text:
    A. E. DeMange, Appellant, v. City of Bloomington, Appellee.
    1. Eminent domain—measure of damages in action predicated upon change of grade. The measure of damages in cases of this character is the difference in the market value of the property before and after the making of the improvement, and it is incumbent upon the plaintiff to show the amount of such damages over and above the benefits accruing to the property by reason of such improvement, together with the amount assessed against such property for such improvement.
    2. Damages—effect of failure to award nominal damages. A judgment will not be reversed to enable a plaintiff to recover merely nominal damages..
    Action in case. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Stowe & Oglevee and J. E. Hoeemaw, for appellant.

      Louis Fitz Henry, for appellee; Lester H. Martin, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action in case. The original declaration alleges that plaintiff is the owner of a dwelling house and lot fronting on a public street known as Boosevelt avenue in the city of Bloomington; that the defendant caused the level or grade of said street to be raised above its former level without plaintiff’s knowledge or consent; that the said street as so raised was paved with asphalt and plaintiff was assessed $172.48 for alleged benefits; that in raising the sidewalk upon said street abutting upon the west line of plaintiff’s lot the defendant caused large quantities of clay to be deposited upon the premises, as a support for the sidewalk and that such clay partially covered the walk leading from the street to the front door of the house, destroying the walk and rendering it unfit for use and causing the surface of the lot to be below, the street level; whereby all the water from said street accumulated upon said lot, flooding the basement and rendering the house unhealthy and dangerous and causing the premises to be flooded, wet and less fit for use and occupation. The additional count further alleges that the grade of said street was raised approximately two feet whereby the plaintiff’s premises were rendered unsightly, unsalable and greatly injured, damaged and lessened in rental and market value. The defendant pleaded the general issue and upon a trial by jury there was a verdict of not guilty and judgment against the plaintiff for costs.

It is uncontroverted that the grade of the street in front of plaintiff’s premises was raised approximately eighteen inches and that the improvement consisted of an asphalt pavement 26 feet in width, with a fall of 6 inches from its center to the combined concrete curb and gutter, the curb rising 6 inches above the gutter; that the new sidewalk which superseded the old brick sidewalk was set about 2 inches above the street curb and was so constructed as to leave a space of 13 feet between the said sidewalk and the lot line. The evidence tends to show that plaintiff’s lot before the improvement was somewhat lower than the other lots abutting upon said street and that is was then subject to be wet and was slow of drainage,, and that its condition in that respect was rather aggravated than otherwise by the improvement, and by the partial filling of the adjoining lot on the south; that the plaintiff was obliged to expend some money in raising his dwelling house and the foundation walls, and the sidewalk leading from the house to the street; that the property, in the immediate vicinity of plaintiff’s lot, by reason of its proximity to railroad tracks and the street railway and light and power plants, and because the surface of the ground was low, was not desirable for residence purposes. The evidence shows that after deducting the rebate, the cost to plaintiff of the improvement was $161.93. The plaintiff testified that including the expense incurred by him in an effort to remedy the conditions brought about by the improvement of the street his property had, by reason of such improvement, depreciated in value from $400 to $450. He further testified that the present market value of the property was $1,800.

The measure of damages in cases of this character is the difference in the market value of the property before and after the making of the improvement and it was incumbent upon the plaintiff to show the amount of such damages over an'd above the benefits accruing to the property by reason of such improvement, together with the amount assessed against said property for such improvement. City of Bloomington v. Pollock, 141 Ill. 346; Village of Grant Park v. Trah, 218 Ill. 516. Upon this issue the evidence is in hopeless conflict. It may be that upon a consideration of the evidence as it appears in the record we should be inclined to find that the plaintiff had sustained some damages, but we cannot say that the failure of the jury to award such damages was so manifestly against the weight of the evidence as to require a reversal of the judgment.

Counsel for plaintiff seek to discredit the testimony of some of the witnesses called on behalf of the defendant by characterizing them individually as a city engineer; a roust-about in the employ of the city; a jeweler and former alderman; a second-hand dealer and constable and cobbler. The weight to be given to the testimony of these witnesses was peculiarly a question for the jury and in the face of the verdict and its approval by the trial court we are not disposed to discredit the testimony of such witnesses solely because of their several occupations.

The evidence introduced on behalf of the defendant warranted the jury in finding that the fair cash market, value of the property before the improvement was from $1,000 to $1,200 and the admission by the plaintiff that the fair cash market value of the property after the improvement was $1,800, justified a finding that plaintiff was not entitled to recover any damages by reason of such improvement.

It is earnestly insisted on behalf of the plaintiff that he was entitled at least to nominal damages upon theuncontroverted evidence that defendant deposited some clay on the property. Without considering the question whether or not under the declaration in the case,, the plaintiff could recover damages for a mere trespass, it is sufficient to call attention to the well-established rule that a judgment will not be reversed to enable a plaintiff to recover merely nominal damages.

There was no allegation in the declaration which authorized a recovery of damages by the plaintiff by reason of the filling by the defendant of the adjoining lot, and the court did not err in excluding evidence in that regard.

There is no basis in the record for plaintiff’s complaint that he was not permitted to show what was necessarily done in bringing the property up to the raised street grade and the cost thereof. The plaintiff testified fully as to the cost incurred by him in an attempt to remedy the condition brought about by raising the grade of the street, and a recital in detail of the work done was wholly unnecessary, in view of the fact that the total amount of the expense incurred by the plaintiff was the only material element to be determined.

While the trial court might with propriety have permitted the testimony of plaintiff’s tenant, Maggie Richardson, with reference to the amount of depreciation in the market value of the property, by reason of the improvement, to have stood, the cross examination of said witness developed the fact that her testimony upon that issue was of so little value that plaintiff could not have been harmed by the action of the court in striking it out.

Other objections urged as to the action of the court in admitting and excluding certain testimony are not of sufficient importance to merit discussion. Some of the objections so urged are not properly preserved for review.

The objection to the modification by the court of two instructions given at the instance of the plaintiff whereby the raising of the street grade is referred to as “the said improvement” and whereby. the word “presumed” immediately preceding the words “special benefits” was stricken out,- are without force, especially in view of the fact that the first and second instructions given at the request of plaintiff contain the expressions complained of.

The second and third instructions offered by the plaintiff and refused by the court were properly refused, because they ignore the effect upon the market value of the property of the improvement as a whole. The fourth instruction tendered by the plaintiff and refused by the court was not proper to be given under the declaration as framed.

The first instruction given at the instance of defendant is supported by the evidence of the witness Maggie Eichardson, who testified that surface water would sometimes run onto plaintiff’s lot from the adjoining lot on the south, and the instruction properly informed the jury that for any damage occasioned to plaintiff’s lot by such surface water the defendant was not liable. The declaration charges that the dust from the raised level of the street occasioned injury to plaintiff’s property, and there being no proof in the record to sustain such allegation the jury were not improperly instructed that plaintiff could recover no damages therefor. Defendant ’s fourth given instruction referred to "the damages, if any, to plaintiff’s lot, from surface water flowing thereon from the street as alleged in the declaration, and informed the jury that if no damage was caused by such surface water, but that the damage, if any, was caused by surface water from other sources, they should find for the defendant on that point. The instruction did not direct a verdict upon the whole case and taken in connection with the other given instructions it could not have harmed the plaintiff. While the defendant’s fifth instruction partially ignores plaintiff’s liability for the special assessment this element was fully covered by the third instruction given at the instance of the plaintiff. The statement in the instruction that “there can be no damage to property without a pecuniary loss” necessarily included the payment by the plaintiff of the special assessment. The use in the instruction of the expression ‘ ‘ the pavement ’ ’ included the improvement as a whole and the jury could not have been misled by the failure of such instruction to refer to the raising of the street grade, which was a constituent part of the improvement. The seventh and eighth instructions were as pertinent to the case at bar as they are to any case tried by a jury, and were properly given. Defendant’s tenth instruction was a correct statement of the law applicable to the case and could not have operated to mislead the jury. "What we have heretofore said sufficiently meets the objections urged to the eleventh, twelfth and thirteenth instructions given at the instance of the defendant.

We find no reversible error in the record and the judgment of the circuit court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Walter C. Hackett, Appellee, v. Judson Harmon, Receiver, Appellant.
    1. Measure op damages—in action for fire communicated hy locomotive. In such an action the proper measure of damages is the difference in the value of the plaintiff’s land before and after the fire.
    2. Evidence—when admission of incompetent will not reverse. The admission of incompetent evidence will not reverse where there was sufficient competent evidence amply to support the judgment.
    3. Instructions—when omission cured. An omission in one instruction given may be cured if supplied by another given instruction.
    Action commenced before justice of the peace. Appeal from the County Court of Douglas county; the Hon. Waiter J. Dodson, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Charles G. Eckhart and Graham & Graham, for appellant.
    Johu H. Chadwick, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit originally instituted before a justice of the peace to recover damages alleged to have been occasioned by a fire communicated from a locomotive or locomotives operated by the defendant, whereby about one-half mile of hedge fence on the west line of plaintiff’s farm was destroyed, and a small portion of plaintiff’s pasture land and corn field was burned over. On defendant’s appeal to the county court of Douglas county, upon a trial by jury, there was a verdict and judgment against the defendant for $125.

The proper measure of damages in the case was the difference in the value of plaintiff’s land before and after the fire. C. C. C. & St. L. Ry. Co. v. Stephens, 74 Ill. App. 586; C. & A. R. R. Co. v. Davis, 74 Ill. App. 595; L. E. & St. L. Con. R. R. Co. v. Spencer, 149 Ill. 97. It is urged on behalf of defendant that the court improperly permitted certain witnesses called on behalf of plaintiff to testify to the value, in their opinion, of the hedge fence as it stood before it was destroyed, the destruction of which constituted the principal element of damage in the case and that the true measure of damages was thereby departed from. There is some such testimony in the case, the defendant’s objection to which testimony should have been sustained, but there is sufficient competent evidence in the testimony of witnesses, who gave their opinion as "to the difference in the value of the land before and after the fire, to amply support the verdict as to the amount of damages awarded by the jury. As the jury were fully instructed by the court as to the true measure of damages to be applied in the case, we are clearly of opinion that no harm resulted to the defendant by the admission of the incompetent evidence.

There is evidence in the case tending to show that there was an accumulation of dry grass and weeds upon the railroad right of way; that the fire which destroyed plaintiff’s hedge and which burned over a portion of his corn field and meadow was caused by sparks which escaped from a locomotive or locomotives operated by the defendant, and that snch fire was communicated to plaintiff’s land from the dry grass and weeds on the right of way, and the jury were warranted in so finding.

The fourth instruction given at the instance of the plaintiff is undoubtedly subject to the criticism that it does not confine the liability of the defendant to fire communicated from a locomotive or locomotives operated by the defendant, but this element was so fully covered by other instructions given to the jury that the omission in the respect indicated was fully cured. Upon the merits of the case no contravening evidence whatever was introduced on behalf of the defendant, and we are not disposed to reverse the judgment for the purpose merely of enabling the parties to make a faultless record.

The judgment of the county court will be affirmed.

Affirmed.


text:
    John W. Reeves et al., Appellees, v. Alexander Mercer et al., Appellants.
    1. Practice—section H of Act construed. Section 14 of the Practice Act giving the plaintiff the right to proceed to trial and judgment against one or more defendants served with summons and •subsequent proceeding by sci fa, applies to resident as well as to non-resident defendants.
    2. Alteration op instruments—when judgment competent. Held, that the judgment offered in this case, notwithstanding a certain interlineation and erasure, was competent.
    3. Costs—how proof of, may he made. Held, in this case, that the admission of the fee book of the clerk wherein certain items of fees and costs were taxed, was competent; likewise, that parol testimony as to the payment of certain costs by one of the plaintiffs was properly admitted.
    Action in debt. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.

      William Mumford, and Williams & Williams, for appellant.
    A. Gr. Crawford and J. W. Stauffer, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

At the April term, 1897, of the circuit court of Pike county, Minerva Beeves and John Beeves recovered a judgment in trespass against Alexander Mercer, John Morath, Charles Liehr, Bobert Chapman, Charles Tucker and Henry Harris for the sum of $140, together with costs of suit amounting to $304.50 as taxed ]by the-clerk in the fee book. Joseph White and William Todd were also made parties defendant in said suit but were dismissed out of the case before judgment. Subsequent to the entry of said judgment Minerva Beeves,, one óf said judgment creditors, died and letters of administration on her estate were issued to John W. Beeves. The action in the case at bar was in debt upon said judgment by John Beeves and John W. Beeves, as administrators of the estate of Minerva Beeves, deceased, against all of said judgment debtors except Bobert Chapman, who was alleged in the declaration to have departed this life subsequent to the rendition of said judgment. Service of summons was had upon all of the defendants except Henry Harris, as to whom the summons was returned “not found.” To the declaration the defendants, John Morath and Charles Liehr, filed their plea in abatement wherein they averred that the supposed judgment in the declaration mentioned if any such there was, was and is a pretended judgment against said defendants impleaded with Alexander Mercer, Charles Tucker, Henry Harris and Bobert Chapman, all of whom except said Bobert Chapman were then living; that said Henry Harris then resided in the city of Springfield, Sangamon county, Illinois,. and that he had not been served with process of sum- - mens, and that plaintiffs had not attempted to obtain such service upon him; that said Robert Chapman departed this life before the commencement of said action leaving him surviving six children, reciting their names and places of residence; that all of said children were then living and that neither nor any of said children is named as defendant in said action. The defendants also filed their pleas of nul tiel record and of payment. A demurrer interposed by the plaintiffs to said plea in abatement was sustained by the court, and upon the filing by the plaintiffs of their replications to the pleas of nul tiel record and payment the cause proceeded to trial by jury, who returned a verdict finding the issue for the plaintiffs, for the sum of $389.26, being $309.15 debt and $80.11 damages. From the judgment entered on said verdict the defendants, John Morath and Charles Liehr, have prosecuted this appeal. .

It is first urged on behalf of the appellants that the demurrer to the plea in abatement was improperly sustained because Henry Harris, although á joint obligor under the judgment upon which this action was predicated, was made a party defendant to the action, he was not served with process and, therefore, no judgment could properly be entered against the other defendants who were served with process, and further, because the children and heirs at law of Robert Chapman, the deceased co-obligor, were not made parties defendant in said action.

Section 14 of the present Practice Act, which is identical with section 9 of the former Practice Act is as follows:

“If a summons or capias is served on one or more, but not on all the defendants, the'plaintiff may proceed to trial and judgment against the defendant or defendants on whom the process is served, and the plaintiff may at any time afterwards have a summons, in the nature of scire facias, against the defendant not served with the first process, to cause him to appear in said court and show cause why he should not be made a party to such judgment; and upon such defendant being duly served with such process, the court shall hear and determine the matter in the same manner as if the defendant had been originally summoned or brought into court, and such defendant shall also be allowed the benefit of any payment or satisfaction which may have been made on the judgment before recovered, and the judgment of the court against such defendant shall be that the plaintiff recover against such defendant, together with the defendant in the former judgment, the amount of his debt or damages, as the case may be. ”

The insistence by appellant that this section of the Practice Act is only applicable to cases in which the joint obligor not served with process of summons is a non-resident of the state, is wholly unwarranted. There is nothing in the language of the section quoted which authorizes such construction. This section of the Practice Act was construed by the court in Sherburne v. Hyde, 185 Ill. 580.

It affirmatively appears from the declaration that Eobert Chapman, one of the co-obligors, had died prior to the commencement of the suit, and as no presumption can be indulged that his children and heirs acquired through him by descent or devise any lands, tenements or hereditaments, or any rents or profits out of ■same, and the plea filed by the defendants did not aver such facts, said children of Eobert Chapman were not necessary parties defendant. Whether or not the said children of Eobert Chapman would have been necessary parties defendant if the facts above mentioned had been shown to exist, we do not deem it necessary to determine. It is clearly inferable from what is said in Sinsheimer v. Skinner Manf. Co., 165 Ill. 116, that where one of several joint debtors is not living when an action is brought to recover the debt, neither the personal representative nor the heirs of the deceased joint debtor are necessary parties defendant.

It is next urged that the court improperly admitted in evidence the record of the judgment sued on because there appeared thereon without any explanation certain interlineations and erasures in material matters. The only matter specifically called to our attention relates to the erasure of the names, Joseph White and William Todd, from the title of the cause wherein the judgment was entered, and the record of the proceedings in said cause sufficiently explains the reason for the insertion and subsequent erasure of the names of said persons in the title of the cause. There was no. error in admitting the record of the judgment in evidence.

It is further urged that the trial court erred in admitting in evidence the fee book wherein was entered by the clerk the various items of fees and costs taxed as costs in said cause, and in admitting the parol testimony as to the payment of certain costs by John Beeves, one of the plaintiffs in said suit, and also in admitting parol evidence for the purpose of showing which of the witnesses designated in the fee book as being entitled to per diem and mileage were summoned on behalf of the plaintiff in said suit. The several entries in the fee book follow under a caption properly ■entitling the cause, with a recital óf its pendency at the November term 1896. While the judgment in said cause was entered June 9, 1897, it appears from the record that said cause was pending in the circuit court of Pike county at the November term 1896, and we do not regard the manifest clerical error in entitling the cause in the fee book as of the November term 1896, of sufficient importance as affecting the substantial right of the parties, to merit discussion. It appeared from an entry in the fee book that all costs, except the witness fees of John A. Beid, were paid by the plaintiff, John W. Beeves, o'n June 4,1904, and that the sheriff’s fees for service of summons and subpoenas had been paid to the then sheriff. The clerk in entering up the names of the witnesses who had been subpoenaed in said cause, together with the per diem and mileage to which each of said witnesses was entitled, had failed to designate in said fee book which witnesses were' subpoenaed on behalf of the plaintiffs and which witnesses had been subpoenaed on behalf of the defendants, and for the purpose of ascertaining the amount of the plaintiff’s costs in said cause, which they were entitled to recover as a part of the judgment in the case at bar, the court permitted the introduction of parol testimony as to which of said witnesses were subpoenaed on behalf of the plaintiffs. The costs in said cause were taxed by the clerk at $304.50 and the action of the court in permitting such parol testimony to be introduced •operated to the benefit of the defendants and the appellants are in no position to complain of such action.

Appellees have assigned cross-errors upon certain rulings of the trial court, but as the record discloses no objection and exception to such rulings, such cross-errors are not properly preserved for review.'

There is no substantial error in the record and the judgment of the circuit court will be adrmed.

Affirmed.


text:
    Frank Kern, Appellee, v. School Directors of School District No. 82½ et al., Appellants.

      Liens—when vendor’s not sustained. A vendor’s lien is not viewed with favor and rights under such a lien will not be enforced unless clearly and distinctly made out.
    Bill in chancery. Appeal from the Circuit Court of Coles county; the Hon. James W. Cbaig, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    James Vatjse, Jr., for appellants.

      Henley & Hughes, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Coles county awarding to appellee a vendor’s lien for $406.68 on lots 10, 11 and 12 in block 13 in G-rant Park Place in Lafayette, Coles county, and directing a sale of said premises to satisfy said lien, upon the failure of appellants to pay said amount with interest within 90 days from date of said decree.

In support of his claim for a lien appellee offered in evidence, the poll book of a special election held in said school district on May 4, 1905, from which it appears that there was submitted to the legal voters in said school district, the following: “Purchasing lots for one school house site and for to build one school house and for to issue bonds to the amount of six hundred dollars with five per cent interest payable annually.” Appellee also offered in evidence a certified copy of the tally list of said election, from which it appears that seven votes were cast for each of the following propositions: “Purchasing lots for sites number 10, 11, 12, block 13; building a school house; issuing bonds.” It further appears from the certified returns of said election that the propositions then submitted to said legal voters were, as follows: “Purchasing and locating lots 10, 11, 12 in block 13, district 82%; building school house; issuing bonds to the amount of six hundred dollars, due one hundred on June first of each year beginning with June 1907 with interest at five per cent payable annually.” It also appears therefrom that each of said propositions carried. There is no proof in the record that any notice was given of the holding of said election as required by law. It is conceded that no written contract or agreement was entered into between appellee and the school directors, and that there is no record of any action taken by said ' school directors for the purchase by them from appellee of the lots against which a vendor’s lien is sought to be enforced.

J. W. Hornbeck, president of the board of school directors, testified in substance, that after the election the directors decided to purchase the three lots owned by appellee providing they could get no others cheaper, and that the matter was left to him to look after; that prior to that time appellee had fixed a price of $300 on the three lots and had also agreed to donate to the school district another lot owned by him; that subsequently he met appellee and agreed to take the lots, and that a contract was to be drawn up and signed by all of the parties providing for the sale of said lots by appellee for the sum of $300 to be paid a year or so after-wards ; that the school directors then took possession of said lots and built a school house on lot 11 and have continued to use and occupy said lots for school purposes; that he had no recollection as to the claim of appellee that the school directors should pay all taxes and assessments levied against said lots. Concerning this transaction appellee testified as follows: “Mr. Hornbeck came to my office as I say time and time again and finally says, we have held an election and we have carried it unanimously for the erection of the school buildings, and we want to buy your lots 10, 11, and 12 so we will have a large place for the children, and I agreed with him. I advised him as to my price on the lots being $300 or $100 each. He asked me if I would consent to the sale of two of the lots or one. And I said no, I wouldn’t give 30 cents for a lot next to a school house and it was either three or none. And then I said to him, I have one lot in block 6 that I will donate to the school board at any time or at the time when they have paid for these three lots and I would hold that lot for that purpose or they could sell it and use the money or they could use it for whatever they pleased. It would be their lot whenever they paid for the three lots $100 each. I am still holding that lot expecting to carry out the contract. Mr. Hornbeck came back time and again and finally said we have decided to accept your proposition and would like to have a contract and the contract was drawn up and I signed it and left it at your office. The $300 was to be paid if I remember correctly within one year. It was to draw 6 per cent interest, they were to pay all taxes and drainage assessments subsequent to a fixed time ’ ’. Appellee has neither executed and delivered a deed for said lots to appellants, nor has he tendered any such deed to appellants. The alleged contract for the sale of the lots rests wholly in parol, and such parol contract was made with only one of the defendants acting in his individual capacity. A vendor’s lien is not viewed with favor and rights under such a lien will not be enforced unless clearly and distinctly made out. Ross v. Clark, 225 Ill. 326.

If appellants have appropriated the property of appellee, they may be liable therefor in an appropriate action, but the remedy here sought to be invoked, is, under the evidence in this record, wholly unauthorized. There is an entire absence of proof of a contract sufficient to support a vendor’s lien.

The decree will be reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded.


text:
    J. C. Busby, Appellee, v. S. E. Baughman, Appellant.

      Evidence—when admission of incompetent will not reverse. The admission of incompetent evidence will not reverse if it is apparent from the whole record that notwithstanding such error a re-trial of the cause would result in a like verdict and judgment.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Christian county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.

      J. C. & W. B. McBride, for appellant.
    Frank P. Drennan, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This suit was originally instituted by the plaintiff against S. E. Baughman and James Sharp, before á justice of the peace, to recover $14.50 alleged to be due and unpaid to the plaintiff from the defendant Sharp, for work and labor performed for the defendant Baughman under an original contract between said Sharp and Baughman, for which amount the plaintiff had served a notice upon Baughman asserting a subcontractor’s lien. From the judgment against said defendants rendered by the justice of the peace, the defendant Baughman prayed an appeal to the circuit court of Christian county, where upon a trial by jury the plaintiff recovered a judgment for $14.50, from which judgment said Baughman prosecutes this further appeal.

The only issue involved was whether or not at the time the plaintiff served notice upon Baughman of a subcontractor’s lien, the said Baughman was indebted to Sharp, the original contractor, in an amount sufficient to cover the amount due the plaintiff and two other subcontractors, who had also served notices asserting liens, the total amount due said subcontractors being $55.75. It is conceded by counsel for appellant that the contract price for the construction by Sharp for Baughman of some buildings upon the latter’s farm was $265 to be paid from time to time as the work progressed, and that during that time Baughman paid to Sharp upon said contract $219.68. It is further clearly apparent from the record that Sharp performed some extra labor for Baughman, the value of which was in dispute between the parties, which dispute is responsible for this litigation. We are satisfied from an examination of the competent evidence in the record that Baughman was indebted to Sharp upon the original contract and for extras in an amount sufficient to entitle plaintiff to recover the amount due him, and that notwithstanding the errors committed by the trial court in the admission of incompetent evidence a re-trial of the cause would result in a like verdict and judgment against appellant. As the judgment of the circuit court accomplished substantial justice without contravening any established rule of law it will be affirmed.

Affirmed.


author: Mr. Justice Puterbaugh

text:
    Frank Morrison, Appellee, v. Pacific Express Company, Appellant.
    Common cabbiebs—when estopped to deny liability. Common carriers are estopped to deny liability where the conduct of its agent was such as to induce belief that liability was admitted and that settlement would be made.
    Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    J. O. & W. B. McBride, for appellant.
    Hogah & Wallace, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action of assumpsit by appellee against appellant. The cause was tried by the court without a jury, and judgment rendered in favor of appellee for $123.75. The declaration alleges, in substance, that the plaintiff delivered to the defendant, a common carrier, certain merchandise, which it promised to carry safely in its express car, and deliver to the plaintiff at Taylorville, Illinois, and that the defendant through the neglect of its servants, so handled said merchandise that the same was wholly lost to the plaintiff. The defendant filed a plea of general issue and a special plea of the Statute of Frauds, averring that the several supposed promises in the declaration mentioned were special promises to answer for the default of the American Express Co. or National Express Co., and that the same was not in writing.

The evidence discloses that about ten o’clock in the morning of March 30, 1907, a box of dry goods consigned to the plaintiff, was delivered to the defendant company at Decatur, Illinois, by the American Express Co.; that the agent of the defendant receipted for said goods as in apparently good order, and that at the time the box was perfectly dry and in apparently good condition, there being nothing about it to indicate that the contents were damaged. The box was then taken inte the depot of the defendant and kept under cover until about five o’clock in the afternoon of the same day, when it was forwarded to Taylorville and delivered to-the plaintiff. When the box was opened up by the plaintiff it was ascertained that the contents had at some time been wet and were damaged. Plaintiff then called the attention of the agent of the defendant company at Taylorville to the damaged condition of the-goods. The agent advised him to refuse to accept the goods, whereupon the plaintiff returned the same to-the office of the company at Taylorville, where they remained until about April 19th, at which time the agent told the plaintiff that he and the plaintiff would makeup a bill for the damages, send it in to the company, and that the same would be paid. Plaintiff thereupon prepared and sent to the defendant company an itemized statement of the damage claimed to have been sustained, amounting to $123.75.

On November 12, 1907, Bresie, the superintendent of the company, notified the plaintiff by letter that its route agent Gross would call upon him with reference to the settlement of the claim, and on December 30, 1907, wrote to him as follows:

“Dear Sir:—
“I beg to acknowledge receipt of your letter of Dec. 27th. Subject: Claim shipment to your address from Albany, N. Y. Route Agt. Gross of this Company and representative of American Express Co. having tendered you $50.00 in settlement of claim. I have not as yet received papers from Mr. Gross or any information from the American Express Company, but will write for correspondence and a statement from them to-day.' It is my understanding that the receipt did not specify any value, and you no doubt understand that in such a case, the terms of our receipt are that the company accepts responsibility for an amount not to exceed $50.00. This undoubtedly was the reason the amount was tendered you. Let me ask that you defer any action in the matter until I can get the original correspondence in my hands.”

On August 1, 1908, Bresie wrote to the attorney of the plaintiff as follows:

“Dear Sir:—
“Referring to claim of F. Morrison on account of damage to part of contents of a shipment originating with the American Express Co. at New York City, transferred to us at Decatur and destined to Taylor-ville. I am in receipt of your letter of July 29th, and I have to advise that I am still without the necessary information from the American Ex. Co. to decide as to the merits of this claim. I am sorry indeed on account of this delay and I have today taken the matter up with a Superintendent of that company under personal cover. I hardly think it necessary for you to allow this matter to go into court, as it is our intention to settle and pay all just claims. The Pacific Express Co. would have brought this matter to a conclusion some time ago, but as we have stated to you, the damage in this case being of a concealed nature, and the shipment having been handled by the American Ex. Co. between New York and Decatur (the greater part of the distance) we, of course, must look to them for some advice in the matter before making a settlement. I hope to 8 be able to reply to you in this matter within ten days which I trust will be satisfactory.”

Waiving the question of the primary liability of appellant, we are of opinion that the conduct of its agent and superintendent was such as to estop it to deny the same. Appellee was warranted in believing that the agent had authority to settle his 'claim, and that it would be eventually settled by appellant, and the correspondence quoted manifestly further justified such belief. Under these circumstances to hold that, after delaying action for so long a time, under various pretexts, until proof of liability would he difficult to establish, appellant can now disclaim liability, would operate as a denial of justice, and cannot be tolerated, either at law or in equity. In this view of the case, the trial judge did not err in refusing the proposition of law submitted by appellant.

The judgment is accordingly affirmed.

'Affirmed.


text:
    Julia Chapman, Appellee, v. City of Staunton, Appellant.
    Eminent domain—when city liable for changing grade of street; when not. A city or village may, in its discretion, make any reasonable change in the grade of a street, and its act is not wrongful even though private property is thereby damaged; but any change which obstructs access to such property is a damage for which the owner is entitled to compensation under the constitution.
    Action in case. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Truman A. Snell, for appellant; Peebles & Peebles, of counsel.

      Early & Williamson and J. S. Clarke, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case by Julia Chapman against the city of Staunton. Trial by jury resulted in a verdict and judgment in favor of the plaintiff for $1,000, to reverse which this appeal is prosecuted by the defendant. The declaration upon which the case was tried, alleges that the plaintiff was the owner of a certain lot in the city of Staunton, having a frontage on Main street; that she erected a building upon said lot; that at that time the surface of the street in front of the premises was level, and 20 inches below the level of the first floor of the building; that the defendant caused a sidewalk, 34 inches higher than the natural grade of the street, to be constructed, thus raising the sidewalk 14 inches above the door sill of said building, and thereby interfering with the ingress to and egress from the building, from and to the street.

The evidence tends to show that in June, 1906, the plaintiff had erected her building some 20 inches higher than the natural grade of the street in front of her premises; that in August, 1907, the city constructed in front of her property a concrete sidewalk at a grade 14 inches higher than the first floor of said building, and that in order to get in the building it was necessary to step down from the sidewalk a distance of about 14 inches. The evidence further shows that the sidewalk was built under the direction of the city, upon a petition of certain property owners other than the plaintiff; that the cost of the same was borne equally by the property owners and the city; that no grade was fixed by the city for the walk, and that at the time the work was being done, the plaintiff protested against the sidewalk being built at the grade mentioned.

It is first urged that under the facts disclosed by the record, appellee has no right to recover. It has been uniformly held by the courts of this state that a city or village may, in its discretion, make any reasonable change in the grade of a street, and its act is not wrongful even though private property is thereby damaged; but any change which obstructs access to such property is a damage,, for which the owner is entitled to compensation under the constitution. City v. Eaton, 83 Ill. 535; Rigney v. City, 102 Ill. 64; R. R. Co. v. Ayres, 106 Ill. 511; City v. Pollock, 141 Ill. 346; City v. Blower, 155 Ill. 411; City v. Jackson, 196 Ill. 496; City v. Lonergan, 196 Ill. 518; City v. Egger, 104 Ill. App. 546; Village v. Trah, 218 Ill. 516; Shrader v. Ry. Co., 242 Ill. 227. It is also well settled that one whose property is thus injured is entitled to compensation therefor to the difference between the fair cash market value of the property before such improvement and its fair cash market value thereafter. City v. Newman, 130 Ill. App. 6; City v. Pollock, supra; City v. Eaton, supra.

Counsel for appellant concede this to be the law, and that appellee would Tie entitled to recover any damages occasioned to the lot itself by reason of the change of grade, but seem to insist that where no grade has been established by a municipality, an abutting property owner who locates a building on such property cannot recover damages occasioned by interference with the ingress and egress to and from such building alone, but can only recover for damages occasioned to the lot itself. We are of opinion that an owner of the land has the right to use and improve it in any manner he desires so long as he does not contravene any existing law; that where no grade has been established, the property owner has a right, acting in good faith, to improve the same by erecting a building or buildings, at any grade he may elect, in reasonable conformity to the natural surface of the ground, and that any damage resulting to the property as a whole, by reason of a change of the grade, may be recovered from the municipality making or authorizing such change.

It is also contended that the evidence fails to show affirmatively that the city authorized or consented to the laying of the sidewalk in question. There was ample affirmative evidence in the record to the effect that the sidewalk was constructed by or under the authority of the city. No controverting evidence was offered by it upon this issue. On the contrary it sought to show in defense of the action that the benefits accruing to the property by reason of the building of the sidewalk equaled any damage occasioned thereby.

It is further urged that the trial court erred in its rulings upon the instructions. The first instruction given for the plaintiff told the jury in substance that if they believed from the evidence that certain facts existed, the plaintiff was entitled to recover. It is insisted that such instructions were erroneous because they did not require the jury to find such facts from a preponderance of the evidence. The criticism is without force. Belief of certain facts from the evidence necessarily implies that the greater weight thereof tended to establish them. The substance of the refused instructions offered by the defendant was fully covered by others given in its behalf.

We find no prejudicial error in the record, and the judgment is accordingly affirmed.

'Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. John Craig, Plaintiff in Error.

      Dbam-shops—what selling of intoxicating liquor in anti-saloon territory. Held, under the evidence, that the so-called “club” provided with lockers for members, etc., was but an evasion of the statute and ■designed as a means to enable the selling of intoxicating liquor in anti-saloon territory.
    Prosecution for unlawful sale of intoxicating liquor. Error to the Circuit Court of Edgar county; the Hon. O. P. Thompson, Judge, presiding. Heard in this court at the November term,' 1909.
    Affirmed.
    Opinion filed March 30, 1910.

      F. C. Van Sellar, for plaintiff in error.
    Bichard S. Dyas, for defendant in error; Frank E. Shopp, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Plaintiff in error, John Craig, was indicted by the grand jury of Edgar county for selling intoxicating liquor in anti-saloon territory. A jury was waived and upon a trial by the court Craig was found guilty under one count of the indictment, fined $20 and costs, and ordered committed until the same was paid.

The evidence discloses that the town of Paris is anti-saloon territory; that before it became such, Craig was employed as a bar tender in a saloon in the city of Paris; that upon the town of Paris becoming anti-saloon territory, he organized and had incorporated ‘ ‘ The Paris Club, ’ ’ of which he became secretary and treasurer. The headquarters of the club were located in a room in the second story of a brick building in the city of Paris. The first floor was occupied by one Heizar as a restaurant, from the rear of which access was had to the club room by a stairway. Keys to the door of the stairway, which was kept locked, were held by Craig, one Diehl and his assistant, and several members. The furniture of the club room consisted of a few chairs and tables, a punching bag, water cooler and ice box, and about 80 lockers built around the wall. The ice box, in which beer and whiskey in bottles were stored, was kept locked, the keys being carried by Craig and Diehl only. Each member had a locker in which he kept liquor and to which he carried the key, Craig having duplicate keys. When a member desired to purchase liquor, he paid Craig $2.75 for a case of beer, or $1.25 for a quart of whiskey, and signed a printed order supplied by Craig in blank, upon the Evansville Brewing Association for the beer, or upon an Indianapolis liquor house for the whiskey. The order was then forwarded by Craig, and when the liquor arrived at the club room he placed it in the locker of the member ordering and paying for the same, attaching to the bottles for the purpose of showing ownership, numbered metal tags.

The evidence further shows that one Frazier, on March 15, 1909, paid Craig $1 for the use of a locker, and $2 membership fee, and then signed an order for a case of beer, which order he delivered to Craig; that he afterward found the beer in his locker and that he thereafter ordered beer four times, in the same manner. Other witnesses testified to obtaining whiskey and beer in the same way. Neither of them knew the name of the establishment from which the liquor was ordered, and did not know of its arrival until he found it in his locker. The evidence also shows that Craig made all purchases, and paid all bills, but does not show that he kept any account with the club, of his financial transactions. The only question presented by the record is whether plaintiff in error was under the circumstances detailed, guilty of a violation of the anti-saloon territory act, section 13 of which provides that “The giving away or delivering of any intoxicating liquor for the purpose of evading any provision of this act, or the taking of orders or the making of agreements, at or within any political subdivision or district, while the same is anti-saloon territory, for the sale or delivery of any intoxicating liquor, or other shift or device to evade any provision of this act, shall be held to be an unlawful selling.” Rev. Stat. 1908, 896.

It seems too clear to necessitate discussion or argument, that the furnishing and disposing of liquor by plaintiff in error -in the manner above described, constituted a shift or device to evade the provisions of the statute above quoted. State v. Social Club, 73 Md. 98; State v. Boston Club, 45 La. Ann. 585; Newark v. Essex Club, 53 N. J. L. 99; Kentucky Club v. Louisville, 92 Ky. 309; People v. Soule, 74 Mich. 250; Com. v. Baker, 152 Mass. 337.

The surrounding circumstances and conditions in evidence can lead to but one logical or reasonable conclusion; that is, that the real and sole object of the so-called club was to enable its members to purchase and plaintiff in error to sell intoxicating liquors, in small quantities, his profit being the difference between the total amount paid to him by members for the purchase of liquors, for membership fees and locker rent, and the sums paid by him for liquors and the expenses of maintaining the room. The fact that it does not appear that a direct profit accrued to plaintiff in error for dispensing the liquor, or that the transaction may be merely incidental to the main purpose of the club, or that only members enjoyed the right to so procure liquors, does not render the transaction any the less a sale. This view we think is warranted and supported .by the following authorities: Rickart v. The People, 79 Ill. 85; The People ex. rel. v. Law and Order Club, 203 Ill. 127; South Shore Club v. The People, 228 Ill. 75.

It follows that plaintiff in error was guilty of the offense charged in the indictment, and the judgment of the circuit court is accordingly affirmed.

Affirmed.


author: Mr. Justice Puterbacgh

text:
    The German Evangelical Orphans Home et al., Appellants, v. George M. Seago, Conservator, Appellee.

      Chancery—jurisdiction to authorise renunciation. A court- of chancery has jurisdiction, upon petition by a conservator of an insane widow, to authorize and direct such conservator to renounce on behalf of such widow the provisions of a will made by her husband.

      Bill in chancery. Appeal from the Circuit Court of Jersey county; the Hon. O. P. Thompson, Judge, presiding. Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Hamilton & Hamilton, for appellant.
    Charles S. White, for appellee.
   Mr. Justice Puterbacgh

delivered the opinion of the court.

Appellee, George M. Seago, as conservator of Caroline Meier, insane, filed in the circuit court a bill in chancery setting forth that Peter Meier, the husband of said Caroline Meier, died on or about August 6, 1908, leaving a last will and testament, which was duly admitted to probate, and letters testamentary issued to O. H. Richards, the executor named in said will; that on June 17, 1901, the said Caroline Meier was adjudged by the county court to be insane; that on August 20, 1908, George M. Seago was appointed and was acting as conservator of her estate; that said Peter Meier left no child or children, nor any descendants of any deceased child or children surviving him; that his estate, as shown by the inventory, consisted of personal estate of the value of about $25,000, and that the widow’s award was fixed by the appraisers at $1,875; that by his said will the said Peter Meier bequeathed to his executor, as trustee, the sum of $5,000 to be held by him in trust for the benefit of the said Caroline Meier, so long as she should remain insane, and provided that in case she became restored the same was to be paid to her, but that if she did not regain her sanity, the said trust fund should upon her death be divided among certain nephews and nieces of the testator; that the sum of $2,000 was bequeathed to the appellant Orphans’ Home, and the residue of the estate to the appellant The Evangelical Synod, to be used by it for the benefit of widows and orphans. The bill further sets forth that by reason of the insanity of said Caroline Meier, she was not competent to elect under the statute to accept the provisions of said will in her favor, or to renounce the same, or' to make her relinquishment and selection in said personal property under her widow’s award. The bill prayed that the court elect for the said Caroline Meier and renounce the provisions of said will in her favor, and by its decree declare that she should take her share of the estate of said Peter Meier under the statute, and elect for her as to what property she should take upon her award. The bill was afterward amended by striking out the prayer that the court select the property to be taken by Caroline Meier upon her “widow’s award.”

A general and special demurrer was filed to the amended bill by appellants, all other defendants having defaulted, which demurrer was overruled, whereupon appellants elected to abide by the same. Upon the hearing of the cause, a decree was rendered finding the facts to be as set out in the bill; that said Caroline Meier was still insane and that it was for her best interest that the provisions in her favor in the will of her husband be renounced and that she take her share in his estate under the statute in such ease made and provided. It was ordered and decreed that the complainant, as conservator of Caroline Meier, file in the county court a written renunciation of the provisions of said will in her favor, and elect to take for her in lieu thereof, the share in said estate as by the statute in such case made and provided. Appellants insist that the chancellor had no jurisdiction to decree the relief asked; that the right of election and renunciation conferred by the statute upon the widow of a testator, is purely personal and cannot be exercised for her by .'any other person, and that the statute is binding upon ■ courts of equity as well as those at law; that the legislature having by the adoption of the statute exercised its power to legislate upon the subject-matter, such statute must be strictly complied with, and that if no provision is therein made for insane widows, relief should be sought by legislation and not through a court of chancery.

We agree with counsel for appellants that the right in question is purely personal, and could not be exercised for an insane widow by her conservator, of his own motion and solely upon his own judgment and discretion. Pinkerton v. Sargent, 102 Mass. 570; Crenshaw v. Carpenter, 69 Ala. 472. We cannot, however, assent to the proposition that it is intended by the statute that a widow who is insane, is by reason of such infirmity, deprived of the right and benefit conferred by the statute. The decree finds that it was for the best interest of Caroline Meier that the provisions of the will for her benefit be renounced, and that she take under the statute. The effect of the statute was therefore to confer upon Caroline Meier a certain property' right of the benefit of which she would be deprived unless the same was properly claimed and conserved. It is well settled that courts of equity in the exercise of their jurisdiction over the estates of insane persons and minors, have the power to prescribe remedies and enforce by decree the securing and conserving of the property rights of such persons that would otherwise be lost to them. The effect of the decree in the present case is not to confer upon the conservator the power of election and renunciation in contravention of the terms of the statute; it but directs the conservator to perform a ministerial duty necessary for the preservation of a right to which the court finds the widow was entitled. The- principle that a court of chancery has jurisdiction, upon petition by the conservator of an insane widow, to renounce the provisions of a will under statute similar to that under consideration, is supported by the following among other authorities: Penhallow v. Kimball, 61 N. H. 596; State v. Hunt, 88 Minn. 404; Van Steenwyck v. Washburn, 59 Wis. 483; Andrews v. Bassett, 92 Mich. 449, 17 L. R. A. 299; Kennedy v. Johnston, 65 Pa. St. 451.

The decree of the circuit court is affirmed.

Affirmed.


text:
    Pressed Radiator Company, Appellee, v. Arthur F. Hughes, Appellant.
    1. Appeals and errors—when questions of law not presented. If a case has been tried by the court without a jury and no questions as to the rulings of the court upon the admission or exclusion of the evidence are argued by counsel and no written propositions-of law were submitted to be passed upon by the trial court before 'and at the time of rendering judgment, no questions of law are presented for the determination of the Appellate Court.
    2. Suretyship—when guaranty binding without acceptance or notice of acceptance. A guaranty absolute and unqualified becomes effective as soon as acted upon and no formal acceptance and no notice of acceptance are essential in order to bind the guarantor.
    3. Corporations—what not doing'business in this State contrary to statute applying to foreign. The mere bringing of a suit by a foreign corporation is not in itself a doing of business in this State within the meaning of the statute regulating foreign corporations doing business in this State.

      4. Corporations—what not doing business in this State contrary to statute applying to foreign. The mere fact that a corporation has an agent in this State and that such agent has an office in this State, does not preclude such corporation from maintaining an action in this State upon a contract legally made outside of this State.
    Assumpsit. Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding. Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Charles G. Briggle and S. H. Cummins, for appellant.
    Monroe & Monroe, for appellee
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit by appellee, a corporation organized under the laws of Pennsylvania, against appellant, upon the following written instrument:

“Springfield, Ill., May 14, 1907.
“Pressed Radiator Co., Pittsburgh, Pa.
Gentlemen:—I hereby guarantee payment of invoice covering the forty (40) radiators purchased of you by Mr-. P. P. Sexton, the heating contractor of this city, for my new flat building now in course of construction. I understand that you are not acquainted with Mr. Sexton, and guarantee the payment so as to avoid delay of shipment.
A. F. Hughes.”

The declaration alleges the execution and delivery of the said guaranty by the defendant, and that he thereby guaranteed the payment to the plaintiff of the invoice price of said radiators in the sum of $453.47; that the plaintiff delivered to said Sexton the said radiators; that the same were used by Sexton in the construction of the Hughes flat, and that the defendant had not paid the price of the same.

To this declaration the defendant interposed the general issue, and a special plea alleging that the plaintiff was an organized corporation for profit, and was not a railroad or telegraph company, nor in the insurance or banking business or money loaning business; that the merchandise sold to the said Sexton, for which the suit was brought, was sold and brought into the State of Illinois since January 1, 1902; that the plaintiff as such corporation had not at the time of the commencement of the suit, as is by the statute provided, filed with the Secretary of State its articles or certificate of incorporation, or statement of capital stock represented in Illinois, as provided by law; nor had the plaintiff prior to or at the commencement of the suit been licensed to do business in the State of Illinois as is by law provided; and that the plaintiff at the time of the commencement of the suit had no certificate of authority nor had any ever been issued to it to do business in the State of Illinois.

A demurrer was overruled to said plea, whereupon appellee filed a replication alleging that the order for said goods was solicited by plaintiff’s traveling salesman from said Sexton, and thereupon defendant guaranteed in writing the payment of the sum as alleged in said declaration; that said order and defendant’s guaranty as aforesaid, were by plaintiff’s salesman forwarded by mail to plaintiff for acceptance, at its home office in the city of Pittsburgh, in the State of Pennsylvania ; that plaintiff upon the receipt of said order and guaranty aforesaid, then and there accepted said order and guaranty and then and there delivered said goods to the Wabash Eailroad for said Sexton, and the same were accepted by it for said Sexton as a common carrier of freight from the State of Pennsylvania to the State of Illinois and delivered to said Sexton as a shipment of interstate commerce; without this that the plaintiff in the taking and acceptance of said order and said guaranty, and in the sale, shipment and delivery of the goods in its declaration alleged, transacted any business or exercised any of its corporate powers in the State of Illinois.

To this replication the defendant interposed a demurrer which was overruled. Thereupon the defendant filed a rejoinder thereto, denying that the said goods were sold in Pennsylvania and denying that the same were interstate commerce. A demurrer was overruled to the rejoinder, and afterward the defendant asked leave to file the following additional pleas, by which it was alleged in substance: First, that on May 14,1907, the defendant offered and proposed said guaranty to one Ostrander at Decatur, Illinois, and not to the plaintiff as by said guaranty supposed, and that thereafter the defendant had no notice whatever that the plaintiff had accepted said guaranty, and upon the faith of said guaranty given credit to said Sexton on account of the purchase of the said radiators, and that by reason of the failure of the plaintiff to so notify the defendant, the defendant paid to said Sexton the said sum of money mentioned in the declaration; second, that on May 14,1907, the defendant offered to give the plaintiff the said written guaranty in consideration' that it would give credit to one Sexton on account of the future purchase mentioned in said guaranty; that after the making of the said offer of said guaranty, the plaintiff failed within a reasonable time thereafter to give the defendant notice of its acceptance thereof, or that the plaintiff had on account of said guaranty, extended such credit to Sexton; third, that the said guaranty was delivered to one Ostrander, the general agent and salesman in the State of Illinois for the plaintiff, upon the condition that the plaintiff would accept the same and extend credit to Sexton for the future purchase of it, the plaintiff, at Pittsburgh, Pennsylvania, of 40 radiators, and that after the making of the offer to guarantee the credit, which the plaintiff might on account of said guaranty, extend to said Sexton, it, the plaintiff, failed to extend the same to him; whereby said guaranty was without any good or valuable consideration whatever. The court refused to allow appellant to file either of said pleas.

The evidence discloses that appellee is a foreign corporation and had not prior to or at the commencement of this suit complied with the laws of this state in regard to foreign corporations doing business therein. Appellant was constructing a flat building in the city of Springfield, Illinois. One Sexton had the contract for installing a heating system in the same, and ordered a number of radiators from appellee through one Ostrander, who maintained an office at Decatur, Illinois. After receiving the order Ostrander applied to appellant to guarantee payment for the goods, and appellant signed and delivered to Ostrander at Decatur, Illinois, the guaranty in question. The radiators were shipped by appellee from Pittsburgh, Pennsylvania, direct to Sexton at Springfield, and were installed by him in appellant’s building. He afterward paid Sexton for the same.

No questions as .to the ruling of the court upon the ' admission or exclusion of evidence are argued by counsel. No written propositions of law were submitted to be passed upon by the trial court before or at the time of rendering judgment, and no question of law is therefore presented by the record for our determination. Mutual Prot. League v. McKee, 223 Ill. 364. We can therefore only presume as to what were the views of the trial judge as to the principles of law applicable to the facts of the case.

Counsel for appellant contend that the court abused its discretion in refusing to permit the additional special pleas to be filed, and cite Newman v. Coal Co., 19 Ill. App. 594, wherein it is held that where a guaranty is uncertain and unlimited in amount the guarantor is not bound unless he is notified within a reasonable time that the guaranty is accepted and is being acted upon. The rule invoked has no application to the guaranty in this case, which is upon its face an absolute undertaking and not dependent upon any future contingency. The guaranty is for the invoice price for 40 radiators, and is therefore definite and ascertained. Frost v. Metal Co., 215 Ill. 241; Cook v. Orne, 37 Ill. 190; Mfg. Co. v. Gilmore, 142 Ill. App. 567. The guaranty in the Newman case, supra, was a guaranty to pay for the amount of coal that might be purchased at the market price for a year. ' Neither the quantity of coal to be purchased, the price, nor the time for which the contemplated deal was to continue, was in any way fixed or limited. The amount was thus uncertain and indefinite and the undertaking constituted a continuing guaranty for future indebtedness. Neither has the principle that an offe^ to guarantee the debt of another about to be created, must be accepted within a certain time and notice given to the guarantor of such acceptance, any application to the case at bar. The guaranty here involved being absolute and unqualified, became effective as soon as acted upon, and no notice of its acceptance was essential in order to bind the guarantor. Brandt on Sure, and Guar., sec. 193; Davis Sewing Machine Co. v. Richards, 115 U. S. 524. It follows that had the pleas been allowed they would have been unavailing.

The contention that a foreign corporation must have complied with the provisions of the statute before it could institute the present suit, because the bringing of the suit is in itself doing business within the meaning of the statute and is the exercise of one of the corporate powers of the corporation, is answered adversely to appellant -by our Supreme Court in Alpena Portland Cement Co. v. Jenkins & Reynolds Co., 244 Ill. 354. It is there held that the words “doing business” and “transacting business” as used in statutes regulating foreign corporations, have by numerous judicial decisions been given a settled and recognized meaning and refér only to the transaction of the ordinary business in which the corporation is engaged, and do not include acts not constituting any part of its ordinary business, such as instituting and prosecuting actions in courts, and that foreign corporations which have not been guilty of any violation of the statute in question may institute and maintain suits in the courts ' of this state.

Appellant testified that he signed the guaranty and forwarded it to Ostrander. Gordon, the treasurer of appellee company, testified that the order for the radiators and the guaranty were received by him through the mail on May 16,1907, and that on that date acceptance of the company was mailed to Sexton; that the traveling salesman of the company had no authority to make sales or accept guaranties, but that the sales were made by him at Pittsburgh, Pennsylvania, and that the orders and guaranty were passed upon and accepted by him at that place; that when he received the order in question based upon the credit of Sexton alone, he refused to accept it, but that after the receipt of the written guaranty of appellant, he, acting for the company, agreed to accept and fill the order. Appellant introduced no evidence tending to show that Ostrander accepted the order for the radiators or the guaranty sued upon, in this state. On the contrary, the conclusion to be drawn from his own testimony is that he knew he was dealing with appellee at Pittsburgh; whether he knew that Ostrander had no authority to-complete sales or accept orders or guaranties is immaterial. Nor was any evidence introduced by appellant, tending to show that the sale was completed in Illinois. On the contrary he admitted that he received a letter from Ostrander advising him that the company would not accept the order or ship the goods unless appellant guaranteed the payment, and that he thereafter executed the guaranty addressed to appellee at Pittsburgh.

Appellant introduced' evidence which tended to show that the following letter-head was printed upon a letter received by him from Ostrander several months after the transaction in question; and further that about the same time he saw similar letter-heads in Ostrander’s, office:

“New York, Flat Iron Building Chicago, First National Bank Building St. Louis, 312 S Eighth St
The Pressed Radiator Company Pittsburgh, Pennsylvania
Works, West Pittsburgh, Pa.
Kirinear Sheet Metal Radiators
Chicago, Ills. Decatur, Ill. 12-2-07.”

Counsel insist that such facts support their contention that appellee was doing business in Illinois at the-time of the transaction; that when a foreign corporation has an established place of business or an agency and office located in the state through which it transacts its business, it is doing business within the language of the statute. While the evidence referred to tended slightly to establish appellant’s contention, standing by itself it has but little probative force. We do not think the mere fact that appellee had an agent in the state and that said agent had an office, would have the broad effect claimed. In International Text Book Co. v. Mueller, 149 Ill. App. 509, cited by appellant, the evidence disclosed that the foreign corporation maintained a distributing office within the state. Such fact does not appear in the present record.

The place where a contract is made does not depend upon the place where it is actually written, signed and dated, but where it is delivered and accepted as consummating the bargain. First Dan. Neg. Inst., 4th ed. 868; Gay v. Rainey, 89 Ill. 225. Where an agent employed by a foreign corporation in a state having a restrictive statute to solicit orders and make estimates of material to be furnished therefor, and such order is sent by such traveling salesman to the home office of such foreign corporation in a foreign state, for acceptance, and such order is there accepted and filled by direct shipment from the home office to the customer, the corporation is not deemed to be “doing business” within the meaning of the restrictive statute. HavensGeddes Co. v. Diamond, 93 App. 557; John Spry Lumber Co. v. Chappell, 184 Ill. 539; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Tokheim Mfg. Co. v. Stoyles, 142 Ill. App. 198; Central Mfg. Co. v. Briggs, 106 id. 419.

The finding of a trial judge on an issue of fact will be accorded the same weight as the verdict of a jury, and his finding will not be disturbed unless it is made to appear that it is clearly and manifestly against the weight of the evidence. The trial judge was warranted in finding that the transaction here involved was completed in Pennsylvania; that the minds of the parties met and the trade was consummated and the goods delivered in that state. A transaction of this character constitutes interstate commerce and cannot he controlled hy the laws of this state.

We are of opinion that the evidence fails, to show that the appellee company was doing business or exercising any of its corporate powers within this state, within the meaning of the statute relative to foreign corporations.

The judgment of the county court will he affirmed.

Affirmed.


text:
    Charles Ashcraft, Appellee, v. Roberts & Schaeffer Construction Company, Appellant.
    1. Master and servant—when former not obligated to furnish safe place to work. One exception universally recognized to the obligation of the master to exercise reasonable care to furnish a reasonably safe place for his servant to work, is where the conditions are changing from time to time in the prosecution of the work. If the nature of the work is such as to produce changes and temporary conditions in the place where the work is performed, the master is not required to exercise reasonable care to keep such place reasonably safe under such changed conditions which the work renders necessary.
    2. Master and servant—when former not obligated to warn. The master is under no duty to warn or instruct a servant as to dangers which were almost necessarily attendant upon his work and of which he was warned by the very nature of his employment.
    Action in case for personal injuries. Appeal from the City Court of Pana; the Hon. Josiah P. Hodge, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed March 30, 1910.
    Graham & Graham, for appellant.
    McGinley & Wiley, and John W. Preihs, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the •court.

This is an action in case for the recovery of damages alleged to have been sustained by the plaintiff through the negligence of the defendant while he was in its employ. A trial by jury resulted in a verdict for plaintiff for $1,000, to reverse which this appeal .is prosecuted by the defendant. The negligence charged in the declaration is, first, the failure of the defendant to furnish the plaintiff with a reasonably safe place in which to work; second, negligently ordering the plaintiff to work in an unsafe place, of the dangers of which the plaintiff was ignorant, and of which the defendant had actual or constructive notice, and the failure to give the plaintiff notice of the unsafe conditions existing in and about said place; and third, the failure of the defendant upon being told by the plaintiff that he was inexperienced, to instruct him as to his duties.

The evidence discloses that shortly prior to May 4, 1908, the Penwell Mining Co. contracted with the defondant for the erection of a new tipple to be used in connection with its mine at Pana, Illinois. In the erection of the new tipple it became necessary to tear down one which had been in temporary use for several months. The plaintiff had been employed for about a month prior to the accident, as a day laborer, doing general work under the direction of Layman, the defendant’s foreman. For a day or two prior to the accident he had been engaged in tearing down the temporary tipple, which was built next to the shaft, in two sections, on the seuth and west sides thereof. It consisted of heavy uprights, at the corners, upon which timbers were set crosswise from one post to the other. On the cross-pieces joists were nailed. The floor of the tipple was laid on these joists and consisted of pieces laid across and fastened to the joists and extending out over them at either end. The west section of the tipple had been torn down by one Eolio and the plaintiff, under the direction and with the assistance of Layman, the defendant’s foreman. On the-day of the accident they had started to tear down the section on the south side, and had pried some of the floor timbers loose from the joists with a crow-bar. Bollo then proceeded to lower the loose boards by means of a rope which was tied to the middle of a piece and then wrapped around an upright on the platform, Bollo holding the other end of the rope in-his hand. When the pieces reached the ground, Ashcraft untied the rope and carried the pieces back. After they had lowered several pieces in this manner, and while Ash-craft was untying the rope upon the timber last lowered to the ground, one of the joists fell, striking Ash-craft on the back of the head and severely injuring him.

Ashcraft testified that he had no previous experience at the work of tearing down a tipple; that Layman directed him and Bollo to tear down the tipple; that he, Ashcraft, told Layman- he knew absolutely nothing about tearing down a tipple, and that Layman told him he did not have to know anything about it; to take the rope and let the pieces down; to get the rope and wrap it around the timbers, and that they were doing it the way he told them at the time of the accident; that he, plaintiff, was not a carpenter and had had nothing to do with the erection of the tipple, and-knew nothing about how it was erected; that he did not inspect the joists as to how they were fastened, and could not tell how they were fastened from his position on the ground, and could not see from the top without making a particular inspection because the end of the flooring extended out a considerable distance past the joists. There was evidence tending to show that the joist which fell and injured the plaintiff was not properly nailed to the cross-pieces on which it rested, and that the floor was not securely nailed to the joists.

At the close of the plaintiff’s evidence, and at the close of all the evidence, the defendant moved the court for a peremptory instruction in its favor, for the reason, among others, that the plaintiff assumed the risk of the injury sustained by him, as an incident to his employment. The refusal to give such instruction is the only error assigned which we deem it necessary to-consider. Under the foregoing facts it is well settled that no general duty rested upon the defendant to furnish the plaintiff with a reasonably safe place in which to work. In the recent case of Village of Montgomery v. Robertson, 229 Ill. 466, the principle is stated as follows: 1 ‘ There is a general rule that a master must exercise reasonable care to furnish a reasonably safe-place for his servants to work, but that rule is subject to limitations and exceptions. One exception universally recognized, is that the general rule does not apply where the conditions are changing from time to time-in the prosecution of the work. If the nature of the work is such as to produce changes and temporary conditions in the place where the work is performed, the rule does not require the master to keep the place reasonably safe under such changed conditions which the work renders necessary. Thompson on Negligence, sec. 3875. In such a case the master does not make or create the place or conditions, but they are created by the progress of the work and the workmen engaged in it. ”

The plaintiff’s right of recovery, if any, must therefore be predicated upon the alleged negligence of the defendant in failing to warn the plaintiff of the unsafe conditions existing in and about the structure upon which he was ordered to work,, or in failing to instruct bim as to his duties. The evidence shows that the plaintiff was 28 years of age; had had a varied experience, as a farm worker, miner, hoisting engineer, fireman, and had been for several weeks employed by the-defendant as a general laborer; had worked in concrete, handled timbers, shoveled dirt, and had assisted in tearing down a part of the structure in and about which he was injured. The structure was exceedingly simple, consisting of but uprights supporting crosspieces, which in turn supported joists to which the flooring was spiked. To hold that under these circumstances a duty rested upon the defendant either to warn or instruct the plaintiff as to his duties, or as to the danger which was almost necessarily attendant upon the work, and of which he was warned by the very nature of his employment, would be unreasonable and unwarranted by law. No one was better qualified or had a better opportunity to ascertain the surrounding conditions when he started to work, than the plaintiff himself.

We therefore hold that the risk of injury was one which the plaintiff assumed as incident to his employment, and the clerk of this court will embody in the judgment such finding of fact as a part thereof. The judgment of the circuit court will be reversed without remanding the cause.

Reversed.


text:
    People of the State of Illinois, Defendant in Error, v. William H. Knight, Plaintiff in Error. People of the State of Illinois, Defendant in Error, v. George A. Kizer, Plaintiff in Error. Consolidated for Hearing.
    Change oe venue—effect of improper refusal. Where the petition for a change of venue in a criminal case, and the accompanying affidavits, comply with the statute, and the affidavits purport to be made by reputable persons residents of the county, not of kin to the defendant, the right to a change of. venue is absolute and a refusal to grant it is ground for reversal.
    Prosecutions for unlawful sale of intoxicating liquor, etc. Error to the Circuit Court of Coles county; the Hon. James W. Cbaig, Judge, presiding. Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.

      Emery Andrews, for plaintiffs in error; John SHall, of counsel.
    B. O. Hammond, for defendant in error; H. A. Neal, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

On March 16, 1909, a special grand jury of Coles county returned into open court an indictment against plaintiff in error Knight, charging him with having unlawfully sold intoxicating liquor in anti-saloon territory, keeping a disorderly house, and maintaining a common nuisance, and a like indictment for similar offenses against plaintiff in error Kizer. Upon the return of said indictments, the court ordered capiases issued for the defendants returnable on March 18, 1909. On March 17, each of the defendants served notice upon the state’s attorney that they would severally apply for a change of venue from the Hon. James W. Craig, the presiding judge of said court, on account of the alleged prejudice of said judge against them. On March 18, 1909, the defendants appeared in open court in person and by counsel, and filed their several petitions for a change of venue. Upon said petitions being presented to the Hon. James W. Craig, presiding judge, he of his own motion procured the defendant Knight and Emery Andrews, one of the attorneys representing both defendants, to be sworn, and over their objections proceeded to interrogate each of them, for the obvious purpose of ascertaining whether or not Moran, the notary public before whom the oaths to the petition were made, was of counsel in the cases, and thereafter overruled the several motions and refused to grant to either of the defendants a change of venue. The defendants were thereupon severally arraigned, and upon their refusal to plead, the presiding judge ordered a plea of not guilty entered as to each of them, and further ordered them to appear for trial on March 22, 1909. On the latter day the defendants severally renewed their said motions for change of venue and asked for leave to file additional affidavits in support thereof. The court denied such leave and again overruled said motions. Separate trials were thereupon had under each of said indictments, which resulted in a verdict of guilty in each case. No evidence was offered by the defendant in either case. Judgments of conviction were thereupon entered upon said verdicts.

The defendant Knight was ordered to pay fines under each of* the several counts of the indictment, aggregating the sum of $5,700; and to be imprisoned in the county jail under several of the counts, for periods aggregating 1,610 days. The defendant Kizer was sentenced to pay fines under the several counts of the indictment, aggregating the sum of $4,950, and to be imprisoned under various of said counts for periods aggregating 1,460 days. In each case it was further ordered that the defendant be committed to the county jail until the total fines and costs were paid, and that the place in which the defendant was charged with having sold liquor contrary to law should be shut up and abated until he should give bond in the sum of $1,000 conditioned according to law. The defendants have severally prosecuted writs of error to this court, where the two causes have upon motion, for the purpose of presentation and hearing, been consolidated.

No matter what view could be taken of the merits of the ease the present judgments must be reversed because of the refusal of the trial judge to allow the motions for a change of venue from him. The petitions were in the identical form approved in Carrow v. The People, 113 Ill. 550. They conform in all particulars to the requirements of law, and were presented in apt time. Each of them was accompanied by affidavits in due form, purporting to be made by two reputable per■sons residents of the county, and not of kin to the defendants. No question was or is raised as to the reputation, residence or other qualifications of the persons ■so making such affidavits. Where the petition for a change of venue in a criminal case, and the accompanying affidavits, comply with the statute, and the affidavits purport to be made by reputable persons residents of the county, not of kin to the defendants, the right to a change of venue is absolute. Cantwell v. People, 138 Ill. 602. It was therefore the duty of the trial judge to grant the prayer of the petitions.

Counsel for the defendant in error seek to justify the rulings of the court upon the ground that it does not appear from the bill of exceptions that reasonable notice of the application was given to the state’s attorney as required by the statute. The objection urged is ■apparently based upon a misapprehension. The bills of exceptions, the office and purpose of which is to recite and make a part of the record the events that transpire in the trial of a cause, each recites that “on the 17th day of March, 1909, the defendant served a written notice upon Robert Gr. Hammond, state’s attorney of Coles county, in the words and figures following, to wit,” after which is inserted verbatim a notice which in form and substance fully complies with the ■statute. The contention therefore is without force. It is further insisted that the trial court was warranted in refusing to act upon the affidavits for the reason that the same were verified before Moran, an attorney in the cases. Waiving the question whether the verification in such ease should, when the objection is raised, be treated as a nullity, it will suffice to say that it appears from the record that Moran, before whom the affidavits were made, was not an attorney in either case, but merely a student of the law and clerk in the office of one of the attorneys for the defendants.

For the reasons stated the judgments must be reversed and the causes remanded.

Reversed and remanded.


text:
    Harry J. Myers, Appellee, v. William Siville, Appellant.

      Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents is substantially contained in another instruction given.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Schneider & Schneider, for appellant.
    C. E. Beach, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Upon appeal from a justice of the peace, Myers recovered judgment in the circuit court against Siville for $57.50, to reverse which the latter appeals. There is evidence, tending to disclose the following facts: At a public sale held by Myers, which Siville attended, a certain mare was offered for sale, the crier announcing at the time that she had a bruised shoulder and was not offered as sound. After a number of bids had been made by Siville and others, Siville examined the mare’s shoulder and then asked Myers what was the matter with the mare, to which Myers replied that she bad a bruised shoulder; that he had blistered it, and that he was selling her ‘ ‘ just as she was. ’ ’ Siville then bid $137.50 for the mare, which was accepted. Shortly thereafter, he learned that the mare had a fistula, and refused to accept or pay for her. Myers then sold the mare at another public sale in the vicinity, for $82.50, and brought the present suit to recover the difference between the sum bid by Siville and that realized at the second sale, together with the cost of keeping the mare in the interim.

The evidence was insufficient to warrant the jury in finding that there was a warranty of the condition of the mare at the time she was offered for sale. It is urged, however, that if Myers at the time of the sale, knew that the mare had a fistula, and for the purpose of inducing Siville to purchase her, falsely and fraudulently concealed such fact, and thereby induced Siville to believe that except as to a bruised shoulder the mare was sound, and that acting under such belief Siville was induced to purchase the mare, he had the right to rescind the sale. We agree with counsel that such is the law. Had the jury found from the greater weight of evidence that such state of facts existed, it would have been their duty to return a verdict for the defendant. The evidence as to the knowledge of Myers of the condition of the mare at the time he made the statements referred to, was conflicting. While there is some evidence tending to support Siville’s position, we cannot say that the finding of the jury adversely thereto was clearly against the weight of the evidence.

It is further urged that the court erred in its rulings upon instructions, but we are unable to find any prejudicial error therein. We think that refused instructions 11 and 12 were substantially coverred by given instruction 5, and refused instruction 13 by given instruction 9. Instruction number 5 was properly refused, and it told the jury that if the plaintiff made certain statements, such statements amounted to a warranty, which was a question for the jury. Instruction number 1 was properly modified.

We find no prejudicial error in the rulings of the court upon the admissibility of evidence. The judgment of the circuit court will be affirmed.

Affirmed.


text:
    Rose M. Ewing, Appellee, v. Judson Harmon, Receiver, Appellant.

      Instructions—must not invade province of jury. The force and effect to be given to the testimony of the respective witnesses testifying in a cause are matters to be determined by the jury and with which the court should not ordinarily interfere by its instructions.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Outten, Roby, Ewing & McCullough, for appellant.
    Henson & At.bf.rt, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in-case in which the plaintiff recovered judgment against the defendant as receiver, for $1999. The declaration consists of three counts. The first count charges in substance that the defendant as receiver operated the engines and trains of the C. H. & I). R. R. Co. in Macon county; that a public highway crossed the track of said railroad at a certain place where trees, shrubbery, tall weeds, etc., grew on the south side of the railroad right of way and track south of such right of way; that the same prevented persons going north on said highway from seeing trains approaching from the west upon said railroad; that an engine and train operated by the defendant, by his servants, was approaching said crossing from the west, as the plaintiff was going .north on said highway to cross said railroad track; that the defendant negligently failed to give the signals required by the statute, by reason of which and other negligence, said engine ran into and against the wagon in which the plaintiff was riding, and injured her. The second count alleges that the injury was wantonly and wilfully inflicted. The third count is the same as the first, and alleges damages to the wagon. The defendant pleaded the general issue.

The evidence introduced by the plaintiff tends to show the following facts: On the west side of the highway described in the declaration, and on the south side of the railroad right of way, there was a forest of trees, brush and foliage extending along the railroad track for about 40 rods, the limbs of the trees hanging over the right of way, and on the west side of the right of way the forest extended to within about 20 feet of the railroad track and back south for over 300 feet. The foliage was so dense that a person passing north along the highway in a vehicle could not see the railroad tracks or trains approaching from the west until almost upon the track. Bast of the railroad crossing the railroad entered a deep cut, which obstructed the view of the railroad and approaching trains from the east. On September 24, 1908, at about five o’clock in the afternoon, appellee, who, together with five other ladies and an infant child, was riding along the public highway in a spring wagon drawn by two horses driven by appellee, approached from the north a point where the railroad operated by appellant crossed said highway in a southeasterly direction. The team trotted down an incline to within from 75 to 100 feet of the track, then mqyed forward in a walk, until the horses were within ten feet of the track, when appellee and the other occupants of the wagon were aroused by the danger signal of an approaching train, which was at the time within about 128 feet west and rapidly nearing them. The signal frightened the horses and they sprung forward across the track. The engine struck the left hind wheel of the vehicle, throwing from the vehicle all the passengers therein except appellee and the babe which she held in her arms, and seriously injured appellee. The evidence adduced by appellee further tends to show that as they approached the crossing the occupants of the wagon all listened and looked to the east and west for trains, and continued to so listen and look while they were coining down the hill and until they reached the track; that they heard no bell rung or whistle sounded, and saw no sign of an approaching train.

Upon the issue as to whether the view of appellee to the west was so obstructed by the trees, shrubbery and weeds that she could not see the train approaching until very near the track, whether the whistle was sounded or the bell rung at least 80 rods distant from the crossing and continuously thereafter until the same was reached, and whether under the surrounding circumstances appellee exercised due care and caution in approaching the crossing, and in attempting to cross the same, the evidence was in serious conflict, that offered by the appellant tending to show that one in the position occupied by appellee could when forty-six feet from the track have seen the approaching train when it was over four hundred feet from the crossing, and that the whistle was sounded at the whistling post 1312 feet west of the crossing, and that the bell rang continuously from the time the whistling post was reached until after the accident. These questions were submitted to the jury under proper instructions, and after careful examination of the evidence we are unable to say that the finding of the jury thereon was unwarranted by the evidence. The essential averments of the first and third counts of the declaration were therefore established, and the trial court did not err either in refusing to direct a verdict for the defendant or in overruling the motion for a new trial.

Complaint is made that the court refused to give the fourth instruction offered by the appellant, which told the jury that if certain witnesses testified positively that the bell was rung, or whistle sounded, and other witnesses testified that they did not hear the bell rung or whistle sounded, then the evidence of the witnesses who had testified positively to the fact that the bell was rung or the whistle sounded, was entitled to more weight than the negative evidence of the witnesses who only said that they did not hear the bell ring or the whistle sound. The force and weight to be given to the testimony of the respective witnesses is a matter to be determined by the jury, and with which the court should not ordinarily interfere. R. R. v. Feehan, 149 Ill. 202; R. R. v. Otstot, 212 Ill. 429; Coal Co. v. Clingan, 114 Ill. App. 568. In any event an instruction which attempts to advise the jury that in determining whether a bell did ring, the testimony of a witness who testified affirmatively that a bell was rung, is of greater weight than that of a witness who testified that he did not hear it ring, should be based on the hypothesis of equal opportunity. The instruction was defective in this respect. R. R. Co. v. Otstot, supra.

It is not claimed that the damages awarded are excessive.

The judgment of the circuit court is affirmed.

Affirmed.