text:
    S. Dexter Ludden v. Albert Stern.
    I. Landlobd and tenant—-Lease—Agbeement.—On January 10, 1883, A, who was occupying a building by his lease of that date, demised and leased to B the building, the term commencing April 1, 1883, and ending April 30, 1884. On the same day and as a modification of the lease, the parties executed a memorandum of an agreement, and the question at issue is whether the right of B to possession of the building on April 1, 1883, was impaired by such agreement. The court is of opinion that the real object of the instrument was to give to A the right notwithstanding the lease, to retain possession of the building after April 1 and until April 30, 1883, if the exigencies of his business made it necessary for him to do so.
    ‘2. Failure to give possession—Rent.—B rented a portion of the building to C, the term to begin April 10, 1883. On that day 0 demanded possession, but B was unable to give him possession, as A still occupied the building. C did not subsequently take possession of the premises. Two months later, B claiming that two installments of rent were due and in arrears, issued his distress warrant against C. Held, thatsince the possession of A was rightful, and 0 therefore could not maintain an action of forcible detainer or ejectment against him, B is barred from recovering rent from C.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed July 21, 1886.
    Mr. Frank J. Crawford, for appellant.
    Mr. Philip Stein, for appellee.
   Bailey, P. J.

On the 10th day of January, 1883, Kuh, Nathan & Fischer, by then lease of that date, demised and leased to S. Dexter Ludden, the appellant, the five story and basement building known as numbers 183, 185 and 187, Fifth Avenue, Chicago, for a term commencing April 1, 1883, and ending April 30, 1884, reserving as rent for the entire term the sum of $9,700, payable in monthly installments of $746.16, on the first day of each month, beginning April 1, 1883. On the same day and as a modification of the lease, said parties executed a memorandum of an agreement in the following terms:

“ Chicago, Jan. 10, 1883.
“Memorandum of contract. Kuh, Nathan & Fischer, have this day leased premises Nos. 183, 185 and 187, Fifth Ave., to S. D. Ludden, from April 1, 1883, until April 30, 1884, at a rental of nine thousand seven hundred dollars for the term; possession to be given March 1, 1883, and in case possession is not given March 1,1883, Kuh, Nathan & Fischer agree to pay said S. D. Ludden, for time occupied by Kuh, Nathan & Fischer after February 28, 1883, $23.10 per day, until possession is given, and the use of that part of the basement of 181 Fifth Avenue, which we now occupy, from Feb. 1 to April 30, 1883. This agreement constitutes a part of lease of even date. Received on above contract five dollars.”

On the 15th day of February, 1883, Ludden, by his lease of that date, demised and leased to Albert Stern, the appellee, the second floor of said building, with the appurtenances, for a term commencing April 10, 1883, and ending April 30, 1884, receiving as rent the sum of $2,638.89, payable in monthly installments of $208.33, on the 20th day of each month during the term, commencing April 20, 1883, except that the last installment was to be $136.89. Said lease contained a covenant, on the part of the lessee, to surrender up the premises to the lessor at the end of the term, and also a covenant authorizing the lessor to distrain for any rent that might be in arrears.

Kuh, Nathan & Fischer were in possession of the entire building at the date of their lease to Ludden, and so remained until the 28th or 29th of April, 1883. Stern never obtained possession of the portions of the building demised to him, but the evidence tends to show that on the 10th day of April, 1883, he demanded possession of Ludden, in the presence of Kuh, Nathan & Fischer, and was told by Ludden that he could not give it to him. The evidence also tends to show that Stern applied to Kuh, Nathan & Fischer for possession shortly before and shortly after that date and was refused.

On the 21st day of June, 1883, Ludden, claiming that two installments of rent reserved in his lease to Stern were due and in arrears, issued his distress warrant against Stern, which being executed by distraining certain goods and chattels belonging to Stern, was filed in the superior court, and, proper issues having been formed, a trial was had before the court, a jury being waived, resulting in a finding and judgmentin favor of Stern.

The decision of the case must turn very largely upon the question whether, at and after the commencement of the term created by the lease from Ludden to Stern, Kuh, Nathan & Fischer were rightfully in possession of the demised premises. If tlieir possession was ,rightful, so that Stern could not have maintained an action of forcible detainer or ejectment against them, Ludden is barred from recovering rent from them. See Field v. Herrick, HBradwell, 181, and authorities cited. This question depends upon the interpretation and force to be given to the memorandum agreement of January 10, 1883. The lease of that date, consideild by itself, clearly gave 'Ludden the right of possession of the entire building on and after April 1, 1883. Was such right surrendered or impaired by that agreement ?

The agreement is very inartificially drawn, and the intention of the parties, whatever it may be, is not clearly expressed. But we think that the most obvious inference deducible from the situation of the parties and the language employed is, that the real object of the instrument was to give to Kuh, Nathan & Fischer the right, notwithstanding the lease, to retain possession of the building after April 1st, and down to the 30th day of that month, if the exigencies of their business made it necessary for them to do so.

It must be conceded that, apart from such extension of their right of possession, every other provision in the agreement was in the nature of a concession by them to Ludden. Thus, by the lease, the term of the demise was to run from April 1, 1883, to April 30, 1884, but by the agreement the lease was so modified as to commence March 1, 1883, thereby adding one month to the duration of the term without increasing the aggregate rent. In case of failure to surrender possession March 1st, they agreed to pay Ludden §23.10 per day, a thing they were under no obligation to do by the terms of the lease ; and they further agreed to give Ludden the use of a portion of the basement of another building, which, unless the instrument was intended to secure them some corresponding advantage, was, like the other matter above mentioned, amere gratuity. If our interpretation of the instrument is not correct, it was without consideration and was a mere nudum pactum.

It may well be supposed, however, that after executing and delivering the lease Kuh, Nathan & Fischer became apprehensive that they might not be able to vacate the building by the time stipulated, as was afterward actually the case, and that to secure to themselves the right to remain after April 1st they made to Ludden the very considerable concessions above pointed out. That seems to be the only rational ground upon which the execution of the memorandum agreement can be accounted for, and it does no vidbnce to the instrument, considered in the light of the attending circumstances, to give it that interpretation. If, then, we give to the word “and” in the clause “ and in case possession is not given March 1st,” the force of “ or ” and we think the intention of the parties, as shown by the general scope of the instrument, justifies such reading—everything is plain. The agreement then is, to give possession March 1st, or in case possession is not then given, to pay Ludden at the rate of $23.10 per day until possession should be given.

It would thus appear that, on the 10th day of April, when the term of Stern’s lease began, Kuh, Hathan & Fischer were rightfully in possession, and that Stern’s lease gave him no right of possession as against them. Ludden then was not entitled to rent. The rulings of the court below seem all to have been in harmony with this view, and the judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    George J. Williams v. The People.
    1. Exception in enacting clause of statute.—It is a general rule that where exceptions are contained in the enacting clause of a statute creating an offense and giving a penalty, they are regarded as so far descriptive of the offense that they must be negatived in the indictment, information or declaration as the case may be. But it is otherwise where the exception comes in by way of proviso to the statute.
    2. Act to bbgülate pbactice of medicine.—The court is of opinion that in this case no mention of the exception or negation contained in the proviso to section seventeen of the “ act to regulate thg practice of medicine in the State of Illinois ” was necessary in the indictment, but it was necessary as part of the description of the offense to negative in the indictment the several exceptions contained in section fifteen of such act.
    8. When physician’s license or qualifications presumed. —Wince the question of license or qualification of a physician arises collaterally in a civil action, between party and party, or between the physician and the one who employed him, the license or due qualification under the statute to practice will he presumed. In the case, however, of prosecutions on behalf of the public, license or due qualification under the statute is not presumed, and it rests with the defendant to prove it.
    4. Constitutionality of act.—The court, refuses to pass upon the constitutionality of this act.
    Appeal from the Criminal Court of Cook county; the 'Hon. John G. Bouers, Judge, presiding.
    Opinion filed July 21, 1886.
    Messrs. Barnum, Rubens & Ames, for appelian t.
    Messrs. Campbell, Hamilton & Custer, for appellee;
    that the appellate court has no jurisdiction to decide questions of the constitutionality or validity of a statute in any case, cited Falch v. People, 8 Bradwell, 354; City of East St. Louis v. Trustees, 8 Bradwell, 295; City of Cairo v. Bross, 8 Bradwell, 296; Rosenstein v. Case, 9 Bradwell, 482; McManus v. Comm’rs, 10 Bradwell, 69; W. St. L. & P. Ry. Co. v. Stephens, 14 Bradwell, 507; I. C. R. R. Co. v. Willenborg, 14 Bradwell, 508; Wright v. People, 92 Ill. 596; Ingraham v. People, 94 Ill. 428; Smith v. People, 98 Ill. 407; Weiss v. People, 104 Ill. 90; Fishery. People, 103 Ill. 106; Chicago Theological Seminary v. Gage, 103 Ill. 181.
   McAllister, J.

Upon an indictment in the Criminal Court of Cook county, charging him with having practiced medicine in said county, without having complied with, and in violation of the act entitled, “ An act to regulate the practice of medicine in the State of Illinois,” approved May 29, 1877, Williams, the plaintiff in error, was tried by jury, found guilty, and sentenced to pay a fine of two hundred dollars. upon which judgment he brings error to this court, assigning various errors. The several provisions of that act, prescribing the qualifications of certain classes of persons, required as a condition precedent to the right to practice medicine in this State, are set out in the cases of The City of Chicago v. Honey, 10 Bradwell, 535, and Williams v. The People, 17 Id. 274; and inasmuch as they are voluminous, we refer to those cases for such statement in order to avoid repetition, and for the sake of brevity.

Section seventeen contains the penal clause of the act, and reads : “ Any person practicing medicine or surgery in this State without complying with the provisions of this act, shall he punished,” etc. To which section there is this proviso: “ Provided, that the provisions of this act shall not apply to those that have been practicing medicine ten years within this State.”

Section fifteen defines what shall constitute practicing medicine within the meaning of the act. Any person shall be regarded as practicing medicine within the meaning of this act, who shall profess publicly to be a physician and to prescribe for the sick, or who shall append to his name the letters of M. D. But nothing in this act shall be construed to prohibit students from prescribing under the supervision of preceptors, or to prohibit gratuitous services in cases of emergency. And this act shall not apply to commissioned surgeons of the United States army or navy.” 2 Starr & Curtis’ Stat. 1604-5.

The indictment charged Williams with acts in the way of practicing medicine as above defined, without having obtained any certificate of qxxalification from the State Board of Health, or the certification by said board as to the genxxineness of a diploma of any medical college, as required by said act, and the indictment expressly negatived each of the exceptions contained in said section fifteen, and in the proviso to section seventeen aforesaid.

The proseexxtion gave evidence on the trial, showing a prima facie case of the practice of medicine by the defendant- as defined by section fifteen, but gave no evidence tending to prove any of the negative facts alleged in the indictment, and the defendant offered no evidence whatever.

It is a general rule that where exceptions are contained in the enacting clause of a statute creating an offense and giving a penalty, they are regarded as so far descriptive of the offense that they must he negatived in the indictment, information or declaration, as the case may be. But it is otherwise where the exception comes in by way of proviso to the statute: 1 Phil. Ev. (Cowen & Hill’s Ed.) Marg. p. 821 and cases in notes; Spiers v. Parker, 1 Term R. 141.

We are of opinion that, as respects the exception or negative contained in the pxroviso aforesaid to section seventeen, no mention of it in the indictment was necessary. But we are inclined to the opinion that it was necessary as part of the description of the offense, to negative in the indictment the several exceptions contained in said section fifteen, which was properly done. Then the question arises, upon whom was the burden of proof respecting them.

After a somewhat thorough examination of the authorities and full consideration, we are of opinion that the rules with their proper distinctions may be thus stated : Where the question of license or qualification of a physician arises collaterally in a civil action between party and party, or between the doctor and the one who employed him, then the license or due qualification under the statute to practice, will be presumed. McPherson v. Clieadell, 24 Wend. 15; Thompson v. Sayre, 1 Denio, 175; Pearce v. Whale, 5 Barn. & Cres. 38 Id. 758.

Butin the case of prosecutions on behalf of the public, the rule is otherwise. And, in such cases, license or due qualification under the statute, is not presumed, and it rests with the defendant to prove it. Apothecaries’ Company v. Bentley, Ry. & Moo. 159; 21 E. C. L. 722; Sheldon v. Clark, 1 Johns. 513; Sherwood v. Mitchell, 4 Denio, 435; Smith v. Joyce, 12 Barb. 21; 1 Phil. Ev., supra, and cases in note 224.

Whether the defendant prescribed as a student, or was a cormnigsioned surgeon in the U. S. army or navy, or had been practicing ten years in this State before the act, or had the requisite certificate of the Board of Health, were ah matters peculiarly within his own knowledge, and the burden of proof was upon him in respect thereto.

Counsel for plaintiff in error have presented able and elaborate arguments upon the proposition, that the act under which their client was convicted is unconstitutional, because it falls, as they insist, within a class of acts prohibited by the constitution as special legislation.

We can perceive from our analysis of this statute that there is sufficient basis for the position of counsel for plaintiff in error, to call upon the court to decide an important and difficult question, involving a construction of some of the peculiar provisions of our State constitution. That question, most assuredly, is an appropriate one for the Supreme Court. And inasmuch as our jurisdiction to pass upon it is challenged by counsel for the defendants in error, and we are not quite clear about it in our own minds, we think the proper course for ns, under such circumstances, is to assume, for the purposes of this case which is otherwise free from error, that the statute is constitutional, affirm the judgment and let the case go directly to the Supreme Court.

Judgment affirmed.


author: Moran, J.

text:
    Chicago, Burlington & Quincy R. R. Co. v. Charles S. Bartlett et al.
    1. Construction on bond.—An action on a bond brought by a railroad company against its paymaster and his sureties on the bond where the money in question had been stolen from the paymaster. The condition of the bond was ‘ ‘ if the said Bartlett shall well, truly and faithfully perform the duties required of him by said company as paymaster and promptly pay over and promptly account for all moneys belonging to said company which shall be received by him as such agent, and shall deliver over to said company all property of said company when required, then this bond to be void) otherwise to be in full force and effect.” Held, that the condition of such bond secured tiie faithful and careful discharge of the duties of paymaster by Bartlett, but did not constitute him an insurer of the company’s funds that came to his hands and did not oblige him to pay over, or account to the company in the sense of paying over, in all events, all such funds; that loss of money by inevitable accident or by theft without any negligence on his part is an excuse.
    2. Distinction—Public bunds.—Bonds with conditions similar to the one in question when given by employe to employer will not be construed in such manner as to enlarge by the bond the obligations of the employe beyond the undertakings of the contract of employment. There is a distinction between the construction applied to bonds between private persons and those given by public officers and receivers of public money.
    S. Negligence.—The court is of opinion that the only ground of recovery in this case is the alleged negligence of the paymaster, and whether he was guilty of negligence such as to render him liable and whether the company or those officers of the company who held the relation of vice-principals to him were guilty of such contributory negligence as would bar at recovery by the company for the money lost, were questions for the jury to determine under proper instructions; that the court below did not commit error in giving or refusing instructions.
    4. Evidence—Admission in letter—Explanation.—When a document, such as a letter, not being matter of compact and agreement, is given in evidence as an admission by the adversary, the latter may adduce evidence'to show that it originated in mistake or to explain it by circumstances. The explanation of the paymaster as to the letter written by him and introduced in evidence by the company, was admissible.
    5. Admissions.—In considering the weight and conclusiveness to be attached to admissions, it is material to consider whether the admission is made independently and because it is true, or is merely conventional, entered into between the parties from other causes than a consideration of its truth and only as a convenient assumption for the particular purpose in hand.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed July 21, 1886.
    This action was brought hv appellants to recover against appellees on a bond given by Bartlett as principal and the other appellees as sureties. Bartlett was paymaster of the railroad company, and failed to pay over something about twenty-six thousand dollars of the money of the company, which came into his hands. The bond sued on was in the words following:
    “ Chicago, Burlington and Quincy Railroad Company: Enow all men by these presents, that we, Charles Bartlett, as principal, and John Gr. Shortall, Samuel D. Parker and William Chisholm, as sureties, are held and firmly bound unto the Chicago, Burlington and Quincy Railroad Company, in the sum of forty thousand dollars, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly by these presents. The condition of this obligation is such, that if the said Charles S. Bartlett shall well, truly and faithfully perform the duties required of him by said company as paymaster, and promptly pay over and promptly account for all moneys belonging to said company which shall be received by him as such agent, and shall deliver over to said company all property of said company when required, then this bond to .be void, otherwise to be in full force and effect.
    Witness our hands the sixth day of December, 1882.
    “ Charles S. Bartlett, Principal.
    “ John G. Shoetall,
    “ Samuel G. Parker,
    “ W illiam Chisholm,
    “ Sureties.
    “ Approved. J. C. Peasley, treasurer.”
    The evidence tended to show that in March, 1884, while Bartlett was paymaster, the sum of $26,850 of the money of the company was stolen from its safe.
    For some ten years prior to the making of the bond sued on, Bartlett had been paymaster of the company without bond. He disbursed large sums of money for the company— $500,000 to $550,000 per month, on an average. When Bartlett was not out on the road paying the employes, his duties were performed in the portion of the general office of the company known as the treasurer department. The treasurer department consisted of a paymaster with his assistants, a cashier with his assistants, and a general bookkeeper with his assistant. The cashier, paymaster and bookkeeper occupied one general office, known as the treasurer’s room. Connected with this room was a vault some fifteen by twenty feet in size, containing the cashier’s safe, and another safe which was double, one compartment being for the use of the paymaster and the other for the bookkeeper. Each compartment was independent of the other and had a separate lock, and the combination of the lock on Bartlett’s compartment was supposed to be known only to himself. Adjoining the room occupied by the cashier, paymaster and bookkeeper, and known as the treasurer’s room, was a large vacant room, access to which was by two doors, one from a gallery surrounding a court in the center of the building, and another which was reached through a passage way, so located that a person entering the room through it would be likely 'to escape observation from the galleries or the other rooms. A door from this vacant room led into the treasurer’s room, opening at about five feet from the door of the vault in which Bartlett’s safe and the other safes were placed. This door was ordinarily locked with a spring look, but some weeks before the loss of the money, and while Bartlett was out on a paying trip, the treasurer of the company had the door opened to bring a safe through it into the secretary’s room, and the employes were unable to re-lock the door and reported it o.ut of condition, to their superior, the cashier. After some time the carpenter fixed the door, but it is not positively shown that the door was locked after it was fixed so that it would shut. Of the fact that the door could not be locked and the repairing by the carpenter, Bartlett was not informed. The cashier had the keys to all the doors in the treasurer’s room, and had the combinations to the paymaster's and bookkeeper’s safes written out and inclosed in sealed envelopes, which were kept in the cashier’s drawer by order of the company. The envelope containing Bartlett’s combination was found intact after the robbery. It appears from the evidence that it had been the custom of occupants of the treasurer’s room, the cashier, paymaster and bookkeeper, for many years and during all the time that Bartlett was paymaster, to leave the safe locks set on the last number of the combination during business hours. When so set, by a slight _ turn in the right direction the safe could be easily opened, but by turning the least too far, or turning in the wrong direction, the combination was thrown out and the safe became locked.
    It was a custom observed in the office that the treasurer’s room should not be left, during business hours, without some one or more of the employes being present. The going and coming from lunch of the employes was so timed that at least one, and generally two or more, were present at all times. On the day, of the larceny, Bartlett placed his money in the safe, and about five minutes before one o’clock went out to lunch. Smith, the cashier, and Maxwell, the assistant bookkeeper, were in the room when Bartlett left. Maxwell went out a few minutes afterward, and the cashier, Smith, remained in the room and did not go to lunch that day. From the cashier’s desk, at which he was writing, he could not see the door leading into the vacant room. At about twenty minutes after one o’clock an employe came in and called Smith’s attention to the fact that the door into the vacant room was open and that Bartlett’s safe was also open. Bartlett was sent for, and on returning to the office found that the money was gone. Bartlett testified that he threw out the combination and locked the safe when he put the money in before going out to lunch, as he knew' at that time that he would have no occasion to open the safe again that day. The treasurer of the company and other witnesses testified that Bartlett stated, at different times after the larceny, that he left the safe lockset on the last number; anda letter written by Bartlett was introduced, in which it was claimed that he admitted leaving the safe set on the last number of the combination. Bartlett testified that what he said to the treasurer and others was that he must have left the safe on the last number; that the remark was made in trying to account for the safe being opened in so short a time, but that reflection convinced him that he locked the safe.
    There was a judgment for defendant, and the case comes to this court on appeal.
    Messrs. Stiles & Lewis, for appellant;
    as to the construction of the bond, cited Fitzgerald v. Staples, 88 Ill. 234; Kimball v. Custer, 73 Ill. 393; Coey v. Lehman, 79 Ill. 173; Walker v. Tucker, 70 Ill. 527; Bowman v. Long, 89 Ill. 19 ; McCarty v. Howell, 24 Ill. 341; 1 Chitty on Contracts, 113 ; Tidens v. Hooper, 5 Exch. 830 ; Story on Bailments, § 35; Gray v. Pierson, 6 H. L. 60 ; Sonthcote v. Bennett, pt. IV, Coke’s R. 83 b ; Drake v. White, 117 Mass. 10 ; Knowles v. Dabney, 105 Mass. 437; Harmony v. Bingham, 12 N. Y. 99 ; The Harriman, 9 Wall. 161.
    The fact that the money was stolen without the paymaster’s fault is no defense to the bond: Steele v. Buck, 61 Ill. 343.
    It has been frequently adjudicated, in suits on penal bonds, that the loss of money, by theft or otherwise, without the fault of the principal obligor, is no defense to a suit upon his bond, conditioned that he will safely keep, or that he will pay over such money: U. S. v. Prescott, 3 How. 578 ; U. S. v. Morgan, 11 How, 154 ; U. S. v. Dashiel, 4 Wall. 182 ; U. S. v. Kebler, 9 Wall. 83 ; Boyden v. U. S., 13 Wall. 17 ; Beavans v. U. S., 13 Wall. 56; U. S. v. Thomas, 15 Wall. 337; State v. Harper, 6 Ohio, 607; Halbert v. State, 22 Ind. 125 ; Merbeck v. State, 28 Ind. 86; Inglis v. State, 61 Ind. 212; Inhabitants of New Providence v. McEachren, 33 N. J. L. 339 ; affirmed, 35 N. J. L. 528 ; State v. Morse, 74 Mo. 413 ; District Township of Taylor v. Morton, 37 Ia. 550 ; District Township of Union v. Smith, 38 Ia. 9; Muzzy v. Shattuck, 1 Denio, 233; affirmed, 7 Hill, 584; Commonwealth v. Conly, 3 Pa. St. 372 ; Co. Com’rs of New Hampshire Co. v. Jones, 18 Minn. 199 ; County of Redwood v. Tower, 28 Minn. 45 ; Thompson v. Trustees, 30 Ill. 99 ; Clay County v. Simonson, 1 Dak. 403; Jefferson Co. v. Linberger, 3 Montana, 231; Boggs v. State, 46 Tex. 10.
    Mr. Johr S. Cooper and Mr. Wm. J. Hynes, for appellees;
    that the obligor was not liable for money of the obligee stolen, lost or destroyed without the fault of the obligor, cited B. & O. R. R. Co. v. Jackson, 33 Albany Law Journal, 239 ; Walker v. British Guarantee Ass’n, 18 A. & E. N. S. 277; Planters & M. Bk. v. Hill, 1 Stewart (Ala.), 201; Un. Bk. v. Clossey, 10 Johnson, 271; Murfree on Official Bonds, § 464.
   Moran, J.

It is contended by appellants that the conditions ' of the bond sued on are such as not only to secure the faithful and careful discharge of the duties of paymaster by Bartlett. but to constitute him an insurer of the company’s funds that came to his hands and to oblige him to pay over or account to the company in the sense of paying over, in all events, all such funds; that loss of money by inevitable accident, or by theft without any negligence on his part is no excuse.

In our opinion the construction contended for is not the true construction to be placed upon the bond. The entire obligation is comprehended in the words of the general condition of the bond, i. e., “ that Bartlett shall well, truly and faithfully perform the duties required of him by said company as paymaster;” and what follows, to wit, and promptly pay over and promptly account for all moneys belonging to said company, that shall be received by him as such agent, and shall deliver over to said company all property of said company when required ” are but distinct specifications of some chief duties of the paymaster, which serve to enumerate and particularize those duties, but add nothing to the scope of the general condition which covers and comprises those and all other duties which may be required of him as paymaster. He is no more absolutely bound by the terms of the bond to discharge the enumerated or specified duties, than he is duties not specially mentioned, yet covered by the general condition, and that which in its nature would excuse him in the absolute performance of any of the duties covered by the undertaking, will excuse the absolute performance of duties specially mentioned. It appears to be the result of the decided cases, that bonds with conditions similar to the one in question, when given by employe to employer, will not be construed in such a manner as to enlarge by the bond the obligations of the employe beyond the undertakings of the contract of employment. Such bonds are construed as securing the fidelity, honesty, care and diligence of the employe, but not as insuring the employer against destruction of his goods or money while in the employe’s control, by inevitable accident, or against spoliation by thieves or robbers, when the employe has been guilty of no negligence. Walker v. British Guarantee Ass’n, 83 Eng. Com. Law, 276; Planters’ and Merchants’ Bank of Huntsville v. Hill, 1 Stew. (Ala.) 201; Hnion Bank v. Classey, 10 Johns. 271; B. & O. R. R. Co. v. Jackson, 3 Atlantic Rep. 100.

The ease last cited was recently decided by the Supreme Court of Pennsylvania, and is directly in point, the condition of the bond being almost identical in the wording with the condition of the bond in this case, and the money of the company having been stolen while in the hands of the agent. That case serves also to sharply mark the distinction between the construction applied to bonds between private persons and those given by public officers and receivers of public money. In Commonwealth v. Comley, 3 Pa. St. 372, the Supreme Court of Pennsylvania considered the rule as applying to the bond of a public officer, and even though it was offered to be shown that the money was stolen in the night time, without the fault of the collector, the court held that he was bound to pay over the money. The court construes the condition of the bond to be an absolute undertaking to pay over the money collected at all events, saying: “ The keepers of the public moneys or their sponsors, are to be held strictly to the contract, for if they were to be let off on shallow 2Dretenses, delinquencies, which are fearfully frequent already, would be incessant.”

The condition of the bond in Commonwealth v. Comley, was to account for and pay over” the moneys to be received, and in the B. & O. Co. v. Jackson, supra, the condition was, among other things, that the agent should “ account for and 2eay over the whole ” of the moneys received, and the counsel for the com] any, as appears from the extracts from his argument furnished us in the brief of counsel for appellees, ])ressed ujeon the attention of the court the ease of Commonwealth v. Comley, and the construction of the condition of the bond in that case, as being decisive of the case against the agent, Jackson but the court said: “ The only ground on which these defendants could be held liable, was the alleged negligence of Jackson.’’

All the cases cited by coun-el for ap2>ellant are actions on the bonds of public officers or receivers of public money, and while it is true, as counsel says, that many of those cases j>roceed upon the construction given to the condition of the bond-, and do not mention the ground of public policy as a reason for construction, yet there can be but little doubt that the following language of the Supreme Court of the United States, U. S. v. Prescott, 3 Howard, 578, supplies the true ground for the strict rule applied: “Public policy requires that every depositary of the public money should be held to a strict accountability. Hot only that heshould exercise the highest degree of vigilance, but that he should keep safely the moneys which come to his hands. Any relaxation of this condition would open a door to fraud, which might be practiced with impunity.”

In our view the only ground of recovery here, is the alleged negligence of Bartlett; and whether Bartlett was guilty of negligence, such as to render him liable, and whether the company or those officers of the company who held the relation of vice principal as to Bartlett, were guilty of such contributory negligence as would bar a recovery by the company for the money lost, were questions for the jury to determine under proper instructions. We have carefully examined the instructions given and refused, and have considered the criticisms of counsel thereon, and are of opinion that the court below correctly stated the law in the instructions given, and committed no error in refusing those asked by appellant and which the court refused to give.

It is urged by appellant that the court erred in permitting Bartlett to answer a question relating to a certain letter written by him to the company. Bartlett testified upon the trial that, to the best of his knowledge, he locked the safe and threw the combination before he left the treasurer’s office on the day of the larceny. Appellants introduced in evidence the following letter, as an admission by Bartlett that he left the safe set on the last number of the combination:

“ 3161 Groveland Pakk Avenue, )
“ Chicago, April 14, 1884. j
“Gentlemen : You have doubtless been made aware through proper channels of the robbery of my safe, and of my dismissal from the company’s service immediately thereafter, for carelessness (so claimed) by Mr. Peasley, the treasurer of the company. After hearing the latter’s statement of the case, and on consultation with leading bankers here, my bondsmen think I used ordinary care and caution, by following the common practice of leaving my safe set on the last number of the combination, with the office in charge of two trusted employes of the company,and deem that my seventeen years of service, accounting for nearly one hundred million of dollars, charged to me during that period, is corroborative evidence of faithful care on my part of the funds intrusted to me, inasmuch as the treasurer does not claim that I was in any way implicated in the robbery, but, on the contrary, disavows it. I should be glad to have your board return me my bond, and order the amount stolen (now standing to my debt on the books of the company) credited to me and placed to the debit of such account as you deem proper.
Most respectfully your servant,
“ C. S. Bartlett.
“ To the President and Board of Directors of the C., B. & Q.
R. R. Co., Boston.”

Thereupon Bartlett was recalled, and was, against the objection of plaintiff, allowed to be questioned, and to answer as follows : Q. “I will ask you to explain this sentence; that is to say, what explanation there is to it if there is any. ‘ After hearing the latter’s statement of the case (that is, Mr. Peasley’s) and on consultation with leading bankers here, my bondsmen think I used ordinary care and caution, by following the common practice of leaving my safe set on the last number of the combination, with the office in charge of two trusted employes of the company; and taken with my seventeen years of service, accounting for nearly one hundred million of dollars, charged to me during that period, is corroborative evidence of faithful care on my part of the funds intrusted to me.’ ” A. “ It was entirely on their theory. This was written in April. Their theory was that I loft the safe open—-unlocked, and on their theory and on their ground I wrote that letter, not on my theory at all; their theory was that the safe was left unlocked, and on that ground the officers, having been in the habit of leaving their safes that way for twenty years, Mr. Smith, with immense sums of money, and I also; and after talking with John DeKoven and other people in this city, Mr. Stubbs, the treasurer of the Union Rolling Mill, on that ground I wrote it.”

“In general,” says Starkie, in his work on Evidence, 677, “ where a written document is given in evidence as containing an admission by the adversary, parol evidence is admissible to explain it or to show that it originated in mistake.” And the same author, on page 719, speaking of an inconclusive admission, says: “ And it seems in general when a document, such as a letter, not being matter of compact and agreement, is given in evidence as an admission by the adversary, the latter may adduce evidence to show that it originated in mistake or to explain it by circumstances.”

The rule applicable to such evidence was stated as follows, by Gowen, J., in McRea v. Purmont, 16 Wend. 460 : “ Whenever a right is vested or created, or extinguished by contract or otherwise, and writing is employed for that purpose, parol testimony is inadmissible to alter or contradict the legal arid common sense construction of the instrument; but any writing which neither by contract, the operation of law, nor otherwise, vests or passes or extinguishes any right, but is only used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts. Thus, a will, a deed or a covenant in writing, so far as they transfer or are intended to be evidence of rights, can not be contradicted or opposed in their legal construction by facts aliunde. But receipts and other writings which only acknowledge the existence of a simple fact, such as the payment of money, for example, may be susceptible of explanation and liable to contradiction by witnesses.”

Bartlett’s letter was not the basis of any right between the parties, but was competent evidence tending to prove a collateral fact, to wit: that he had left his safe set on the last number of the combination. The apparent admission contained in the letter did not constitute an estoppel, and though, being written and deliberate, it might be entitled to more weight than a verbal admission, yet, like a verbal admission, it was subject to have its importance as evidence affected, and either increased or diminished by consideration of all the facts and circumstances under which it was made. Suppose such an oral admission was proved, would it not be competent for the party against whom it was introduced to show that while he used the very words of the admission, yet he did so as an assumption, and for the sake of argument, or that he' did so deliberately and by the advice of counsel, or to- avoid the irritation which a contrary assertion would produce in the negotiation he was carrying on ? And if so, why is not the written admission subject to the same explanation % To hold otherwise would be to give to mere evidential statements, on the faith of which no act was done, no condition altered, the same conclusiveness as pertains to admissions that constitute estoppels as between the parties.

In considering the weight and conclusiveness to be attached to admissions, Greenleaf, Vol. 1, Sec. 201, says it is “material to consider whether the admission is made independently, and because it is true, or is merely conventional, entered into between the parties from other causes than a consideration of its truth, and only as a convenient assumption for the particular purpose in hand.” The assumption or theory on which such written admission is made, must, then, be competent to be considered by the jury, as well as all other circumstances affecting its weight in determining what importance to attach to it as evidence tending to establish a collateral fact. The answer of Bartlett to the question does no violence to the language of the letter. He does not attempt to add words to or to take words from the writing, nor to distort them from their usual and ordinary sense. The words remain as written, to be weighed by the jury, together with the statement, that in writing that letter to the company asking that his bond be given up, he made his argument in support of his request, assuming tlie theory which he knew the company held, that he left the safe set on the last number of the combination. This was but the proof of a circumstance of a fact present to his mind when he wrote the words, and competent under the well-settled rule to be considered in connection with the letter. Starkie on Evidence, 719; 2 Wharton on Evidence, 1127; Holsten v. Jumpson, 4 Esp. 189; Reay v. Richardson, C. M. and R. 422; Noble v. Epperley, 6 Ind. 468; Roe v. Day, 7 C. and P. 705; Clifford v. Boezman, 41 Wis. 597; 55 N. Y. 222.

The case of Brant v. Gallop et al., 111 Ill. 487, is relied on by counsel for apjiellant as showing that the court erred in allowing Bartlett to explain the letter. We do not understand the Supreme Court as establishing any new rule on this point, or as intending to modify the rule as stated by the authorities above cited. In that case, as appears from the opinion, the trial court offered to allow the writer of the letters to testify to all the circumstances under which they were written, but he sought to change the import of the language, by proving that which the court says would be the same as adding to the contents; that is, something more was sought to be done than proving all the circumstances attending the writing of the letters. ’ Tis true, the court arguendo use language which gives color of support to counsel’s contention, but the language of the opinion, in that as in all cases, must be understood with reference to the facts of the case before the court. Upon a review of the whole record, we are of opinion no substantial error appears, and the judgment of the superior court will therefore be affirmed.

Affirmed.


author: Bailey, P. J.

text:
    Clark T. Northrop et al. v. Peter McGee.
    1. Usee as party.—In suits at law a person who is interested merely as usee is not regarded as a party to the suit, and the fact that the suit is brought for his use need not be expressed upon the record. The insertion of the name of a usee may be regarded as surplusage, at least on demurrer.
    2. Bulb to plead instanter.—Where a party is ordered to plead “ instant er” he must plead the same day.
    Appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Opinion filed July 21, 1886.
    Mr. E. W. Adkinson, for appellants;
    that the judgment was rendered before the time granted defendants within which to plead, cited Bouv. Law Dict. def. “instanter”; 3 Chitty’s Pract., side page 112.
    Messrs. Boutell & Waterman, for appellee;
    that the words “for the use,” etc., are mere surplusage, cited Chadsey v. Lewis, 1 Gilm. 153; Am. Ex. Co. v. Haggard, 37 Ill. 465.
    As to meaning of. “ instanter: ” 1 Tidd’s Practice, 641; Rex v. Rogers, 1 Taun. 1809.
   Bailey, P. J.

This was debt on a replevin bond. The suit in which the bond was given was brought by Loomis and Bogers against Langdon and Balcom, before a justice of the peace, said bond being executed by Loomis and Bogers and two sureties, to McG-ee, the constable, to whom the replevin writ was issued, and conditioned in all respects as provided by the statute. The present suit was brought in the name of the constable against the principals and sureties on the “bond, and in the summons and declaration, Langdon alone is named as usee. The breaches of the bond assigned in the declaration are, the failure of the principal obligors to prosecute said suit with effect, and fheir failure to pay certain costs and damages occasioned to Langdon and Balcom, by wrongfully suing out said writ of replevin. Summons was served on the sureties only, the other defendants not being found. The defendants served, appeared and filed a general demurrer to the declaration, and that being overruled, a.n order was entered requiring them to plead instanter, and on the same day their default was entered for want of a plea. The court thereupon assessed the plaintiff’s debt at 8350, the penalty of the bond, and his damages at 8350, and gave judgment therefor in favor of the plaintiff.

We are able to perceive no material error in the record. It is urged that because Langdon alone is named in the decíaration as usee, no damages are recoverable, except such as accrued to him individually; and consequently, that the assignment of breaches of those conditions of the bond which run to Loomis and Langdon jointly, constituted a misjoinder of causes of action, and that for that reason the declaration should have been held bad on demurrer. It is well settled that in suits at law, a person who is interested merely as usee, is not regarded as a party to the suit, and the fact that the suit is brought for his use need not be expressed upon the record. American Express Company v. Haggard, 37 Ill. 465. It follows that the insertion of the name of a usee may be regarded as surplusage, at least on demurrer. Thus, in Buckmaster v. Beames, 4 Gilm. 443, which was a suit upon a replevin bond, it was held that the nominal plaintiff was the only one of whom the court would take notice, and that the fact that one of several parties interested had brought suit in the name of the sheriff, could not be questioned by a demurrer.

The only other point raised is, that the default was entered before the expiration of the rule to plead. The rule was to plead “instanter,” and the default was entered at some time before the close of the season on the same day. “ 'Instanter ” is defined $o mean “instantly; forthwith ; without any delay or the allowance of any time.” Burrell’s Law Diet. In practice it is sometimes said to mean, “ within twenty-four hours,” and it is sometimes so defined by express rules of court; but the signification of the word which seems to us to be more in accordance with the practice which has uniformly prevailed in this State, is the one suggested in the note to King v. Johnson, 6 East, 583, viz., “before the rising of court,” when the act is to be done in court, or, “before the shutting of the office on the same night,” when the act is to be done there. The same definition is adopted by Mr. Wharton in his Law Dictionary. He there lays down the rule that, when a party is ordered to plead instanter, he must ¡Head the same day.

Adopting this construction of the rule to plead instanter, it does not appear that the default was entered before the rule expired. So far as the record shows, the default may have been entered at the last instant of the day’s session, and in support of the judgment of the court below we must presume that such was the fact. At that time the rule had expired and the defendants were then in default. The judgment will be affirmed.

Judgment affirmed.


text:
    Mason L. Swenk v. The People.
    Privileged coir-romcATioNS.—A client can not be made to disclose any communication between himself and his legal adviser which his legal adviser could not disclose without his permission. But where a witness on direct examination goes into the matter of consultations or communications with counsel, he may be compelled to answer fully on cross-examination. In this case the witness, on her direct examination, made no reference to conversations with her attorney, and therefore she could not be cross-examined as to such conversations.
    Appeal from the Criminal Court of Cook county; the Hon. Rollin A. Williamson, Judge, presiding.
    Opinion filed July 21, 1886.
    Mr. C. Stuart Beattie, for appellant;
    that if a client sees fit to he a witness he makes himself liable to full cross-examination like any other witness, cited Commonwealth v. Mullen, 97 Mass. 545; Woburn v. Henshaw, 101 Mass. 200.
    Mr. C. S. Cutting, for appellee;
    that the communications were privileged, cited Heminway v. Smith, 28 Vt. 701; State v. White, 19 Kansas, 445; Begler v. Rehyer, 43 Ind. 112; Druhenhofer v. State, 34 Ohio, 91; Barker v. Kuhn, 38 Ia. 392; Bobo v. Bryson, 21 Ark. 387; Greenleaf on Ev., 14th Ed., §§ 238, 240.
   Moran, J.

Judgment was rendered against the appellant upon the verdict of a jury, finding him to he the father of a bastard child, of which the relator was the mother, directing that appellant pay to relator one hundred dollars for the first year, and fifty dollars for the succeeding nine years, for the support of the child, and requiring the defendant to give security as provided by law.

On the trial appellant introduced in evidence a paper writing signed by relator, purporting to be a release to appellant from all chaim for support of the then unborn child, and from all damages for supposed seduction, etc.

The consideration recited in the writing, was the sum of twenty-five dollars. Relator testified that she did not read the paper when she signed; that she could read English but little at the time; that appellant did not read it to her, but explained to her that it was a receipt for rent for a room that he had paid for her. Appellant’s counsel, on cross-examination, asked relator if she had not talked about the paper writing to her attorney, and if he did not tell her to explain it away, or she would got beaten in the case; that she must testify that she couldn’t read English; that Swenk told her it was a receipt for ten dollars; and if she did not agree to so testify, in order to explain away this release. The question was objected to, and the objection sustained by the court, on the ground that the communications between attorney and client were privileged; and this ruling is assigned by appellant as the chief error of which he complains.

While there is some conflict in the decided cases, the clear weight of authority supports the ruling of the court below. Sir J. Stephen, in his treatise on Evidence, Art. 116, says: “Ho one can be compelled to disclose to the court any communication between himself and his legal adviser, which his legal adviser could not disclose without his permission.” And Wharton says: “It would be absurd to protect by solemn sanction professional communications when the lawyer is examined, and to leave them unprotected at the examination of the client. ” Wharton on Evidence, Sec. 583; see, also, Greenleaf on Evidence, 210; Heminway v. Smith, 28 Vt. 701; Begler v. Rehyer, 43 Ind. 112; State v. White, 19 Kansas, 445.

Where a witness on direct examination goes into the matter of consultations or communications with counsel, he may be compelled to answer fully on cross-examination, but in this case the witness made no reference to conversations with her attorney on her direct examination.

Counsel assigned other errors, but they are, in our opinion, without weight, and do not merit discussion. The court below rendered justice to appellant according to law, and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    John J. Clause v. Bullock Printing Press Company.
    1. Practice—Time of filing pleas.—When pleas are not filed in apt time, a motion for leave to file on the eve of trial is addressed to the discretion of the court, and unless the circumstances are such as to show an abuse of such discretion the ruling on such motion will not be reviewed by the appellate court.
    2. Same—Error relied on most be specified in motion for new trial.—Appellant will be confined in this court to the reasons for a new trial specified in the court below.
    3. Same—Continuance.—An amendment of the plaintiff’s declaration even on the trial will not work a continuance of the case unless the defendant files an affidavit bringing himself within the terms of the statute providing for continuance in case of amendment.
    4. Damages—Pleading.—Damages for breaking an executory contract can not be recovered under the common counts, and a plea of set-off seeking to set up such damages against a claim should be special, setting out the contract- and the breach thereof.
    5. Same—In recoupment, must grow out of same transaction.— Where notes are given for money-advanced, and sums becoming due between the parties should, by the terms of the notes, be indorsed thereon, such sums could be proved under the general issue; but “ amounts coming due on account ’’ do not include unliquidated damages for breach of contract; nor can the defendant prove such damages by way of recoupment, as they do not grow out of the same transaction.
    6. Practice—Error must injure to be available.—It is only of error that affects one injuriously that he can be heard to complain.
    Appeal from the Superior Court of Cook county ; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed July 21, 1886.
    Suit was commenced in the Superior Court of Chicago on July 2, 1884, by appellee against appellant, and a declaration was filed, which set out a general contract for doing work ordered by plaintiff, and contained eight special counts thereon and the common counts.
    The first, second and third 'counts claim damages for a failure to properly construct a folding machine, ordered by plaintiff, under the general contract, for the Boston Herald office. The fourth, fifth and sixth counts claim damages for failure to construct, according to the contract, a folding machine ordered for the Philadelphia Press Co. The seventh and eighth counts claim damages for the improper construction of a cylinder machine ordered, under the contract, to be placed in a folding machine of the Boston Advertiser.
    The bill of particulars or copy of account attached to the declaration, related only to items and damages growing out of the construction of the folding machine for the Boston Herald.
    On August 2, 1884, another suit was commenced by appellee against, appellant, the declaration counting on a promissory note for §1,000, made by appellant payable to Jas. G. Knap, treasurer, and on August 9th a third suit was commenced to collect another note for §1,000, the declaration being the same as in the second suit.
    Shortly after the cases were at issue, a stipulation was entered into by which all three suits were consolidated and tried as one case, the defendant having pleaded the general issue in each case.
    After the case had been pending for something over a year, and when it was upon the trial call of the court, defendant asked leave to file a plea of set-off consisting of the consolidated common counts, and in support of the motion filed the affidavit of his attorney, stating that as the case then stood, on the pleadings, such plea would not be necessary, but that should appellee abandon certain counts of the consolidated case, some question might arise as to the admissibility of part of the defense. Leave to file the set-off was refused, and some days thereafter the case was called for trial, and after a jury was called, plaintiff’s counsel entered a nolle prosequi to all the damage counts of the declaration, except those relating to the Boston Herald folding machine. Thereupon counsel for appellee moved for leave to file instanter the plea of set-off previously offered, for the purpose of meeting the plaintiff’s case as it then stood, but the court refused the leave. An affidavit for continuance was then filed by defendant, and the continuance denied by the court.
    Evidence was offered by plaintiff, tending to show damages growing out of Boston Herald order, and two promissory notes were also given in evidence, each for §1,000, made by appellant payable to Jas. G. Knap, treasurer, and each containing the following statement in the body of the note: “'Amounts becoming due to me on account with Bullock Printing Press Company, to be indorsed as they become due.” After deducting certain indorsements that had been made on the notes, there appeared to be due on them, principal and interest, §1,935.48. Appellant introduced evidence to repel the claim for -damages on the Boston Herald folder, and sought to prove work done on the Philadelphia Press folder and the Boston Advertiser cylinder, and the amount claimed by him therefor, in payment or reduction of the amounts claimed hy appellee on the notes, hut the court excluded the evidence.
    It appeared from the evidence that the amount claimed by appellant for work on the Boston Advertiser had been allowed and paid to him by appellee, before the suit was brought.
    The verdict was for the amount claimed as due upon the notes introduced in evidence, judgment was entered, and the case comes here by appeal.
    Messrs. Frank J. Smith and Helmer, for appellant;
    cited Hoffman v. Walker, 26 Gratt. 316 ; Mines v. Moore, 41 Ill. 273 ; Wilson v. King, 83 Ill. 237; C. R. I. & P. R. R. Co. v. Todd, 91 Ill. 71.
    Messrs. Foliansbee & O’Connor, for appellee;
    as to waiver of all canses for a new trial not mentioned in a party’s statement, cited O., O. & F. R. V. R. R. Co. v. McMath, 91 Ill. 104.
    To be the subject of recoupment, the defendant’s claim must arise out of the very cause of action sued on: Hubbard v. Rogers, 64 Ill. 434; Evans v. Hughey, 76 Ill. 115; Morehouse v. Baker, 48 Mich. 335.
   Moran, J.

The first error assigned by appellant is the refusal of the court to allow the plea of set-off to be filed on Mot. 7, 1885, when the case was upon the trial call. When pleas are not filed in apt time, a motion for leave to file on the eve of trial is addressed to the discretion of the court, and unless the circumstances are such as to show an abuse of such discretion, the ruling on such motion will not be reviewed by this court.

Furthermore, in this case, appellant did not, in the points in writing specifying the grounds of his motion for a new trial, mention this as one. He will be held, therefore, to have waived it, and will be confined here to the reasons for new trial specified in the court below. O., O. & F. R. V. R. R. Co. v. McMath, 91 Ill. 104.

The second error alleged is upon the ruling of the court, on the motion for leave to file as a plea of set-off, the consolidated common counts, at the trial after the nolle by plaintiff as to the counts on the Boston Advertiser and Philadelphia Press orders.

It appeared from the evidence that the whole amount claimed by appellant, on account of work on the Boston Advertiser cylinder, was allowed and paid to appellant before the suits were brought. It further appears that appellee notified appellant, while he was building the Philadelphia machine and before it was completed, that it would not take the machine, alleging improper mechanism in its construction, and that appellant had notified appellee that he should complete the machine and test it, and hold it subject to appePee’s order. It is apparent that appellant’s claim against appellee, so far as it related to the Philadelphia Press machine, was for damages for not receiving and paying for the machine when completed, according to contract, and not for any amount due on account between the parties, and such a claim not being provable under the consolidated common counts, which appellant sought to file as a plea of set-off, a refusal to allow such plea to be filed worked no injury to appellant.

Damages for breach, of an executory contract can not be recovered under the common counts. A special plea setting out the contract and the breach was necessary, and such a plea appellant did not offer to file. Brand v. Henderson, 107 Ill. 141; Hosmer v. Wilson, 7 Mich. 294; Danforth v. Walker, 37 Vt. 239.

It is contended that the court erred in refusing a continuance on appellant’s motion, upon appellee changing the issues by dismissing the counts from his declaration.

Even treating such dismissal as an amendment of the declaration, it would not work a continuance of the case, uffiess appellant filed an affidavit bringing himself within the terms of Sec. 26 of Chap. 110 R. S., providing for continuance in case of amendment. C. & P. R. Co. v. Stein, 75 Ill. 41; Mills v. Executors, etc., 76 Ill. 381.

The affidavit filed by plaintiff was not a compliance with the requirements of the statute, and the refusal of the court to grant the continuance, was, therefore, not error. Neither was it erroneous for the court to refuse to allow, under the general issue, evidence of sums claimed to be due appellant from appellee, as damages for breach of contract, to apply as payment on the notes, as the contracts were not in any way the consideration of the notes. The notes were shown to have been given for money advanced, and sums due on account between the Bullock Printing Press Company and appellant should, by the terms of the notes, be indorsed thereon, and could undoubtedly have been proved under the general issue-But “ amounts coming due on account” do not include unliquidated damages for breach of contract.

Neither could appellant prove such damages by way of recoupment, as they did not grow out of the same transaction. Hubbard v. Rogers, 64 Ill. 434; Evans v. Hughey, 76 Ill. 115.

Counsel for appellant contends that the court erred in giving and modifying instructions. The criticism relates wholly to instructions on the question of damages arising under the Boston Herald contract and as to the construction of that contract.

The jury found in favor of appellant and against appellee upon the claim for damages on that contract, and only found for appellant for the amount of the notes and interest.

Therefore, if it be admitted that the court below erred in the instructions, as the appellant claims, still such error worked him no injury. It is only of error that affects one injuriously that he can he heard to complain. Wiggins Ferry Co. v. Higgins, 72 Ill. 517; Tuttle v. Robinson, 78 Ill. 332.

No error appearing which will authorize a reversal, the judgment of the superior court must be affirmed.

Judgment affirmed.


text:
    Peter Wieland et al. v. George Oberne.
    1. Attachment—Damages, in suit on bond.—-In an action upon an attachment bond, if a portion of the property attached was owned by other parties and was taken by the owners from the attaching creditors, and the residue was subject to the lien of a valid chattel mortgage, and was taken from the attaching creditors by the holder of the mortgage and sold to satisfy said mortgage, the plaintiff can not recover damages for the value of the property.
    2. Practice—Correctness of verdict presumed.—The bill o£ exceptions failing to show that all the evidence at the trial, or even all the evidence heard upon the question of damages, is preserved, the correctness of the verdict as to the damages can not be questioned in this court.
    3. Surety—May plead as set-off a demand dub to his principal. —A surety on a bond when sued alone can plead as a set-off a demand due to his principal whore he shows that the demand has been assigned to him, or where he makes the set-off with the concurrence and consent of his principal.
    Error to the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed July 21, 1886.
    Messrs. Moses, Newman & Reed, for plaintiffs in error;
    cited Churchill v. Abraham, 22 Ill. 461; King v. Bucks, 11 Ala. 217; Sims v. Jacobson, 51 Ala. 188; Drake on Attachment, 196 (6th Ed.).

      An attachment can not be defeated by the sheriff allowing the property to be improperly repleyied: Kirksey v. Bates, 1 Ala. 303; Wannamaker v. Bowers, 36 Md. 58.
    Mr. Henry V. Freeman, for defendant in error;
    that the plaintiffs can not recover in this action as damages the value of this property, cited Kaley v. Shed, 10 Metcalf, 317; Lowell v. Parker, 10 Metcalf, 309; Squire v. Hollenbeck, 9 Pickering, 552; Pierce v. Benjamin, 11 Pickering, 361; Wehle v. Spellman, 25 Hun, 100; Ball v. Liney, 48 N. Y. 14; Hayman v. Hallam, 79 Kentucky, 391; Curtis v. Ward, 20 Conn. 206; Davenport v. Ledger, 80 Ill. 578; Dehler v. Held, 50 Ill. 491.
   Bailey, P. J.

This was debt upon an attachment bond, executed to the.plaintiffs by Bock and Muellner as principal, and by Oberne as their surety. The declaration was against all the obligors, but Oberne only was served with process or appeared, and the suit was prosecuted against him alone. A judgment against Oberne for the plaintiffs’ debt and $950 damages, was brought to this court by appeal and reversed for the reason stated in the opinion then filed. Oberne v. Gaylord, 13 Bradwell, 30. After the cause was re-instated in the court below, the defendant, by leave of the court, filed an additional plea traversing the breaches of the bond alleged in the declaration, upon which plea issue was taken by the plaintiffs. A trial was thereupon had resulting in a verdict finding the issues for the plaintiffs and assessing their damages at $76.06, and the court, after denying a motion by the plaintiffs for a new trial, rendered judgment upon the verdict, and the plaintiffs now bring the record to this court by writ of error.

The evidence shows the issuing of a writ of attachment against the plaintiffs at the suit of Bock and Muellner, on which certain goods and chattels were attached by the sheriff, consisting of a stock of merchandise, certain fixtures and a few sewing machines. The evidence of the value of said goods and chattels is not preserved in the record, except by a recital in the bill of exceptions that the evidence for the plaintiffs tended to show that their value was from $450 to $2,200, and that the evidence for the defendant tended to show that their.value was from $360 to $500. Afterward a trial was had upon issues formed upon the attachment affidavit, which resulted in a verdict for the attachment defendants and a judgment quashing the attachment.

The evidence shows, however, that while -the property was in the hands of the sheriff under said writ, two of said sewing machines and certain sewing machine fixtures were taken from his possession by virtue of a replevin writ sued out by Wheeler & Wilson; and also that the residue of said goods and chattels were taken from his possession, under a certain other replevin writ sued out by one Marshall. In the first of these replevin suits a trial was had resulting in a judgment in favor of the plaintiffs therein for the possession of the property replevied. In the other replevin suit, judgment in favor of the plaintiff therein for the possession of the property replevied was rendered by default.

The title of Wheeler & Wilson to the sowing machines and fixtures replevied' by them, is evidenced by a cbntraet between them and Gaylord, one of the plaintiffs in this suit, by which Gaylord acknowledged the receipt of said machines and fixtures, and agreed to return the same to Wheeler & Wilson on demand, and agreeing, until such demand, to make said Wheeler & Wilson certain monthly payments.

The evidence also shows that said Gaylord, a few days before the formation of his copartnership with Wieland, executed to Forbes & Co., his promissory note for $300, due one year after date, and that to secure said note, he also executed to said Forbes & Go. a chattel mortgage on the property afterward taken on the replevin writ in favor of Marshall, and that Gaylord, on the formation of said copartnership, put said property into said firm; that Forbes & Co. subsequently assigned said note and mortgage to Marshall; and the evidence tends to show that at the commencement of the replevin suit there was due on said note at least the sum of $137. The mortgage and note were afterward assigned by Marshall to Bock, and after the judgment in the replevin suit the mortgaged property was sold under the mortgage for the sum of $220.

The evidence also tended to show that just prior to the commencement of said attachment suit said Gaylord absconded from the city of Chicago, and that another and prior attachment writ for a small amount was, on the same day, levied upon the same goods and chattels, and was afterward settled by Wieland with money borrowed by him from Bock.

As the jury at the trial found the issues for the plaintiffs, the only material questions presented by the assignments of error are those which relate to the assessment of damages. Complaint is made of the admission in evidence in mitigation of damages of the contract between Gaylord and Wheeler & Wilson, the chattel mortgage and the sale thereunder, and the proceedings and judgments in the replevin suits_ This evidence tended to show that, at the date of the attachment writ, the plaintiffs were mere bailees of the property replevied by Wheeler & Wilson, and that they held the residue of the property attached subject to the lien of the chattel mortgage, and that by said proceedings, whatever rights they had in said property were wholly extinguished.

It seems manifest that these were all matters proper to be shown in mitigation of damages. It is too plain for argument that the plaintiffs’ damages resulting from their being deprived of said property by the wrongful suing out of the attachment, were less than they would have been if they had been owners of said property in their own right free from incumbrance.

The admissibility of evidence of this character in mitigation of damages, seems to be sustained by the authorities. Thus, in Dehler v. Held, 50 Ill. 491, which was a suit upon a forthcoming bond, the surety pleaded that, at the time of the levy, a portion of the property was subject to a prior valid mortgage, and that after the execution of the bond, the mortgagee took the property into his possession and sold it in part satisfaction of the mortgage, said property being insufficient to satisfy the whole; and it was held that, while the plea did not present a defense to the action, the facts alleged were proper to be considered in mitigation of damages. In the opinion the court say: “ If the facts exist as stated in the plea, what would be the measure of damages % Evidently, the amount of the loss sustained by the execution creditors by the failure of the defendants in error to deliver the property at the time and place fixed by the bond. Had the property been delivered, what would have been the rights of the judgment creditors ? Only to have sold it under the executions, subject to the prior mortgage, and thus have rendered the surplus over and above the amount of mortgage debt, subject to the executions. If, as the plea alleges, the property levied upon was not worth as much as the mortgage debt, then the sale would have availed nothing, and they have sustained no loss by a failure to deliver the property to the constable.”

Davenport v. Ledger, 80 Ill. 574, was an action of trespass brought by a mortgagor against a mortgagee for wrongfully taking into his possession certain mortgaged chattels. It appeared that, after he had so taken possession, they were replevied from him by a prior mortgagee. It was held to be error to refuse to instruct the jury that if, after the defendant took possession, the goods were taken from him by the sheriff under a writ issued by the circuit court, the defendant was not liable for the goods taken from him by the officer after they were so taken, and that it mattered not what disposition was made of the goods after they were so taken from the possession of the defendant; that he was only liable for what occurred -while he had possession of them.

In Curtis v. Ward, 20 Conn. 204, it is said: “If goods are tortiously taken, and a creditor of the owner afterward attaches them and disposes of them according to law, and applies the proceeds in satisfaction of a judgment against the owner, such proceeding may be shown, not as a justification of the taking, but in mitigation of damages. For it would be palpably unjust for the owner to receive the full value of his goods in their application to the payment of his debts, and then afterward .recover that value from another who has derived no substantial benefit from the property.”

In Lowell v. Parker, 10 Met. 309, the same rule is applied to the assessment of damages in a suit upon the official bond of a constable. In Hayman v. Hallam, 79 Ky. 389, it is applied to a suit upon a forthcoming bond given for property taken under an attachment.

We are unable to see why the same rule as to damages should not apply in the present case. The obligors, by their bond, covenanted to pay and satisfy the damages suffered by the obligees, by reason of the wrongful suing out of the attachment. By the attachment they were deprived of the possession and enjoyment of the property attached, and their damages were necessarily commensurate with their rights and interests in the property.

The court instructed the jury, in substance, that if the evidence showed that a portion of the property attached was owned by other parties, and was taken by the owners from the attaching creditors, and that the residue was subject to the lien of a valid chattel mortgage, and was taken from the attaching creditors by the holder of the mortgage, and sold to satisfy said mortgage, the plaintiffs could not recover damages for the value of the property. We think the instructions stated the rule of law correctly.

We see no reason for disturbing the finding of the jury as to the damages, as being unsupported by the evidence. Hear the close of the bill of exceptions, there is a recital that there was no other evidence in mitigation of damages, but such recital fails to show that all the evidence at the trial, or even all the evidence heard upon the question of damages, is preserved. Under these circumstances, the correctness of the verdict as to the damages can not be questioned here.

During the trial the defendant was permitted, against the plaintiffs’ objection, to file a plea of set-off, to the granting of which permission the plaintiffs excepted. In said plea the defendant alleged that before and at the commencement of the suit, the plaintiffs were and still are indebted to him, the defendant, in a sum larger than the sum due the plaintiffs from the defendant upon said writing obligatory, to wit, in the sum of 8517.63, for goods and merchandise, before that time sold and delivered to the plaintiffs by Bock, Muellner & Co., which said indebtedness was, before that time, sold and assigned by Bock, Muellner & Co. to the defendant, and which sum of money so due from the plaintiffs to the defendant as aforesaid, or so much thereof as should be necessary in that behalf, the defendant was ready and willing and offered to set off and allow against the sum of money due by the condition of said writing obligatory. To this plea the plaintiffs tiled neither a replication nor demurrer,- and took no steps to dispose of it in any other way, but allowed the trial to proceed without objection.

It is very apparent that this plea was fatally defective; and that it would have been so held on demurrer. It is undoubtedly the rule that where a surety on a bond is sued alone, he can plead as a set-off a demand due to his principal, where he shows that the demand has been assigned to him, or where he makes the set-off with the concurrence and consent of his principal. Graff v. Kahn, 18 Bradwell, 485, and authorities there cited. But the plea in this case does not purport to set up an indebtedness from the plaintiffs to the principals on the bond. The principals are Martin Bock and Adolph Muellner, while the indebtedness set up is from the plaintiffs to Bock, Muellner & Co., they being described in the plea only by their firm name, and there being no averment that the principals in the bond are members of that firm, or that the firm consisted of no other persons than Bock and Muellner. The plea also attempts to set up said indebtedness as due and owing to the defendant instead of to his principals, to whom, notwithstanding the alleged assignment, it legally belonged. The plea is in other respects informal and uncertain, and if the plaintiffs had seen fit to challenge its sufficiency in any proper mode, it would doubtless have been adjudged insufficient. There was no error, however, in granting the defendant leave to file a plea of set-off, even in the midst of the trial, as that was clearly within the discretion of the court. And as the plaintiffs took no steps after it was filed to have its sufficiency determined by the court, we are unable to see how they can complain of its sufficiency here.

The only evidence offered in support of said plea, was a document signed by Bock, Muellner & Co. and Martin Bock, purporting to sell, assign and set over to the defendant all indebtedness due to them or either of them, jointly or severally, from the plaintiffs or either of them, there being appended to said assignment an account showing a balance due of $547.63. It is unnecessary for us, however, to determine whether the evidence was properly admitted or not, since the hill of exceptions, as we read it, fails to show that the plaintiffs made any objection or preserved any exception to its admission. Such being the fact, they can not now he heard to say that its admission was erroneous.

As we find no error in the record, the judgment will be affirmed.

Judgment affirmed.


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    International Bank v. Joseph Jones et al.
    1. Evidence.—In considering the proper inference from facts proved, regard must be had to the nature of the particular case and the facility afforded for explanation or contradiction. The court is of opinion that the inference which the jury drew in this case, that at- the time of the presentation of the check in question there were sufficient funds in the bank to pay it, can not be said to be without support from the facts and circumstances. (This case is reported in 15 Bradwell, 594.)
    2. Instructions.-—The court may refuse instructions which contain no hypothesis upon which the jury are to find, no reference to the case, but which are mere abstract propositions of law. The giving or refusing such abstract propositions will not be cause for reversal, unless it appears that, as given, they tended to mislead the jury.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed July 28, 1886.
    Messrs. Rosenthal & Pence, for appellant;
    as to the law relating to appropiiations where one partner retires, cited Story on Partnership, § 157; 1 Lindley’s Law of Partnership, 4th Ed.; Collyer’s Law of Partnership,2d Ed., 376.
    Mr. I. K. Boyesen, for appellees.
   Moran, J.

This case was in this court on appeal, at the October term, 1884, and is reported in the 15th Bradwell, 594. As was then said, it is, in its essential features, like the case of Richardson v. The International Bank, 11 Bradwell, 581, and we again refer to the last mentioned case for a full statement of the facts. The case was reversed by this court on the former hearing on the ground that, while it appeared from the evidence that the check in favor of plaintiffs was presented for payment September 1st, at or before 2 o’clock p. M., and it further appeared that Oakford, the drawer of the check, had deposited on that day §11,778.58, and cheeked out only §1,630.79, leaving a balance of §7,118.50, yet there was no evidence to show that there was in the bank sufficient money to pay plaintiff’s check at the time it was presented. The record, as it comes here this time, contains the testimony of Edward Oakford, in substance, that he personally made all the deposits for John D. Oakford & Go., on said September 1st, and that all said deposits were made prior to one o’clock of said day. It appears from the evidence that it was at that time the custom of the clearing house to hold checks till after one o’clock before returning them to the bank from which they came as no-fund checks. It is claimed by appellant that the check was presented after 11 o’clock and before 1:30 o’clock of September 1st. The check was not returned as refused until after one o’clock, and the inference would seem to be just that it is to be treated as presented just before it is returned, unless it is shown that it was, presented at an earlier hour. As there was much evidence from which the jury might draw the conclusion that the bank was acting on that September 1st, with method and design, they probably attached some significance to the fact that while the bank might be supposed to have evidence as to the time of the presentation of the check, and the state of the account of the new firm at the time of its presentation and refusal (for it is only on the assumption that the account was in truth that of the new firm, that the inquiry has any pertinence), yet the defendant bank is on those questions wholly silent. In considering the proper inference from facts proved, regard must be had to the nature of the particular case, and the facility afforded for explanation or contradiction: and the inference which the jury drew in this case, that at the time of the presentation of this check there were funds sufficient in the bank to pay it, can not, in our opinion, be said to be without support from the facts and circumstances of the case.

The court fully and fairly instructed the jury, at the request of the plaintiffs, on all the issues of the case, and counsel for appellant finds no fault with such instruction, but assigns for error, modifications made by the court in some of the instructions asked by defendant. Counsel seems to place most reliance on alleged error in modifying defendant’s instruction number 4. Said instruction as asked, was as follows: The jury are instructed, as a matter of law, that neither the drawer nor the payee of a check has any lien upon any deposit made by the drawer on a bank; the relation simply of debtor and creditor exists between the depositor and the bank, but that no contract or obligation exists between the payee of a check and the bank upon which the check is drawn, until such check is actually presented to the bank for payment, and then only in case the bank, at the time of such presentation, is indebted to the depositor for the full amount of the check. The court added:

“But the court further instructs you that the law in this State is, that when a depositor draws his check on his banker, who has funds to an equal or greater amount than the check, which should legally be applied to the payment of such check, then the presentation of such check for payment, operates to transfer the sum named in the check to the payee, and he may, in his own name, maintain an action against the person upon whom 'the check is drawn in case payment is refused.”

It is contended that by the words “ which should legally be applied to the payment of such cheek,” contained in the court’s modification, a question of law was submitted to the jury. The instruction, as asked by counsel, was an abstract legal proposition, and to that the court added another abstract legal proposition.

Considered as mere abstract propositions of law, both were correct. The court might well have refused the instruction as asked, for it contained no hypothesis upon which the jury was to find; no reference to the evidence. Atkinson v. Lester et al., 1 Scam. 407.

But the giving or refusing such abstract propositions will not be cause for reversal, unless it appears that as given they tended to mislead the jury. The propositions given had no such tendency. Corbin v. Shearer, 3 Gilm. 482; Bandalow v. The People, 90 Ill. 218 ; Ryan v. Donnelly, 71 Ill. 100; Peeples v. McKee, 92 Ill. 397.

Complaint is made of the court’s modification of appellant’s second instruction. The instruction as given is as follows, the italicized words indicating the modifications:

The jury are instructed as a matter of law, that it was as much the legal duty of Oakford after the dissolution of the old firm, as before its dissolution, to pay the defendant bank all the firm owed it, and all the old firm’s overdrafts; and if you believe from the evidence that after the dissolution of the old firm, Oakford did under the old firm name continue to deposit with the defendant, barely, without any request on his part to the bank to open a new account with him, and that Oakford did, when such deposits were made, cause the bank pass-book of the old firm to be presented to the bank for the purpose of entering said deposits therein to the credit of the old firm, and that such deposits were entered therein to the credit of such old firm, with the knowledge and consent of Oakford, then the law infers that Oakford intended to assume the payment of the old firm’s overdrafts, and unless you also believe from the evidence that there was an agreement between Oakford and some officers of the bank that the deposits made subsequent to the dissolution with Thomas should not be used by the bank in payment of the old firm’s overdrafts, then the defendant is entitled to your verdict, and the plaintiffs can not recover.”

All of the instruction that precedes the semicolon, is an abstract and irrelevant proposition of law, and being such, might have been stricken out, without at all affecting the completeness of the instruction proper, and according to the authorities above cited, the refusal to give it, or the modification of it, is not error. It does not, as counsel supposes, submit a question of law or any other question to the jury. That portion of the instruction which did submit facts to the jury and state the law applicable to those facts, was given as asked, with a very slight,- but very proper modification, as we shall see in discussing instruction number-3, which as given was as follows: “If the jury believe from the evidence that, as between Oakford and Thomas, he, Oakford, agreed to pay the debts of the firm of J. D. Oakford & Co., and that after the dissolution Oakford continued to deposit in the International Bank, under the old firm name, and that such deposits were passed to the credit of the old firm in the bank’s account, with the knowledge and consent of Oakford, and on the old firm’s pass-book, and that Oakford did not direct the bank officers to open a new account with him, then the defendant is entitled to your verdict.” The phrase in italics is the change made by the court, and of which appellant complains. It was undisputed that Oakford continued after the dissolution of the firm of J. D. Oakford & Co., to deposit in the International Bank; that the old firm’s pass-book was used, and that in form the deposit appeared in such pass-book to be under the old firm name. It is uncontradicted that the deposits were shown on the books of the bank as passed to the credit of the old firm, and it was not claimed that Oakford, in terms, directed the bank officers to open a new account. But there was evidence tending to show, and which plaintiffs insisted did show, that Oakford understood the deposits to be for the new firm, and that the bank treated the matter' of the Butcher check in such manner as that it, in effect, recognized a new account. Oakford testified that the deposits were not made by himself, and that the old pass-book was used without his attention being called to it. How, the instruction, as asked, ignored plaintiff’s evidence, and sought to have the court tell the jury that, if the acts mentioned in the instruction were done, whether Oakford knew and consented to them or not, defendant would he entitled'to the verdict. Manifestly, the knowledge of Oak-ford that the deposits were being placed to the credit of the old firm in the bank’s account, was, under the circumstances, an essential element in a hypothesis that would entitle defendant on such facts to the verdict, and to have given the instruction without the modification would have been error.

What has been said with reference to the third instruction, will apply to a similar modification made by the court in defendant’s second instruction, and in other of defendant’s instructions, where substantially the same point was involved.

There being no error in the record, the judgment of the circuit court must be affirmed.

Judgment affirmed.


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    Rufus Danforth et al. v. Clarence D. Perry et al.
    _ 1. Specific performance—Contract not in writing.—Where a contract not in writing is vague or uncertain in its terms, or is not clearly proved, a court of equity will not decree specific performance.
    2. Same—-Must snow title.—A bill to enforce specific performance of an oral contract, by which it was alleged complainant agreed to sell and convey to defendant a1 certain lot, to be paid for by defendant in work. Held, that under the circumstances of this case, complainant was bound, assuming that the contract was definite and certain, and clearly provedj to show his ability to convey an unincumbered estate in fee simple before he was entitled to a decree of specific performance.
    Appeal from the Circuit Court of Cook county; the Hon-Thomas A. Moran, Judge, presiding.
    Opinion filed July 28, 1886.
    Mr. Edward Roby, for appellants.
    Mr. Franklin P. Simons, for appellees.
   McAllister, J.

This was a bill in chancery by appellee Perry against appellant Rufus Danforth and others, for the specific performance of an oral contract alleged to have been entered into in October, 1880, whereby Perry agreed, as he says, to sell and convey, or procure to be conveyed, to said Danforth or his wife, by good and sufficient warranty deed, a certain lot of land described in the bill, at an agreed price of five hundred and fifty dollars, tó be paid for by Danforth in work to be done by him as a painter, upon houses already built and to be built by said Perry, who was also to furnish Danforth materials with which to build a house on said lot, to be paid for in like manner by Danforth. ISTo time was specified within which said work was to be done or the conveyance of title to be made, and by the contract, as set out, Danforth was permitted to take possession of said lot at any time within his discretion.

The bill is wholly silent as respects any title in or to the land held by Perry, but simply alleges that, upon settlement with Danforth, he, said Perry, was ready and willing, and thereby offered, to deed to said Danforth, or to whomsoever he might direct, the said premises by a good and sufficient warranty deed. The contract as set out is indefinite and uncertain as respects the work which Danforth was to perform in payment of the price as above stated.

The answer of Danforth denied the contract as alleged; averred the doing a large amount of painting for Perry; averred that he had never been furnished with an abstract of title to said lot, and insisted upon his right to have complainant exhibit his title to said premises.

Replication having been filed, a reference to the master was ordered by the court to take and report the evidence—to take and state an account between the parties. The evidence was taken under the issues thus found, and the master having filed his report, the complainant, on leave given, filed an amended bill, setting out the contract in different terms, but still indefinite as above stated, and containing no allegations as to complainant’s title, or in respect of any waiver by Danforth of his right to have the title exhibited.

The defendants having had no opportunity to answer the amended bill afforded by notice or otherwise, a decree for specific performance was directed and entered; but the complainant made no exhibit of his title to the said lot before the master or in open court.

Under the circumstances of this case, the complainant was "bound, even assuming that the contract was definite and certain and clearly proved, to show his ability to convey an unincumbered estate in fee simple, before he was entitled to a decree of specific performance. Owings v. Baldwin, 8 Gill. 350; Beckwith v. Rouns, 6 B. Monroe, 222; Garnett v. Macon, 6 Call (Virg.), 335; Seymour v. Delaney, 6 Johns. Ch. 333; Moss v. Hanson, 17 Penn. St. 379; Creigh v. Shatto, 9 Watts. & Serg. 82; Tuckett v. Williamson, 37 Mo. 383; Page v. Greeley, 75 Ill. 400.

The alleged contract was not in writing. When such a contract is vague or uncertain in its terms, or is not clearly proved, a court of equity will not decree specific performance. Allen v. Webb, 64 Ill. 342; Bowman v. Cunningham, 78 Ill. 48; Lokerson v. Stillwell, 13 N. Y. Eq. 357; Minturn v. Baylis, 33 Col. 129; Stanton v. Miller, 58 N. Y. 200.

We regard the contract as set out in either the original or amended bill, as too vague and uncertain to be the proper subject of specific performance by a court of equity; and, taking all the evidence into consideration, it was not clearly proved.

It was said in argument, by appellees’ counsel, that the appeal was not from the original decree of specific performance, hut from a supplementary decree. But error was assigned upon the original decree, and appellees joined in error. That gives this court jurisdiction.

For the reasons stated, such original decree will be reversed, and of course the supplementary decree must fall with it.

The cause will be remanded for further proceedings not inconsistent with this opinion.

Decree reversed.

Moeajv, J., took no part in the decision of this case.