text:
    Ernest Myers et al. v. Trustees of Schools.

      Trusts — Jurisdiction of Equity to Take Charge of, when Necessary to Effect Objects — Wills—Bequest to School District.

      1. A court of equity will not exercise its power to take charge of a trust anil administer it when it appears that it is being properly administered.

      2. In the case presented, it is held: That the proceeds of a bequest to a certain school district “ to be added to the principal of the school fund v thereof, are properly in the hands of the township trustees, and that the fact that the voters of said district do not constitute a majority of the voters of' the township is not a sufficient ground for the appointment of special trustees.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Calhoun County; the Hon. G. W. Herdman, Judge, presiding.
    Messrs. Brown & Kirby and Hamilton & Slaten, for appellants.
    It is the province and duty of a court of equity to appoint a trustee, or trustees, to take charge of and administer trusts given for charitable purposes under the direction and supervision of the court, in cases where the donor does not, by the terms of his will, appoint such trustee. Henser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 Ill. 223; Jackson v. Phillips, 14 Gray, 539; Vidal v. Girard’s Executors, 2 How. 127; Oulds v. Washington Hospital, 95 U. S.- 303; 2 Story, Eq. Jur., Secs. 1165-1170; 2 Perry on Trusts, -Secs. 722-724.
    The statute does not say that all gifts, grants, etc., shall go into the hands of the trustees, but only that they may receive them. The word “may” does not mean must or shall in connection with this fund. Fowler v. Pirkins, 77 Ill. 271.
    Mr. T. J. Selby, for appellee.
   Wall, J.

This was a bill in chancery, filed by the appellants against the appellees, from which it appeared that Benjamin Keck, a resident of Calhoun County, died testate, December 16, 1871. The important provision of his will was the following:

“I give and bequeath all my personal estate, goods and chattels, of what nature or kind soever, to the citizens of School District No. (2) two, Township No. (13) thirteen, south, range (1) one, west of the fourth principal mm-idian in Calhoun County and State of Illinois, to be added to the principal of the school fund of said subdistrict Ho. (2) two, to be used exclusively as principal, so that it may be a perpetual fund for the use and benefit of the children of said district forever: Provided, that the interest accruing from said fund shall be used as other interest, for defraying the current expenses of the school or schools of said subdistrict.”

The bill alleges that there are but two school districts in this township, and that a large majority of the legal voters of said township reside in District One, and the majority of the trustees of schools of said township are now, and have been for many years last past, residents of said District One, and that said majority of said Board have the appointment of the Treasurer of Schools of said township, and that the appellants, and the other citizens of District Ho. 2, who are beneficiaries and cestuis que trust of said trust fund, are excluded from the management and control of said fund; that the fund is placed under the control and direction entirely of those who have no interest whatever therein; that it now amounts to about §12,000, and is in the hands of the Township Treasurer, appointed by said Board of Trustees, and that a feeling of very great anxiety for the preservation of this fund, and for its application to the purposes for which it was intended by the donor. The complainants, for themselves and as representing the other citizens of Pisirict No. 8, ask the court to appoint, ' as trustees of said fund, three of the citizens of said District Ho. 2, and that said trustees appoint a treasurer, requiring him to give bond in double the amount of said fund, and that said trustees manage, control and disburse said trust fund, under the supervision and direction of the Chancellor of said Circuit Court.

To this bill the appellees filed a general demurrer, alleging there was no equity on the face of the bill, and the court below sustained this demurrer and dismissed the bill.

Appellants assign for error the ruling of the court in sus- ■ taining the demurrer and dismissing their bill.

It is urged by appellants that upon the facts set up in the bill a court of equity will take charge of the fund, appoint a suitable trustee to administer it, and supervise the conduct of the trust. There- is no difficulty in ascertaining who are the beneficiaries of the trust, nor in what way the fund is to be applied. The sole difficulty, if any there be, is in determining by whom it shall be executed. It will be noticed that it is given to the citizens of said school district, “to be added to the principal of the school fund ” of the district, to be used as principal, so that it may be a perpetual fund for the use and benefit of the children of the district forever, and that the interest accruing from said fund shall be used as other interest for defraying the current expenses of the school or schools of said district. It is clear that when the testator says he wishes the money “ added to the principal of the school fund,” and the interest to be used as other interest for defraying the current expenses of the schools” of the district, he had in mind the fact that there was then by law a fund of greater or less amount known as the “ school fund ” of the district in question, to which he wished to add this, and that he had in mind that there was in operation, with a charter for perpetual existence^ a legal system through and by which the trust he was creating could be adequately administered. He is presumed to have .known that by the express provision of the school law the Board of Township Trustees have power to receive a gift or devise for the use of any school or schools, or library, or other school purposes within their jurisdiction (Sec. 39); that by the same law (Sec. 40) it is the duty of the Township Board to cause all moneys for the use of the township and districts to be paid over to the Township Treasurer, who is declared to be the only lawful depositary and custodian of township and district funds, and that the treasurer is required to furnish bond in double the amount of the funds in his hands, and may be required to increase his bond from time to' time, according to the increase of the notes, bonds, and effects in his custody. Secs. 55-57. It was his intention that the interest of the money should be used to defray the current expenses of schools in the district, and to that extent lessen the amount of taxation necessary for the purpose, and he must have known that . his object could best be accomplished by giving the fund into the charge of those officials who were by law authorized to administer that part of the common school system, thus avoiding the conflict that might occur if it were placed in separate hands.

It would seem to be safer that the fund should be so disposed of than that .it should be given over to the control of special trustees selected by the court. The risk of loss is in our judgment much less. It is not averred that there has been any maladministration or perversion, and the whole ground of complaint lies in the fact that because a large majority of the voters of the township are in District One, a majority of the trustees are chosen from that district.

The treasurer is appointed by the trustees, but for aught appearing he may reside in District Two. If the reason assigned were deemed sufficient for taking jurisdiction by a court of chancery, would it not be competent to show that by a subsequent increase of population in District Two it now contains a majority of voters of the township, and thus induce the court to relinquish its jurisdiction ?

Will jurisdiction therefore depend upon the merely accidental circumstance of the relative voting strength of the two districts, and will the court be expected to assume and surrender the subject from time to time as the majority may shift from one side to the other, regardless of whether the object of the trust is being carried out according to the intention of the donor?

It is to be supposed that he foresaw such changes would occur, and that there was no reason to think a majority of the trustees would always reside in the district of his bounty. Yet he probably saw nothing in this to excite apprehension that his wishes would not be enforced; nor do we see, from anything suggested by the bill, that there is such danger.

Recognizing fully the power and duty of chancery to take charge of a trust and administer it whenever necessary to effectuate the object in view, and the readiness with which the action will be taken in a proper case, we are unable to say that this bill presents a case calling for such relief.

The decree of the Circuit Court, sustaining the demurrer and dismissing the bill, will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    James B. Fletcher v. Matthew Patton.

      Sales — Breach of Contract — Action to Recover Damages — Measure of Damages — Conflict of Evidence — Practice—Instructions.
    1. Where the evidence is conflicting and there is enough to warrant the verdict, this court will not interfere.
    2. In an action to recover damages for breach of contract for the sale of cattle, it is held: That proof of prices was properly limited by the court below to the period between the demand by plaintiff and the sale of the cattle to other parties by the defendant; that an instruction to the effect that the measure of damages is the difference between the contract price and what the cattle were worth at the time and place when and where they were to be delivered under the contract, was proper, in view of the evidence presented, and that another instruction is not open to certain objections depending on the evidence.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Orendoeef & Patton and Bradley & Bradley, for appellant.
    Even if evidence is conflicting, where there is a clear preponderance against the verdict of the jury, it should be set aside. Janney v. Birch, 58 Ill. 87; Wade v. Atkins, 58 Ill. 64; C., R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Lincoln v. Stowell, 62 Ill. 84; Davenport v. Springer, 63 Ill. 276 ; Beldin v. Innis, 84 Ill. 78.
    “If the market is fluctuating, and especially if raised or depressed by temporary and transient causes, the market price on the precise day of delivery will not necessarily govern. The law in regulating the measure of damages contemplates a range of the entire market and the average of prices thus found, running through a reasonable period of time.” 2 Sutherland on Damages, 374.

      Messrs. Patton & Hamilton, for appellee.
   Wall, J.

The appellee recovered judgment against the appellant for §700 for an alleged breach of contract in the sale of 103 head of beef cattle. The appellee’s claim was that on the 23d of May, 1884, he made a contract with apr pellant by which the latter sold to the former the cattle in question at §5.75 per hundred gross, to be delivered at anytime between June 25th and July 15th, at the option of appellee; that he demanded them on the 3d of July, but that appellant repudiated the trade, and on the 7th of July sold and delivered the cattle to other parties. The price of such cattle advanced after the trade and this suit was for the damages sustained by appellee in not getting the cattle according to contract.

The appellant insisted that the bargain was conditional, that he had not seen the market reports for several days, and not knowing whether prices had changed, he was careful to make the condition that he would sell at the price named only in the event there had been no advance and that the trade should not be final until he could get his mail and learn the state of the market.

He insisted further that appellee promised to get his (appellant’s) mail for him and leave it at a certain place on his farm that evening, which was not done.

The real controversy is as to the bargain, whether it was absolute or conditional, and upon this question the whole case turns.

There was considerable conflict in the evidence, and while perhaps the jury might have found either way, there was certainly enough to warrant the verdict. It is urged in the brief that the court erred in confining the proof as to prices to the period between July 3d, when the demand was made, and July 7tli, when appellant put it out of his power to comply with the contract. This view was apparently acquiesced in, if not approved, by counsel for appellant, and we do not find that it was objected to.

Be this as it may, we see no objection to it in point of law. The contract was that at the option of appellee he might take the cattle any time between June 25th and July 15th, and he was entitled to any profit there might have been in them at any time after demand made between those dates.

It is next objected that by the instructions the jury were authorized to measure the damages by the range of the market between June 25th and July 15th. This position, rather inconsistent with the last, is not well taken.

After stating the case hypothetically, according to plaintiff’s theory, the instructions advise the jury that the measure of damages would be “ the difference between the contract price, and what the cattle were worth at the time and place when and where they were to be delivered under the contract.” This referred to the time when demand was'made, July 3d, and as the evidence as to prices was confined to the period between that day and July 7th, we do not see what there is here for appellant to complain of.

It is objected to the second instruction that it assumes a demand had been made according to contract when the opposite was true. We think it does not so assume, nor do we find the instruction subject to the further objection urged by counsel that there' is no evidence in the record upon which to predicate it.

We are of opinion the instructions fairly presented the law applicable to the case. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Margaret A. Haldeman v. Perry F. Sennett.

      Practice — Conflict of Evidence — Boohs—Instructions.
    1. Where the evidence is conflicting and there is enough to warrant the verdict, this court will not interfere.
    2. This court will not reverse a judgment for errors which could not have injured the appellant.

      [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Tipton & Beaver, for appellant.
    Mr. Frank R. Henderson, for appellee.
   Wall, J.

This was an action of assumpsit to recover a balance of $40.39, claimed by the plaintiff. The pleas were non-assumpsit and set-off. The verdict of the jury was for $16.33 in. favor of defendant against plaintiff on the plea of' set-off and the court denying a motion for new trial rendered judgment accordingly. As to the objection that the evidence required a different verdict we will only say that while the conflict on some points was such that the finding might have been otherwise, there was enough to warrant the verdict, and applying well settled rules, there is nothing in this to call for a reversal.

As to the objection that the court erred in refusing to permit the plaintiff’s books to go in evidence it may be said that there is no doubt the only items in plaintiff’s account which were disputed were entered upon 'the books. This was testified to by the plaintiff’s agent, and by consent a transcript from the book containing plaintiff’s account was given to the jury. It follows that whether the books were competent or not the plaintiff has not been injured in this respect. Sundry excep- . tions were saved to the action of the court in giving and refusing instructions. It would require more space than the occasion demands to state in detail all the points included in these exceptions. We have examined the case with care and we are satisfied the law was given to the jury with all necessary fullness and accuracy.

We have no reason to suppose that a different result would have been produced by different rulings so far as different rulings would have been proper and therefore we must decline to set aside the judgment on this ground.

It will be affirmed.

Affirmed.


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    Humphreys, Newton & Company v. Henry S. Swain.

      Execution Issued before Entry of Jtidgmenf, Void — Admissibility of Evidence to Show Such Issue.

    1. An execution issued before the entry of the judgment is void, and a subsequent entry will not validate it.
    2. Parol evidence is admissible to show that the execution, was issued and in the hands of an officer before the entry of the judgment.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.
    Statement of the case by Wall, J. This was replevin brought by appellants against appellee. The case was tried once before and appealed to this court, and judgment reversed15 Ill. App. 451.
    Arnspiger and Lovell were the owners of the property in controversy, which consisted of.a stock of groceries. They bought goods of appellants, who were wholesale merchants, and gave them a chattel mortgage on the property in controversy and the fixtures in the same store to secure the purchase money. After the mortgage was properly acknowledged and recorded J. S. Arnspiger and S. R. Lovell gave two joint and several judgment notes to BT. BT. Winslow for Lovell’s private debt as alleged, one for $500 and one for $200. Shortly afterward, on the 26th of December, 1883, in vacation, Winslow, by his attorney, filed in the office of the ejrcuit clerk a declaration and cognovit on such notes. The clerk marked them filed at once, issued an execution, handed it to Mr. Hughes, plaintiffs’ attorney, who at once handed it to the Sheriff, and levy was made immediately. After that the clerk wrote up the judgment. When the levy was made appellants brought this suit in replevin to recover the property.

      To the declaration appellee filed a number of pleas; the 5th was property in defendant, 7th, justification as Sheriff. To the 7th plea appellants filed several replications: 1st, denying the rendition of the judgment justified under; 2d, that the judgment was rendered on two promissory notes executed by S. E. Lovell to Winslow for Lovell’s private debt, and signed by Arnspiger in his individual capacity as surety for Lovell; that the firm of Arnspiger and Lovell, as a firm, were indebted to the plaintiffs (appellants), and gave the chattel mortgage on said property, which was partnership property, to secure such partnership debt.
    To the last replication appellee rejoined that the Winslow judgment was rendered for the partnership debt of Arnspiger and Lovell. To the other rejoinders the court sustained demurrers. So the issues were, 1st, on the plea of non cepit and non detinet, to which similiters were filed; 2d, that there was no such judgment in favor of N. N. Winslow, as he had described; 3rd, that the supposed judgment in favor of N. N. Winslow was for Lovell’s private debt.
    The case was submitted to the court without a jury, the evidence heard, and judgment rendered in favor of appellee, from which this appeal was prosecuted.
    Messrs. A. E. DeMange and Benjamin D. Lucas, for appellants.
    That the court erred in excluding all the evidence of the issue of the" execution before the entry of the judgment, is settled beyond controversy. Ling v. King, 91 Ill. 571; Cummins v. Holmes, 109 Ill. 15; Baker v. Barber, 16 Ill. App. 621.
    The strictest application of the rule that records import verity, would not exclude the testimony offered. The record can import nothing that does not appear from the record itself, and it does not appear from this record whether it was written up before or after the execution was delivered to the Sheriff.
    Mr. William E. Hughes, for appellee.

      Parol evidence that a recital in the record is.nottrueis inadmissible. Sherman v. Smith, 20 Ill. 350.
    The date of the judgment can not be contradicted by parol evidence.. Wiley v. Southerland, 41 Ill. 25.
    All questions relating to the time when it was in fact made must be settled by the record alone, and parol evidence is not admissible to impeach it. Herrington v. McCollum, 73 Ill. 476.
    In the case of Cummins v. Holmes, 109 Ill. 15, relied on by appellants, there was no record of the judgment at all. An execution was issued without any judgment to support it, and of course the levy failed. An execution without a judgment, whether issued on a confession in term time or out of term, would be void.
    The Baker case, 16 Ill. App. 621, is not supported by the decisions of the Supreme Court.
   Wall, J.

The Circuit Court declined to consider the testimony offered by appellants tending to show'that the execution was issued by the clerk before the judgment was actually entered up. It is contended by appellee that such proof is not competent because its effect is to ‘impeach a record which imports verity. It is conceded that an execution issued before the entry of judgment is void, may be questioned collaterally, and a subsequent entry will not validate it. Ling v. King, 91 Ill. 571; Cummins v. Holmes, 109 Ill. 15.

It was expressly held in Baker v. Barber, 16 Ill. App. 621, that parol evidence may be heard to prove that the execution was issued and in the hands of the Sheriff before the judg-| ment was in fact written up, although upon the same day, and that this does not contradict the record. We are disposed to adhere to this ruling.

The judgment of the Circuit Court will therefore be re- . versed and the cause remanded.

Reversed and remanded.


text:
    Geo. Neinsteil, Wm. Creviston and J. C. Speelman v. Wilhelmina Smith.

      Defective Bridge — Action, for Damages — Liability of Highway Commissioners — Instructions.
    1. In an action against Highway Commissioners to recover damages for injuries caused by a defective bridge, it is held that instructions, from which the jury no doubt inferred that the defendants were bound to know the danger and provide against it, are too broad.
    2. It seems that Highway Commissioners are not to be regarded as knowing what they might have ascertained as to the dangerous condition of a bridge; that in the discharge of their official duties they are only required to exercise their judgment as reasonably prudent men, and that the duty in question was something more than ministerial in character.
    . The case of Tearney v. Smith, 86 Ill. 391, distinguished.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Douglas County; the Hon. J. H. Hughes, Judge, presiding.
    Messrs. Craig & Craig, for appellants.
    Mr. A. C. Ficklin, for appellee.

      “ The work of constructing or repairing a public highway is not a judicial but a ministerial act, and must be performed with a proper regard to individual rights as well as the public accommodation. Commissioners of Highways are only in» a very limited sense judicial officers. Repairing a highway is not of that character. For the negligent performance of ministerial acts, they are personally responsible if injury results to others.” Tearney v. Smith, 86 Ill. 391, 395.
    Commissioners of Highways are individually liable for injuries resulting from a negligent performance of their duty. McCord v. High, 24 Iowa, 336, 350 ; Hover v. Barkhoof, 44 N. Y. 113; Robinson v. Chamberlain, 34 N. Y. R. 389; Humphreys v. County of Armstrong, 56 Pa. 204; Garlinghouse v-Jacobs, 29 N. Y. R. 297; Tearney v. Smith, 86 Ill. 391.
   Wall, J.

The appellants were Commissioners of Highways. They were notified that a bridge over a stream in their township was in an unsafe condition and they took steps to repair it. About 200 feet of new work was put over the main channel of the stream, leaving the old parts at the north and south ends with.which the new part was connected, and the bridge was then thrown open to public use.

A few weeks later the appellee, while riding over it in a wagon, was injured by the giving way of the old part at the north end, and to recover damages brought this suit. There was a verdict for plaintiff for §100 and judgment was entered thereon.

The declaration charges that the defendants, knowing the defective condition of the bridge, permitted it to be used by " the public. The evidence shows that it was the intention to replace the old part at the north end with a grade or embankment, but as such work could not be done at that season of the year, the ground being frozen, it was a question whether this old part could be used until the grade could be put in. The evidence tends to show that this was reasonably safe and that it sustained the burden of heavy loads, and the Commissioners were of opinion, as no doubt were many others, that it was sufficient for all ordinary purposes and that it might be used with safety for the time designed.

The court in its written instructions and in its oral remarks before the jury treated the defendants as liable for the injury if-they knew of the dangerous condition of the bridge. It can hardly be said there was evidence upon which to predicate this proposition. The defendants knew only what could be gained from observation, though possibly had they pursued the investigation far enough and carefully enough they might have discovered what subsequently appeared. In a certain sense they did know the condition, that is, so far as it was apparent. Are they to be regarded as knowing what they might have ascertained ?

The jury no doubt so understood — that they were bound to know the danger and provide against it. This was the plain inference to be drawn from the expressed views of the court.

It is assumed that such is the teaching of Tearney v. Smith 86 Ill. 395. In that case the Commissioners of Highways were sued for so negligently digging a ditch as to overflow the lands of the plaintiff. Negligence was charged, and as the court held, very clearly proved, and the inquiry was whether there was liability. The court held affirmatively, and in the course of the opinion remarked that the work of constructing or repairing a highway is not a judicial but a ministerial act, and must be performed with a proper regard to individual rights as well as the public accommodation. This, if applied literally to the case at bar, might be quite misleading. The difference in the cases must be noted. In the present case the defendants are liable, if at all, because they were mistaken as to the condition and strength of the old part, and suffered its renewed and continued use by the public. There was an error- of judgment. There was no actual knowledge by them or by any one that the timbers were as rotten as they proved to be, though it was known that they were old, and of course not as good as new. These Commissioners had a peculiar duty to perform. The duty was somewhat imperfect and indefinite. Various considerations— the immediate need of the bridge, the condition of the funds, the most judicious mode of making the improvement, and perhaps others — were to be taken into account, and the situation involved something more than a mere ministerial function. The exercise of judgment was called for, and it is the mistake therein committed upon which this action is based. As was said in Pickerell v. Kunst, 15 Ill. App. 461, the law pertaining to the subject is somewhat unsettled, but the action whenever allowed is grounded upon the neglect of some official duty, upon the performance of which the safety of the individual in respect to person or property depended. If it be conceded that for the negligent performance of duty the Commissioners were liable, and if the performance of duty involved the exercise of judgment, it must be true there was no actionable negligence, if, being reasonably prudent men, they discharged the duty according to their best judgment.

They did not guarantee the safety of their bridges. The law imposes no such obligation.

Responsible and careful men are wanted for such positions but would not accept them if they knew they could be so held.

1 Ch. Pl. 77; Hilliard on Torts, Ch. 29; Shearm. & Red. on Negligence, 166-169 and notes.

We think the jury were misled by the views of the court. The instructions should be limited and qualified as indicated herein.

The judgment will be reversed and the cause remanded.

Reversed and rema/nded.


author: Conger, J.

text:
    George W. Temple v. Ingar Freed.

      Exemptions — The Wife map he the Head of the'Family..

    When the wife has, in fact, become the head of the family by taking exclusive charge and control of its earnings and the financial and business interests necessary to support and keep it together, although her husband resides with her, she is entitled to the benefit of the exemption laws as the head of the family.
    [Opinion filed August 26, 1886.]
    Appeal from the County Court of Champaign County; the Hon. J. W. Langley, Judge, presiding.
    Mr. Francis M. Wright, for appellant.
    Mr. J. O. Cunningham, for appellee.
   Conger, J.

The principal question raised by this record is can a married woman living with her husband, under any circumstances, be regarded as the head of the family, and as such entitled to claim her property as exempt from execution to the extent of 8400, as provided by Sec. 13, Chap. 52, Bevised Statutes. “ Ordinarily, at least, where the wife lives with the husband, he must be regarded as the head of the family. If, in fact, he has not control of the family and is not the head thereof, such fact must be shown by proof.” Clinton v. Kidwell, 82 Ill. 429.

We think this legal presumption may be overcome, and when the evidence satisfactorily establishes in a given case that the wife becomes in fact the head of the family by taking exclusive charge of, managing and controlling the earnings and productions of the family, and the financial and business interests necessary to support and keep it together, she is entitled to the benefit of the exemption laws as the head of a family.

The evidence shows that the husband of appellee had been insane, and as such confined in the county jail and the hospital for the insane; but at the period in question in this suit, was so far recovered as to live at home with his wife and children.

Substantially, however, he did nothing toward his own support or that of the family, while appellee, with the assistance of her children, carried on the farm upon which they lived, herself plowing corn, raking and binding wheat, and taking the actual control and management of the farm, buying the provisions, and selling the produce raised upon it, thereby, as we think, making herself the head of the family.

We do not deem it necessary to notice the numerous other errors assigned upon the record, as we think the case was decided correctly, if the views we entertain in reference to appellee’s right to be regarded as the head of the family, are sound.

The judgment of the County Court will therefore be affirmed.

Affirmed.


text:
    Andrew Y. Trogden v. Stephen Safford et al.

      Foreclosure of Mortgage — Waiver of Objection to Amount of Decree~ Homestead — Surplus Proceeds of Sale, Protected — Judgment of Justice, Dormant after Seven Tears — Filing of Transcript.

    1. A mortgagee, by enforcing a decree of foreclosure by a sale of the mortgaged premises, waives any objection to the amount therein decreed to him.
    2. Where the mortgagee purchases the homestead of the mortgagor at a sale under foreclosure, he can not apply the surplus on other claims against the mortgagor, as to which the right of homestead has not been waived.
    3. The filing of a transcript of a Justice’s judgment with the Clerk of the Circuit Court more than seven years after it was rendered, creates no lien.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Edgar County; the Hon. J. H. Hughes, Judge, presiding.
    Messrs. A. Y. Trogdon and R. L. McKinlay, for appellant.
    Messrs. A. J. Hunter and Sellar & Dole, for appellees.
   Conger, J.

This was a bill to foreclose a mortgage filed in the Edgar Circuit Court, and on the 3d day of .November, 1883, a decree was entered in favor of appellant for $236.22, with interest thereon from September 15,1883, with decree of sale, and an order that the master bring the surplus, if any, into court to abide the further order of court.

On December 22, 1883, the master sold the property for $432.85 to appellant, which amount paid the decree in full and all costs, and left $100 of a surplus in the hands of the master subject to the order of the court.

At the March term, 1884, appellant filed a supplemental bill praying that said surplus of §100 be paid to him as the assignee and owner of certain judgments against Safford, which petition was afterward dismissed, and such surplus ordered to be paid to Safford.

The Judge’s certificate of the evidence certifies that the premises involved in the controversy were'- at the commencement of said suit, and were then occupied by said Safford and his wife as a homestead.

We are asked to look through the testimony of a large number of witnesses upon the question whether the original decree was for the right amount. We decline to do this, as appellant has, by bringing the property to sale and buying it in under his decree, confirmed it, at least so far as he is concerned.

If he had been dissatisfied with the amount decreed him by the court, he should have had such decree reviewed before enforcing it by a sale.

The mortgaged premises being a homestead, it is clear that to the extent of §1,000 they would be entirely free and clear from tlie lien of any judgments against Safford, either at law or in equity. Appellant, because he held a mortgage upon the premises in which the homestead had been waived, was entitled to have his mortgage satisfied by a sale of the premises, but could not, by bidding more than was due on his decree, use any surplus to apply on other claims or judgments as to which the homestead light had not been waived.

It is insisted, however, that these judgments were a lien upon the property before they became a homestead. This is a mistake.

The court finds the premises were the homestead of Safford and wife, or rather, certifies that it was so conceded upon the trial, which will have the same effect as a finding from evidence at the date of the mortgage, February 19,1875. The Love judgment was rendered by a Justice of the Peace July 2, 1868, and a transcript was filed with the Circuit Clerk July 29, 1875, at which time, if ever, it would become a lien, and which was some months after the execution of the mortgage. But the transcript having been filed more than seven years after the rendition of the judgments, it was worthless and created no lien. We held in Pierce v. Wade, 19 Ill. App. 185, that a Justice’s judgment became dormant at the expiration of . seven years from its rendition.

'. The Bishop-McKinlay judgment was rendered in 1877 more than two years after the date of the mortgage, and a transcript thereof filed January 6, 1883, so that in this case neither judgment nor transcript existed until long after the premises became a homestead.

The $100 surplus belonged to Salford and the court below did right in ordering it paid to him.

The decree of the Circuit Court will he affirmed.

Affirmed.


text:
    Chicago & Eastern Illinois Railroad Company v. A. H. Gernand.

      Railroads — Action to Recover Damages for Killing Horses — Review of Evidence — Practice—Discretion.
    1. In an action against a railroad company to recover damages for the killing of four horses, in which the question involved is, whether the injury was caused by the defective condition of a-gate at a farm crossing, this court, upon a review of the evidence, sustains a verdict for the plaintiff.
    2. The fact that the trial court permitted the plaintiff and another witness to be recalled, after the defendant had rested, to testify as to the coiti dition of the gate, on the Saturday before the trial, is not a sufficient ground for a reversal, the evidence not being especially harmful and the time of its introduction being within the discretion of the court.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Wilkins, Judge, presiding.
    Statement of the case by Conger, J. This was an action on the case for damages which the appellee claims to have sustained by the killing of fcmr horses. During the night preceding the 8th of August, 1884, the four horses in question belonging to the appellee, owing to some defect in the fence surrounding the premises in which they were pasturing, got out into the public road, went east about a quarter of a mile along said public road and beyond the place where the railroad crossed the same, where they, by some means, got.into the inclosed-premises of George Evans lying east of the railroad track, and immediately west of said highway; which" was, and had been, used that summer for the purpose of raising grain, hay,- etc., but in which no stock was then kept. After getting into this inclosure the horses seem to have passed in a southwest direction until they found their way to a farm crossing wholly within the inclosed premises of said Evans, and passing through the gate on the east side of said crossing, they succeeded in getting upon the railroad company’s right of way where they were killed by a train going north, about one o’clock in the morning.
    The declaration counts upon the statutory liability of the appellant for failing to properly fence its tracks, and also upon the common law liability on account of negligence in the manner of running its trains.
    Plea of general issue; trial by jury, verdict and judgment for the plaintiff, for 8600, from which defendant appeals.
    Mr. William Armstrong, for appellant.
    It was absolutely essential, in order to entitle the plaintiff to a verdict, that he should prove a state.of facts which would render the. defendant liable under the statute for failing to erect or maintain a suitable fence and gate-at the farm crossing, in question and that the failure so to do was the proximate cause of the horses getting upon the track; or that the defendant’s agents were guilty of negligence in the manner of running of the train after they had discovered the horses upon the track. ■ ■
    Where there is evidence of contributory negligence it is error to instruct the jury that if they found the fence was defective the company was liable. C., B. & Q. R. R. Co. v. Seirer, 60 Ill. 295.
    The law of this State does not require railroad companies to fence their track against breachy horses. All that is required is that they shall fence against stock that ordinarily come in contact with their fences. The word breachy hardly admits of comparison and a breachy animal is not one against which railroads are required to fence.
    Mr. G. W. Salmans, for appellee.
   Conger, J.

The controversy in this case is one purely of fact, whether the appellant was liable for the injury caused to the horses of appellee or not, by reason of the defective condition of the gate at the farm crossing through which the horses passed and which gate it was the duty of appellant to keep in suitable repair;

We have carefully examined the evidence and think the jury were fully warranted in finding that the gate was in such a defective condition as would make appellant liable, and that according to every reasonable probability, because of such defect, the horses themselves pushed it open and thus got upon the track and were killed.

Objection is made that the court erred after appellant had rested its case, in permitting the appellee and another witness to be recalled by appellee and testify v hat the condition of the north gate was on the Saturday before the trial.

We can not see that the matter of this evidence could do any great harm, and as to the time when it was offered, it was discretionary with .the court trying the case.

Neither do we regard the instructions as subject to the criticisms made upon them.

' We are satisfied with the verdict of the jury and think it was sustained by the evidence. The judgment will be affirmed.

Judgment affirmed.

Note. — A petition for a rehearing in this case was denied.


author: Pleasants, P. J.

text:
    David E. Newby, by his next friend, David Burton, v. Commissioners of Highways.

      Injunctions — A Wrong merely Apprehended, noinGronndforan Injune-. tion — Bill to enjoin Highway Commissioners from Opening a Road — Invalid Order — Mistake—Evidence—Recitals—Remedies.
    1. An injunction will not be granted to prevent wrong in the abstract,' a-wrong that is only nominal or theoretical in character, or a wrong that is merely apprehended by the petitioner.
    2. Upon a bill filed to enjoin Highway Commissioners from opening a highway over the complainant’s land, it is held that the sworn answer and personal testimony of the defendants, admitting the invalidity of an order establishing the road and disclaiming all right and intention to enforce it, overcame any presumption of intention to open the road that might arise from the mere existence of the order.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Clay County; the Hon C. C. Boggs, Judge, presiding.
    Messrs. Cockrell & Monroe, for appellant.
    Messrs. Cope & Chesley, for appellees,
   Pleasants, P. J.

Appellant, an infant of ten years, residing in Indiana with his grandfather, the said David Button, filed the bill herein to enjoin appellees and their successors from opening a highway on the route therein described. It avers that he was and is the owner of a. forty-acre tract over which said route runs, but was not so designated as referred to in the petition for the establishment of the highway; that his damages have not been released, agreed upon or assessed, nor the right of way over his said land granted, and that the defendants are nevertheless attempting to operate said road as a public highway and subject his land to the servitude thereof without compensation. An answer was filed, under oath as required, and a replication thereto, and on final hearing upon the pleadings and proofs the bill was dismissed, and complainant took an appeal to this court by agreement.

It was admitted, substantially by the answer and formally upon the hearing, that he was the owner of the land in question, that the Commissioners had not obtained the right to take it, that the road had been opened by them through its entire length, about a mile and three quarters, and was now open, except upon the premises of the complainant.

The bill further avers that the right of way was never obtained over other lands of owners designated in the petition — 1 the heirs of Moses Johnson and of J. H. Alexander; that two days before the bill was filed one of complainant’s solicitors upon careful examination, was unable to find in the Town Clerk’s office a record of any proceedings for the establishment of the road except the said petition, and was informed by the clerk that the original papers pertaining to it were then in possession of the defendant Kepley.

It appears, however, that a plat and report of survey of said road, with a final order reciting the receipt of the petition, lawful notice given of the time and place fixed for examining the route and hearing reasons for and against the laying out of the road, the determination to grant the prayer of the petition and the ascertainment and release of all the damages to land owners, and declaring the road established as a public highway, was actually filed in said clerk’s office September 11, 18S4. Their introduction was objected to for the reason that said order bore date August 6th, being more than five days before it appeared to have been filed, but the report and plat, made a part of it, bore date August 22d, showing a mistake in that of the order which the court properly permitted • to be corrected by parol evidence that it was really made and should have been dated September 6, 1884. And as nothing to the contrary appeared, its recitals were sufficient evidence, in this collateral proceeding, that the Commissioners had observed the requirements of the statuté in respect to the facts so recited. Shinkle v. Magill, 58 Ill. 422; Frizell v. Rogers, 82 Ill. 109.

But if the proceedings were regular in all other respects the admitted facts show that the Commissioners had no jurisdiction of complainant’s person, and the order, so far as it purported to affect his land, was void. It may therefore be conceded that if they were attempting or threatening or claiming the right by virtue of these proceedings, to take his land, injunction was his proper and rightful remedy. Commissioners of Highways v. Durham, 43 Ill. 87; City of Peoria v. Johnson, 56 Ill. 45; Carter v. City of Chicago, 57 Ill. 283; Trustees v. Walsh, 57 Ill. 363; Frizell v. Eogers, 82 Ill. 109; Bryan v. City of East St. Louis, 12 Ill. App. 390.

Such, however, was not the fact. It appears that complainant's mother was named in the petition as owner, and that she had purchased the land and was then in possession and control of it. The petitioners doubtless supposed she had the title, though the deed she took was to her son, and on record. But it seems the Commissioners, before making the order, must have received information that he had or claimed some interest in it, since a release of damages which was executed by several others of the land owners was prepared to be executed also by E. W. Isom as agent of complainant, and was so signed by him in the body of the instrument (parenthetically). They also afterward took a release from his mother referring to the land as hers; from which it may be inferred that they supposed she had the interest of a widow, and he of' an heir; or that Isom could lawfully release for him as “agent” or, that his mother was his guardian and that her release would cure the defect and suffice to give them the right of way.

However much of ignorance there may have been on their part there does not appear to have been any bad faith. They yielded to his right as soon as they were advised of it.

The road, as declared to be established, was of the width of forty feet; its center line along this land was a division fence between it and that of Mr. Chrisby. Mrs. Hewby, complainant’s mother, had caused this fence to be moved back twenty feet, by which the road was opened. Afterward Chrisby ran his fence across the strip and joined on to complainant’s. The Commissioners gave him notice to remove it, and upon his refusal they tore it down. He replaced it, and then, by what they learned in this controversy with 'Christy, they were put upon inquiry as to complainant’s rights. The defendant Kepley therenjaon went to Indiana, where conk plainant and his mother were then residing, and upon learning from them that she had no interest in the land and was not his guardian, the Commissioners desisted from all attempts to take or use it.

And this was before the filing of the hill herein. The answer states that “ these defendants have no purpose to open said road except in conformity with the law, and are ready and willing to pay whatever damages, if any, said David E. Newby may be entitled to. The failure -to obtain the right of way over the land in controversy is an accident or omission resulting from mistake as to the ownership of said land!” On the hearing they -testified without contradiction to the facts above stated, and that they have never done or threatened to do anything toward taking, the land since thus learning the title, and have no intention to do so without first making lawful compensation.

The only relief prayed is injunction. The ground of it is the alleged attempt or threat to take complainant’s land without right, under the proceedings referred to, and impending, when the bill was filed. We regard the answer as a denial of the allegation last mentioned, and disclaimer of all right or purpose so to take it, or otherwise without right first obtained. Having been called for under oath and being sworn to, this is evidence of the facts therein stated. It is fully supported by other proof and is not now denied. What more does the complainant need % All the right he claims is fully conceded, and was before he brought his suit. No substantial harm had come to him from what the defendants had previously done through mistake of fact or ignorance of law, nor was any danger of its coming then impending.

Inj unction will not he granted to prevent wrong in the abstract, or that is only nominal or theoretical in its character, or because of the mere apprehension of the petitioner that a wrong may be done. High on Inj unction, Sec. 1; Wait’s Actions and Defenses (2d Ed.), VoL 3, p. 689. ¡Nor will this relief be extended in any case beyond what is necessary for the protection of his rights. Wait’s Actions and Defenses (2d Ed.) Vol. 3, p. 685; citing Gallaton v. Oriental Bank, 16 How. (N. Y.) 253; Shrewsbury v. Stour Valley R’way Co., 21 Eng. L. and Eq. 628, 636.

It may be that the existence of the order establishing the road would of itself justify an injunction, as affording a presumption, of an intention to open the road. But this presumption is overcome by the sworn answer and personal testimony of the Commissioners admitting its invalidity, and disclaiming 'all right and intention to enforce or pursue it against complainant. High on Injunction, Sec. 10; Dnited States v. Duluth, 1 Dillon, 469. In the case last cited Mr. Justice Miller states the rule to be that “when the damage or injury threatened is bf a character which can not be easily remedied if the injunction is refused, and there is no denial that the act charged is contemplated, the temporary injunction should be granted unless the case made by the bill is satisfactorily refuted by the defendant.” The same seems to be recognized by our own Supreme Court in Trustees, etc., v. Walsh, 57 Ill. 366.

We think it would be an abuse of this extraordinary remedy to apply it in such a case as is here shown, and the decree of the Circuit Court will be affirmed.

Decree affirmed.


text:
    M. T. Vaughn v. Silas Owens.

      Sales — Growing Crops — Possession—Replevin to Recover Property Held by Constable — Official Character of Defendant — Evidence.
    I. Upon a sale of a growing crop the title and possession pass to the ven- ■ dee.

      2. The purchaser of a growing crop of corn, where the quantity is considerable, may have it cribbed on the premises where grown, without sub. jecting it to levy for the debts of the vendor.
    3. In the case presented, it is held, that the evidence shows a complete sale of the corn in question while growing, although it was to be gathered and cribbed by the vendor and the quantity was then to be ascertained or agreed upon by the parties.
    4. Where the defendant, in an action of replevin, defends on the ground that he was a Constable and took the property in question by virtue of an execution and the direct question of his official character is raised, he must show that he was a Constable de jure. Evidence that he was an acting Constable is inadmissible.
    [Opinion filed August 26, 1886.]
    Appeal from the County Court of De Witt County; the Hon. G. B. Graham, Judge, presiding.
    Messrs. Moore & Warner, for appellant.
    The absolute unconditional title to the property in question became vested in the appellant, September 22, 1885. Graff v. Fitch, 58 Ill. 373; Shelton v. Franklin, 68 Ill. 333; Straus v. Minzesheimer, 78 Ill. 492; Benjamin on Sales, Sec. 331.
    Where a person, claiming to be an officer, attempts to justify his acts done by virtue of his office, he must prove himself an officer de jure. Schlencker v. Risley, 3 Scam. 483; Case v. Hall, 21 Ill. 632; Outhouse v. Allen, 72 Ill. 529.
    Messrs. Fuller, Monson & Ingham, for appellee.
    Upon the sale of growing crops, actual possession need not be taken by the purchaser until they are matured, but when the crop arrives at maturity the purchaser must then be diligent and take the actual possession of the same within a reasonable time. Thompson v. Wilhite, 81 Ill. 356; Bull v. Griswold, 19 Ill. 631.
    The pretended symbolical delivery was not made until ten days, according to Vaughn, and forty days, according to Hendrix, after the crop matured. That showed no diligence on Vaughn’s part. Even ten days is not a reasonable time within which possession should have been taken, or -attempted to be taken. A delay of more than one day in taking possession would certainly have been laches and defeated his right, considering that the corn was so near the premises and so susceptible of actual possession by removal or otherwise. Arnold v. Stock, 81 Ill. 407; Reed v. Eames, 19 Ill 594; Wooley v. Fry, 30 Ill. 158; Reese v. Mitchell, 41 Ill. 365; Cass v. Perkins, 23 Ill. 382.
   Conger, J.

On the 22d day of September, 1885, one H. A. Hendrix was indebted to appellant in the sum of §30. Appellant was also surety for Hendrix upon the latter’s note to other parties for §123.20 and interest. On that day appellant and Hendrix met on the farm near where the corn of Hendrix was growing, and appellant proposed to purchase it of Hendrix at the price of 20 cents a bushel, Hendrix to gather and crib the corn on the farm of appellant, lying just across the road from the place on which the corn was growing, or on the land where the corn was growing if he could find enough rails there to crib it; and when the corn was so gathered and cribbed, the total amount to be ascertained or agreed upon by the parties, and then to be paid for at the rate of 20 cents per bushel, by appellant surrendering to- Hendrix his note of §30 and paying off the note of Hendrix, of §123.20, upon which appellant was surety, and the difference between these two amounts and the total price of the corn, to be settled in cash, whichever way it should be. .Hendrix said, “It is a trade; it is your corn.”

Hendrix gathered the corn and cribbed it on the place where grown, as he says, from the 1st to the 15th of October, while appellant states that it was gathered from the 1st to the 15th of November, and from the circumstances we are inclined to think the date fixed by appellant to be the correct one. On the 25th of November, 1885, Hendrix and appellant met and estimated the corn, which was contained in two cribs, at 700 bushels, the §30 note was delivered up, and they agreed that when appellant paid off the note upon which he was surety, the difference in money could be paid. Appellant did pay off said security debt December 24,1885.

A judgment was. obtained October 2, 1885, and execution thereon issued and delivered to appellee as constable on October 9, 1885, in favor of a third party and against Hendrix.

This execution was levied upon the corn in question November 28, 1885; whereupon appellant brought replevin against the officer, and the sole question is, was the transfer of the corn from Hendrix to appellant sufficient to defeat the claims of the execution.

The sale was complete on the 22d of September, and the title to the growing corn passed out of Hendrix to appellant then. The parties intended the sale to be complete before the corn was measured; appellant made to Hendrix a distinct offer as to price, the manner of payment, and the means by which the quantity of corn could be ascertained when gathered and cribbed, and Hendrix replied: “It is a trade; it is your corn.”

It seems to us nothing could show more clearly that the parties intended that the sale should be complete at that time and before the corn should be measured, and if so, the title would at once pass. Graff v. Fitch, 58 Ill. 373; Shelton v. Franklin, 68 Ill. 333; Straus v. Minzesheimer, 78 Ill. 492.

And this being a sale o’f standing crops, the possession is in the vendee until it is time to harvest them, and until then he is not required to take manual possession of them. Ball v. Griswold, 19 Ill. 631.

But the objection is made that when the corn was gathered, after its maturity, appellant lost his right by permitting it to remain in the apparent possession of Hendrix an unreasonable length of time. There would be great force in this position if the article purchased had been of such a nature as required an actual manual delivery, but as we understand the law, to constitute a delivery of so large a quantity of corn in cribs as that in controversy, or any cumbrous bulky article incapable of being handed over from one to another, there need not be manual delivery of them.

We think that the cribbing of the corn at the place agreed upon by Hendrix was a sufficient delivery to appellant. The title to the corn had been in appellant since the 22d of September, and we can see no good reason why he might not have the corn cribbed on the place where grown as well as elsewhere until such time as it suited his convenience to remove it.

Had the quantity been small, capable of being easily handled, the rule might be different. But if one buying a stack of hay, a raft of logs or a large pile of lumber, is not required to remove such things, but may leave them during his pleasure at the place where they were when purchased, wTe do not see why appellant, who had bought the com in September and had it gathered and cribbed where he wanted it to remain, possibly through the winter, should be compelled to remove it from such place to protect his title, any more than if he had upon the 28th of November bought it for the first time, and regarded the understanding of himself and Hendrix, that the cribs were then and there delivered, as a delivery which in the latter case would clearly be good. Jewett v. Warren, 12 Mass. 300; Cartwright v. Phoenix, 7 Cal. 281; Chaplin v. Rodgers, 1 East, 192; Hart v. Wing, 44 Ill. 141; Ticknor v. McClelland, 84 Ill. 471; May v. Tallman, 20 Ill. 443.

We think appellant was entitled to recover, and the court below erred in finding to the contrary.

It was also error to permit appellee to testify that he was acting as constable. He was the defendant in the replevin proceedings; had taken the property by virtue of an execution; therefore the direct question was raised as to whether he was a constable or not, and it was therefore incumbent on him to prove that he was a constable de jure. Outhouse v. Allen, 72 Ill. 529.

Eor the errors indicated the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    People of the State of Illinois ex rel. H. H. Beach et al., v. D. M. Blackwelder et al., Highway Commissioners, etc.

      Construction of Statutes — Omission—Opening of Highway s on Toionship Unes — Sec. 57, Ch.lSIR. S. — Omission of Words. — “Either” Construed as Meaning “Each”■ — Mandamus.
    1. Statutes must be interpreted according to their intent and meaning, and not always according to their letter. When the words are not precise, definite and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the general object of the statute. Where any particular construction would lead to an absurd consequence, it will be presumed that some qualification or exception was intended.
    2. Sec. 57, Oh. 121, R S., attempting to provide for the opening of roads, “ on township or county lines, or from one township into another,” is defective in that the words “ or township ” were inadvertently omitted after the word “county ” in the provision requiring the petition to be ‘1 signed by not less than twelve land owners residing in either county within three miles of .the road.” In the construction of said section this court supplies the omitted words, and holds that “ either ” must be read to mean “each.”
    3. Upon demurrer to a petition for a writ of mandamus to compel the Commissioners of Highways of the towns of North and South Litchfield to allot to each of said towns a part of a road along the line dividing the towns, for its maintenance, and to apportion the expense of locating the same, it is held: That the road in question was not located according to law, the requisite number of land owners of each township not having signed the original petition.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Montgomery County; the Hon. Jesse J. Phillips, Judge, presiding.
    Mr. William Abbot, for appellant.
    Mr. J. M. Truitt, for appellees.
   Wall, J.

This was mandamus, to compel the Commissioners of Highways of the Township of North Litchfield and South Litchfield, in the County of Montgomery, to allot to each of said towns the part of a road along the line dividing the towns, ¡ to be kept open and in repair, and to apportion the expense of locating the road pursuant to Sec. 58, Ch. 121, R. S.

The Circuit Court sustained a demurrer to the petition for ■mandamus, and the only question is as to this ruling. The point is made that the road was not located according to law. It- will be noticed this road runs from east to west along the line dividing the two townships, and the objection is that the requisite number of land owners of each township did not sign the original petitions to the respective Boards of Highway Commissioners praying for the location of the road. By ■Section 31, Ch. 121, it is provided that the Commissioners of Highways may lay out a new road upon the petition of land owners, not less than twelve, or two thirds of those residing in •such town within two miles of the road so to be laid out. Section 32 prescribes what the petition shall contain, and by subsequent sections the proceedings of the Commissioners are stated and regulated.

This Section 31 sufficiently provides the mode necessary to initiate the opening of a road wholly within one township.

By Section 57 an effort is made to provide for a road on a township or county line, or from one township into another. That section reads as follows:

Public roads may be established, al tered, widened or vacated on township or county lines, or from one township into another, in the same manner as other public roads, except that in such case a copy of the petition shall be posted up in and presented to the Commissioners of each town interested; said petition to be as in other cases, cmd signed by not less than twelve, land owners residing in either county, within three miles of the road so to be altered, widened, located or laid out; whereupon it shall be the duty of the Commissioners of the several towns to meet and act as one body in the same time and manner as in other cases, in considering the petition, viewing the premises, adjusting damages and making all orders in reference to such proposed road, alteration, widening or vacation, and a majority of all such Commissioners must concur in all such orders; and a copy of all final orders and plats and papers shall be filed and recorded in each of the counties and towns interested.”

The difficulty arises upon the construction of this section. It is evident that there is an omission, or that there is, by inadvertence, an insertion of words not intended. The section undertakes to provide for a road on a township or county line, or from one township to another, and declares they shall be established in the same manner as other public roads, except that a copy of the petition shall be posted up in and presented to the Commissioners of each town interested — the petition to be as in other cases, and signed by not less than twelve land owners residing in either county, within three miles of the road. This clause, “ signed by not less than twelve land owners residing in either county, within three miles of the road, ” by its position in the sentence, qualifies what precedes, and literally considered applies as. well to a road on a township line, or from one township into another, as to a road on a county line. This, however, leads to an absurd consequence, and is manifestly not what was intended by the Legislature.

Heading sections 31 and 57 together, as we must, we think it clear that the true spirit and intent of the statute is that in all cases the Highway Commissioners shall be petitioned by the land owners of their respective townships, not less than twelve within three miles, when townships only are affected, and the same number when county lines are involved, and that by inadvertence the words “or township” after the word county and before the word “ within ” were omitted in drafting the section.

Another construction suggested by counsel is that the words when the road is on a county line the petition shall be” were omitted and shonld be supplied. In adopting this construction it becomes necessary to add so many words that it is somewhat difficult to suppose their omission was unnoticed, whereas it is nothing unusual to find one or two words have accidentally been dropped. We are inclined to think the omission of the words “or township” was inadvertent, and that they should be supplied, and that the word “either” must be read to mean “ each,” which is its not infrequent rise.

The manifest policy of the law is that the local authorities of each township shall have control of and be held responsible for the system of highways within the township, and that a petition of the land owners within certain bounds is essential to give jurisdiction to the proceedings of the Commissioners. It is not to be supposed that this policy is abandoned when the road is on a town or county line, or runs from one town to another. All the reasons for such a policy are operative and obvious in these cases as much as when the road is wholly within one town, and in construing the section we are justified in the assumption that such was the theory of the law. Upon the subject of construction in such and analogous cases, see Perry County v. Jefferson County, 94 Ill. 214; The People v. Hoffman, 97 Ill. 234.

Statutes must be interpreted according to their intent and meaning and not always according to the letter, and when the words are not precise, definite and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the general object of the statute; and when any particular construction would lead to an absurd consequence, it will be presumed that some qualification or exception was intended by the Legislature to avoid such conclusion.

In the present case the petition to the Highway Commissioners was signed by more than twelve land owners residing in North Litchfield within two miles of the proposed road, and by some, but by less than twelve, and less than two thirds,- of

the land owners of South Litchfield within the two miles. According to the construction above indicated, which we are disposed to accept, or the other suggested — one of which we think must be adopted — the necessary petitions were not presented to the Highway Commissioners to give them jurisdiction to lay out the road, and the demurrer to the petition for maudamns was well taken. The judgment of the Circuit Court will therefore be affirmed.

Affirmed.


author: Conger J.

text:
    Massachusetts Mutual Life Insurance Company v. Ellis W. Hayes and Daniel D. Hayes.

      Life Insurance — Use of Intoxicating Liquors — Surrender of Policy— Action to Recover Balance — Charge of Fraud, not Sustained by the Evidence — Representations of Agent — Finding of Facts by the Court..

    1. In an action to recover a balance claimed to be due on a policy of life insurance, the surrender of which is alleged to have been fraudulently procured by the agent of the defendant, it is held, upon a review of the evidence, that the charge of fraud is not sustained and is not true in fact.
    2. Where the parties to a settlement sustain to each other no relation of trust or confidence, the settlement can not be impeached as fraudulent because of a false affirmation by one of them of mere matter of opinion, or even of fact, which is at least equally open to the knowledge or inquiry of the other.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Coles County; the Hon C. B. Smith, Judge, presiding.
    Messrs. James A. Connolly and F. K. Dunn, for appellant.
    A party who seeks to relieve himself from the obligation of his contract on the ground of fraudulent misrepresentation, must establish by clear proof that there has been a knowing misrepresentation of a matter material to his interests, which has misled him to his hurt. A false affirmation of mere matter of opinion, or even of fact equally open to the knowledge or inquiry of both parties, in regard to which neither could be presumed to trust the other, is not available for such purpose. 1 Story, Eq. Jur., Secs. 191, 197-201.
    “ The misrepresentation must not only be in something material, but it must he in something in regard to - which the one party places a known trust and confidence in the other. It must not be a mere matter of opinion equally open to both parties for examination and inquiry, where neither party is presumed to trust to the other, but to rely on his own judgment. Matters of opinion between parties dealing upon equal terms, though falsely stated, are not relieved against.” Tuck v. Downing, 76 Ill. 71; Fulton v. Hood, 34 Pa. St. 365, 371; Foley v. Cowgill, 5 Blackf. 18.
    A wilful misrepresentation as to the price paid for land, or its value, or the probability of a sale, does not make a case of fraud, so as to enable the party deceived to recover back the excess of price paid by him under the influence of such statement. Banta v. Palmer, 47 Ill. 99; Merryman v. David, 31 Ill. 404; Fish v. Cleland, 33 Ill. 238; Cleland v. Fish, 43 Ill. 282.
    “ Yet, though the misrepresentation be even wilfully false, in order to found a right in the party to whom it is made, to avoid it, it should be of such a nature that he had a clear right to rely upon it as an actual and undisputed fact. * * * Every misrepresentation of a material fact is fraudulent in law if the party to whom it was made did not have equal means of knowing or ascertaining its falsity, or if it be made in such a manner as to induce him to forbear making any inquiries in regard to it.” Story on Contracts, Sec. 510.
    “A man who knows or has the means of knowing his rights, must, under ordinary circumstances, be expected to stand upon them. Mayhew v. Phoenix Ins. Co., 23 Mich. 105; Ætna Ins. Co. v. Reed, 33 Ohio St. 283.
    “In an action for deceit no recovery can be had unless the plaintiff himself exercised ordinary prudence to guard against the deception and fraud practiced upon him, unless he has been thrown off his guard by the other party.” Schwabacker v. Riddle, 99 Ill. 343.
    The representations made by Pendergast, in the interview with Hughes, were not such as the latter was in law author, ized to rely upon as actual and undisputed facts, and thereupon forego all inquiry upon the subject. They were not really representations of facts at all, but only of Pendergast’s investigation and its results.
    Mr. Hughes had at least equal means with Pendergast of ascertaining the truth or falsity of the latter’s information. Ho attempt was made to induce him to forbear making inquiry in regard to it. He was not “ thrown off his guard by the other party.” In fact, it was not until after the interview was over, and the hopes of a settlement abandoned by both parties, and after consultation with his friends in Mattoon, that he came to Pendergast with a wholly new proposition of his own, which was accepted. Even then he was unwilling to proceed until he had consulted Mrs. Hayes, the plaintiff in this suit, the mother of his wards, whose interests were involved, in whose family Job Hayes had lived for many years. Their means of knowledge in regard to Job Hayes’ habits were far greater than Pendergast’s. Hughes lived in Mattoon, where Job Hayes had lived for several years. He knew Hayes’ family, friends and associates in Mattoon, and knew that many of ■his relatives and associates remained at Lawrenceburg, from whom all the information he might desire as to his habits could be obtained.
    Pendergast’s representations, at most, amount to no more than the expression of an opinion. “ Matters- of opinion between parties dealing upon equal terms, though falsely stated, are not relieved against.” Story, Eq. Jur., Sec. 197; Tuck v. Downing, 76 Ill. 71; Fulton v. Hood, 34 Pa. St. 365; Foley v. Cowgill, 5 Blackf. 18.
    “ To render a representation fraudulent, it must be false, and not only so, but the party making it must know that it is false. To recover in an action for deceit, the statement must be untrue; the party making it must know it is false, and the party seeking to recover must have relied upon the statement as true, and have been induced to act upon the statement; and the statement, to authorize a recovery, must have been in relation to a matter material to the transaction.” Merwin v. Arbuckle, 81 Ill. 501; Tone v. Wilson, 81 Ill. 529; St. L. & S. E. R. R. Co. v. Rice, 85 Ill. 406; Wheeler v. Randall, 48 Ill. 182; Richards v. Betzer, 53 Ill. 466.
    “ A knowledge of the falsity of the representations must rest with the party making it, and he must use some means to deceive or circumvent. St. L. & S. E. R. R. Co. v. Rice, 85 Ill. 406; Walker v. Hough, 59 Ill. 375; Sims v. Klein, Breese, 233; Dunbar v. Bonesteel, 3 Scam. 32; Fountleroy v. Wilcox, 80 Ill. 477.

      Messrs. Craig & Craig, for appellees.
    A compromise procured through the artfulness of another party will not be upheld. Knotts v. Preble, 50 Ill. 226; Headley v. Hackley, 50 Mich. 43.
    Fraud may be proved by circumstances. Bullock v. Marrott, 49 Ill. 62; Bowden v. Bowden, 75 Ill. 143.
    “ It is the duty of every party, in making a contract, to be honest' and truthful in his statements and representations, and although a party to a contract is bound to exercise reasonable care and caution to prevent being defrauded, yet if the party committing the fraud make use of such false statements, representations and acts, with respect to a material inducement to the contract, as are calculated to deceive and mislead a person acting with common prudence and without indiscretion, and he is thereby induced to enter into a contract, or to part with his property, then such party can not be heard to complain that the person so deceived and misled did not make such inquiries as might have resulted in a discovery of the falsity of the representations.” Eames v. Morgan, 37 Ill. 263.
    “If a party makes a representation, not knowing whether it was true or false, he can not be considered innocent, since a positive assertion of fact is by plain implication an assertion of knowledge concerning it. Hence, if the party has no knowledge about it he has asserted for truth what he knows to be false.” Bigelow on Fraud, 61 1st Met. 193, 201; Bennett v. Judson, 21 N. Y. 238 ; Stone v. Covell, 29 Mich. 363.
    “ It is not essential, however, that the representation should form the sole inducement to a contract; it is enough that they form a material inducement. ” Cooley on Torts," 502.
   Conger J.

This case, after passing through various amendments and having been once in this court (16 Ill. App. 233), was finally tried upon a declaration wherein appellees, by their next friend, allege that appellant, on the 16th day of February, 1874, insured the life of one Job Hayes for their benefit, in the sum of §12,000 ; that Job Hayes died August 19, 1876; that James F. Hughes was the guardian of appellees, and as such had charge and control of the policy; that appellant, through its agents and servants, in order to cheat and defraud appellees, and to obtain fraudulent settlement and the possession of said policy, on April 20, 1877, falsely, fraudulently and covinously and with intent to cheat and defraud appellees, represented to Hughes, the guardian, that said Job Hayes had been, before the policy was issued, a person who used intoxicating liquors daily and habitually; that said statements were false, and defendant when making them knew them to be false; that the guardian relied upon such statements, and said defendant obtained by said fraud from said guardian the agreement to accept §6,045, in settlement of said policy and its surrender to appellant.

Pleas were filed, trial had, and a verdict for $9,060 rendered in favor of appellees, and judgment being entered thereon appellant brings the record to this court.

The foundation of this action being the alleged fraudulent and false statements of one Pendergast, who was the agent of appellant in making the settlement with Hughes, the guardian, and Pendergast and Hughes being the only witnesses upon this point, it will only be necessary to notice their testimony.

Hughes says that the first thing he did toward collecting the policy was to send to the company an overdue premium. He then forwarded the proofs of death, and in March, 1877, Pendergast, the agent of appellant, visited Mr. Hughes in reference to the matter, but nothing was done, and Pendergast left without making any propositions of settlement. On the 16th'of March suit was instituted upon the policy, but the summons remained in the possession of Hughes until Pendergast returned. April 20th Pendergast returned, and their interview and settlement is fully shown by Mr. Hughes’ testimony, which we quote in full from the abstract.

“Mr. Pendergast came there on April the 20th, something over a month after this summons was issued. He came to see further about the business, and reported to me that during his absence he had been down to Lawrenceburg, Indiana, where Job Hayes had formerly lived, investigating the correctness of his answers on his application, and told me that he had there found that his answers to two of those questions, regarding the use of intoxicating liquors, were false, and that he had found the proof there to show that they were false, and we discussed that. He also said that he was desirous of settling the matter, and was willing to pay an amount equal to what it would cost to defend a suit on the policy. 1 asked him what amount that was, and he mentioned the sum of probably $2,500 to $3,000, and that he would just as soon pay it as pay it out in expenses in defending a suit; that he would not feel like paying any more than that. I told him I could not accept that, and he intimated then that he had some other defense to it. I asked him what it was. I asked him if it was something about his grandmother, and he laughingly replied that it was. That part was passed between us in a jocular manner, neither of us attaching any importance to it— at least I did not, and after a general friendly conversation between us about the matter, we went out of the office. This took place in my office. I don’t remember of going out together, but perhaps we did; we both went out anyway. I opened the drawer, and took out the summons which I had in reserve for him, but not while Pendergast was in there. If I went out with him I afterward went back and got it. Mr. Pendergast did not know I had the summons. I did not let him know it. I wanted to settle with him, and if I did settle that was the end, and if he did not settle I did not want him to leave town until I got service on him. He went away. I was not disposed to accept the offer, and he was not disposed to offer more, and I got my summons and hunted up a deputy sheriff and handed it to him, and while I can "not recollect pointing out Mr. Pendergast, the probability is I did. Mr. House served the summons on him. After he had been served I went .into the barber shop where he was. I don’t remember how I knew he was there, or whether I saw him go in; I only know I went in there and saw him sitting in a chair. There was no conversation that I recollect of between myself and Mr. Pendergast or anybody else representing this company, between the time he left my office and the time of serving the summons on him, nor between the time he left my office and the time I met him in the barber shop. I went in and asked him if he had received the summons and he said he had. I told him I had been thinking about the matter since we had our talk in the office, and that I had made up my mind to make him an offer or proposition— he had made me one I had not accepted, and I thought I would make him one, and I proposed if he would pay fifty cents on the dollar on the amount due on the policy, that I would take it, provided the mother, Mrs. Hayes, would consent to it. I can not say I have a memory of having told him of having consulted other parties. I did consult with two or three other men in whom I had confidence as to whether or6 not I had better make such a proposition as that, and detailing to them what information I had derived from Mr. Pendergast about the case, and after consulting with them I concluded to go and make the offer. I have no memory as to whether I told Mr. Pendergast I had so consulted them. If he remembers I did so I have no doubt it is true. I approached him and made this proposition while he was sitting in the barber’s chair, and it was made dependent on my having an opportunity of consulting Mrs. Hayes. I told him she was in Shelby County at some distance — in the town of Shelbyville — and I could go to Shelbyville on the noon train ; go to see her and get back by 11 o’clock at night, in time to see him, and in case we settled it he could go on to Chicago at 12 or 12:30 o’clock, and that arrangement was made between us. He agreed to wait while I went to Shelbyville and saw her. I went out and got a team at Shelbyville, and drove out three or four miles in the country, and found Mrs. Hayes where she was visiting, and I had a talk with her about the matter. I told her of Mr.. Pendergast being in Mattoon, and what proposition I had made to him, and that he had agreed to accept it in case I got her to accept of it, and I asked her what she thought I had better do about it, and her reply to me was to do as I thought best. I told her I thought it was best to make that settlement. I then came back to see Mr. Pendergast. He made out and gave me two drafts of equal amounts, $3,022.50 each, making $6,045, which was fifty per cent, of the amount then due, principal and interest. I gave him up the policy, and signed this receipt he had already prepared. He had the drafts and receipt prepared, and I signed the receipt a,nd gave him the policy. He was expecting to go north on the nridniglit train on the Illinois Central, and probably had only about an hour after I would get back, and had these papers prepared to save time. These drafts were paid. I got the money, made a report of it to the court, and paid it out under direction of the court for the use of these children. The suit which I commenced against the company, and had the summons served, I had dismissed at the next term of court. I think these papers shown me are all the files of that case. There was a precipe and summons, and then the suit dismissed without any further paper being filed; there was no declaration. I have no recollection when I made known to Mrs. Hayes that I had completed the arrangement or of her saying anything about it. I saw her frequently. She knew, of course, in some reasonable time, that I had completed the settlement, I don’t know just when.”

Mr. Pendergast’s statement of the settlement is substantially the same, except he gives more in detail what he had learned at Lawrencebnrg as to Job Hayes’ habits in reference to the use of intoxicating liquors.

The other evidence tends to show that Pendergast was told by parties in Lawrencebnrg certain things in reference to Hayes’ habit that might lead one inquirer to the conclusion that Hayes had been in the habit of using intoxicating liquors to excess, and another to a different conclusion.

Altogether it may be conceded when all the evidence taken in this case is considered it is reasonably clear that such charge ■against Hayes was not true. But the question is not what were his habits as developed upon a full investigation, but did Pendergast have such inform ition at the time he visited Lawrcnccburg as would enable him to form an honest opinion that Hayes had been in the habit of using intoxicating liquor to excess. We think he did. Again, Pendergast’s statements, even as given by Hughes, can not be regarded as statements of facts peculiarly with’n his own knowledge, and upon which Hughes could rely without making an investigation.

Hughes says Pendergast’s statement was “that he had found that Hayes’ answers to two of the questions regarding ' the use of intoxicating liquors were false, and thát he had found the proof to show that they were false.” What character and quality of proof would have sustained this charge was and must necessarily be a mere matter of opinion; rumors and loose declarations, not legal evidence at all, might lead a man unlearned in the law to suppose he had found proof of some disputed fact, while the same things presented to the mind of a lawyer would enable him to say at once that there was no value to them as evidence.

The parties were standing ’at arm’s length. Ho relation of trust or confidence existed between . them; Hughes had known for some time that the company was disputing the claim. The means of investigating the habits of Hayes at Lawrenceburg were equally open to both, and, in fact, more 1 favorable to Hughes than the company, for the reason that Maggie Hayes, the mother of appellees, was a sister-in-law of the deceased and had relations at Lawrenceburg.

It was the duty of the guardian, if he thought the statements of Pendergast at all material as to the liability of the company, .to investigate for himself, and not trust to the opinion of the-agent of the company, “that proof had been found sufficient to show that Hayes had been in the habit of tasing intoxicating liquors to excess,”

Perhaps there is no one subject investigated in courts of justice so difficult to define and establish by evidence as the charge that a man is in the habit of using intoxicating liquors to excess. The views of men upon the subject are so diverse, and are so moulded by education and prejudice, that no uniform standard of judgment upon the subject is possible.

Again, the proposition made to Hughes by Pendergast at the time of this statement was neglected and negotiations broken off. After the summons was, served upon Pendergast,^ Hughes upon his own motion made another proposition, upon condition that the mother of appellees should approve it, which was accepted; the mother did approve, and it was completed.

We see nothing in the*case to justify the charge in the declaration that the settlement was procured by fraud.

It is said Huglies had no authority to make the settlement. We express no opinion upon that question, as that can only arise when the jDolicy itself is sought to be enforced. Whether he had the po wer to settle or not does not arise in this case.

We see no legal grounds for a recovery in this case, and the judgment of the Circuit Court will therefore be reversed.

Reversed.

Finding of facts by the court, to be incorporated in the final judgment by the clerk:

The court finds that the policy of insurance for §12,000, issued on the 16th day of February, 1874, upon the life of Job Hayes, for the benefit of Ellis W Hayes and Daniel D. Hayes, was, on the 20th day of April, 1877, by James F. Hughes, guardian of said Ellis W. and Daniel D. Hayes, surrendered to the agent of the said insurance company for the consideration of $6,045, then paid to said guardian by the agent of said insurance company.

The court further find that the charge in the declaration that the surrender of said policy was procured by fraud upon the part of said insurance company, or its agent or agents, is not supported by the evidence "and is not true in fact.


text:
    Jesse Druly v. Estate of William F. Johnson, Deceased.

      Adjudication of Claim against Estate — Note—Whether an Individual or Partnership Liability — Practice—■Instructions—Degree of Accuracy Required,

    1. Where the evidence is so complicated as to render the proper determination o£ the issue doubtful, great accuracy in the instructions is required.

      2. In the case presented, in which the question involved is whether a claim against an estate, based on a note given by the deceased, is an individual or partnership debt, it is held: That tie production of the note made a prima facie case of individual indebtedness; that an instruction to the effect that the plaintiff “must go further,” and show by a preponderance of evidence that the money was loaned to the deceased individually, was ■.misleading, and should have been refused; that an instruction given as to ■ the interest of certain witnesses as heirs of the deceased, though correct as a proposition of law, was erroneous, as containing an argument which was in itself unsound; that an alleged error, which manifestly did the appellant no harm, is immaterial, and that an objection to the answer of the partner oE the deceased to a question as to whether he signed the note as surety, was improperly sustained.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. Stevenson & Ewing, for appellant.
    Messrs. John J. Mobbtsset and Benjamin D. Lucas, for appellees.
   Wall, J.

The appellant, Jesse Druly, presented a claim amounting to nearly $8,000 for allowance against the estate of Wm. E. Johnson, deceased.

The chief question in the case was whether the claim should be allowed as the individual debt of Johnson, or as the partnership debt of Johnson & Druly, a firm composed of said Wm. F. Johnson and Wm. M. Druly, a son of the claimant. Johnson wished to raise $6,000, and to accommodate him the claimant, who was his father-in-law, gave a mortgage on his own land for that sum, and the money was paid over to Johnson, for which the latter gave his note to the claimant. This note is signed by Wm. F. Johnson and Wm. M. Druly.

The firm of Johnson & Druly were engaged in business at Joliet, and ■ the money was put into the firm business by Johnson. The case was tried by jury, and there was a verv, diet for claimant for $7,730, and that the debt was the partnership debt of J ohnson & Druly.

We are very strongly inclined to the opinion that this verdiet is against the weight of the evidence so far as it finds the character of the debt to be partnership and not individual, and to say the least the evidence was such as to call for great . accuracy in the instructions.

The court gave the following instruction at the instance of the estate. “The court instructs the jury, that although the jury may believe, from the evidence, that plaintiff got §6,000, and afterward loaned it to either the deceased, Mr. Johnson, or Johnson & Druly, yet that of itself does not make out a case for the plaintiff; but the plaintiff must go further and show by a preponderance of the evidence that the money was loaned to the deceased, Mr. Johnson, individually.”

Of course the burden of proof was on the claimant; and to the mind of a lawyer the proposition involved here might be clear enough, but as applied to the evidence it might easily mislead the jury.

The production of the note made a prima facie case of individual indebtedness, and while the evidence offered by the defense might tend to show it was a partnership debt, and therefore it might be literally true that the money was loaned either to Johnson or to Johnson & Druly, yet it was for the jury to say how this was, and it does not follow that there was such ambiguity or lack of proof as to require the plaintiff to “go further.” The jury would be left to infer that if by the proof it was shown the money w-as loaned to the individual or the firm, then there must be some additional proof that it was loaned to the individual; whereas it might well be said, and we think such is the state of the evidence, that while there was more or less doubt, yet upon the whole the preponderance was with the plaintiff. The instruction was calculated to confuse and mislead the jury, and should have been refused.

The following instruction was given at the instance of the estate.

“ The court instructs the jury, for the defendant, that witnesses John O. Johnson and Joseph McNaught, under the law, can receive no part or share of the estate of the property of William F. Johnson, deceased, as heirs of said deceased, until all the debts of said William F. Johnson, both individually and partnership, are paid up.”

The-object was no doubt to produce a favorable impression of the witnesses referred to or to contradict anything unfavorable, produced by the argument of counsel.

The legal proposition here stated being admitted as correct, yet the inference likely1' to be drawn by the jury, that these witnesses had no interest in the result, avouM be erroneous so far as John O. Johnson was concerned. He was a son of the deceased, and had a direct interest in shoAving that this was a partnership debt. The instruction Avas nothing if not an argument, and as an argument it Avas unsound.

Complaint is made of the action of the court in giving the sixth instruction asked by the estate with regard to the mutilation of the note. There is but little if any evidence on Avhich to base it, yet as the jury found the issues for plaintiff as to the point involved, it manifestly did no harm.

It is also insisted there was error in not permitting Wm. H. Druly to testify that he signed the note as surety. The record shows the witness testified that he did so sign the note, and that an objection to this answer was made, and by the court sustained. It is argued by counsel that the Avhole transaction had been detailed by the witness, and therefore this question but called for his opinion upon the legal effect of it, and that the court did not as a matter of fact exclude it from the jury. When the court sustained the objection it was equivalent to saying that the answer Avas incompetent, and should not be considered by the jury. While it is true the witness had given in detail what occurred in the transaction, yet we see no reason why he should not be allowed to say categorically in what capacity, whether as principal or surety, he signed the note.

It is to some extent a legal question whether one is a principal or surety, or rather what is the definition of those terms, yet it is in substance a mere question of fact whether in this case the witness was a party to the loan, or whether he signed the note as principal or surety.

We deem it an undue refinement of terms to exclude the answer to such a question because it involves the expression of a legal opinion or conclusion of the witness.

This would perhaps not be such error as to warrant a reversal of the case, inasmuch as the witness gave quite fully his knowledge of the whole transaction. For the error in giving the instructions referred to, the judgment will be reversed and the cause remanded.

Reversed and remcmded.