text:
    G. G. Fuller, v. Thomas Brady.

      Agency — Commissions—Action to Recover — Affirmance upon Review of Evidence.

    In an action to recover commissions for selling a farm, this court, upon a review of the evidence, affirms the judgment of the court below for the plaintiff.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Grundy County; the Hon. Dorrence Dibell, Judge, presiding.
    Mr. R. M. Wing, for appellant.
    Mr. S. C. Stough, for appellee.
   Baker, P. J.

This suit was commenced before a Justice of the Peace by Brady against Fuller to recover commissions for selling a farm containing fifty-two acres of land owned by Fuller. On appeal to the Circuit Court there was a trial by the court without a jury, and the finding and judgment were against Fuller for $42.

It is clear from the letters in evidence that full authority was given Brady to sell the farm for not less than $50 an acre, net, to the owner; and that appellee was to have all he could get over and above that, as compensation for his services. It is also shown that on January 5, 1884, he secured a purchaser at $51 an acre, payable as follows: $350 cash and $350 on the first cf September after date of sale, the residue of purchase money in four equal annual installments with eight per cent, interest, secured by mortgage on the place.

The contentions of Fuller, the appellant, are three: first, that there was no authority to sell with so small a cash payment without security in addition to the land itself; second, that the letter of appellee dated December 8, 1883, and the fact it was not answered, worked a revocation of the power ' and authority given; and third, that the agreement of appellee to furnish an abstract of title to the vendee was unauthorized and invalidated the contract.

We think the correspondence between the parties should be read in the light of the long and intimate acquaintance and confidence existing between them. On the 25th of July, 1883, appellant wrote: “Should you meet with a chance to sell the farm, and the parties should want deferred payments, that will be all right with me, so that there is enough paid down to guarantee a sale.” August 1st, following, he wrote further directions with reference to the proposed sale, in which he said, “ payments to suit, with interest; ” and in his letter of November 27,1883, he said: “Whether it is cash now or March first, it matters not, or five years.” The letters that passed between them tend strongly to indicate that it was left to a considerable extent to the discretion of appellee to settle with the vendee the details in respect to the times and amounts of the payments and the security to be- given, the only restrictions being that there should be a cash payment; that the time of complete payment should not be extended beyond five years, and that the deferred purchase money should draw interest. This view is very greatly confirmed by the fact that when the arrangement of January 5th was made and appellant notified a sale had been effected at his price, he, without either knowing or inquiring with reference to the amount of the cash payment, security agreed upon, or times of the other payments, approved of what had been done by appellee by offering to execute a deed at once, and otherwise by his letters and acts. It would seem from the testimony that confidence was reposed by appellant in appellee to determine what was a sufficient amount paid down, in view of the mortgage and of the circumstances and surroundings of the purchaser, to render the sale secure. We can not say from the evidence that the conclusion of the court that the authority conferred was sufficient to justify the sale now in question, was erroneous.

The fact that appellee did not understand that the statement in his letter of December 8th that unless the proposition contained therein of §48 or possibly §49 was acceptable then there was no use of further correspondence on the sub-' ject, combined with the failure of appellant to reply to that communication, had the effect to revoke his agency and power to sell, is indicated by the services he subsequently performed in securing a buyer at the price demanded by appellant. And the conduct of appellant after he was advised of the sale, and the tenor of his communications of January 10th and 12th, sufficiently show he recognized the agency of appellee and the fact that the authority given him had not been withdrawn. The circumstance that appellee agreed with the purchaser to furnish an abstract of title, made no sort of difference to apjDellant. The matter of an abstract was not suggested when lie repudiated the sale, and his refusal to carry out the contract was placed wholly upon other grounds. All that appellant asked or expected was §50 net, an acre — and that he might have got; and if appellee paid the §10 that the abstract cost, thereby reducing his commissions from §52 to §42, it was a fact immaterial to appellant, and that worked him no injury.

The judgment is sustained by the evidence, and it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Baker, P. J.

license: Public Domain

text:
    Milo R. Peters v. David Bourneau.

      lander — Pleas—Felonious In tent — Questions for Jury — Instructions— Evidence — General Reputation.

    I. Where the evidence is conflicting this court will not interfere with the verdict of the jury.
    2. In an action for slander against the defendant for calling the plaintiff a thief, it is held: That certain instructions submitted by the defendant and tending to limit the functions of the jury, were properly refused; that the jury was fully and fairly instructed by the court; that it was for the jury to say whether the plea of jurisdiction was filed in good faith; that mental anguish may be presumed to result from a false charge of larceny; that the former strict and technical rules respecting evidence of general character have been greatly relaxed; that a man’s “ neighborhood ” is not necessarily confined to the particular locality in which he resides; that statements of certain witnesses that they had never heard anything said against the character of the plaintiff for honesty or integrity were properly admitted, it not being essential that a knowledge of general reputation should rest on statements made by a man’s neighbors; and that, if the questions and answers respecting plaintiff’s reputation to which objection is made had been excluded, it could not have affected the result.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    Mr. James H. Orb, for appellant.
    Messrs. Stephen B. Moore and William Potter, for appellee.
   Baker, P. J.

This was an action on the case for verbal slander prosecuted by appellee against appellant for calling him a thief. The pleas were not guilty and a special plea of justification alleging the truth of the matter charged. The verdict and judgment were for appellee for §60 damages.

Ay? rima fade case of slander was clearly made out by the evidence introduced by the plaintiff below. The truth of the special plea depended upon the point whether the pocketbook containing $170 in money and a certificate of deposit for §140, was taken with a felonious intent to steal, or otherwise. The evidence on this disputed point was quite conflicting, and that of appellee was supplemented by uncontradicted proof of prior good character for honesty and integrity. In respect to the merits of the controversy upon the evidence, the case plainly falls within the category of cases wherein the verdict of a jury will not be disturbed.

The second, third and fourth instructions submitted to the court by appellant were very properly refused. The tendency of the second was to mislead the jury by calling their attention from the true to a false issue. It may be the duty of the finder of lost property to seek out the owner and restore it to him with due diligence; and yet appellee may have been remiss in the performance of such duty without its affording any just cause for charging him with an intent to steal. The jury would probably have understood the instruction as meaning that a want óf due promptness on the part of the finder was tantamount to proof of a felonious intention, whereas they should have been left to determine the intention from a consideration of all the facts and circumstances in proof.

The third instruction was also objectionable. If a witness or witnesses testifying on one side of a case are in direct conflict with a witness or witnesses upon the other side, then it should be left to the jury to judge of the credibility of the respective witnesses and arrive at a conclusion in regard to the truth of the matter in issue; and the jury should not be told in such case that they may disregard the testimony of one witness or set of witnesses on the ground he or they have been impeached by direct contradiction. In fact such a rule carried to its logical results, would exclude as successfully impeached the testimony on both sides of the issue tried.

The third instruction stated the facts and circumstances testified to by the witnesses for appellant, and then informed the jury that from these circumstances they had a right to infer that appellee took the pocket book with a felonious intent. It was vicious, and on several grounds, not the least of which is that the court in giving it would have usurped the functions of the jury. The 8th instruction, as it was asked, was wrong, and for the same reasons; and even as it was modified and given-by the court, it was more favorable to appellant than the law warranted.

The criticisms made upon the 5th, 6th and 8th instructions for appellee are not well founded. It was for the jury to say, in the light of the evidence, whether or not the- plea of justification was filed in good faith. That they did not regard it as so filed, is manifest from the small damages that they assessed. Without any statement being made by appellee while on the witness stand in respect to his anguish of mind, the jury would have a right to conclude that the mere fact he was falsely charged with larceny did cause him mental suffering. Every honest man has some standing in society; and though but an indigent farmer or laborer he is entitled to have the benefit of a consideration of his standing and reputation in the community in the assessment of damages. These are all the comments deemed necessary in order to dispose of the objections urged to these three instructions. The jury was fully and fairly instructed by the court; in fact, much more fully than the nature of the case required; and appellant had the advantage of all the law there was in his favor in the sixteen instructions given by the court at his instance.

We are unable to see that the court committed any manifest error in the admission of evidence. There was a want oof formal and technical accuracy in some of the questions propounded by appellee to a few of his witnesses on the question of general character. But only general objections were made to .these questions and if the objections had been specific, the inaccuracies might readily have been obviated. The strict and technical rules that formerly prevailed, and are laid down in many of the boobs, respecting evidence of general character, have been greatly relaxed of late years. . Some of their requirements do not seem to be founded on sound legal principle, and others are too narrow and restricted for this land and age. A man’s “neighborhood” is not necessarily confined to the particular locality in which he resides, hut is co-extensive with the extent of territory occupied by those with whom he associates and frequently comes in contact; one man’s “ neighborhood” may he a small hamlet, while the “neighborhood” of another, may be a county or State. It was not error to refuse to exclude from the jury the statements of one or more of the witnesses that they had never heard anything said respecting or against the character of appellee for honesty or integrity. It is a condition precedent to the examination of a witness on the subject of general character, that he should state he is acquainted with such character; but it seems to us to be unsound to say that knowledge of general reputation can be obtained solely and only from the statements he has heard the neighbors make. Reputation is the estimation in which one is held, and this may be indicated by the way in which the person, whose character is under consideration, is received and regarded in society; and may be made manifest by acts and treatment, as well as by words. Strong circumstances to show that the general character and reputation of a woman for virtue is good, are the facts that she is received into social intercourse, as such, and that the matter of her virtue has never been made a subject of discussion. And the best evidence there well can be of the character of a nian for honesty, is the circumstance that his honesty has never been called in question. We all absolutely know as fact the regard in which numerous persons are held and estimated in community with respect to certain qualities, and this without ever having heard anything said connecting them with such qualities. Besides the considerations mentioned, we may remark that in the case at bar there was no conflict in the testimony on the subject of the general reputation of appellee. Consequently, if all the questions and' answers objected to had been excluded, it would have made no possible difference with the finding of the jury, as it was but cumulative evidence tending to prove a proposition that was fully established by other and unquestioned testimony, and that was not a matter of dispute.

We find no error in the record that should reverse the judgment, and it is affirmed. Affirmed.


author: Baker, J.

text:
    James A. Foote and Henry M. Foote v. John Overman et al.

      Administration — Sale of Real Estate by Administrator — Right of Purchaser to Rents Subsequently Accruing.

    1. In the sale of real estate under the statute, an administrator has no power to impose conditions. He can simply sell the rights of the heirs, no more and no less, a sale by him being equivalent to one by the heirs.
    2. In the case presented, it is held; That the original lease by the husband of an heir of the premises subsequently sold by the administrator, was in effect a lease by the heirs as tenants in common; (hat the sale on September 24th carried with it the right to the grain rent subsequently to-become due; and that the doctrine of emblements has no application.
    [Opinion filed January 8, 1886.]
    Appeal from the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding.
    Mr. John C. Pepper, for appellants.
    The lease and the rent went with the land, were sold with it, and the lessees became by virtue of the sale and conveyance, the tenants of purchasers and grantees, and the purchasers and grantees became the landlords of the tenants in occupancy of the land, and were entitled to all rents undue and unpaid at the date of sale.
    A sale of the reversion carries with it, unless expressly reserved in the conveyance, all rents'and rights under a lease previously granted that subsequently became due, and the grantee or grantees may recover them in an action in his or their own name. Wood’s Landlord and Tenant, 539 ; Crosby v. Loop, 13 Ill. 625 ; Foltz v. Prouse, 17 Ill. 487 ; Dixon v. Niccolls, 39 Ill. 372; Creel v. Kirkham, 47 Ill. 344; Fisher v. Deering, 60 Ill. 115.
    Messrs. KibkpatrIük & Alexander, for appellees.

      Whether crops are realty or not depends upon circumstances. As between landlord and tenant, debtor and creditor, and under our statute as between executor and heir, growing crops are personal" property. But as between vendor and vendee they are real estate. Powell v. Rich, 41 Ill. 466. If a man sows upon his own land the crop is parcel of the land. If he sows upon his neighbor’s land with the agreement that the crop is to be his, the crop is personal estate. 2 Waterman, Trespass, 132, Sec. 739. The same principle applies whenever and wherever a tenancy for an uncertain period.is terminated without fault on the part of the tenant. Carpenter v. Jones, 63 Ill. 518. So a sale of growing crops may be made by parol. 3 Washburn’s Real Property, 343 ; Reed v. Johnson, 14 Ill. 257; Graff v. Fitch, 58 Ill. 353, 377; Bull v. Griswold, 19 Ill. 631; Carpenter v. Jones, 63 Ill. 517.
    Under our law if an administrator was to make application for the sale of real estate to pay debts, and if at the time of the application crops sowed by the decedent were growing upon the lands proposed to be sold, the crops could not be sold under the decree because they are not part of the realty. If such is the case with relation to crops sown by decedent, how much more surely would the character of personalty attach itself to crops sown by the heirs.
    Until the sale, the heir is entitled to the rents and profits. Phelps v. Funkhouser, 39 Ill. 401; Stark v. Brown, 101 Ill. 395, 400 ; Lill v. Brant, 6 Ill. App. 366.
    A tenant or licensee, who occupies for an uncertain time what has terminated without fault on his. part, has a right to the crops. Wood, Landlord and Tenant, 99, 971; Talbot v. Hill, 68 Ill. 106; Carpenter v. Jones, 63 Ill. 517.
    Even if it be true that the decree carried the crops the administrator could by parol reserve them from the sale. Barker v. Jordan, 3 Ohio St. 438; Sherman v. Willets, 42 N. Y. 146.
   Baker, J.

By the agreed case only two questions were submitted to the Circuit Court for adjudication; and these, in substance, were, first, whether the proceedings instituted by

the administrator of Benjamin F. Foote, deceased, to sell real estate to pay debts, and the deed made in pursuance thereof, conveyed the title to the premises in question to appellants ; second, if they did, whether said sale and conveyance carried the rents and gave appellants the right thereto.

The first point seems to be conceded by appellees, and is not raised by the assignments of error, and argued in the brjefs.

Benjamin F. Foote, the intestate, died in 1881, leaving a large amount of real estate and personal property, and a number of heirs, among whom were Annie S. Overman, one of the appellees, who is intermarried with John Overman, the other appellee. The lands being undivided, the heirs, respectively, took possession of some of the tracts of land and used and cultivated them in severalty. John Overman, in right of his wife, cultivated 100 acres in the southeast quarter of section 28, 79 N., R. S. W. [?], for several years, and in the spring of 1885 rented the remaining sixty acres of the quarter section to Shaffer and Garner for two-fifths of the crops raised thereon, as rent, to be gathered and put in cribs and delivered by them.

On the 14th day of July, 1885, the administrator filed a petition to sell real estate to pay debts, in which appellees, and all the heirs, and Shaffer and Garner were made defendants. Summons was served upon appellees on the 7th day of August, 1885, and on the 18th day of August, 1885, a decree was entered for the sale of the quarter section above mentioned. The administrator sold the tract of land in question on the 24th day of September, 1885, and it was purchased by appellants; a deed was executed and delivered to them by the administrator, and at the September term, 1885, of the Probate Court, the sale and deed were approved and confirmed. The rents in controversy were not then due.

One contention in this case arises out of the fact that the administrator, on the day of the sale and previous thereto, announced that possession of the land sold would be given on the first of March, 1886, and that the land would be sold without reserve. In Selb v. Montague, 102 Ill. 446, it was said: “ It is claimed that the administrator’s sale was made on terms that the purchasers undertook to discharge not only the mortgages, but also the dower and homestead rights of the widow. * * * The administrator had no lawful authority to make any such terms. His agency arose from the statute. The bounds of his powers were therefore known to all. He could sell just what the law authorized him to sell— that was, the rights of the heir — no more, no less. Had he in fact made such terms, his acts would have been inoperative. He had no power to divest from the use of the creditors a part of. the value of the interest of the heir.” The rule announced and reasons therefor given by the Supreme Court in the case cited, have application in this litigation, and show that the terms and conditions sought to be imposed by the administrator in the announcement made at the sale were inoperative.

In the same case of Selb v. Montague, it was also said: “ A sale by the administrator, under our statute, is equivalent to a sale by the heir, * * * the administrator being made by the statute, in substance, the attorney in fact of the heir to make such sale.” The sale here under consideration was, then, by force of the statute and as indicated by the decision of the court of last resort, equivalent to a sale made by the heirs. We also hold that the original renting, to Shaffej- and Garner may be regarded as in substance a renting by the heirs as tenants in common.

The general rule is, that a sale of the reversion carries with it, unless expressly reserved in the conveyance, all rents under a lease previously given that subsequently become due, and that the grantee may recover them in an action in his own name. Crosby v. Loop, 13 Ill. 625; Foltz v. Prouse, 17 Ill. 487; Dixon v. Nichols, 39 Ill. 372; Creed v. Kirkham, 47 Ill. 344; Fisher v. Deering, 60 Ill. 115. Sec. 14 of Chap. 80, R. S., entitled “ Landlord and Tenant,” is also in point in this connection.

We think the doctrine of emblements has no application to the issue presented to us by this record. The question here, is simply one of after-accruing rents. The.right of Shaffer and Garner to the three-fifths of the products of the sixty acres of land that by the terms of the renting were to be retained by them, and the right of appellees to the crops raised by them on the 100 acres of land that they themselves sowed, are not in controversy here, and we .must decline to pass upon them. The stipulation upon which this suit was submitted to the court below, provided that if both questions submitted by it were determined in the affirmative, then the court should enter judgment for the plaintiffs. The agreed case shows the rent corn was 798 bushels and that it was worth 25 cents a bushel, which would amount to §199.50.

The judgment is reversed and the cause remanded, with instructions to enter a judgment upon the agreed case and in accordance with the stipulation, in favor of the plaintiffs below and against the defendants below, for §199.50 and costs.

Reversed and remanded.


author: Bakes, P. J.

text:
    Otto G. Smith v. E. W. Woolsey, for use, etc.

      Garnishment — City Treasurer, not Liable to Process of — Application to Municipal Corporation for License.

    1. A city treasurer is a mere agent of the municipal corporation, ana is not liable to process of garnishment in respect of any money held by him by virtue of his office.
    2. Funds voluntarily placed in a city treasury by an applicant for a license are not subject to garnishment although the license has not been issued nor the conditions necessary to its issue fully complied v ith by such applicant.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Sarfojrd & Carrey, for appellant.

      Messrs. McKenzie & Calkins, for appellee.
   Bakes, P. J.

The only question in this case is, whether money paid to a city treasurer for a saloon license, is the subject of a garnishment.

The ordinances of the city of Knoxville provide as conditions precedent to the issuance of a dram- hop license, that an application in writing shall be made therefor, accompanied by a bond such as is required by the ordinance, and that the license money at the rate of $500 per annum shall be paid in advance.

On the 5th day of May, 1885, E. W. Woolsey made written application to the City Council for license to keep a dram shop for the period of one year from the first day of May, but it was not accompanied by either a bond or a receipt for the license money. Early the nextmorning he paid to appellant, City Treasurer of Knoxville, the $500 required for such license, and took from him a receipt, signed as city treasurer, and specifying that the money was received for a liquor license for the year 1885. The appellant immediately entered the transaction on his treasurer’s books, gave the city credit for the license money and charged himself with it as treasurer, and deposited it in a bank to the credit of the city. A few hours thereafter, and on the same day, A. M. Parmenter, a judgment creditor of Woolsey, whose execution had been returned “no property found,” sued out a garnishee process before a Justice of the Peace, which was at once served upon appellant and others as garnishees. Woolsey did not present to the City Council the bond demanded by the ordinance until the 11th of May, when it was approved and the application for license granted. "

We think this case falls clearly within the rule laid down in Triebel v. Colburn, 64 Ill. 276, where it was held that a city treasurer is a mere.agent of the municipal corporation, and is not liable to process of garnishment in respect of any money held by him in virtue, of his official authority. The money was received by appellant merely for and in behalf of the city, was receipted for in his official capacity, was entered on the books as belonging to the corporation, and forthwith mixed with its funds by being deposited in the bank to its credit. It is true that at the time of the service of the garnishment writ the necessary bond and security had not been given, and it was a matter of some uncertainty whether the license would even be granted; but in the event no license was issued, the demand of Woolsey for a return of the money paid would have been a claim against the city and not a personal demand against appellant. The latter had done with the §500 that which Woolsey directed him to do, and his action in so doing did not have the effect to make him the debtor of Woolsey; and Woolsey could not have maintained an action against him for the money. Whether Woolsey would even have a claim against any person or corporation for repayment of the money, depended upon contingencies, and these contingencies have never happened. He had voluntarily placed the funds in the city treasury, and to withdraw them therefrom would require action on the part of the City Council. The policy of the law and the public welfare will not permit a city or its treasurer to be embarrassed by garnishment suits such as this. Charges for licenses of various sorts constitute a very considerable portion of the reverses and financial resources of our municipal corporations; and it would work great detriment to public interests if, after such charges have been paid to the city or its proper officers, they can be appropriated by process of law in satisfaction of the indebtedness of creditors of the persons applying for such licenses. By the judgment of the Circuit Court, an appeal from the Justice of the Peace, appellant was held liable as garnishee. That judgment was erroneous and it is reversed.

Reversed.


text:
    Chicago, Burlington & Quincy Railroad Company v. F. Augustus Kuster.

      Railroads — Collision at Highway Crossing — Action for Damages — Negligence — Instructions—Questions for Jury — Prejudice of Juror — Improper Remarles by Counsel.

    1. It is proper for the trial court to refuse to give instructions which contain nothing but what is found in others given at the instance of the same party.
    2. In an action against a railroad company to recover damages resulting from a collision at a highway crossing, it is held: That certain instructions asked, touching the question of negligence and calling the attention of the jury to a particular portion of the evidence, were properly refused; that the questions whether the servants of the defendant rang the bell or sounded the whistle, and whether the son of the plaintiff, who drove his team, exercised ordinary and reasonable care, were for the jury; that the finding of the court upon the motion for a new trial that one of the jurors was not examined by counsel for defendant touching his prejudice against railroad companies, was not clearly against the evidence; that, while certain remarks made to the jury by counsel for the plaintiff were improper, they do not constitute sufficient ground for reversal.
    3. The care required by the driver of a team upon a highway in approaching a railroad crossing, is such care as a reasonably prudent person would exercise under like circumstances. Slight negligence is not inconsistent with ordinary care.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Henry County; the Hon. Author A. Smith, Judge, presiding.
    Messrs. H. Bigelow and C. K. Ladd, for appellant.
    The only ground for recovery set forth in plaintiff’s declaration is the omission of the servants of appellant to ring the bell or sound the whistle as required by statute, and plaintiff’s entire case rests upon this supposed fact and nothing else, and it was tried and strongly argued to the jury upon the theory that, if the bell was not rung or the whistle sounded, plaintiff was entitled to recover, no matter how negligent the person in charge of the team may have been. This is not the law, and appellant was not even liable, prima facie, for omitting the signals. G. & C. U. R. R. Co. v. Looms, 13 Ill. 548; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; P., D. & E. Ry. Co. v. Foltz, 13 Ill. App. 535.
    Omission to signal at crossings renders a railroad company liable for injuries that would have been prevented by signal, and those only. I. C. R. R. Co. v. Phelps, 29 Ill. 447.
    Mr. 0. C. Wilson, for appellee.
    The refusal of the court to give a proper instruction can not be assigned for terror where the court gives others, embracing the correct principle of law involved in the refused instructions. Bland v. People, 3 Scam. 366; Alliance Ins. Co. v. McKniglit, 97 Ill. 80; City of Chicago v. Smith, 48 Ill. 107.
    The negligence of the engineer was gross, and even if the appellee’s children were guilty of slight negligence (which we do not admit), still he has a right to recover in the case. O. & M. Ry. Co. v. Porter, 92 Ill. 437; C., B. & Q. R. R. Co. v. Avery, 8 Ill. App. 133.
    The question of negligence is purely a question of fact for the jury, and when there is a conflict of testimony, and the Judge who tried the case is satisfied with the verdict, an Appellate Court will rarely, if ever, interfere. C. & A. R. R. Co. v. Robinson, 8 Ill. App. 140; Ewing v. C. & A. R. R. Co., 72 Ill. 25; Clark v. Day, 93 Ill. 480; Edgmon v. Ashelby, 76 Ill. 161; Knisely v. Sampson, 100 Ill. 573.
    Where the testimony is conflicting, the Appellate Court will not interfere with the finding of the jury merely because it would be satisfied if the verdict had been for the other party. McClelland v. Mitchel, 82 Ill. 35; West Chicago A. W. v. Sheer, 8 Ill. App. 367.
   Baker, P. J.

This is an action on 'the case against appellant for negligently killing one of the horses of appellee and injuring another of his horses and his buggy at a public highway crossing. The verdict and judgment were for appellee for $285 damages.

It is urged that it was error in the Circuit Court to refuse to give to the jury the first, fourth and sixth instructions asked by appellant. It sufficiently disposes of this objection to say that all the law of the case was embraced in the eleven lengthy and elaborate instructions that were given at its instance and request, and that every proposition contained in those refused, that was proper to be stated, was fully embodied in those given. In addition to this, the instructions themselves were faulty, and for that reason properly overruled. The care that the law required the son and servant of appellee should' use in approaching the railroad crossing, was all the care and caution that a reasonably prudent person would have exercised under the circumstances, and that degree of care was in express terms required to be established by appellee, as a condition precedent to recovery by the second, third, and numerous other instructions that were allowed to go to the jury. But the first instruction, as it was asked, would have imposed upon him the burden of showing his son was absolutely free from any fault whatever and not even guilty of the very slightest negligence, although the jury might have believed from the evidence the negligence of appellant was gross. Slight negligence is not inconsistent with the exercise of ordinary care. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Calumet Iron and Steel Co. v. Martin, 115 Ill. 358; City of Galesburg v. Benedict, ante, p. 111.

The fourth instruction improperly told the jury that certain matters of fact therein stated were, as a matter of. law, negligence; it was for the jury to determine from all the evidence, as a question of fact, whether the son of appellee was guilty of negligence. The instruction also ignored the elements of care or negligence on the part of appellant, and cut off the right of recovery without regard to what its negligence may have been.

The sixth instruction was vicious in that it called the special attention of the jury to a particular portion of the testimony and to the statements of a single witness, ignoring other portions of the testimony on the same point, and virtually exclud ing the statement of other witnesses in reference thereto.

There is no error in the rulings of the court upon the instructions.

The negligence alleged in the declaration is the failure of the servants of appellant in charge of the locomotive and train to either ring the bell or sound the whistle at the public highway-crossing in conformity with the mandate of the statute. The important questions of fact in the controversy are, whether there was such failure to ring the bell or sound the whistle and whether the son of appellee, in charge of his team, exercised ordinary and reasonable care. The evidence upon both these questions is conflicting. The jury are made by law the judges of the facts and of the weight of the testimony and the credibility of the witnesses, and the case shown by the record is of that character that does not call for an interference with their findings.

Upon the motion for a new trial it was specified as one of the grounds therefor, that “Sumner Paul, one of the jurorsj was prejudiced against the defendant and concealed such prejudice upon examination.” While the affidavits filed upon the hearing of the motion show no special ill will toward the appellant corporation, yet they do indicate that the juror is “prejudiced against railroads in general.” Paul stated in his affidavit that his prejudice did not influence his verdict.” Four affidavits were introduced tending to prove that Paul, when he was examined touching his competency to sit as a juror in the case, stated that he had no prejudice against railroads, .and seven affidavits were introduced tending to prove the contrary. The court overruled the motion for a new trial and presumably found from the affidavits that Paul was not examined by the attorneys for appellant at the time of his acceptance as a juror, touching his bias or prejudice against railroad companies. It pan not be said such finding of the court was clearly against the evidence. The conclusion follows that the ground specified as above for a new trial was not, and is not established.

In the argument of the case to the jury, the attorney for appellee said that appellant was the greatest monopoly in the State of Illinois, and also made some very improper and reprehensible remarks in respect to instructions from the court. Exceptions were taken to those statements, and the court instructed the jury they were bound by the instructions of the court as to the law of the case, and that, if any statements of Avliat is law had been made by counsel that were contrary to the instructions of the court it was their duty to entirely disregard all such statements in deliberating upon their verdict, and base their verdict entirely upon the evidence and the instructions given by the court as to the law. Upon the whole matter of these ill-advised remarks of counsel, probably made in the heat of debate, Ave find no sufficient cause, in the absence of other error, for disturbing the verdict of the jury.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Thomas Alldritt, Impl’d with William H. Milnes, v. The First National Bank of Morrison.

      Judgments — Confession before Maturity of Note — Validity of — Construction of Note and Warrant as one Contract.

    A judgment confessed upon a note before its maturity, under a power to confess judgment at any time after date, is valid, the note and warrant being construed together as parts of one and the same transaction.
    [Opinion filed January 8, 1887.]
    In error to the Circuit Court of Whitesides County; the Hon. John V. Eustace, Judge, presiding.
    Messrs. C. J. Johnson and George H. Fat, for plaintiff in error.
    The authority to confess a judgment without process must be clear and explicit, and must be strictly pursued. Chase v. Dana, 44. Ill. 262; Tucker v. Gill, 61 Ill. 236; Frye v. Jones, 78 Ill. 627, 632; Keith v. Kellogg, 97 Ill. 147.

      The attorney in fact who confessed the judgment in this case had no power to enter the appearance of those defendants until the money mentioned in the promissory note was actually due and payable, and the court had no jurisdiction of the defendants; therefore the judgment and all subsequent steps under it are void. Watterman v. Jones, 28 Ill. 54; White v. Jones, 88 Ill. 159; Baldwin v. Freydendall, 10 Ill. App. 106.
    Mr. O. F. Woodruff, for defendant in error.
   Baker, P. J.

On the 5th day of April, 1884, Thomas Alldritt, the plaintiff in error, together with one Milnes, executed a promissory note of that date for $400 to the First National Bank of Morrison, due one ■ year after date, and paid to the bank the year’s interest in advance. They at the same time gave a warrant of attorney, authorizing any attorney of any Court of record to appear for them in any court, in term time or vacation, at any time after date, and confess a judgment for the amount due on the note. A judgment by confession was entered on said note in the Circuit Court of Whiteside County in vacation, on the 10th day of January, 1885, it being some three months before the note, according to its terms, was due and payable.

At the succeeding March term of the court a motion was entered by plaintiff in error to vacate the judgment; but upon the entry of a remittitur sufficient in amount to cover the unearned interest paid in advance and interest thereon from date of judgment, the motion to vacate the judgment was overruled.

The only point made for the reversal of the judgment, is, that the confession of judgment was premature and unauthorized, since the note was not due or payable at the time judgment was rendered. It will be noted that the letter of attorney gave express power to confess judgment at any time after date; and in such case the note and the warrant being construed together as parts of one and the same transaction, the debt, by the explicit stipulation of the parties, is due for the purposes of the judgment, Sherman v. Baddely, 11 Ill. 623, and Adam v. Arnold, 86 Ill. 185, fully sustain the validity of judgments confessed under like ¡lowers before the maturity of the notes.

The judgment is affirmed.

Affirmed.


text:
    Orrin Norton V. J. M. Hummel.

      Sales — Conditional Executory Contract — Fulfilment of Condition— Delivery — When Unnecessary — Remedies of Vendor — Costs.
    In an action to recover the contract price of a corn planter and check-rower, it is held: That the transaction between the parties concerning said implements was a conditional executory contract of sale; that upon the fulfilment of the condition the defendant ceased to hold possession as bailee, and thereafter held as vendee; that, as vendee he is liable for the full contract price; and that the general judgment for costs only affected costs not theretofore adjudicated.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of DeKalb County; the Hon. Charles Kellum, Judge, presiding.
    Messrs. Jones & Bishop and A. E. Seaeles, for appellant.
    Messrs. Carnes & Denton and J. I. Montgomery, for appellee.
   Baker, P. J.

The evidence was conflicting and the jury found the issue for appellee, who was plaintiff below; and we must assume the facts were substantially as claimed in the testimony introduced by him. The corn-planter and check-rower were left with appellant for trial by the agent of appellee, on Monday; and on Wednesday following the farmer agreed that if the planter did not break all to the devil befoie he got through planting the piece of ground on which he was then at work, he would take the planter and checlc-rower and pay §58 therefor. The planter did not break all to the devil, or in any material particular, in planting the field of corn. In this suit, brought to recover the contract price, the judgments both before the Justice of the Peace and in the Circuit Court on appeal, were for appellee for §58.

It is claimed the evidence did’ not show or tend to show a sale, but at most only an agreement to purchase; that the instructions of the court were erroneous in assuming that an agreement to purchase amounted to a sale, and that the damages for not consummating the contract were equivalent to the price of the planter and check-rower. The transaction between the parties on Wednesday was a conditional executory contract of sale to become executed when the piece of ground was planted, providing the condition annexed was performed. When the planting of the ground in question was completed and the condition performed by the failure of the machine to break in the meanwhile in any material part, it then became an absolute and binding contract of sale between the parties. Ordinarily the duty to deliver the property sold devolves upon the seller, and the duty to pay the stipulated price therefor is imposed upon the buyer; but here no new delivery was necessary for the corn-planter and check-rower were already in the possession of the buyer and so remained, and a formal re-delivery under the contract of sale would have been idle and useless ceremony. In our opinion when the planting was finished and the planter not broken in any important manner or degree, appellant ceased to hold possession as bailee and thereafter held possession as vendee. Besides this, as between vendor and vendee, the title to personal property passes without any delivery, upon the completion of the sale. Seckel v. Scott, 66 Ill. 106. Moreover, where chattels are sold upon an executory contract at a specific' price, and the vendee refuses to take and pay for .them, the vendor has three remedies: he may store the property for the buyer and give him notice, and then hold him for the full contract price; or he may give notice an d then re-sell, and sue for the loss; or he may retain the property and recover the excess of the contract price over the market price. Bagley v. Findlay, 82 Ill. 524. Here, the condition having been fulfilled and the time for the execution of the contract arrived, the case fell within the first category of the rule mentioned; but the subject-matter of the contract being already in the possession of appellant, the vendee, the duty to store or keep for him was, of course, inoperative.

The instructions of the court were substantially correct. One of the assignments of error is, that all the costs were adjudged against appellant, when the costs of one term had already been adjudged against appellee. It appears that at a prior term the suit was continued on motion of appellee and at his cost and that a judgment was rendered against him for the costs of that term; this judgment, though interlocutory in respect to the controversy involved in the suit, yet was definitive and final in regard to the costs of that particular term. So, when at a subsequent term and at the end of the litigation a general judgment for costs was entered against appellant, the costs of the particular term had been already eliminated from the body of the costs, and a final adjudication with reference thereto had, and the language and legal eftect of the general judgment for costs was to adjudge the costsnot theretofore adjudicated, and was in no sense a modification of the former judgment of the court. There was no error in this matter of the costs.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    John A. Cavanaugh v. David McWilliams et al.

      Mortgages — Foreclosure—¡Sale to Defendant — Affirmance of Decree upon Review of Evidence.

    Upon a bill filed to foreclose a junior mortgage this court holds that the evidence, although conflicting,' sufficiently supports the decree of the court below, sustaining the answer of the defendant, which set up a sale to him by the complainant of the note and mortgage in question.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Livingston County; the Hon. H. J. Plllsburt, Judge, presiding.
    Mr. E. E. Wallace, for appellant.
    Messrs. Strawn & Patton, for appellee.
   Baker, P. J.

John A. Cavanaugh, the appellant, filed his bill in the Livingston Circuit Court to foreclose a junior mortgage on forty acres of land.

In 1876, O’Donnell, the mortgagor, executed a prior mortgage to Thurston Macomber to secure $600 due in five years with ten per cent, interest; and this Maco mber mortgage was in 1879 transferred to one Watkins, and by Watlrins assigned to McWilliams. In 1879 also O’Donnell conveyed the premises by quit-claim'deed to Watkins for $1,000; and afterward the latter quit-claimed to McWilliams, the now owner of the land.

The junior mortgage sought to be foreclosed was given by O’Donnell, in 1878, to Ellen Carey to secure a promissory note for $135.41; and this note and junior mortgage were in 1879, in consideration of $10, assigned to appellant.

The defense made by McWilliams was that he, and not appellant, was the owner of the note and mortgage for $135.41 in suit; that after the purchase of the same by appellant from Ellen Carey for $40 he, McWilliams, bought them from appellant; that he offered him $40 therefor and that such offer was accepted and agreed to, but that the assignment from Ellen Carey was informal and unsatisfactory,, and that appellant agreed to go to La Salle County and get a formal assignment or release of the mortgage from said Carey. McWilliams also contended that he always had been and still was able, ready and willing to pay the price agreed upon, with interest.

The court found the answer of McWilliams to be true, and that appellant had sold the note and mortgage upon which foreclosure was sought to McWilliams for $40 and accrued interest: and further found that after the commencement of suit McWilliams tendered appellant $75, as such agreed price with accrued interest, and deposited the same in court, and that it was a sufficient tender for the debt but not for costs accrued at the time of the tender. The decree gave appellant leave to withdraw the tender in satisfaction of his debt, but was against McWilliams for costs.

The only matter of contention between the parties is in respect to the sale of the note and mortgage. The evidence upon that point is quite conflicting, and not entirely satisfactory. Upon a consideration of the testimony as a whole, we are of opinion it sufficiently sustains the answer of McWilliams and the decree of the court. We are unable to say the decree was erroneous, and it is therefore affirmed.

Affirmed.


text:
    Forest City Insurance Company v. George C. Morgan.

      Sales — Express Warranty of Quality, Exclusive — Action to Recover Balance Due on Contract Price of a Steam Boiler — Repairs—Instructions —Evidence—Scientific Books, Inadmissible.

      1. The expression of a warranty as to quality in a contract of sale excludes any implication of a further warranty as to quality.

      2. In an action to recover the balance of the contract price due on a steam boiler, it is held: That the warranty of quality was that the boiler should be as durable as any now in use; that the real issue which should have been submitted was whether the proposed manner of repairing would have made the boiler as durable as any now in use; that the instructions given did not impose upon the plaintiff as great a burden as the law and his contract required; that the instructions should have submitted the .question whether notice of the cracks in the boiler was given to the plaintiff within a reasonable time; that the reading of scientific books to certain witnesses on their cross-examinations was improperly permitted; and that the burden of proof to show a breach of the warranty was on the defendant.
    3. Scientific books are inadmissible as evidence in chief, or when offered to impair the evidence of expert witnesses.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Winnebago County; the Hon. John V. Eustace, Judge, presiding.
    Messrs. A. D. Early and J. C. Garter, for appellant.
    Messrs. Gardner, MoFadon & Gardner and B. F. Craweord, for appellee.
    The witnesses for appellee had testified that repairing the boiler in question by riveting was a proper and usual method' The two witnesses for appellant testified that riveting would be a way of repairing but not as satisfactory to them as a different method. The books read to them stated that riveting was a proper way of repairing, so that, had Thompson and Boss been experts and testified as such, the matter read from the books in no manner contradicted what they said.
    Even if this court considers that the questions propounded Thompson and Boss on cross-examination, based on books, were for the purpose of contradiction, still as they had testified to deriving knowledge from books as well as from observation appellee should be allowed to show their testimony could not be sustained by the authorities. Pinney v. Cahill, 48 Mich. 584; City of Bloomington v. Shrock, 110 Ill. 219.

      Even if the court below erred in allowing the questions based on the statements contained in the books to be asked of said witnesses, this court will not reverse the judgment of the court below because Thompson and Boss, of whom said questions were asked, were not experts and should not have been allowed to testify as such. Lawson on Expert and Opinion Evidence, 210. Buie 39 says: “An expert may be qualified by study without practice or by practice without study. But mere observation without either is insufficient.” Citizens’ Gas Light Co. v. O’Brien, 15 Ill. App. 400; Page v. Barker, 40 N. H. 59; Emerson v. Lowell Gas Light Co., 6 Allen, 146.
    The expression of a warranty as to quality in a contract leaves no room for implication by law of a further warranty as to quality. Rowe v. Farren, 8 Irish Com. Law R. 46; Dickson v. Zizenia, 70 Eng. Com. L. 602; Doming v. Foster, 42 N. H. 165; McGraw v. Fletcher, 35 Mich. 104; Johnson v. Latimer, 71 Ga. 470.
   Baker, P. J.

Appellee and appellant entered into a written contract on the 28th day of September, 1883, whereby the former agreed to furnish, deliver and set up for appellant at its factory a Fermenich safety steam boiler of 150-horse power" and of the character and dimensions described in said contract. Appellee also guaranteed therein said boiler should be non-explosive, should make steam as rapidly as any boiler now in use, be as durable, and be free from accumulations of soot and ashes on the tubes, and be capable of carrying ninety to one hundred pounds of steam as a working pressure, and agreed to make all repairs caused by defective material or inferior workmanship upon said boiler for the term of one year from- the date that the boiler was ready to make steam, provided the defective parts or leaky tubes should not have been caused by carelessness on the part of the employes of appellant. In consideration- of which, appellant agreed to pay to appellee the sum of $3,800 in four equal installments of $950 each, payable in thirty, sixty, ninety and one hundred and twenty days respectively, from the date the boiler was complete and ready to make steam.

The present suit was brought by appellee to recover the last due of these payments, and a small residue claimed to be unpaid of the preceding payment. Appellant, on the ground that within the year, by reason of defective material or infe. rior workmanship, or both, the boiler cracked at many of the rivet heads in the flue sheets of both mud drums adjoining the furnace flues, and that appellee after notice given, failed and refused to make repairs, claimed he was damaged, and sought to set off or recoup his damages. The verdict and judgment below were in favor of appellee for §1,052.28, the full amount of his claim.

Appellant cites and relies upon Strawn v. Cogswell, 28 Ill. 457, and Phelan v. Andrews, 52 Ill. 488. The doctrine of these cases is, that where there has been a sale and delivery of machinery and it is subsequently found to be defective, the measure of damages is a sum of money sufficient to' alter the defective machinery to what it should have been under the contract, with a reasonable compensation to the vendee for its use during the period of time necessary to make the change. Tested by this rule, and if the duty to repair the boiler properly devolved upon appellee, he was only bound to make repairs of such nature as would make the boiler what it should have been under the contract. The claim of appellant, as made by its evidence and argument, seems to be that when appellee was called on to repair, he should have put an entire new sheet in the boiler so as to make a first-class or perfect job and render the boiler as good as any in use. We do not understand such to be the requirement of the law. The rule is that the expression of a warranty as to quality in a contract leaves no room for implication by law of a further warranty as to quality. Deming v. Foster, 42 N. H. 165; McGraw v. Fletcher, 35 Mich. 104; Johnson v. Latimer, 71 Ga. 470; Dickson v. Zizeria, 70 Eng., C. L. 602; Rowe v. Farren, 81 C. L. R. 46; McClelland v. Stewart, 12 I. L. R. Ex. Div. 125. The warranty in the contract was not that appellee would make the boiler as perfect in all respects as any first-class boiler, or that he would make it as good as any now in use. The guaranty in that behalf was that the boiler should be as durable as any now in use.

The real question at issue, and which should have been submitted to the jury by the evidence and the instructions of the court, was whether the proposed manner of repairing would have caused the boiler to be as durable as any now in use. The instructions given on this branch of the case at the instance of appellee were erroneous, in that they did not impose upon him so great a burden as was placed upon him by the law and the terms of his contract. These instruct'ons, severally, cast upon him the duty to repair, “ in a proper manner,” in a good and workmanlike and customary manner,” and “ in a reasonably skillful, thorough and efficient manner.” These requirements did not come up to the standard fixed by his own contract, as by that contract he was bound to so repair the boiler as to make it as durable as any now in use.

It was also error to permit counsel for appellee, over the objections of appellant, to read in the presence of the jury to the witnesses Thompson and Boss, on their cross-examinations, extracts from the treatises of Wilson, Barr and Schook on steam boilers. The witnesses were testifying as experts, but it was immaterial, under the circumstances of the examination,' whether they were properly experts or not; in either event, the theories in the above mentioned scientific works were incompetent testimony. In City of Bloomington v. Shrock, 110 Ill. 219, the rule was held to be against the admission of scientific books as evidence in chief, and also against allowing them to be read from to contradict an expert, generally. In the present case the latter clause of the rule stated has application. This case does not fall within the doctrine held in Connecticut Mutual Life Ins. Co. v. Ellis, 89 Ill. 516, where the expert assumed to base his opinion upon particular works and treatises, and such works were permitted to be read in contradiction, and the attention of the witness called to them. The case is on all fours with the case first cited, as the witnesses did not base the opinions which they gave upon the authority of books, and the books were only referred to on the cross-examinations and brought in to impair their evidence.

We may also properly make a further remark with reference to the instructions. They should have submitted to the jury the question whether notice of the cracks in the boiler was given to appellee within a reasonable time after appellant knew of them.

The Circuit Court properly ruled that the burden of proof was upon appellant to show a breach of the warranties contained in the witten contract; the case presented is not that of conditions precedent, but one that involves the matter of independent stipulations. Don v. Fisher, 1 Cush. 271; 1 Chit., 323; Maltman v. Williamson, 69 Ill. 423.

For the errors indicated in this opinion, the judgment is reversed, and the cause remanded.

Reversed and remanded.


text:
    Asa Griffin v. Eugene Domas.

      Master and Servant — Action for Wages — Issue as to Term of Employment — Bate of Compensation — Evidence—Instructions—Practice—Examination of Witnesses — Discretion.
    1. Where the evidence is conflicting this court will not interfere with the verdict of the jury merely because a different result would have been as satisfactory.
    2. Where, in a contract for services, the minds of the parties meet as to the rate of compensation but not as to the term of service, or where the employment is at will for a stipulated rate of compensation, a recovery may be had in an action for wages at the agreed rate.
    3. In the case presented, it is held: That the plaintiff was entitled to quit work at any time, the jury having found that no fixed term was agreed upon; that the defendant was not entitled to damages for time lost by the plaintiff; that there was no substantial error in the admission of evidence; that certain errors in the rejection of evidence produced no injury; that the rulings of the court upon the instructions were substsntially correct, with the exception of one instruction calling special attention to a single fact or circumstance not of a decisive character; and that said error is not sufficient to justify a reversal.
    4. The manner of conducting the examination of witnesses must be left to a considerable degree to the sound discretion of the trial court.

      [Opinion filed January 10, 1887.]
    Appeal from the Circuit Court of La Salle County; the Hon. G-bos&e W. Stipp, Judge, presiding.
    Hr. L.. W. Brewer, for appellant.
    Hessrs. Dunoan & O’Conor, for appellee.
   Baker, P. J.

This suit was commenced by appellee against appellant before a Justice of the Peace for the recovery of wages claimed to be due him, and he there obtained a judgment for $109. On an appeal by appellant to the Circuit Court, a verdict and judgment in favor of appellee for- the same amount was the result of a jury trial.

Appellee worked from the 7th day of Harch, 1883, to the 3d day of September, following, with the exception of seven days that he lost, and it would seem the sum recovered was due him, unless it be that the defense interposed by appellant was established.

The claim in bar of the suit was that the contract of employment was for a specified time, from the 7th of Harch until after corn husking, and that appellee quit work without reasonable cause for so doing before the expiration of that time. The testimony upon the point whether the hiring was for a fixed period is somewhat conflicting and unsatisfactory, and we would have been quite as well content had the verdict of the jury been otherwise than it was upon that issue; at the same time we are unable to say the finding of the jury was so against the weight of evidence as to call for a reversal.

All parties agree that Domas was to have $15 a month until the spring work commenced in the field, and that thereafter he was to receive $25 a month. According to the testimony of Domas he did not agree to remain on the farm until after husking time, but appellant told him he had work for him till after husking, and he could work if he pleased, till after corn husking. Appellant and one other witness testify there was a positive and express agreement to work until after corn husking; but the weight of the first is somewhat weakened by the fact his own statement places him in the improbable position of hiring three men to labor for him until after husking, when for several months of the time he did not have" work enough to employ the time of one hired man; and the weight of the second witness is impaired by the character of and the circumstances surrounding his testimony. It appears from the record that appellee does not either thoroughly understand or well and fluently speak the English language, and before his examination as a witness was concluded it became necessary to employ the service of an interpreter. Upon a consideration of the evidence as a whole, the jury may reasonably have concluded there was an honest misunderstanding between the parties and that their minds never met upon an agreed time for the continuance of the work, and have found the issue for appellee upon that ground.

It is urged by appellant that if the special contract insisted upon by him is excluded, then there can be no recovery for the services performed, for the reason a recovery can only be had in such case upon a quantum meruit for the value of the services, and that no evidence was introduced to show what the work of appellee was reasonably worth. It is plain that if the jury found there was no misunderstanding between the parties, and that the transaction was as stated by appellee, then the contract was at will for no stipulated length of time but' at a stipulated price per month, and that this stipulated price would govern in the assessment of damages. If in consequence of an honest misunderstanding the minds of the parties did not meet in respect to the matter of time of service, and yet did meet in respect to the matter of the compensation to be given, it would seem this latter fact and the price agreed upon by the parties themselves should be considered in the assessment.

In Pfund v. Zimmerman, 29 Ill. 269, it was held that where a specific sum was agreed upon as a rate of compensation for services, no term of service being fixed by the contract, a recovery may be had at the rate agreed upon for the services rendered.

In the case at bar, we think the reasonable value of the services of appellee is sufficiently shown by the admission of appellant that he paid his other hands $25 a month; that he could not get suitable men for his work for less than that; and that appellee was a good hand to work. The court in its instructions gave appellant the benefit, if any, of the difference between the reasonable valúe of the work and the contract price therefor by telling the jury that if they believed appellant in good faith thought the agreement was for work till after corn husking then appellee could only recover what the work was reasonably worth, not exceeding the contract price.

The claim of damages for three and a half days absence of appellee, when he went to Peru, we are of opinion, is not established. The jury have found that no fixed term of service was agreed upon; and if such was the case he might lawfully quit work at any time.

He afterward returned and went to work again; no wages were paid or claimed for the days he did not labor; some little time was lost in planting the corn, but appellant did not prove or offer to prove there was any ultimate loss in that.

Objections are made to numerous rulings of the court with reference to the admissibility of testimony. The matter of the manner of conducting the examination of witnesses must be left to a considerable degree to the sound discretion of the trial court.

A few of the questions asked appellee were to some extent leading and suggestive, and were probably allowed by the court in consequence of the limited knowledge the witness had of the language in which he was testifying. The opinions of Burlingame, Hitchcock, Hurst and others upon the j hypothetical case stated in the question asked, were properly excluded from the jury.

The matter involved was a question of fact for the jury, and not a proper subject for the opinions of experts. We think appellant should have been allowed to answer a number of the questions asked him by his counsel, and to which objections were sustained by the court; however, no injury was done; most of the matters called for by these questions were fully covered by statements made by appellant on his direct and cross-examinations, and the others were rendered immaterial and of no importance by the finding of the jury upon the principal issue in the case.

The jury was fully and fairly instructed with reference to the law of the case. The rulings of the court upon the instructions were, with a single exception, substantially correct. The second instruction of the series given at the instance of appellee should have been refused. It told the jury that if appellant paid appellee from time to time such amounts to apply on his wages, as he requested or demanded, then they were at liberty to take such facts into consideration, together with all the other testimony in the case, in determining whether it was agreed and understood between the parties that appellee was to receive his wages monthly.

This instruction is open to criticism in that it called special attention to a single fact or circumstance in proof that was not of a decisive character, and thereby gave it undue importance.

At the same time, a sound rule of the law is involved in the instruction, and serves as its basis; where, as in this case, the terms of the contract are in doubt, it is proper to look in its interpretation at the conduct of the parties with reference thereto, and the manner in which they have treated the contract. Upon consideration of the whole matter, we are unable to say the giving of this instruction affords of itself sufficient ground for reversing the judgment.

The judgment is therefore affirmed.

Affirmed.


text:
    Chicago & Northwestern Railway Company v. Cornelius Hart.

      Railroads — Action for Damages for hilling Colt— Bes Adjudícala— Evidence — Instructions—Contributory Negligence — Attorney Fees— Estoppel.

      1. A fact which illustrates by experiment the condition of the subject-matter of the issue involved is admissible as direct evidence bearing upon said issue.
    2. In an action against a railroad company to recover damages for a colt killed by one of defendant’s trains, it is held: That certain evidence of the previous conduct of domestic animals in regard'to a certain cattle guard, which tended to prove a defective construction of the wing fence on one side thereof, was properly admitted; that the matter of said fence was not involved in the former appeal to this court; that the verdict of the jury is sustained by the evidence; that the plaintiff does not appear to have been guilty of contributory negligence; that there was no error in the rulings of the court below upon instructions; and that the plaintiff was entitled to claim attorney fees although he introduced no evidence on that point at the former trials.
    [Opinion filed January 10, 1887.]
    Appeal from, the Circuit Court of Winnebago County; the Hon. J. Y. Eustace, Judge, presiding.
    Mr. N. C. Washer, for appellant.
    The principle of res judicata embraces not only what was actually determined in a former case, but also extends to any other matter properly involved and which might have been raised and determined in it. Rogers v. Higgins, 57 Ill. 244; Bailey v. Bailey, 115 Ill. 551.
    The cross-error assignment raised a guestion affecting the merits, and it must have been considered and decided in the former appeal, and the cause being reversed upon errors assigned, and the opinion being silent upon the point raised by the cross-error by implication, was against the point made by the assignment of cross-error. Keiser v. Cox, 16 Ill. App. 631.
    “ Whether the fence was sufficient to prevent cattle, horses, sheep and hogs from getting onto the railroad, was properly determined by an examination of the fence itself, and not by the previous conduct of animals which had been pastured on the ground which it in part enclosed.” C. & A. Ry. Co. v. Umphenour, 69 Ill. 198.
    Mr. J. C. Gabveb, for appellee.
   Baker, P. J.

This suit was commenced before a Justice of the Peace, and taken by appeal to the Circuit Court; and a former judgment herein was reversed in this court. 13 Ill. App. 186.

The object of the litigation was to recover the value of two colts belonging to appellee claimed to have strayed upon the right of way and railroad track of appellant through a defective cattle guard, and to have been killed by its locomotive and cars.

The younger of the colts may be considered as now eliminated from the case, as the jury very properly found that it was billed at a public highway crossing and the railway company not liable theréfor. The judgment here in question was for the older and more valuable of the colts, §80, and for attorney fees at the last trial, §35.

Was the cattle guard on the west side of the public road such as the statute requires? Was it suitable and sufficient to prevent ordinary cattle, horses and other stock from getting on the railroad track within the inclosed right of way ? The cattle guard in question was on level ground, was constructed in 1878 or 1879, and the guard and fences leading up to the end of it, had not been changed since it was first built. The wing fence on the north end flared back from the pit of the cattle guard, the part of the fence being some three feet from the edge of the pit and the lower board of the fence coming up to such edge? the end of the next board being back from the edge five or six inches, the board above that back five or six inches more, and so on up to the upper board, which came no further than the post; in other words, the end; of the boards slanted up and back from the edge of the pit to the top of the fence post. The fault of the cattle guard, if any, was that on account of the slope of the wing fence, and the shortness of the pit from north to south, when considered in connection with the top of the wing fence at the post, ordinary horses and cattle could readily step over this fence upon the right of way of the company.

It was a matter of contention at the trial, whether from such construction of the cattle guard and . its wings, domestic animats could so do. The court, over the objections of appellant, permitted appellee to prove by a witness who lived in the neighborhood, the previous conduct of such animals with reference to that cattle guard, and that he had repeatedly seen 90ws, heifers, steers and horses pass over the fence by making one step and going right in, and had seen a boy ride a horse across the fence. Great complaint is made of the admission of this testimony; it is claimed that the matter is res judicata in respect to this litigation, and also that' the testimony itself is clearly collateral and incompetent.

This evidence was not in the record when the case was in this court before; it -having been ruled out by the court below.

It may be true that such action of the court was then assigned as cross-error, but, if so, this court failed to pass upon it and the matter has never been here considered until now.

We think the ruling of the court upon this last trial was right, and that this evidence was admissible and not subject to the objection that it introduced collateral issues. A fact that illustrates, by experiment, the condition of the subject-matter of the issue in controversy is not collateral to that issue, but is direct evidence bearing upon it. Kent v. Lincoln, 32 Vt. 591; Walker v. Westfield, 39 Vt. 246; City of Aurora v. Brown, 12 Ill. App. 122. In City of Chicago v. Powers, 42 Ill. 169, evidence of this character was held proper, but its competency was, in its opinion, placed only upon the ground of affording proof of notice of defects. Wallace v. Wren, 32 Ill. 146, was for a breach of warranty of soundness in the sale of a horse, and it was decided that the circumstance that a mule which had worked with the horse in issue got the glanders and died therefrom, was competent testimony to prove such horse had the glanders.

Proof of the previous conduct of domestic animals in regard to that cattle guard being admitted, it would seem the jury had ample evidence from which to find the cattle guard was entirely inadequate in its construction, and not a substantial compliance with the requirements of the law.

Did the older and larger of the two colts pass over this defective cattle guard and wing fence, and of its own accord \ and, was it within the inclosed right of way when struck and killed? The jury, by their verdict, answered both of these questions in the affirmative, and with their answers we have no fault to find.

The evidence excluded the idea that the colt could reasonably be presumed to have got on the right of way of its own accord, otherwise than by stepping over the wing fence. The claim it was caught on the public highway in the pilot of the engine attached to the fast passenger train going west at eight o’clock, p. m., and carried west of the cattle guard and there thrown off, is not supported by the testimony. As late as after six o’clock in the evening the two colts were in the inclosed pasture of appellee, a mile and a half from the highway crossing, and were then fed by him; and it is not probable they got out before the expiration of some length of time after their feed was given them. The engineer and fireman of the train in question both testified that they had no knowledge of their engine coming in contact with any live stock or animals at that highway crossing on that evening. It is also highly improbable the colt could have been so struck, carried on the pilot, and then thrown off without being seriously injured and disabled. Mor is there any evidence tending to prove the colt jumped the guard through the impulse of fright caused by said passenger train; and the engineer and fireman also stated in their testimony that they had no recollection of seeing any animals on or near the track on that run. That the larger colt was on the right of way west pf the public road when struck and killed was abundantly shown. Mack, brakeman on the 10:25 train going east, testified he saw two colts, the larger one being west of the west cattle guard, and the other on the highway; that the former crossed over the railroad track from left to right, in front of the engine, and that he could not swear whether it came in contact with the locomotive or not. The presence of the colt on the west side of the right of way was further indicated by the presence there of fresh horse manure and blood on the track, and of two places in the grass where a horse had evidently been lying down. The blood that was found is easily and reasonably accounted for upon the hypothesis it was slightly hurt by the 10:25 freight train, as intimated by the brakeman.

It is conceded on all sides that both colts were struck and killed by the 2 a. m. passenger train going east. The engineer on that train thought both were on the road crossing, but would not swear positively to that effect. He stated, however, that one was lying down and the other standing up. The fireman placed the colt that was standing up, on the highway crossing; and the one that was lying down, he placed west of the crossing and from four to six feet from the west cattle guard.

We see no sufficient ground for saying appellee was guilty of contributory negligence. The colts were kept by him in a pasture surrounded in part by a barbed wire fence, and in part by a fence four boards high which was in pretty good condition, and which appeared to be all right that evening. The next morning a board was found to be off in one place.

The objections made to the instruction given at the instance of appellee are not tenable, as applied to the facts of this case; it merely stated the statutory requirement and liability with reference to cattle guards.

The instructions numbered 8, 9,10, 11 and 12, asked by appellant, were properly refused; some of them usurped the province of the jury, and virtually took the case away from them. Some of them were argumentative, and laid undue stress upon inconclusive circumstances; and still others were in direct conflict with the views of the law expressed in this opinion. The seven instructions that were given on behalf of appellant fully informed - the jury as to the law of the case. Appellee was not precluded from claiming attorney fees on the last trial from the fact that on the former trials he introduced no evidence of the value of such services. Ihe evidence in the record was confined to the pending trial. The statute of Hay 29,1879, expressly provides for the recovery, in such case as this, of “reasonable attorney’s fees in any court wherein suit is brought, or to which the same may be appealed.” The suit was appealed to the Circuit Court by appellant, and was being tried there for a second time at its own instance.

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

Affirmed.