author: Mr. Justice Taylor Mr. Presiding Justice Thomson

text:
    Mary E. Mercer, Administratrix of the Estate of Charles Mercer, Deceased, Appellant, v. Frederick E. Meinel, Appellee.
    Gen. No. 24,426.
    1. Death, § 18

      —when grantor of property not liable for death of son of grantee’s tenant resulting from defect in property. The grant- or of improved property, which at the time of its sale, contained a water heater which had been installed without a permit as required by ordinance, and which had a defective ventilation pipe, was not liable for the death of the son of the tenant of a grantee, caused by the inhaling of gas which escaped because such pipe ended in the bathroom in question, instead of having an exhaust on the roof.
    2. Death, § 18*—when grantor of property not liable for death of son of grantee’s tenant resulting from defect in property. A hot-water heater in a bathroom was a fixture and went with the realty at a sale of the latter, and therefore the grantor was not liable for the death of the son of a tenant of his grantee, caused through defects in a pipe connected with such heater, the grantor having made no representation whatever to his grantee.
    '3. Death, § 18*—when grantor of property not liable for death of son of grantee’s tenant resulting from violation of ordinance by grantor. The fact that there was an ordinance in existence at the time of the sale of the real estate in question, requiring a permit for the installation of a water heater in a private house, did not give rise to any obligation on the grantor so as to render him liable for the death of the son of a tenant of the grantee caused by an improper use of such heater and its appliances, which had been installed without the permit required by such ordinance, because after the sale the ordinance bound the grantee but not the grantor.

      Appeal from the Circuit Court of Cook county; the Hon. Charles ■ M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    Chilton P. Wilson, for appellant.
    Beach & Beach, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, whose minor son had been killed by inhaling carbon monoxide gas, emitted by an alleged defective water heater in the bathroom at their home, brought suit as administratrix of his estate against the defendant for damages. At the close of the plaintiff’s evidence the* trial judge directed a verdict for the defendant. From, a judgment upon that verdict this appeal is taken.

The declaration contained three counts. The first count alleged, inter alia, that on January 1, 1914, the defendant owned the premises at 535 North Albany avenue, Chicago, and installed therein a water heater in the bathroom; that said heater had an exhaust or ventilating pipe running from the top and a burner to be lighted to heat the water for bath purposes; that the ventilating pipe from the heater ran up in a corner of the bathroom and ended inside of the bathroom below the ceiling and behind the flush box so that on entering the bathroom it could not be seen; that the exhaust or ventilating pipe ended inside of the bathroom; that when the heater was lighted it consumed the oxygen and other parts of the air and gave off carbon and other material in the bathroom and was thereby installed, in a negligent and careless manner so as to be dangerous for the purposes for which it was to be used; that the defendant occupied the premises for several months prior to January 1, 1914, with said heater so installed and knew its dangerous condition; that on July 23, 1914, the defendant sold the premises to Charles Koeher without informing him of the manner in which said heater was installed, or that said exhaust pipe ended in the bathroom or of the dangerous condition thereof; that on October 12, 1914, Koeher leased the premises to the plaintiff and her family who thereafter occupied them as a dwelling; that on August 29, 1915, while the heater was lighted and heating water for the purpose for which it was intended, the said Charles Mercer, son of the plaintiff, who was in the exercise of care and takirig a bath in said room, was poisoned and killed by carbon monoxide gas generated in said bathroom by reason of the careless and negligent manner in which said heater was installed.

The second count alleged, inter alia, that at the time the heater was installed there was an ordinance providing that the ventilating pipe should extend to a chimney flue or opening to carry out escaping gas or fumes, and that the heater was installed contrary to provisions in the ordinance.

The third count alleged, inter alia, that the deceased was poisoned by carbon monoxide gas from the heater by reason of the heater not being installed as required by the ordinance and by reason of the careless and -negligent manner in which the heater was installed. The declaration was demurred to and the demurrer overruled. A plea of the general issue was then filed.

The premises in question were known as 535 North Albany avenue, Chicago. About the end of July, 1914, the defendant, who up to that time owned the premises in question, sold them to one Charles Koeher. Just prior to purchasing them Koeher made an examination of the premises. The defendant, after selling them to Koeher, rented them from him for several months. The house had been built by the defendant. On October 12, 1914, Koclier, who at that time owned the premises in question, by written lease, rented them for dwelling purposes to Mary E. Mercer and her husband, from November 1, 1914, until April 30, 1916, for the sum of $468. On the 5th of November, 1914, the defendant and his family moved out and the plaintiff and her family moved in.

The only bathroom in the house was on the second floor. It contained a bathtub; an instantaneous crescent type Humphrey hot-water heater, to which was attached an exhaust pipe; toilet bowl; a ventilating sewer pipe; flush tank, several inches below the ceiling, and a small gas pipe. The bathroom measured 4 ft. 6 in.' by 5 ft. 6 in. On the north side of the room, owing to a slanting roof, the wall was only 3 feet high; on the other side of the room the ceiling was about 8 feet high. As you entered the bathroom you faced north. At the right of the bathtub was the hot-water heater. The only window in the bathroom was above the bathtub in the slanting part of the roof. An exhaust pipe, 3 inches in diameter, extended from the heater up along the east wall towards the ceiling. It was attached to the top- of the heater and ended in the southeast corner of the bathroom over or behind the flush tank. It had no connection with the outer air. Above it, or in that general area, there was a hole in the ceiling; it was slightly larger than the exhaust pipe. Kocher testified that the exhaust pipe went through the ceiling. Some witnesses stated that the end of the pipe was difficult to see. The heater was used for the purpose of producing hot water for use in the bathtub. It had been put in, some years previously, by the defendant at a time when he owned the premises. The plaintiff testified that the defendant told her “that they had used it for about 12 or 13 years, or something like that.”

On August 29, 1915, at about 3:30 p. m., Charles Mercer, about 14 years of age, son of Mary E. Mercer, the administratrix and plaintiff, went to the bathroom at the request of his mother, who had already-lighted the heater, to take a bath. Shortly afterwards, when downstairs, she heard water dropping and thinking something was wrong, called her son, but received no answer. She then went up to the bathroom and found him sitting up- in the bathtub, dead. The window and the door had been closed, the heater was lighted and the water was running. The coroner’s physician who examined the body of the boy and examined the place of his death gave it as his opinion that death was caused by the inhalation of carbon monoxide gas, or gas poison. The coroner’s jury found that he died “from poisoning by carbon monoxide gas generated by instantaneous water heater in the bathroom of home on August 29, 1915.”

An ordinance of the City of Chicago, which went into effect April 12, 1911, was offered in evidence. It provided that a permit should be obtained in order to install a hot-water heater in a private house. The evidence further showed that no permit for the heater in question had been obtained.

On February 28, 1916, the plaintiff, as administratrix in consideration of $100 and an allowance of the rent at $26 a month for “something like September, October and November” covenanted not to sue Kocher on account of the death of her son.

At the close of the plaintiff’s evidence, the defendant requested" the court to instruct the jury to find the defendant not guilty. The instruction was given and the jury returned a verdict accordingly. The plaintiff then made a motion for new trial, which was overruled.

This is a case of new impression. There are many cases pertaining to the sale of personal property and the liability of the vendor to third persons. Here, however, the heater was a fixture and therefore part of the real estate sold by the defendant to Kocher. The question arises, is the grantor liable to the tenant of his grantee 1 Of course there is ho privity of contract. Some generic duty must be found to predicate liability upon. From the long line of decisions beginning with Levy v. Langridge, 4 M. & W. 337, and Winterbottom v. Wright, 10 M. & W. 109, down to Huset v. J. I. Case Threshing Mach. Co., 120 Fed. 865, the general principle may be deduced—as far as dealing in personal property is concerned—that a vendor is not liable to third parties, who have no contractual relations with him, for negligence in the sale of personal property; but if a vendor sells personal property which he knows to be dangerous, without giving notice of its dangerous qualities, he may become liable to any one who is injured thereby, where the injury might have been reasonably expected. In Huset v. J. I. Case Threshing Mach. Co., supra, the court held that a complaint, which set forth, that where a defendant manufactured and sold a threshing machine which contained a certain metal cylinder which was set with rows of steel spikes and which cylinder had a sheet-iron covering so placed that when the machine was in use it would be walked upon by the person operating the machine, and the covering being without sufficient support and incapable of sustaining enough weight, collapsed, when subjected to the weight of the plaintiff, a third person, and injured him, stated a good cause of action. In Levy v. Langridge, supra, the father of the plaintiff bought a gun, for the use of himself and his son, from the defendant. The defendant warranted the gun to have been made by one N. and to be a good, safe and secure gun. The evidence showed that the gun was not made by N. and was also poorly manufactured and unsafe and dangerous, which the defendant knew at the time of the sale. The son used the gun and in consequence of its insufficient construction and material it burst and injured him. It was held in the Court of Exchequer that the judgment in favor of the son and against the defendant should be affirmed on the ground stated by Parke, B.: * ‘ That as there is fraud and damage, the result of that fraud not from an aet remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured.”

It has been held in a number of cases that the manufacturers and vendors of drugs, and various preparations for human consumption, may be liable to third persons for negligence. Thomas v. Winchester, 6 N. Y. 397; Norton v. Sewall, 106 Mass. 143. The reason for liability in such cases is that the vendor may be assumed to know that the vendee would not suffer but rather those who became purchasers of the drugs for personal consumption.

In the instant case, the evidence shows that the hot-water heater, as it was fixed in the bathroom and when sold as part of the premises, was by itself entirely innocuous. Certainly it was not a nuisance per se. It constituted a small portion of the real estate which the defendant sold to Kocher. The only warranty on the part of the defendant, we may "assume, was that of title. In fact the evidence does not show that any representations whatever were made by the defendant to his grantee. Thus distinguishing it from Levy v. Langridge, supra, and similar cases. In making the sale to Kocher there was no obligation on the defendant to take him about the premises and give him information. Generally speaking, so far as Kocher is concerned, the rule of caveat emptor would apply. The evidence does show, however, that Kocher did go over the building and to some extent examined the bathroom, and further, that there was no concealment of any kind on the part of the defendant. Further, there is no evidence of knowledge of imminent danger on the part of the defendant. He had used the heater for some time without hurt. It appears, therefore, that the facts in the instant case are not subject to the principle applied in Levy v. Langridge, supra; Huset v. J. I. Case Threshing Mach. Co., supra, and what may be called the “Drug” cases. The defendant was guilty of no fraud; he made no misrepresentation; was not guilty of wilful concealment; he did not, as far as the evidence shows, have any knowledge of an imminent danger, and the mere act of selling the house and lot to Kocher was not, in its nature, necessarily fraught with danger to the lives of others. We do not wish to imply, however, that, if all those elements had been present, there would have been liability, but merely hold that, at least, in their absence, under the circumstances of the case, there is no liability.

The fact that there was an ordinance requiring a permit for installing such a heater did not give rise to any obligation on the defendant towards the plaintiff. After Kocher bought the property from the defendant, the ordinance bound him but not the defendant. Kocher’s failure to obtain a permit might have rendered him, under certain circumstances, liable to the plaintiff, but after Kocher bought the property the defendant was not bound to bring the heater within the ordinance.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Presiding Justice Thomson

especially concurring.

I concur in the decision reached in this case, but I am not able to agree with all that is said in the foregoing opinion.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Pilsen Brewing Company, Appellant, v. William Wallace, Appellee.
    Gen. No. 24,492.
    1. Corporations, § 305

      —when president not individually liable under corporate contract made under wrong name. The president of a corporation was not individually liable under a contract which the secretary executed, with the knowledge of the president, on behalf of such, corporation in its new name in the mistaken belief that the name had been legally changed.
    2. Corporations, § 305*—when statute does not make president individually liable under corporate contract made under wrong name. Section 18 of the Corporation Act (Hurd’s Rev. St. 1917, p. 702, J. & A. U 2435), providing that any person or persons being, or pretending to be, an officer or agent, or board of directors, of a corporation, who, etc., shall assume to exercise corporate powers without compliance with the provisions of the act before the stock shall be all subscribed in good faith, shall be jointly and severally liable for debts and liabilities contracted by them in the name of such corporation, etc., had no application so as to make a president individually liable where the secretary, with the president’s knowledge, executed a contract on behalf of a corporation in its new name under the mistaken belief that such new name had been legally acquired.
    3. Corporations, § 305*—when president not individually liable under corporate contract made under wrong name. Where a contract was executed by the secretary of a corporation, with the knowledge of the president, under the name of “Chicago Grains and Feed Company,” which name they mistakenly believed had been legally adopted as the new name, it was obviously the intention that such contract should be with the corporation of which such president and secretary were in fact the officers, that is, the corporation under its legal name of Farmers Grain and Feed Company, and such contract was, therefore, in the eyes of the law, made by the corporate entity known as the “Farmers Grain and Feed Company,” and the president was not individually liable under such contract.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    Vincent D. Wyman, Harry O. Ejnne and Charles E. Carpenter, for appellant.

      Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This appeal is from a judgment against the plaintiff for costs. The plaintiff brought an - lion of assumpsit against William Wallace, the defendant, and one R. D. Beaird. In addition to the common counts in assumpsit the plaintiff filed an additional count setting up the following:

That on October 1, 1912, the defendants were officers of a pretended stock corporation, Wallace being president and Beaird being secretary; that each was a director of the pretended stock corporation known as the Chicago Grains and Feed Company; that the defendants for a period of 2 years thereafter held out to the plaintiff and others that the pretended stock corporation was a duly organized corporation under the laws of the State of Illinois; that on October 1, 1912, the plaintiff entered into a written contract with the defendants in the name of said pretended corporation in and by which said contract the plaintiff agreed to sell the said pretended corporation, and the latter agreed to purchase, certain brewers’ wet grains produced by the plaintiff at a certain price; that each of the defendants as such directors and officers of said pretended corporation participated in and knowingly authorized the execution of said contract on behalf of said pretended corporation and did then and there, contrary to the form of the statute, assume to exercise corporate powers and use such corporate name, to wit, Chicago Grains and Feed Company, of said pretended corporation without complying with the provisions of the statute in such case provided; that no charter to conduct said pretended corporation known as the Chicago Grains and Feed Company has ever been issued by the Secretary of State and no charter or certified copy thereof has ever been filed for record in the office of the recorder of deeds in Cook county; that pursuant to said contract the plaintiff delivered to said pretended corporation certain merchandise in the value of $5,000; that by means of these premises and under the statute the defendants became liable to pay said amount to the plaintiff.

The defendant, Wallace, was served and appeared. He pleaded the general issue. A jury was waived and the cause was tried before the court. All the evidence is contained in a stipulation of facts which is substantially as follows:

“The Farmers Grain and Feed Company was a corporation organized under the laws of the State of Hlinois, with a capital stock of One Hundred Fifty Thousand Dollars ($150,000). The corporation minute book shows that on or about June 18,1912, a resolution was adopted at a meeting. on that date of the stockholders of the Farmers Grain and Feed Company to change the name of the corporation to Chicago Grains and Feed Company, but no certificate of change of name was ever prepared or filed in the office of the Secretary of State of Illinois, or in the Recorder’s office of Cook County, Illinois. * # * After June 18, 1912, the corporation, through its officers, did business under the new name of the Chicago Grains and Feed Company. - * * *

"‘‘The Pilsen Brewing Company made a written contract with the so-called Chicago Grains and Feed Company on or about the 1st day of October, 1912, in which .the so-called Chicago Grains and Feed Company agreed to purchase from the Pilsen Brewing Company all of the brewer’s wet grain produced by it * * * from the 1st day of October, 1912, to the 30th day of September, 1915. * * * The so-called Chicago Grains and Feed Company was Indebted to the Pilsen Brewing Company at the date of the beginning of this suit in the sum of Four Thousand Four Hundred Seventy-six and 80/100 Dollars ($4,476.80) for grains dalivered under the above mentioned contract,

“William Wallace, the defendant, became on May 26; 1911, and thence remained a stockholder in the Chicago Grains and Feed Company, and was president and director and one of the active managing officers of the same until June 10,1913, at which date he resigned as president and director of the company; during all of said period he was the owner of 1336 shares of capital stock of the Chicago Grains and Feed Company of the par value of One Hundred Dollars ($100.00) each. It is admitted that the contract referred to in this stipulation was signed by Robert D. Poaird as secretary of the Chicago Grains and Feed Company, with the knowledge and consent of William Wallace, the defendant herein. The Pilsen Brewing Company continued to deal with the Chicago Grains and Feed Company but had no knowledge or information as to what steps had been taken leading to the use of the new name of the Chicago Grains and Feed Company. * * *

“It is further stipulated that an involuntary petition in bankruptcy was filed against the Chicago Grains and Feed Company on the 5th day of September, 1913, and an adjudication in bankruptcy was entered thereon, and that the plaintiff in this suit filed its claim against said Company in said bankruptcy proceeding, and received thereon a dividend of five per cent, which amount has been credited on the original claim in fixing the amount due at the date of the beginning of this suit.”

On February 11,1918, the cause having been submitted to the trial judge, without a jury, he entered judgment that the plaintiff take nothing by its suit, and that the defendant recover his costs.

It is the theory of the plaintiff that although the corporation known as the Farmers Grain and Feed Company was duly incorporated under the laws of the State of Illinois, yet, inasmuch as the effort on the part of that corporation to change its name to the Chicago Grains and Feed Company was not legally consummated by filing the certificate with the Secretary of State and the recorder of Cook county, and as the written contract in question of October 1, 1912, for the purchase and sale of certain grains, was made in the name of the Chicago Grains and Feed Company, the defendant, Wallace, who was president and a stockholder of the Farmers Grain and Feed Company, was personally liable. The liability it is contended arises as a result of section 18 of the Corporation Act (Hurd’s Rev. St. 1917, p. 702, J. & A. If 2435). The language of that section is as follows: “If any person or persons being, or pretending to be, an officer or agent, or board of directors, of any stock corporation, or pretended stock corporation, shall assume to exercise corporate powers, or use the name of any such corporation, or pretended corporation, without complying with the provisions of this act, before all stock named in the articles of incorporation shall be subscribed in good faith, then they shall be jointly and severally liable for all debts and liabilities made by them, and contracted in the name of such corporation, or pretended corporation. ’ ’

The foregoing act went into force July 1, 1872. The act, providing for changing the name of a corporation, provides that after a favorable two-thirds vote it is necessary that a certificate thereof, verified by the affidavit of the president and under seal of the corporation, should be filed in the office of the Secretary of State and a similar certificate filed for record with the recorder of deeds of the county where the principal business office of such company is located. Hurd’s Rev. St. 1917, p. 712 (J. & A. A 2495 et seq.).

We do not agree with the contention of the plaintiff that liability in this case arises under section 18. Construing the section in question, Mr. Justice Magruder, in Loverin v. McLaughlin, 161 Ill. 417, used the following language:

“Statutes should be so construed as to give them a reasonable meaning, and should not be so interpreted as to lead to absurd consequences.” In the instant case, in the eyes of the law, the contract in question was made by the corporate entity known as the Farmers Grain and Feed Company. Although the written contract of October 1, 1912, for the purchase of the “grains” was signed “Chicago Grains and Feed Company,” by Robert D. Beaird, with the knowledge of the defendant, William Wallace, obviously it was the intention that the contract between the parties should be between the plaintiff and the corporation of which the defendant was president and Beaird was secretary, that is, the Farmers Grain and Feed Company. The defendant and Beaird assumed to exercise corporate power because of the legal existence of the Farmers Grain and Feed Company. It may be true that they thought that the name of the Farmers Grain and Feed Company, owing to the action of the stockholders of that company, had been changed to the Chicago Grains and Feed Company. In that, however, they were mistaken. But they were making no false pretenses, no wilful misrepresentation; they were endeavoring to act and in law acting as the authorized officers of a legally existing corporation. There is no doubt that if the plaintiff had brought suit against the Chicago Grains and Feed Company it would'have been entitled to recover against the assets of the Farmers Grain and Feed Company. Also, if it had begun suit against the Farmers Grain and Feed Company it would have been entitled to recover. In either case the Farmers Grain and Feed Company would have been estopped to deny liability. Clement v. City of Lathrop, 18 Fed. 885. In the latter case the court .said: “It has long been settled that it is not necessary in order that a corporation be bound by its contracts that they should be made in its exact corporate name.” Melledge v. Boston Iron Co., 59 Mass. 158; Gifford v. Rockett, 121 Mass. 431. It follows, therefore, that if in reality and in the eyes of the law the contract was made between the Farmers Grain and Feed Company and the plaintiff, there is no liability on the defendant. Robinson v. First Nat. Bank, 98 Tex. 184, 82 S. W. 505.

Further, there is no evidence that the plaintiff at the time it sold the merchandise to the Chicago Grains and Feed Company was misled" into thinking that that was not the Farmers Grain" and Feed Company, or that there was a Chicag'o Grains ■ and Feed Company which was highly solvent and that the plaintiff relied upon its knowledge of the corporation with that particular name, which was a different entity from the Farmers Grain and Feed Company. There is no evidence of affirmative misrepresentation by the defendant nor by either of the named corporations that would create a liability on them by way of estoppel.

Owing to a misconception of what was necessary to change the name of a corporation, it is a plain case of a promise by the Farmers Grain and Feed Company in the name of the Chicago Grains and Feed Company. The minds of the buyer and seller, it may be assumed, met on that subject in that way and to that effect. Of course, the law might provide a penalty for such a misnomer and its use under such circumstances, but we do not see how, reasonably considered, and mailing a common-sense interpretation of section 18, ch. 32 (J. & A. if 2435), a third person, such as the defendant here, should be held to a personal responsibility. We do not think the statute in any way supports such a contention. The evidence in our judgment shows that the contract was made with the legal entity known as the Farmers Grain and Feed Company in the name of the Chicago Grains and Feed Company. Considering the circumstances as set forth in the stipulation of facts, we are of the opinion that section 18, ch. 32, is inapplicable.

Finding no error in the record the judgment is affirmed.

Affirmed.


author: Mr: Presiding Justice Niehaus

text:
    August Hoglund, Appellee, v. E. P. Johnson Piano Company, Appellant.
    Gen. No. 6,689.
    1. Limitation of actions, § 74

      —when amended count does not state new cause of action. An amended count, filed after the statute of limitations had become effective, did not state a new cause of action on the alleged ground that in it were stated for the first time the necessary facts to show that the factory of defendant was not working under the Workmen’s Compensation Act of 1913, because defendant had rejected the act, as the original declaration in alleging that the factory was one in which compressing machines were used, and that plaintiff was engaged in moving frames taken from a press machine and transporting them on a truck to other machines, sufficiently, although defectively, showed that defendant’s factory must have been within the provisions of section 3, paragraph b, Call. 1916 Stat. f 5475(3), of said act, as an extrahazardous enterprise or business which was conclusively presumed to have been working under the act unless the provision had been rejected.
    2. Limitation of actions, § 74*—when additional count is mere restatement of same cause of action. Where a declaration in a personal injury case defectively stated a cause of action based upon a rejection of the Workmen’s Compensation Act, by alleging facts which showed that defendant’s factory must have been within the act, an additional count filed after the statutory period of limitations, which specifically alleged that defendant had rejected the provisions of such act, was a restatement of the same cause of action more completely and properly, but was not a statement of a new cause of action.
    3. Master and servant, § 110

      —when depression in floor is proximate cause of servant’s injury. Where an employee in a piano factory, while moving a truck loaded with piano frames, stepped to the side of the truck and pushed back frames which had started to fall because of the running of one of the wheels of the truck into a depression or hole in the floor, the depression in the floor, and not plaintiff’s act of stepping around to push the sliding frames back, was the proximate cause of the injury sustained by plaintiff as the result of a sliver of glue, which was sticking out on one of the frames, getting into one of his fingers.
    4. Instructions, § 137*—propriety of refusing instruction stating general principles. The refusal of an instruction which is merely a statement of general principles is not error.
    5. Damages, § 133*—when verdict for injury to finger not excessive. A verdict for $2,000 for an injury to the forefinger of the left hand of a factory employee, although large, was not excessive, where such employee suffered a number of months, and not only the use of the finger had been lost, but it was still in such a defective condition that it ought to have been amputated, and where, whether amputated or not, the effect of the injury necessarily to some extent impaired the use of the entire hand.
    6. Master and servant, § 795*—when proper to refuse instructions requested by defendant. The refusal of instructions having reference to the defenses of assumed risk, the negligence of a fellow-servant and contributory negligence was not error, where defendant, had rejected the provisions of the Workmen’s Compensation Act of 1913.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, and Hon. S. C. Stough, Judges, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Gallagher, Kohlsaat & Rinaker and Russell O. Hanson, for appellant; Sam:uel M. Rinaker, of counsel.

      Browne & Wilby and Butters & Clark, for appellee,

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

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section nuufber.

   Mr: Presiding Justice Niehaus

delivered the opinion of the court.

August Hoglund brought this suit in the Circuit Court of La Salle county against the appellant, E. P. Johnson Piano Company, to recover damages for injuries alleged to have been suffered by him on account of the negligence of the appellant, in that the appellant failed to furnish the appellee a reasonably safe place to perform the work that the appellee was engaged in in appellant’s factory. The proof shows that on July 28, 1915, the appellee and another employee of the appellant, by the name of William Bjurstrom, were engaged in the work of moving a truck loaded with piano frames"through the room in appellant’s factory, known as the veneer room, over a wooden floor in order to transfer the frames into the machine room. The truck used for this purpose was approximately 4 feet 6 inches long and 2 feet wide, and had four iron wheels, two large wheels on each side of the middle of the truck and one small wheel at each end. The frames were piled on the truck to a height of about 8 feet. Bjurstrom was at the front, pulling, and the appellee was behind, pushing the truck. While they were thus engaged, in moving the truck along over the floor, one of the wheels ran into a depression or hole in the floor; this caused the truck to suddenly settle down on one side, and in consequence some of the top frames started to slide towards that side, and were about to fall off; and in order to prevent the frames from falling off the truck, appellee stepped to the side of the truck and pushed them back, and, in doing so, a sliver of glue, which was sticking out on one of the frames, got into the forefinger of the appellee’s left hand. There was a trial which resulted in a verdict in favor of the appellee for $2,000, upon which judgment was rendered, and from this judgment an appeal is prosecuted. A number of reasons are urged for reversal of the judgment.

During the trial the appellee, by leave of court, filed an additional count, and to this count the appellant filed a plea of the statute of limitations on the ground that it stated a new cause of action after the statute of limitations had become effective. The appellee demurred to the plea, and the court sustained the demurrer; appellant abided by the plea. Appellant contends that it was error to sustain the demurrer, because the amended additional count stated a new cause of action; that for the first time in the course of the litigation it alleged the necessary facts, to show that the factory of the appellant was not working under the Workmen’s Compensation Act of 1913, because appellant had rejected the Compensation Act; that the original declaration did not contain the necessary allegations to show that appellant had rejected the provisions of the act, nor that the action was based on that ground. We are of opinion, however, that the original declaration does state facts concerning the business of the appellant sufficient to show that it was a piano factory in which compressing machines were used; and that the appellee was engaged in moving frames taken from a certain press machine and transporting them on the truck to certain other machines in another part of the factory. These allegations, while not as specific and complete as they should be, sufficiently show that the appellant’s factory must have been within the provisions of section 3, paragraph b of the Compensation Act of 1913 [Call. 1916 Stat. [¶] 5475(3)] as an extra-hazardous enterprise or business, which was conclusively presumed to be working under the act unless the provisions of the act had been rejected in the manner pointed out by the statute. And these allegations, taken in connection with the averment in the declaration that the appellant was not working under the Workmen’s Compensation Law, could lead to but one conclusion, namely, that appellant had rejected its provisions, that being the only way in which under these circumstances it could work outside of the provisions of tiie act. The original declaration therefore presents an instance where the cause of action is defectively stated, and the additional count restated the same canse of action more completely and properly, but did not state a new cause of action. It was not error therefore to sustain the demurrer to the plea of the statute of limitation, nor did the court err in admitting’ the evidence on trial, to prove that the Compensation Act had been regularly rejected by the appellant in the maimer required by the statute.

It is argued by the appellant that the appellee had no right to recover because the defective floor was not the proximate cause of appellee’s injury; that by stepping from the rear of the truck to the side, for the purpose of holding up' the frames, which were slipping and about to fall to the floor, the appellee injected into the occurrence a new intervening and efficient cause, a new and independent force, which intervened between the original cause and the appellee’s injury; and “that there was, in fact, no direct causal connection between the alleged defect in the floor and appellee’s injury; and that it was only the new and independent force of the appellee himself, acting in and of itself, which caused the injury.” In other words, that it was not because of the defect in the floor that the appellee was injured, but because he stepped around to the side to hold up the frames. It will be noticed that there was a complete and natural succession of events set in motion and brought about by the fact that the wheel of the truck struck the depression in the floor, which resulted finally in appellee’s injury; that is to say, when the wheel of the truck ran into the depression, it caused the truck to tilt to one side, this caused the frames to slip, and this caused the appellee to try to hold them on the truck and thereby the injury occurred. The appellee’s act of preventing the frames from slipping off of the truck was not an independent force operating to intervene between the original cause and the injury, but was really a result of the original cause. It was appellee’s task to move the frames- from the veneer room to the machine room, on the truck; he could not have accomplished this task without keeping the frames on the truck; hence his effort to prevent them from falling off was an essential part of the work which he was performing, and necessary in order to accomplish it, and in no sense a purely voluntary or independent act intervening in the occurrence, so the jury were fully justified in finding from the evidence that the depression in the floor was the proximate cause of the appellee’s injury.

The appellant also complains of the refusal of the instructions numbered 17, 18, 19, 20, 21, 22 and 23. These instructions were properly refused. No. 17 is the statement merely of general principles, and it was not error to refuse this instruction on that account, but so much of the matter contained in this instruction as the appellant was entitled to have applied to the facts in this case was given to the jury in other instructions. The other instructions have reference to defenses of which the appellant could not avail itself in this case, having rejected the provisions of the Compensation Act, namely, assumed risk connected with appellee’s employment, the negligence of a fellow-servant and contributory negligence.

It is also insisted that the damages are excessive. It appears clearly that the appellee suffered a number of months from the infection caused by the injury in question, and has not only lost the use of his finger, but that it is still in such a defective condition that it ought to be amputated; and whether amputated or not, the effect of the injury, necessarily to some extent, impairs the use of the entire hand. The sum of $2,000, under these circumstances, while large, cannot be regarded as excessive. The record does not disclose any reversible error, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Niehaus

text:
    Montgomery, Hart & Smith, Copartners, Appellants, v. Dime Savings & Trust Company et al., Appellees.
    Gen. No. 6,695.
    1. Appeal and error, § 349

      —when attorneys may not appeal in matter of fees. Attorneys who joined with their clients in a petition to the Probate Court to require the executors of the estate in question to pay attorneys’ fees for services performed in a proceeding to construe a will, had no right of appeal either from the Probate Court to the Circuit Court or from the latter court to the Appellate Court, where the order of the Probate Court was adverse to the claim of the clients who did not appeal, and where the petition failed to show either a joint claim of such attorneys with their clients or any claim whatever in their own right against the estate.
    2. Wills, § 435*—when solicitors’ fees properly taxed as costs against estate. When it becomes necessary to have a will construed by proceedings in equity, the cost of the litigation including solicitors’ fees which are necessarily incurred, is properly taxed as costs against the estate.
    3. Courts, § 104*—when Probate Court cannot pass on liability of trust estate for solicitors’ fees. As the Probate Court has no jurisdiction of a trust estate nor of the trustees, that court could not judicially pass upon the question of the liability of the trust estate for solicitors’ fees or expenses incurred in litigation involving the validity of the trust.
    4. Executors and administrators, § 204*—when improper to file claim for solicitors’ fees against personal estate of decedent. A claim for solicitors’ fees performed in litigation involving a trust estate was not a proper one to file against the personal estate of a decedent.

      Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeekt, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Irving Herriott, for appellants; John R. Montgomery, of counsel.
    Cameron & Cameron, for appellees; Albert M. Kales, of counsel.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case Julia Ballance Watson, Virginia Ballance Stark, Myrtle Ballance Tower, Lillian Ballance Sheridan, Joseph Ballance Reiner and Florence Ballance Stevens, jointly with their attorneys, Montgomery, Hart & Smith, and E. E. Watson filed a claim against the estate of John G-. Ballance, deceased, in the form of a petition in the Probate Court of Peoria county against the Dime Saving’s & Trust Company and Leslie Robinson, the executors of the estate of said deceased. It is alleged in the petition that these claimants were made defendants in a bill filed in the Circuit Court of Peoria county to construe the will of the deceased ; that a decree was entered in the Circuit Court of Peoria county construing said will adversely to their contention, and that they thereupon took an appeal to the Supreme Court [254 Ill. 419], which court finally affirmed the decree of the Circuit Court of Peoria county; that the Circuit Court of Peoria county made an allowance to them for expenses and solicitors’ fees incurred by them in said court, but that no allowance was made and nothing had been paid them for solicitors’ fees and expenses incurred in connection with and on account of said appeal, and they therefore ask in the petition that the Probate Court authorize said executors and direct them to pay the amount which they claim to ham expended and to be due them in that behalf from said estate. The executors moved to strike the petition from the files, which motion was sustained by the court. The claimants abided by the order of the court, but their solicitors, Montgomery, Hart & Smith, prayed an appeal to the Circuit Court. And in the Circuit Court on appeal the petition was again stricken from the files on motion of the executors, whereupon the appellants, Montgomery, Hart & Smith, again prosecuted an appeal to this court.

We are of opinion that the appellants had no right of appeal either from the Probate Court to the Circuit Court, or from the Circuit Court to this court, inasmuch as the order of the Probate Court striking the petition from the files was adverse to the claim of their clients, who did not appeal. And there are no averments in the petition which show that they have either a joint claim with their clients or any claim whatever in their own right against said estate, nor any appeal-able interest. Merle v. Beifeld, 275 Ill. 594. Waiving the question of the right of the appellants to a review of the order of the Circuit and Probate Courts, we have concluded, for the purpose of a speedy determination' of the matters involved, to pass upon the other questions presented by the appeal. While it has been repeatedly held and is well settled as a matter of law that when it becomes necessary to have the will of a testator construed by proceedings in equity, the cost of the litigation including solicitors’ fees which are necessarily incurred by the parties to such litigation, is properly taxable as costs, such costs are properly borne and should be taxed against the estate, fund or property involved in the proceeding or litigation. Strickland v. Strickland, 271 Ill. 614; Keys v. Wohlgemuth, 240 Ill. 586; Guerin v. Guerin, 270 Ill. 239; Ward v. Caverly, 276 Ill. 416. In the proceedings for the construction of the will of John Gr. Ballance, deceased, referred to in the petition, only a part of the estate was involved, namely, the trust estate; the trust created by the will was held to be in violation of the rule against perpetuities and therefore void. Dime Savings S. Trust Co. v. Watson, 254 Ill. 419. If the claimants therefore were entitled to be reimbursed for solicitors’ fees and expenses incurred in the appeal to the Supreme Court, their claim for reimbursement was only against the trust estate. The Probate Court had no jurisdiction of the trust estate, nor of the trustees, and could not judicially pass upon the question of liability of the trust estate for any solicitors’ fees or expenses connected with that litigation. It is also apparent that the claim of the claimants was not one which, under the administration act, was a proper one to file against the personal estate of a deceased person, or which the Probate Court could allow as a claim against such estate. The petition was therefore properly stricken from the files. The matter of the right of the claimants for reimbursement for solicitors’ fees incurred from the trust estate, or from the appellees as trustees, was passed upon by us in Dime Savings & Trust Co. v. Watson, 208 Ill. App. 382. We there held they were not entitled to recover the solicitors’ fees incurred in the appeal to Supreme Court for the reasons there stated. The appellants insist that the Supreme Court in the case of Dime Saving & Trust Co. v. Watson, 283 Ill. 276, used some expressions which indicated that they had a legal right to file their claim against the personal estate of the deceased. We find nothing in the decision from which such an inference could be drawn. The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Carnes

text:
    George A. Arnold, Appellee, v. B. E. McCoy et al., Appellants.
    Gen. No. 6,642.
    1. Judgment, § 58

      —when judgment by confession not vacated because of existence of defense to cause of action. A judgment by confession, on a note given in part payment of an automobile, was not vacated because after the service of execution upon defendants, plaintiff took possession of the automobile.
    2. Judgment, § 58*—when defense to debt is not available on motion to oyen judgment by confession. A defense to a debt arising after the entry of judgment by confession is not available on motion to open-the judgment.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed July 18, 1919.
    E. L. Lyon and Mighell, G-unsul & Allen, for appellants.
    Charles H. Darling, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

The appellee, George A. Arnold, held the judgment note, past due, of W. McCoy, Anna McCoy and B. E. McCoy, the appellants, on which he caused a judgment by confession to be entered in the City Court of Aurora, October 6, 1913. Execution issued, and on November 29, 1913, the defendants filed a motion to set aside the judgment and for leave to plead and defend on the merits, supported by the affidavit of W. McCoy that the note was given in part payment for ah automobile purchased by him from the plaintiff; that the defendants had no knowledge of the entry of the judgment until the execution was served on them; that immediately thereafter the plaintiff, “without any process out of court or any authority vested in him, by reason of an execution or a chattel mortgage, repossessed the said automobile,” and has retained possession and refused to turn it over to any of the defendants, and that by reason thereof the indebtedness is canceled. The record shows nothing further until May 17, 1918, when the defendants served notice on the plaintiff that they would on the next day appear in court and take up said motion. At the time appointed, counsel for each side appeared, and the court on a hearing refused to set aside the judgment, from which order this appeal is prosecuted.

Several points are argued, but a controlling question is whether a defense to a debt arising after the entry of the judgment is available on motion to open the judgment. There is nothing in the record indicating that there was any defense to the note when the judgment was entered. Defenses to a debt evidenced by a judgment may arise after rendition by payment or release. But should a court, in the exercise of equitable jurisdiction over judgments entered in this way, open or set aside a judgment valid when it was rendered and subject only to defenses arising thereafter? The only authority cited by appellants on this point is the decision of this court in Keist v. Kingman & Co., 36 Ill. App. 489, which, according’ to its syllabus, holds that where notes given in payment for a machine warranted are put in judgment before breach of the warranty, which afterwards occurs, the judgment should be set aside. We do not find that holding in the- opinion. The substance of the affidavits on which the court was acting is stated on pages 492 and 493, and it clearly appears that the judgment was entered September 3,1888, after the failure of the machine to fulfill the warranty, and after the machine was returned to the vendors, the owners of the note, and after they had refused to send another machine. We find nothing in the opinion indicating that a judgment should be opened solely on the ground that a valid defense arose after its rendition. The only case directly in point that we have found is by the Appellate Court of the first district (Parnass v. Ryerson, 128 Ill. App. 489) where, without citing any direct authority, but on a consideration of the language used in Lake v. Cook, 15 Ill. 353, and Condon v. Besse, 86 Ill. 159, it was held that’a judgment by confession should only be opened “to make any legal defense which existed at the time the judgment was entered,” and that there was no authority in this State holding a contrary doctrine when the facts underlying the cases were ascertained and applied to the principles of law enunciated. We think that is true of the present state of authority here; therefore, without considering appellee's other claims that the action of the trial court should be affirmed because of the delay of appellants in bringing the motion to the attention of that court, because me affidavits show no defense, and because the record here is imperfect, we conclude that the order and judgment should be affirmed.

Affirmed.


text:
    Robert Lindstrum, trading as Sterling Floral Company, Appellee, v. Illinois Northern Utilities Company, Appellant.
    Gen. No. 6,663.
    1. Gas, § 15

      —application of rule res ipsa loquitur to leaks from gas pipes. The rule res ipsa loquitur does not apply to all leales from a gas pipe, and damage resulting therefrom.
    2. Damages, § 49*—what is measure of damages for injury to plants in greenhouse by gas leakage. In estimating damage to plants in a greenhouse by reason of gas leakage, the amount of the loss must be determined as of the time of the injury, and if the property destroyed has a market value, that is ordinarily the measure of recovery.
    3. Gas, § 16*—what not sufficient evidence to make prima facie case of negligence in permitting leakage. Evidence that gas leakage from defendant’s mains located near plaintiff’s greenhouses for a period of about 2 weeks while the ground was frozen, caused injury to plaintiff’s plants and shrubbery, was not of itself sufficient evidence of negligence to make a prima facie case.
    4. Damages, § 49*—what is measure of damages for injury to plants in greenhouse by gas leakage. In an action for damages to plants contained in a greenhouse, through gas leakage, the rule applicable was that the damages were to be measured by the value a.t the time of the injury of the plants destroyed, and the loss in value of plants injured but not totally destroyed, and in either case the basis was market value, unless it appeared there was no market value.
    5. Damages, § 206*—when refusal of instruction, in action for inr jury to plants in greenhouse by gas leakage, not error. In an ¿ction for damage to plants in a greenhouse, through gas leakage, it was not error to refuse to instruct that, as to plants not totally destroyed but more or less injured, the measure was the difference between ‘he fair, reasonable, cash market value of such plants immediately before the injury, and the value, if any, after the injury, the evidence having shown that there was no market value for some of the plants injured.
    6. Damages, § 49*—what is not proper measure of damages for injury to plants by gas leakage. Cost of replacement was not a correct basis of valuation in an action for injury to plants by gas leakage, where it did not appear that replacement was the proper and necessary thing to do under the conditions.
    Appeal from the City Court of Sterling; the Hon. Gael E. Sheldon, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed July 18, 1919.
    Henry S. Dixon and G-eorge O. Dixon, for appellant.
    Philip H. Ward, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Robert Lundstrum, the appellee, owned a greenhouse in the City of Sterling, Hlinois. The appellant company owned and operated a gas plant in that city. It did not serve appellee, but one of its pipes or mains ran near his greenhouse. About January 20, 1917, some plants there appeared stunted, and some died. About February 4th, appellee concluded the trouble was from escaping gas and reported the matter to appellant. It at once sent men to look for leaks in its mains. One was found about 50 feet from appellee’s building, and immediately fixed. The record does not disclose the cause of the leak. Appellant had no other notice or knowledge of it. This action was brought to recover for that injury, the declaration charging that the defendant carelessly and negligently permitted its gas mains at that place to get into defective condition permitting gas to escape, and averring that the ground became frozen and covered with ice so that the gas found an underground channel from the place of the leak to the greenhouse and there arose to the surface, destroying some plants and injuring others. On a trial before the court without a jury there was a finding and judgment for the plaintiff for $2,130. The defendant appealed. The evidence shows the facts practically as above stated. There was no attempt to show the cause of the leak; no evidence introduced showing, or tending to show, that the appellant had at any time in the construction or maintaining of the plant and pipe failed to exercise that degree of care usually observed by prudent business men under the same or similar circumstances, except appellee claims that the leak itself was sufficient evidence of negligence to make a prima facie case. He says it continued for over 2 weeks, and if there had been proper inspection it could have been discovered; that it must have resulted from a defective condition in the pipe or improper laying of the same; must have been through some fault or negligence of appellant, and cites Rockford Gas Light & Coke Co. v. Ernst, 68 Ill. App. 300, and Aurora Gas Light Co. v. Bishop, 81 Ill. App. 493, holding if the leak did occur through appellant’s fault the company is liable, and if a reasonable inspection of the pipes would have discovered a leak, it is liable. These cases mean if the defendant was negligent there was a cause of action, but neither case holds that evidence of the leak was alone sufficient to make a prima facie case. Appellee also cites numerous cases from other jurisdictions holding that much diligence is required of parties dealing with dangerous agencies, like gas, for profit, which mean only that ordinary care in such cases requires a degree of precaution measured by the danger of the situation. This record shows no more reason for inspecting this part of the mains or pipes than any other part during the 2 weeks when the leak could have been found. It would have been a foolish act for appellant in January, with the ground covered with snow and ice, to send a force of men to inspect all its gas pipes extending underground through the city. In the present case, as in People’s Gas Light & Coke Co. v. Porter, 102 Ill. App. 461, the finding and judgment can, as there said, only be sustained on the theory (1) that the defendant is hable as an insurer of the absolute sufficiency and safety of the work; or (2) that the escape of gas is, of itself, sufficient to charge the defendant with negligence. It was there held that the defendant, a gas company, was not liable as an insurer, and that position is supported in many later cases. (32 L. R. A. [N. S.]) 810, note; Greaney v. Holyoke Water-Power Co., 174 Mass. 437, 54 N. E. 880; Hartman v. Citizens’ Natural Gas Co., 210 Pa. 19, 59 Atl. 315; Maxwell v. Coffeyville Mining & Gas Co., 68 Kan. 821, 75 Pac. 1047; Torrans v. Texarkana Gas & Electric Co., 88 Ark. 510, 115 S. W. 389; People’s Gas Light & Coke Co. v. Amphlett, 93 Ill. App. 194.) The court in holding that the company was not liable as an insurer said on page 468: “Its duty was to furnish, reasonably good and sufficient material suitable for the purpose for which it was intended and used, and to put the material into place in a good and workmanlike manner. If it fulfilled this duty it was not guilty of negligence. ’ ’ To which should be added in the present case the duty to use reasonable care and diligence in inspecting its pipes. As to the second theory the court said: .“The doctrine expressed by the words res ipsa loquitur has no application to such a case as the present.”

When an injury is shown, and that it arose from something entirely within the control of the defendant or from some danger which it was his duty to anticipate and provide against, a presumption of negligence arises and makes a prima facie case for the plaintiff, which the defendant must meet, and, if not met, justifies a verdict for the'plaintiff, is a doctrine that has been applied again and again in actions by passengers against carriers. (Vischer v. Northwestern El. R. Co., 256 Ill. 572, 578; and cases there cited.) It has also been applied where no special relation like that of passenger and carrier exists between the parties, like those used for illustrations in North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, where plaintiffs were injured by heavy objects falling upon them from above. In that connection the court states the rule on page 494: “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” It is said in Chicago City Ry. Co. v. Barker, 209 Ill. 321, 326, “when the thing is shown to be under the management of the defendant, or his servants, and the accident is such, as in the ordinal y course of things does not happen if those, who have the management, use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. * * * Where the accident is one which would not, in all probability, happen, if the person causing it was using due care, and the actual machine, causing the accident, is solely under the management of the defendant, * * * the mere occurrence of the accident is sufficient prima facie proof of negligence to impose upon the defendant the onus of rebutting it.” And in Illinois Cent. R. Co. v. Swift, 213 Ill. 307, 316, the court says the doctrine of res ipsa loquitur only applies when the accident is such as in the ordinary course of things does not happen if those in control use proper care. The rule res ipsa loquitur does not apply to all leaks from a gas pipe, and damage resulting therefrom. There may be cases where the situation requires sufficient diligence of construction and inspection to practically insure immunity from leaks, and therefore come within the above definitions; but as a general rule applied to gas mains extending for miles through cities and villages it is common knowledge that such diligence is neither practiced nor required. The author in 29 Cyc. cites People’s Gas Light & Coke Co. v. Porter, supra, on the proposition that the escape of gas from a broken pipe creates no presumption of negligence, but notes a conflict of authority whether it might be some evidence of negligence. In 1 Thompson on Negligence, see. 719 (published in 1901), after stating the rule requiring much vigilance and skill in handling gas, it is said: “But in the absence of statute, we find no suggestion in any book, English or American, that such a company is responsible for damages caused by escaping gas, on any other principle than a want of ordinary care and skill in its management,—terms which exact a degree of vigilance and technical knowledge in proportion to the dangerous character of the substance in which they deal, and according to the circumstances of each case. ’ ’ In White’s Supplement to the above work published in 1907, he omits in section 719 the above language quoted from the original, but in a note cites People’s Gas Light & Coke Co. v. Amphlett, supra, on the proposition that the mere fact of the ownership of the gas in the pipe will not of itself render the company liable for injuries caused by its escape unless the company is guilty of negligence. It may not be true that there is now no authority, American or English, supporting the application of the doctrine res ipsa loquitur to leaking gas mains. We have discovered some cases where it was said to be some evidence of negligence, which, taken with other evidence, made a prima facie case, but the great weight of authority is that a prima facie case can only be made by evidence other than the mere occurrence showing some neglect on the part of the defendant. We have found no case similar to this where the mere proof of the accident has been held sufficient evidence of negligence to make a prima facie case. Each case must stand on its own facts. Gas may be used at such times and places as to require in the exercise of ordinary care very frequent inspection. There may be cases where, because of disturbances of the ground in the vicinity of the pipes, immediate and constant inspection is required for a limited time. A contention in such cases that the mere escape of gas is evidence of neglect of the required inspection might seem at least plausible. But we know of no authority, and see no reason for holding appellant guilty of actionable negligence on the facts disclosed by this record; therefore, the judgment must be reversed. As the case was tried below on the theory that the maxim res ipsa loquitur applied, and perhaps for that- reason no effort made to introduce specific proof of any act or omission of appellant causing the break in the pipe, we remand the case that appellee may have an opportunity, if he wishes, to try the question of negligence under the rules here announced.

The damages sustained by appellee were in part from destruction of plants, and in part from damages to other plants. It appeared that there was at the time a market for some of these plants, and not for others. There was evidence as to market values, and evidence as to cost of replacement; also evidence as to the value of space in the greenhouse that appellee lost the use of. Appellant asked the court to hold (1) that the measure of .damages, if any, as to the plants totally destroyed was the fair, reasonable, cash market value of such plants immediately prior to the time of their destruction; and (2) that as to the plants not totally destroyed but more or less injured, the measure was the difference between the ‘6 fair, reasonable, cash market value of such plants immediately before such injury, and the value, if any, of such plants after such injury.” The court held the first proposition and refused the second. Error is assigned on such refusal. It will appear on consultation of any textbook on the subject that a great variety of similar questions have been answered by the courts, and at first glance it may seem that contradictory and irreconcilable conclusions have been reached in different jurisdictions, but this apparent conflict mostly disappears when the facts under consideration, are carefully noted. The greatest difficulty has arisen on the admissibility and effect of evidence as to the value at the time of injury. The effort is to ascertain what damages have naturally and proximately resulted from the injury and permit a recovery on that basis. A discussion of the rule governing such investigation and very full citation of authority is found in 17 Corpus Juris, beginning on page 887. There is also a valuable note in 37 L. R. A. (N. S.) 976, referring to former notes on the subject in that series of reports. There is no question that the amount of the loss must be determined as of the time of the injury. If the property destroyed has a market value, that is ordinarily the measure of recovery. With growing animals, like colts, calves and pigs, there is generally no occasion to inquire what it would cost to mature and market them because they have market value at the time in question, and whether destroyed or partially destroyed the loss can be estimated on a consideration of market values. But sometimes, as in the case of growing cabbages (Economy Light & Power Co. v. Cutting, 49 Ill. App. 422), there is no market value; and it was said in that case that the value to be ascertained was of the crop “as it was when destroyed, with the right to the owner to mature and harvest or gather it at the proper time”; that it was a “matter of estimate or conclusion of the mind to be arrived at from all the facts which would affect it.” An instruction was there approved which informed the jury as to the crops, fully destroyed, the measure of damages was, first, the rental value of land the plaintiff was prevented from tilling or using- for the rest of the season; second, for land where the crop was up,.more or less matured, the rental valúe for the rest of that season, the cost of labor, seed and plants expended thereon, and the cost of any labor bestowed thereon after the planting; or, in lieu of such compensation specified in the second paragraph, the “value of the crop at the time of its destruction, with the right to the owner thereof to mature the crop and harvest or gather it at the proper time.” This case was cited and its reasoning adopted by our Supreme Court in St. Louis Merchants’ Bridge Terminal Ry. Ass’n v. Schultz, 226 Ill. 409. Cases arise where the rental value of the land with the cost of labor expended before the injury is the reasonable and proper way of determining the damage. (Young v. West, 130 Ill. App. 216.) Helpful discussions on the questions involved may be found in Jones v. Sanitary Dist. of Chicago, 252 Ill. 591; McDonald v. Illinois Cent. R. Co., 179 Ill. App. 242; Adams v. Stadler, 78 Ill. App. 432. We think the rule applicable to this case, if appellee is entitled to damages, is that they are measured by the value at the time of the injury of the plants destroyed, and the loss in value to plants injured but not totally destroyed; that in either case the basis of the valuation is market values, unless it appears there was no market value; and as to such plants, the real value and loss of value should be ascertained under the rules announced in the Illinois cases heretofore referred to, applied to the different conditions of plants at the time. The court did not err in refusing to hold appellant’s second proposition basing the damages on a consideration of market values, because under the evidence it appeared there was no market value for some of the plants injured. We do not agree with appellee’s counsel that the cost of replacement is a correct basis of .valuation. There may be instances where the natural and ordinary way of treating the situation would be to replace the plants, but generally in case of loss to growing plants it would not be practical to replace them, and the cost of replacement should not be adopted as a basis where it does not appear that replacement is the proper and necessary thing to do under the conditions, and ordinarily attention should he confined entirely to market values unless it appears that there was no market value for the article in question. In the present case the same rule does not apply to all the plants destroyed or injured. The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed cmd remanded.


author: Mr. Justice Carres

text:
    H. D. Morgan, Appellant, v. Reuben Bailey Carson et al.
    Gen. No. 6,672.
    1. Mortgages, § 726

      —time when judgment creditor with lien on equity of redenvption may redeem from deed absolute in form.. A judgment creditor with a lien on the equity of redemption of the mortgagor was entitled to redeem, before any judicial sale, from deeds in the form of absolute conveyances.
    2. Mortgages, § 716*—bill to redeem by judgment creditor with' lien on equity of redemption distinguished from bill under statute. A hill to redeem by a judgment creditor having a lien on the equity of redemption of a mortgagor has been recognized under long-established practice in chancery, and is not to be confused with redemption from judicial sales under chapter 77, secs. 18, 20 (Call. 1920 Stat. KIT 6764, 6766), under which the right does not depend upon any lien on the property, but exists solely by reason of the statute, and which does not begin until after sale, when the other right ends.
    3. Execution, § 40*—delay in issuing execution by death of debtor. Under section 2 of the statute on Judgments, Decrees and Executions (J. & A. If 6748), a creditor who had been delayed on account of the death of the defendant from issuing execution did not lose his lien.
    4. Mortgages, § 716*—when offer to pay in bill to redeem is sufficient. In a bill to redeem by a judgment creditor of the mortgagor, from a deed in the form of an absolute conveyance, the offer to pay anything due to the legal owner on an accounting was sufficient.
    5. Equity, § 211

      —when general demurrer will he overruled. Where a bill in equity sets out various claims to the interposition of the court, and a general demurrer is filed, it will be overruled if any of the claims afford a proper case for the jurisdiction of the court.
    Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded with directions.
    Opinion filed July 18, 1919.
    W. G-. McRoberts, for appellant.
    Arthur Keithley, for appellees.

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

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

   Mr. Justice Carres

delivered the opinion of the court.

The court sustained a general demurrer to a bill to redeem lands from mortgage incumbrances filed.October 21, 1918, by the appellant, H. D. Morgan, against the appellee, R. B. Carson, and others interested, and dismissed the bill for want of equity. The complainant appeals. The principal question argued is whether a judgment creditor with a lien on the equity of redemption of the mortgagor is entitled to redeem.

The material facts admitted by the demurrer are that on July 17, 1917, Elizabeth G-ruensfelder owned two tracts of land in Peoria, Illinois, subject to mortgage incumbrances of several thousand dollars. She then agreed with appellee Carson that he should furnish money to and for her to be secured by deeds of conveyance absolute in form of said two tracts, 'which she then made and delivered, and that she would within 30 days after such advances were made pay the same with interest, when said lands should be reconveyed to her; that on October 1, .1917, Carson hired $8,000, and mortgaged said premises as security. October 4, 1917, Elizabeth G-ruensfelder was, by scire facias, made a party to a judgment of $6,140.49, and a judgment debtor in the Circuit Court of Peoria county. She died intestate November 3, 1917, leaving no considerable property except her interest in said lands. May 10,1918, the judgment creditors sold and assigned said judgment to appellant, which assignment is of record. The mortgage liens on the lands at the time of the conveyance to Carson have been released of record. Carson is in possession of said lands and claims the conveyances to him were absolute. Carson, with the administrator and heirs of Elizabeth Gruensfelder, and the tenants in possession, are made defendants. The complainant offers to pay anything found due Carson on an accounting, and prays for specific and general relief.

It is a bill to redeem under long-established practice in chancery, and should not be confused with redemption from judicial sales under sections 18 and 20 of chapter 77 of our statute (Call. 1920 Stat. 6764, 6766), where the right does not depend upon any lien on the property but exists solely by reason of the statute (Heinroth v. Frost, 250 Ill. 102; Wooters v. Joseph, 137 Ill. 113; Level v. Goosman, 285 Ill. 347), and does not begin until after sale, when the other right ends. Appellant says there is no precedent in the reported decisions of this State for such a chancery proceeding by a judgment creditor, and suggests that it may be because judgment creditors have availed themselves of the provisions of our statute to assert their rights, but suggests no statute authorizing or in any way controlling a redemption before a judicial sale. "While it may be true that redemption by a judgment creditor by proceeding in chancery is without precedent in our reported cases, still the right of redemption before sale has.been repeatedly recognized by our courts. (Brown v. Gaffney, 28 Ill. 149; Preschbaker v. Feaman’s Heirs, 32 Ill. 475; Barnard v. Cushman, 35 Ill. 451; Dwen v. Blake, 44 Ill. 135; Taylor v. Dillenburg, 168 Ill. 235; Conkey v. Rex, 212 Ill. 444.) There is in those cases direct authority that under the admitted facts Elizabeth G-ruensfelder, had she lived, might have maintained a bill to redeem, as might also her grantee of the equity of redemption, and even her husband, having only an inchoate right of dower in her interest in the land. (Bigoness v. Hibbard, 267 Ill. 301.)

Appellee Carson undertakes to support the decree by saying, “that there is no privity of estate between appellant and Mrs. G-ruensfelder, the judgment debtor”; therefore, he has no right to an equitable redemption. Numerous, authorities are cited holding that a stranger to the title of a mortgagor has no right to make a tender of the debt or otherwise intermeddle in the relations created by the mortgage; that the right of redemption exists only in favor of one who has an interest in the land, either legal or equitable, absolute or inchoate; that to sustain a bill to redeem, the complainant must have either the mortgagor’s title or some subsisting interest under it; that his interest must be derived directly or indirectly from or through the right of the mortgagor. If his interest has no connection with the mortgagor’s title, he has no right to redeem. These general statements are substantially true, leaving only the question whether the owner of a judgment lien on the mortgagor’s equity has such an interest.

This subject of redemption is treated in Cyc. in the article on mortgages. (27 Cyc. 1799.) It is .there said the equity of redemption must be distinguished from a statutory right of redemption. There is a common-law or equitable right of redemption inherent in every, transaction constituting a mortgage, or having the essential character of a mortgage. It can be cnt off by regular and proper foreclosure. The right of redemption given by statutes in many States does not come into existence until a foreclosure sale has been made, and then must be exercised strictly in accordance with the provisions of the law. In the following pages the classes entitled to redeem are enumerated, including (page 1809) judgment creditors of the mortgagor, or owner of the equity of redemption. We find in 2 Story’s Equity Jurisprudence (13th Ed.), sec. 1023, that the equity of redemption is a subsisting estate and interest in the land, not only in the hands of the mortgagor, but also in the hands of any other persons who have acquired any interest in the lands mortgaged by operation of law; that such persons have the rig’ht to disengage the property from all incumbrances in order to make their own claims available; and among persons having that right the author names judgment creditors. In Pomeroy’s Equity Jurisprudence (4th Ed.), vol. 3, sec. 1220, it is said that any person holding either a legal or equitable lien on the premises, or any part thereof, under or in privity with the mortgagor’s estate, may redeem from the prior mortgage if the mortgage is due and payable. In a note a list of the various classes of persons who may redeem is given, including judgment creditors. In Jones on Mortgages (7th Ed.), vol. 2, sec. 1069, we find: “A judgment creditor of the mortgagor may redeem. It is not necessary that an execution should first be issued on the land sold. ’ ’ Puterbaugh’s Pleading and Practice Chancery (6th Ed.), ch. 38, is devoted to the subject of bills to redeem, and on page 619 he mentions judgment creditors among parties entitled to maintain such bills. It seems to be elementary and unquestioned law that the mortgagor, and those claiming under him, may maintain a bill to redeem from the mortgage debt. Questions have arisen whether the person claiming the right of redemption was claiming under the mortgagor; but we have found no case or statement in a textbook holding or indicating that a judgment creditor of the mortgagor whose judgment was a lien on the equity of redemption could not, as such, maintain a bill to redeem from the mortgage.

Appellee says that appellant’s judgment is not and never was a lien upon the property in question, citing Union Nat. Bank v. Lane, 177 Ill. 171, but makes no further comment on that position, and bases the rest of his argument on the theory that the judgment was a lien. That case holds that a judgment is not a lien on real estate which the judgment debtor has previously conveyed to defraud creditors, for the reason that as between the parties to the conveyance it is binding until set aside, and no interest, legal or equitable, remains in the grantor upon which a lien can rest. It'is not authority for appellee’s assertion.

This disposes of every suggestion of law made in support of the decree. We see no reason to doubt that under the' allegations of fact in the bill the deeds to Carson were intended as mortgages, and in legal effect were mortgages. (Rev. St. “Mortgages,” ch. 95, sec. 12, J. & A. jf .7587.) The judgment was a lien on the equity of redemption October 21,1918, when this bill was filed, and appellant’s rights are fixed as of that date. (Wehrheim v. Smith, 226 Ill. 346.) Elizabeth Gfruensfelder was made a party to the judgment October 4, 1918, a year and 14 days before the filing of the bill; but she died November 3, 1917; therefore, under section 2 of our statute on Judgments, Decrees and Executions (J. & A. jf 6748), the creditor having been delayed, on account of the death of the defendant, from issuing execution, the judgment is still a lien. It may be added that the record shows this is an amended bill, and does not show what the original bill was, or when it was filed; therefore, we have treated the question as if it were an original bill, though it may be the rights of the complainant on a complete record date from the filing of the original bill. The offer to pay the amount found due on accounting was sufficient. (Barnard v. Cush man, and Dwen v. Blake, supra.) There may have been open to appellant other and better remedies, but we know of no law preventing his pursuit of this one. He may not be entitled to the precise specific relief prayed in his bill, but it is a general demurrer, and the rule long recognized in this State is that where a bill in equity sets out various claims to the interposition of the court, and a general demurrer is filed, it will be overruled if any of the claims afford a proper case for the jurisdiction of the court. (Cox v. Johnson, 242 Ill. 159, 165.) Assuming the truth of the allegations in the bill, appellant is entitled to an accounting, and entitled to redeem the premises from the lien of the mortgages given by Elizabeth Gruensfelder to Carson. There is no discussion in the briefs of the procedure that might properly follow, and we will not attempt to forecast it. Applicable rules of right and practice are readily found in the textbooks. The demurrer should be overruled and the defendants, if they or either of them desire, should have leave to answer the bill. It may develop that various parties have interests in the lands that require adjustment under established rules and practice in chancery. The decree dismissing the bill is reversed and the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with the views here expressed.

Reversed and remanded with directions


author: Mr. Justice Dibell

text:
    Henry Sayers et al., Appellants, v. Drainage Commissioners of Drainage District No. 5, in Manlius Township, Bureau County, Illinois, et al., Appellees.
    Gen. No. 6,610.
    1. Drainage, § 83

      —when delay after filing of petition for dissolution of district is not unreasonable. A delay of 4 months after the filing of a petition of owners under section 47% of the act to provide drainage for agricultural and sanitary purposes, in force July 1,
    1885 (J. & A. If 4525), for the dissolution of the drainage district in question, was not an unreasonable time in which to allow the commissioners to examine the petition to ascertain whether it was in due form and signed by the requisite number of owners, whether all indebtedness of the district had been paid or funds provided therefor, and whether there was any litigation pending against the district.
    2. Drainage, § 83*—when signers of petition for dissolution of district may withdraw names. Signers to a petition filed under section 47% of the act to provide drainage for agricultural and sanitary purposes, in force July 1, 1885 (J. & A. If 4525), for the dissolution of the district in question, had the right to withdraw their names from such petition at any time before the commissioners finally acted upon such petition, and even after filing of a petition for mandamus to compel the entry of an order to compel dissolution and before the service of the summons.
    3. Pleading, § 129*—when replication in mandamus to compel dissolution' of drainage district departs from petition. Where, in mandamus to compel drainage commissioners to dissolve the district, relator alleged that certain village lot owners were landowners within the district and that such lots constituted a part of the territory of said district, and the commissioners filed pleas stating that they had refused to enter an order of dissolution because after certain withdrawals a sufficient number of signers did not remain, the relator could not in his replication make a different case and take the position that the organization of the village in question took out of said district all of the lots within said village, and that the owners of said lands and lots in the village had no right to sign the petition for dissolution and that therefore their withdrawal did not defeat it.

      4. Pleading, § 129

      —when replication in mandamus to compel dissolution of drainage district departs from petition. In mandamus to compel drainage commissioners to enter an order dissolving the district, where the petition alleged that certain signers of the petition for dissolution were village lot owners and landowners in the 'district, and the commissioners answered that such village lot owners had withdrawn their names, a replication stating that after the forming of the district said village was formed and took within its boundaries a part of the land in the district and that therefore such owners had no right to sign the petition, made a new case; and the replication was further defective because it failed to aver that such village ever took upon itself the drainage of said lots within said village.
    5. Drainage, § 20*—district partly within and partly without municipality. A drainage district can he partly within and partly without a municipal corporation.
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Cairo A. Trimble and Watts A. & Carey R. Johnson, for appellants.
    Josef T. Skinner and J. L. Spaulding, for appellees.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

- Henry Sayers, as relator, filed a petition against the Drainage Commissioners of Drainage District No. 5, in Manlius Township, Bureau county, and against the town clerk of that township, for a mandamus to compel them to make an order to dissolve said drainage district. A demurrer by respondents to said petition was sustained, and the petition was amended. A demurrer by respondents to the amended petition was overruled. Respondents filed four pleas to the amended petition. Relator filed separate general demurrers to each of said pleas. The demurrer was overruled to the first plea and sustained to the others. Relator filed three replications to said first plea, and afterwards a fourth replication thereto. A demurrer to said replications was sustained. On motion of relator he was given leave to file amended replications to said first plea and filed three such replications. Demurrers to said replications were filed and sustained. Eelator elected to abide by said amended replications and there was a judgment in bar against him, from which he prosecutes this appeal.

It would unduly extend this opinion to state the substance of all these pleadings. We think it sufficient to state the questions they present. Drainage District No. 5 in Manlius Township was organized under the act to provide drainage for agricultural and sanitary purposes, in force July 1,1885. Section 47y2 (J. & A. 4525) thereof provided that when a certain proportion of the owners of lands within any drainage district organized under that act and lying wholly within the limits of a single township present a petition in writing to the commissioners for the dissolution of the district, the commissioners, after satisfying themselves that such petition is in due form and is signed by the requisite number of landowners and that all indebtedness of said district is paid, or funds provided for its payment, and that there is no litigation pending against such district, shall indorse upon the petition an order dissolving the district and file the same with the town clerk. In April, 1913, such a petition for the dissolution of said district, signed by the requisite number of landowners, was presented to said commissioners. On August 28, 1913, the commissioners had not acted on said petition, and Sayers, one of said landowners and petitioners, began this suit in mandamus to compel the commissioners to enter an order dissolving-the district. After the summons had been served upon the commissioners, but before its return day, many signers of said petition for the dissolution of the district presented to said commissioners a written statement and request, withdrawing their names from said petition. The next day and before the return day of the summons in the mandamus writ, the commissioners made an order, denying said petition for dissolution, because, with said names withdrawn, there did not remain a sufficient number of signers to comply with the statute above referred to.

Delator contends that the filing of the petition for mandamus and the service of the .writ thereunder fixed the rights of the parties as of the date of the service of such writ, which was September 2, 1913, and that no names could afterwards be withdrawn from the petition to dissolve. Delator relies for that contention upon Highway Com’rs of Town of Tolono v. Bear, 224 Ill. 259; Irmegar v. Tazewell County, 264 Ill. 172, and People v. Highway Com’rs of Sullivant Tp., 270 Ill. 141. Despondents insist that the signers of the petition for dissolution had the right to withdraw their names therefrom at any time before the commissioners finally acted upon the petition for dissolution, and they rely upon Littell v. Board of Sup’rs of Vermilion County, 198 Ill. 205; Theurer v. People, 211 Ill. 296; Kinsloe v. Pogue, 213 Ill. 302; Mack v. Polecat Drain. Dist., 216 Ill. 56; Boston v. Kickapoo Drain. Dist., 244 Ill. 577, and Malcomson v. Strong, 245 Ill. 166.

The latter cases fully sustain the position of the commissioners unless the cases relied on by relator constitute an exception to that rule, and terminate the right to withdraw by the filing of the petition for mandamus. In Highway Com’rs of Town of Tolono v. Bear, supra, the application to withdraw from the petition was made after the commissioners had passed upon the petition, and therefore came too late. In Irmegar v. Tazewell County, supra, the matter was one of public and not of private right, and those who sought to withdraw did so after the time for filing a petition to contest the election there involved had passed, so that no names could be added in place of theirs. This distinguishes this case from the one now before the court. In People v. Highway Com’rs of Sullivant Tp., supra, the signers undertook to withdraw their names, not only after the suit in mandamus had begun, but after the commissioners had acted upon the petition. The question here is no doubt a close one. We think it clear that the commissioners had a right to have a reasonable time in which to examine the petition and ascertain whether it was in due form and subscribed by the requisite number of landowners, and whether all indebtedness of the district had been paid or funds provided for its payment, and whether there was any litigation pending against the district. If the day after said petition to dissolve had been presented to the commissioners relator had brought this suit in mandamus to compel them to grant it, we think it obvious mandamus could not have been sustained at that time. We do not think it should be held that 4 months was an unreasonable time in which to allow said commissioners to make said investigations, and we also conclude that under the authorities above cited the right to withdraw under said petition existed until the commissioners acted. The withdrawal left the petition signed by an insufficient number of landowners.

After this drainage district was formed, the village of Manlius was incorporated and took within its boundaries a part of the land in said drainage district, and the signers of said petition to dissolve who after-wards got leave to withdraw from said petition were largely owners of lots within said village. By amended replications, relator took the position that the organization of said village took out of said district all lands and lots within said village, and that the owners of said lands and lots in the village had no right to sign the petition for the dissolution, and therefore their withdrawal did not defeat it. One of the grounds of demurrer thereto was that such replications were repugnant to the allegations of the petition of relator for mandamus and a departure therefrom. The petition for mandamus clearly alleged that these lot owners were landowners within the district, and that such village lots constituted a part of the territory of said district. We are of opinion that relator cannot be permitted to state in his replication a case entirely different from that set up in the petition for mandamus and contradictory thereof. McConnel v. Kibbe, 29 Ill. 483; Pressley v. Bloomington & N. Railway & Light Co., 271 Ill. 622 [12 N. C. C. A. 1038], Moreover, the position taken by relator in said replications is not sound. It is not averred that the village of Manlius ever took upon itself the drainage of said lots within the village. A drainage district can be partly within and partly without a municipal corporation. People v. Nibbe, 150 Ill. 269; City of Joliet v. Spring Creek Drain. Dist., 222 Ill. 441; Perkins v. Board of Com’rs of Cook County, 271 Ill. 449.

There was also pleading by respondents in which they claimed that this drainage district, though originally organized in one township only, had by additions become a drainage district located in two townships, and that therefore the petition for its dissolution was insufficient, but we find it unnecessary to consider that contention. For the reason stated, the judgment is affirmed.

Affirmed.