to be delivered to you in case of my death upon a proper accounting. Tours very truly, A. E. Henninger.”

Some time thereafter a settlement was had between Bracken and Temple of their accounts, growing out of the joint operation of the boarding house, in which Bracken allowed Temple credit for $100 upon a balance found to be due him from Temple. On December 1, 1906, Henninger sold the premises and furnishings to Wiemer, the defendant in error. Temple refused to deliver possession either of the house or furnishings, whereupon Wiemer instituted the present action.

It will be seen that the issue as to the title and right to possession of the property replevied at the time of the issuance of the writ was the controlling one in the case, for under Temple’s version of the contract he being at the time the owner of an undivided one-half of the property was a tenant in common with Henninger of the same and his possession was that of both, in which case replevin would not lie even at the suit of Henninger. Cobby on Replevin, sec. 231. It was essential under the pleadings that defendant in error should recover on the strength of his own title and the burden was upon him to establish his right. Pease v. Ditto, 189 Ill. 456. His title, if any, was derived solely from Henninger and was no better.

Conceding that the original agreement was as contended by Henninger, “Exhibit A” tended to show a waiver of the alleged condition that the title was not to pass until the consideration was paid. By the second and third of plaintiff’s instructions the court told the jury that if they believed from the evidence that the terms of the contract were as insisted by Henninger before Temple could claim his goods under such contract it was necessary that he should have paid or tendered the consideration to Henninger, and unless they believed that he did so pay or tender the consideration, no title passed to him by virtue of said contract and their verdict should be for the plaintiff. Such instruction while directing a verdict ignored the question of waiver and was erroneous. By the 7th and 9th instructions the court further directed the jury that if Temple without the knowledge of Henninger received or was to receive either directly or indirectly any compensation from Bracken for services in the trade, then his claim on the property was illegal and invalid. Bracken testified that he told Temple that the contract between them for commissions did not apply to an exchange of the property and that he would pay no commissions and for Temple to get his compensation from the other party. He further testified that he gave Temple the credit for $100 upon his account voluntarily and not as commissions; that Temple had lost money and was in debt to him by reason of having operated the boarding house, and that the credit was in the nature of a gift. Temple testified to the same effect and further that he did not expect any commissions from Bracken. Under the foregoing evidence the court was not warranted in giving the last mentioned instructions which doubtless misled the jury.

For the errors indicated the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baume

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    Emeline Bacon et al., Appellees, v. The Peoria & Eastern Railway Company, Appellant.
    1. Amendments and jeofails—when granting leave after verdict not error. Permitting an amendment alter verdict and before judgment, by which a cause is discontinued as to one party, is not error if the original cause of action remains unchanged and the amendment is in furtherance of justice.
    2. Evidence—when will incompetent to prove ownership. A will devising particular property is not competent to prove ownership thereof in the beneficiaries in the absence of proof of probate.
    Action on the case. Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Greer, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Rehearing denied and opinion modified December 17, 1908.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald, and Prettyman, Velde & Prettyman, of counsel.

      W. R. Curran and Wm. A. Potts, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This suit was originally instituted by Emeline Bacon, executrix of the last will and testament of Edward H. Bacon, deceased, against the Peoria & Eastern Eailway Company, appellant, to recover damages occasioned by the alleged negligence of appellant or its lessee or licensee, the Cleveland, Cincinnati, Chicago & St. Louis Eailway Company, in permitting sparks to escape from a locomotive whereby certain property consisting of a grain elevator, engine, machinery, scales and office was destroyed by fire. Before the trial the original plaintiff was permitted to amend the pleadings by making Emeline Bacon and Edward Harrison Bacon, by Emeline Bacon, his next friend, additional parties plaintiff. Thereafter the cause proceeded to verdict but before the rendition of judgment thereon the plaintiffs were permitted to discontinue the suit as to Emeline Bacon, executrix as aforesaid, and judgment was then entered upon the verdict in favor of Emeline Bacon and Edward Harrison Bacon, by Emeline Bacon his next friend, against appellant for $2,250.

The declaration consists of the first original count and six additional counts which allege in varying phraseology the ownership and possession by appellees or by their tenant of certain described real estate together with the buildings, machinery, etc., situated thereon; that appellant, or its lessee or licensee was operating a certain locomotive engine upon the railroad located near said premises and that it became the duty of appellant and its lessee or licensee to provide said locomotive with the most approved appliances to prevent the escape of fire and to keep the same in suitable order and repair and to so use said locomotive that fire would not be liable to escape therefrom; that appellant, or its said lessee or licensee wholly failed to perform said duty and so negligently and carelessly operated said locomotive that sparks and brands of fire were thrown therefrom to and upon the said premises of appellees whereby the said buildings, machinery, etc., were destroyed.

That the fire which destroyed the elevator and property in question originated from a spark which was thrown from a locomotive of appellant, or of the Cleveland, Cincinnati, Chicago & St. Louis Eailway Company operating a train upon the railroad of appellant as its lessee or licensee, does not admit of any doubt under the evidence in this record. By a special verdict submitted at the instance of appellant the jury found that the spark arrester in the locomotive was defective and further found that the engineer and fireman who operated said engine were competent, but no special finding was made upon the issue as to whether or not said locomotive was operated with reasonable care and skill.

The finding of the jury that the spark arrester was defective is sustained not alone by the fact that the engine emitted unusual and considerable quantities of live sparks, but by the testimony of Charles A. Bromley, a witness called on behalf of appellant who inspected the engine on the night following the day upon which the fire occurred, to the effect that there were some small holes between the plates around the steam pipes and the smoke arch.

As to the manner in which the locomotive was operated the evidence tends to show that the effort of the engineer was more particularly directed in an attempt to make up lost time than to the reasonably careful operation of the engine with reference to emitting sparks therefrom.

The court did not err in permitting an amendment after verdict and before judgment whereby the suit was discontinued by Emeline Bacon, executrix of the last will and testament of Edward H. Bacon, deceased, as plaintiff. The original cause of action remained unchanged and the amendment was in the furtherance of justice.

To sustain their right to recover as owners of the property in question appellees introduced in evidence a paper purporting to he the last will and testament of Lilly Bacon, deceased, a daughter, by a former wife, of Edward H. Bacon, whereby the real estate upon which the property was located was devised to said Edward H. Bacon. Appellees offered no record of the probate of the said paper as the last will and testament of Lilly Bacon, and appellant interposed an objection to the introduction of said paper in evidence upon the ground that no proper foundation had been laid therefor. This objection was overruled and the paper was admitted in evidence. The objection was sufficiently specific and it was error to admit the paper in evidence over such objection without proper proof of its probate as the last will and testament of the alleged testatrix. Hicks v. Deemer, 187 Ill. 164.

Upon the back of the paper appears an endorsement in writing as follows: “This will duly proven, admitted to probate and recorded this 7th day of August, 1905, Jesse Black, Jr., Judge.” Even if this endorsement constitutes proof of the probate of the instrument, it was not offered in evidence. For the error in the ruling of the court admitting the said paper in evidence the judgment must be reversed and the cause remanded for another trial.

Among other errors assigned by appellant is that relating to certain alleged insufficiencies in the proof as to the status of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company as the lessee or licensee of appellant, which was put in issue by the pleadings. Upon another trial appellees will doubtless be able to lay a proper foundation for the admission of secondary evidence as to the true status of said railway company and it is not necessary to prolong this opinion by further discussion of the assignment of error relating to that question.

The judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


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    William T. Haywood, Appellee, v. Dering Coal Company, Appellant.
    1. Evidence—effect of sheriff’s recitals upon return as independent evidence. The recitals of service upon a summons are not substantive evidence in the cause. Held, in this case, that it was error to permit the.summons and the return to be admitted in order to show operation of the mine in question by the defendant.
    2. Evidence—when failure to report accident should not he shown. Where not involved in the issues of the cause, it is error to permit the plaintiff to show that the defendant mine owner failed to report the accident in question to the state inspector having supervision of such mine.
    3. Evidence—competency of X-ray photographs. Upon a proper foundation being made, X-ray photographs are competent to show the extent of the injury.
    4. Evidence—what pari of res gestee. Exclamations and declarations of pain made while under debris are competent as part of the res gestee.

    5. Instructions—when in language of statute should not he given. An instruction is properly refused which incorporates only such parts of the statute as are favorable to the party asking it if it leaves out other portions of the same statute which may be favorable to the contention, of the opposite party.
    6. Instructions—must not give undue prominence to particular evidence. An instruction is improper which gives special and undue' prominence to particular evidence.
    7. Verdict—when excessive. A verdict of $2,500 rendered in an action for personal injuries is excessive, it appearing that the plaintiff as a result of the accident in question suffered intense pain in his back, legs and feet at the time of and for some time subsequent to his injury; that at the time of his injury he was earning $4 a day; that he remained in bed six weeks and was only able to move his hand; that for about three weeks he was in a chair and after that was able to get around on crutches; that he used the crutches until warm weather; that on a certain day, some time after the accident, he was employed at the mine as a check weighman; that at the end of such day his back was very painful and his ankle was also painful and swollen; that he could not move as he did before the injury because of the pain, and that by reason of his injury the amount of his wages became less.
    Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Lane, Cooper & Miller, for appellant.
    L. V. Hill and Hogan & Wallace, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by William T. Haywood, appellee, against the Dering Coal Co., appellant, to recover damages for personal injuries alleged to have been sustained by reason of the wilful violation by appellant of certain provisions of the Mines and Miners Act. Upon a trial by jury there was a verdict and judgment against appellant for $2,500. The case was submitted to the jury upon two- counts of the declaration. The first count charges, in substance, that the mine examiner of appellant wilfully failed to visit the mine before the men were permitted to enter to work therein, and wilfully failed to inspect all places where men were expected to pass or to work, and to observe whether there were any unsafe conditions in the rooms or roadways in the mine, and wilfully failed to inscribe with chalk on the walls of the working place of appellee or the roadways in said mine, the month and day of the month of his visit, and wilfully failed to place a conspicuous mark at the entrance of all roadways or working places, where dangerous conditions existed, as notice to all men to keep out, and wilfully failed to report his finding to the mine manager; and that appellant wilfully permitted appellee to enter said mine to work, not under the direction of the mine manager, at a time when unsafe conditions existed therein; and that the mine examiner wilfully failed to make a detailed record of the condition of the mine as he found it in a book kept for that purpose, as provided in Section 18 of the Mines and Miners Act. The second count charges the mine manager of appellant with a wilful failure to see that all dangerous places above and below were properly marked, and with a wilful failure to see that danger signals were displayed where required. To the declaration appellant pleaded the general issue and also filed a special plea, averring that appellee was not in its employ as a coal miner or in any other capacity at the time of his alleged injury; that appellant did not then own, operate and possess the coal mine described in the declaration, and that it was not then engaged in mining and removing coal from said mine. The record does not disclose that appellee joined issue upon the special plea.

On September 18, 1906, and for about two years and a half prior thereto, appellee was employed as a coal miner in a coal mine known as Mine No. 24 located at Witt, in Montgomery county. At half past six o ’clock on the morning of that day he entered the mine for the purpose of resuming his work, in driving the entry at the face of the sixth east entry on the north side, and while he was walking along said entry, and at a point near a coal car upon the track in said entry, loose rock and slate in the roof of the entry fell upon him causing the injuries complained of. The evidence tends to show that no conspicuous marks were then placed at the entrance of said entry to indicate that any dangerous condition existed therein. The evidence further tends to show that at or near the place where appellee was injured a cross-cut had been driven a distance of about seventeen feet toward the fifth east entry, which entry had not then been extended up to that point. The evidence further tends to show that there were no marks either on the walls or on the roof of the entry at the place where appellee was injured, indicating that the mine examiner had inspected that portion of the entry or that any dangerous or unsafe conditions existed there. It is uncontroverted that the roof of the entry at the place in question was unsafe and dangerous and was not supported by props or cross-bars.

It is insisted on behalf of appellant that the place where appellee was injured was his working place and that as appellee had been directed some time previous to his injury to prop the roof of his working place, and as conspicious marks indicating dangerous conditions in the roof had then been placed by the mine examiner, appellant is not liable. The evidence tends to show that the working place of a miner extends from the face of the coal to the rear of the car when in position to be loaded, or a distance of sixteen to seventeen feet from the face of the coal. The evidence further tends to show that when men are engaged in driving an entry and a cross-cut at the same time they usually work in both places alternately, and that under such conditions the working place of the men includes the face of the entry and the cross-cut and the space between the face of the entry and the cross-cut. The contention of appellant in this respect is predicated wholly upon the fact that appellee was injured at the place where his car was standing, immediately opposite the cross-cut which had previously been driven by appellee and his buddy. The evidence, however, tends to show that the car was then standing forty or fifty feet from the face of the entry which appellee was engaged in driving, and that appellee and his buddy had completed their work in the cross-cut about a week previous to the day appellee was injured. The evidence further tends to show that the props which miners are required to set to support the roof of their working place are only intended to serve a temporary purpose while the work is being prosecuted, and that thereafter the duty of setting props and cross pieces for the purpose of permanently supporting the roof of an entry, as a road-way or passage-way in the mine, devolves upon the mine operator.

We think the jury were justified in finding that the place where appellee was injured was not his working place and that the mine operator had wilfully failed to comply with the provisions of the statute in the particulars alleged in the declaration.

The evidence bearing upon the question as to whether or not appellant was operating the mine in which appellee was injured is conflicting, and we should not be disposed to interfere with the verdict upon that issue if the court had not admitted incompetent evidence offered by appellee over the objection of appellant.

The summons in the case and the return of the sheriff thereon, showing that the same had been served upon appellant, did not in the least tend to show that appellant was in possession of the mine in question, and the admission of the summons and return in evidence could not have been otherwise than prejudicial to appellant. Whether or not Edward Bottomlee was the superintendent in the employ of appellant, or of the Burnwell Coal Company, was a controverted issue affecting the question whether the mine was operated by appellant or by said Burnwell Coal Company. The return of the sheriff that he had served the writ upon appellant by reading the same to Edward Bottomlee, superintendent of appellant, and at the same time delivering to him a true copy of said writ, amounted to nothing less than an ex parte unsworn statement by the sheriff of the county in his official capacity, that Bottomlee was the superintendent of the mine in the employ of appellant.

The witness W. W. Williams, a state mine inspector, called on behalf of appellee, was permitted to testify over the objection of appellant, that the company operating the mine at the time appellee was injured had made no report of such injury to Mm. The evidence of this witness in that regard was foreign to any issue in the case, and its admission, taken in connection with the statement by one of the counsel for appellee, that it tended to show a disposition on the part of appellant to conceal the accident and what occasioned it, we think was harmful to appellant.

The court did not err in admitting in evidence the X-ray photographs of the bones of appellee’s foot after his injury and of the foot of a person showing the normal position of similar bones. The proper foundation was laid for the admission of such evidence within the rule announced in Chicago City Ry. Co. v. Smith, 226 Ill. 178.

Exclamations and declarations made by appellee while he was under the fallen rock and slate relative to his pain and suffering and his situation there, were properly admitted in evidence as a part of the res gestæ. Springfield Ry. Co. v. Hoeffner, 175 Ill. 634; Muren Coal & Ice Co. v. Howell, 217 Ill. 190.

The several exhibits consisting of pay slips and envelopes tending to show that the mine in question was operated by appellant were properly admitted in evidence, so far as they related to the mine in question known as Mine No. 24, and so far as they related to transactions at or about the time appellee was injured, but such of the exhibits as related to transactions connected with the operation of the mine known as Mine No. 22, and so far as such exhibits related to transactions with the mine in question long subsequent to the injury to appellee, were improperly admitted in evidence.

Appellee’s first instruction as offered and given is wholly inconsistent with appellee’s contention that he was injured in a place other than Ms workmg place, where no duty devolved upon him to prop the roof. This is the contention most strongly urged by appellee in this court in support of his right to a recovery. The instruction as offered and given was not tantamount to an instruction authorizing a verdict for appellee upon proof of the allegations of his declaration, because it recited only a portion of the section of the statute, the wilful violation of which was alleged in the declaraton.

While it has been held not to be error to give an instruction in the language of the statute (Reisch v. The People, 229 Ill. 574), we know of no authority which justifies a party in incorporating in an instruction only such portions of the statute as are conceived to be favorable to his contention, and excluding other portions of the same statute which may be favorable to the contention of the opposite party. We perceive no fault in appellee’s second instruction. As we understand the law, the duty devolving upon a mine operator not to permit persons to enter the mine to work therein, except under the direction of the mine manager, until all known dangerous conditions shall have been made safe, relates to such dangerous conditions existing as well in the miner’s working place as elsewhere.

The fourth instruction given at the instance of appellee singles out and' gives undue prominence to certain evidence offered by appellee bearing upon the issue as to whether or not appellant operated the mine in question.

Appellee’s fifth instruction omits the requirement that the wilful failure of appellant to observe the provisions of the statute, as alleged in the declaration, must be shown to have been the proximate cause of his injury. Appellee’s sixth instruction sufficiently advised the jury what constituted a wilful violation of the provisions of the statutes, within the meaning of the law, and it was unnecessary to give appellee’s eighth instruction in abstract form relating to the same subject.

The damages resulting from an injury caused by the wilful failure of a mine operator to comply with the provisions of the statute are limited to the direct pecuniary damages sustained. The ninth instruction does not accurately advise the jury as to their province in determining the amount of damages to be awarded to appellee. Appellee’s tenth instruction states the rule in that regard more accurately, although it directs the attention of the jury to some elements of damage not shown by the evidence. The third instruction as offered by appellant was as follows:

“The court instructs the' jury that if you believe from the evidence, in this case, that the Burnwell Coal Company was the owner of and in the possession of and operating the coal mine in question on the 18th day of September, 1906, then you must find the defendant not guilty.’'’

This instruction the court modified by inserting the words “a preponderance of” after the word “from” and before the word “the”, and gave it to the jury as so modified. It is urged in criticism of this instruction as modified by the court, that it changed the burden of proof and cast it upon the appellant, when, under the issues, the burden of proving that the mine in question was operated by appellant was upon appellee.

A majority of the court, the writer not concurring, are of the opinion that the instruction was improperly modified. The writer is of the opinion that by the instruction as offered, appellant assumed the burden of proof upon that issue, and that the modification by the court affected no change in the instruction in that regard; that by the instruction as offered the jury was called upon to weigh the evidence in determining that issue and that the phraseology of the instruction as offered cast the burden of proof upon the appellant. In C. & E. I. R. R. Co. v. Cleminger, 77 Ill. App. 186, it was held that an objection to an instruction which used the word “evidence” instead of the term “preponderance of evidence” was fanciful rather than substantial. If the instruction had advised the jury that the burden of proving that appellant was operating the coal mine in question was upon appellee, and that if appellee had failed to establish that fact by a preponderance of the evidence, they should find appellant not guilty, it would, in the opinion of the writer, have more properly expressed the intention of counsel for appellant when the instruction was drafted.

It is lastly urged that the damages awarded to appellee are excessive. Appellee testified that he suffered intense pain in his back, legs and feet at the time of and for some time subsequent to his injury; that at the time of his injury he was earning $4 a day; that he remained in bed six weeks and was only able to move his hands; that for about three weeks he was in a chair and after that was able to get around on crutches; that he used the crutches until warm weather; that on December 22, 1906, he was employed at the mine as a check weigh man; that at the end of the day his back is very painful and his ankle is also very painful and swollen; that he could not move as he did before the injury because of the pain. Dr. Lockhart, the physician who attended appellee, testified that when he was called to see appellee he examined him and found that his back was sprained and his left ankle was fractured in the joint; that the pain in appellee’s back was rather severe, but he did not complain of much pain in his ankle; that there was nothing noticeable in the way of injuries in his back; that at first for about a week he visited appellee twice a day and after that not so often; that he thought the injury occasioned pain for about a week or so; that he never examined appellee’s back since he discontinued his visits; that he saw appellee’s ankle in the spring or summer of 1907, and found nothing the matter with it, except that it was stiff; that he was inclined to think the stiffness of the ankle would be permanent, but was not sure; that he found no evidence external or otherwise of injury to the back; that there was no shortening of the foot or leg, and that the fractured parts had all united. It further appears from the evidence that since appellee commenced work as a check weigh man he has earned about $3.60 a day. A careful consideration of the evidence bearing upon the question of appellee.’s injuries impels us to the conclusion that the sum of $2,500, awarded to him as damages for such injuries, is excessive. There is no evidence in the record that appellee paid, or that he became liable to pay, anything for medical attendance or nursing. For the reasons stated the judgment of the circuit court will be reversed and the cause remanded. The cost of the additional abstract furnished by appellee will be taxed against appellant.

Reversed and remanded.


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    A. T. Shadle, Appellant, v. Charles G. Wolf, Appellee.
    1. Pleading—what determines whether plea is in abatement or in bar. Whether a plea is in abatement or in bar is to be determined not from the subject-matter of the plea but from its conclusion. The advantage of relief sought by- the plea determines its character.
    2. Pleading—when plea sets up matter in abatement. A plea which does not dispute the justness of the plaintiff’s claim but which sets up matter which necessarily operates as an objection to the mode of asserting such claim, and the judgment entered is one which leaves the plaintiff to renew his action in another form, is a plea not in bar but in abatement.
    3. Pleading—conclusion of plea in abatement. The proper conclusion of a plea in abatement is that the writ and the declaration be quashed.
    Assumpsit. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    A. E. Campbell, for appellant.
    H. Leonard Jones, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit to recover the amount of a promissory note for $180 with interest thereon. The declaration consists of the common counts and one special count which avers that defendant on July 25, 1900, gave his certain promissory note for $180 to the City Bank of Ogden, Iowa, and that plaintiff, at the request of defendant, became surety thereon; that afterwards, on July 25, 1901, the said note having become due, plaintiff paid the 'same. To this declaration defendant filed his plea averring that prior to the filing of the declaration and prior to the maturity of said note, to wit, on February 15, 1901, the plaintiff and defendant were partners carrying on a certain business in the county of Boone in the State of Iowa, and as such partners were the owners of certain machinery and other property used in conducting the partnership business; that on the day last aforesaid the plaintiff and defendant agreed to dissolve said partnership and that the same should be dissolved upon the liquidation of the partnership affairs; that as to the manner of said liquidation it was agreed that the plaintiff should take all of the partnership property and collect all accounts due the firm; that out of the proceeds of said partnership he should pay all partnership debts, including the note described in the declaration, and that after the sale of the partnership property, the collection of partnership accounts and the payment of partnership debts, including the payment of said note, he should pay the defendant for his interest in the partnership property one-half of the amount remaining. The plea further avers that since said agreement was made the plaintiff has collected more than enough of said partnership accounts, and sold more than enough of said partnership property, and received as the proceeds thereof more than enough money to satisfy all the partnership indebtedness, including the payment of the said note, and now has in his control and possession a considerable sum of money, one-half of which sum of money the defendant is entitled to under said agreement; that since the making of said agreement the plaintiff has not made or had any accounting with the defendant concerning the said.money and proceeds, and refuses to make or have any accounting thereof with the defendant. The plea concludes with a verification and prays judgment of the said declaration and that the same may be quashed. To this plea a demurrer interposed by plaintiff was overruled by the court and leave given plaintiff to reply. Thereafter leave to plaintiff to reply was set aside and judgment was entered on the demurrer to said plea, and it was ordered that the writ be quashed and the suit be dismissed at the costs of the plaintiff.

Waiving the question as to whether or not, upon the record in the case, the plaintiff can be said to have abided his demurrer so as to have the judgment of the court thereon reviewed, upon a consideration of the merits of the controversy here urged we are of opinion that the plea in question is in form and substance a plea in abatement; that the demurrer thereto was properly overruled and that the judgment as entered conforms substantially with the proper practice in such cases.

Whether a plea is in abatement or in bar is to be determined, not from the subject-matter of the plea, but from its conclusion. The advantage or relief sought by the plea determines its character. Pitts Sons’ Man’f Co. v. Commercial Nat. Bank, 121 Ill. 582.

The matters alleged in the plea here involved disclose an unsettled partnership account beween the parties and the existing agreement upon the part of plaintiff to pay the note in question, not by virtue of his liability as surety, but as a partnership transaction and out of the proceeds of partnership property. The remedy, therefore, available to either party is in a court of equity. Burns v. Nottingham, 60 Ill. 531; Newman v. Tichenor, 88 Ill. App. 1. The plea does not dispute the justness of the plaintiff’s claim, but sets up matter which necessarily operates as an objection to the mode of asserting such claim, and the judgment entered leaves the plaintiff to renew his action in another form. These are among the characteristics which distinguish the plea in question as a plea in abatement from a plea in bar.

The generally prescribed form of conclusion in a plea in abatement in actions similar to the one at bar is that the writ and the declaration be quashed. The plea here involved concludes with a prayer for judgment of the declaration and that the same be quashed. We do not regard the departure in the respect indicated of sufficient importance to affect the substantial character of the plea as a plea in abatement.

The demurrer to the plea was properly overruled and the judgment of the Circuit Court will be affirmed.

Affirmed.