text:
    John R. King et al., Appellees, v. William A. Gray, Appellant.
    Gen. No. 5412.
    1. Instructions—when erroneous, upon preponderance of evidence will not reverse. An instruction upon this subject which omits a reference to the number of witnesses testifying, although erroneous will not reverse if the error was favorable rather than prejudicial to the complaining party.
    2. Instructions—when refusal of correct will not reverse. The refusal of an abstract proposition of law although correct in form will not reverse.

      3. Instructions—predicated upon evidence. An instruction is properly refused ■which is not predicated upon any evidence in the cause.
    Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Putekbaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Rehearing denied April 21, 1911.
    Dailey & Miller and C. C. Dutch, for appellant.
    A. M. Otman, for appellees.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

John B. King and Leaton McC. Boggess brought this suit in the Circuit Court of Peoria county, against William A. Gray, to recover $1091.80 composed of three items. The declaration consisted of the common counts, to which was interposed a plea of non-assumpsit and a special plea denying liability except as to an item of $61.30. The items disputed were: one of $1,000 claimed as commissions in negotiating a contract to consolidate two telephone companies, in one of which Gray was interested; the other $30.50 paid for printing bonds for the new company. A trial resulted in a verdict and a judgment for the full amount claimed, and Gray prosecutes this appeal to review the judgment.

Appellant’s contentions are: that the contract upon which appellees rely to recover the $1,000 item was unconscionable; that the verdict is contrary to the law and the evidence; that the jury were improperly instructed on behalf of appellees; and proper instructions on behalf of appellant were refused; and that the verdict was excessive.

The evidence shows that appellees are attorneys at law and partners; that appellee King had been the personal attorney of Gray and an attorney of the telephone company in which Gray was interested; but there is nothing in the evidence that tended to establish appellant’s claim that the contract by which King was employed to negotiate the combination of the telephone companies was unconscionable. The testimony of appellee King as to the facts upon which appellees’ right of recovery rested was corroborated in parts by three witnesses. Appellant’s testimony, which tended to negative the right of recovery, was corroborated in part by only one witness. The jury and the court had the opportunity of seeing the witnesses and noting their demeanor while on the stand. They had better means than we have to compare and properly estimate the credibility and value of their evidence. It was within the province of the jury to fully consider, weigh and reconcile the conflict in their testimony, so far as that could be done, and when they were unable so to do, then to reject such portions as they believed were not entitled to credit. The presumption is that the jurors have done their duty, and found correctly; that the trial judge, being in a position to determine accurately whether the finding is right, has determined correctly in overruling the motion for a new trial. We must therefore leave the question of the credibility of the witnesses and the worth of their evidence where the law placed it, with the jury, and decline to disturb their finding, since the verdict does not appear to be clearly and palpably against the evidence.

Appellees’ first given instruction was on the measure of damages, and told the jury that by the pleadings in the case appellant admitted that he owed the sum of $61.30, and that they should find that sum for appellees, in addition to any sum or sums they might or might not find from all the evidence to be owing on the two disputed claims. .

Counsel for appellant argue that the language of the instruction was misleading in as much as it instructed the jury to find for an additional sum even though they might not find such sum to be due. There was, in onr opinion, no error in the court’s directing the jury that they must find for the amount admitted to be owing independent of whatever else they found, and we are of opinion that the jury would so understand the instruction; and this we think sufficiently answers appellant’s objection to the giving of appellees’ 5th instruction which related only to the form of the verdict.

Appellees’ 3rd instruction read as follows:

“The jury are instructed, that the preponderance of evidence in a case is not determined alone by the number of witnesses testifying to a material fact, or state of facts. In determining upon which side the preponderance of the evidence is on, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the evidence, facts and circumstances proved on the trial; and from all these circumstances determine upon which side is the weight or preponderance of the evidence.”

Appellant’s criticism of this instruction is that it omitted reference to the number of witnesses testifying as an element to be considered. It is true that in E. J. & E. R. R. Co. v. Lawlor, 229 Ill. 621, the court speaking of a similar instruction said: “We do not think it can be said that this court has given its unqualified approval to this instruction, or that it might not be misleading in a case where the question of numbers was important and no other instruction was given supplementing it.” And in the same case the court said, “we would not feel justified in reversing the judgment on account of it.'” Therefore, it is plain that the instruction, to have been strictly accurate, should have contained the element of the number of witnesses testifying. In the case at bar three witnesses aside from King testified in support of appellees ’ theory of the ease, while appellant was only partially corroborated in his theory of the case by one witness. Hence it would seem that the instruction as given was more in favor of appellant than it would have been had it been strictly accurate; and the giving of it, in our opinion, was not reversible error, as against appellant.

Appellant’s 5th refused instruction read as follows:

“The court instructs the jury that, in law, an agent is required to exercise good faith in his dealings with and for his principal; and has no right to use his position as such agent for the advancement of his personal interests to the detriment of his principal, unless such principal consents to such action on the part of his said agent.”

This instruction states a correct principle of law, but there was no evidence in the case upon which to base such an instruction and it was an abstract proposition of law. Neither was there any evidence supporting appellant’s 6th and 8th instructions, and for that reason there was no error in their refusal.

Appellant’s 10th refused instruction was limited to the question of the revocation of the contract claimed to have been made, and directed a verdict for defendant if there was no such revocation, whereas it was admitted at the trial that plaintiffs were entitled to recover at least $61.30. The error urged because of its refusal is that appellant “had the right to have the jury instructed upon what, in law, amounted to a ratification, for the ratification of the contract was a material issue in the case.” Had the instruction been applicable to the evidence its refusal would not be reversible error for the reason that appellant’s 1st given instruction contained substantially all of that part of the instruction of .the refusal of which he complains.

Nothing appears in the record to justify appellant’s contention that the judgment is excessive.

Finding no reversible error of law in the record the judgment of the lower court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Edward C. McClintick, Appellee, v. Toledo, Peoria & Western Railway Company, Appellant.
    Gen. No. 5349.
    Contributory negligence—when person crossing railroad tracks guilty of. Held, under the evidence, that the plaintiff in this case was injured as the result of his own negligence in seeking to cross railroad tracks at a point on the right of way not a street' where a plank crossing had been provided, the evidence establishing either that the plaintiff did not look for approaching trains or else disregarded the apparent approach of the train which struck him.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugec, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    Rehearing denied April 6, 1911.
    Stevens, Miller & Elliot, for appellant.
    George J. Jochem and James A. Cameron, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On September 8, 1908, appellee, then nearly sixteen and one-half years of age, was standing upon or crossing one of the main tracks of appellant in the city of Peoria, when he was struck by an engine running backwards and his left leg was crushed so that it became necessary to amputate it four and one-half inches below the knee. He brought this suit to recover damages for said injury. A demurrer was sustained to the amended second count of his declaration. The court directed a verdict for defendant as to the first and fourth counts, and, upon the third count, plaintiff had a verdict. The third count alleged that defendant’s railroad was traversed by a certain roadway or crossing at a point opposite Cass street in the city of Peoria, said road way being a continuance or extension of Cass street, generally used by tbe public for the purpose of crossing the railroad tracks at that point, with the knowledge and consent of defendant; that defendant was driving an engine backwards towards and upon said roadway; that the plaintiff in the exercise of due care for his own safety was lawfully traveling on foot upon said roadway across said track of defendant; that defendant negligently failed to give any or proper notification or warning of the approach of said engine and because of that negligence plaintiff was struck and injured. Plaintiff had judgment and defendant below appeals.

Cass street runs from northwest to southeast, and its southeast termination is at the foot of a bluff and at land occupied by several railroads. Going southeast down hill from the end of Cass street, there is first an open space of some sixteen feet, and then five parallel railroad tracks running at right angles to Cass street, or in a northeasterly and southwesterly direction near the river front. A little southwest of the middle of what would be Cass street if it had been extended across the tracks, the railroads then and for many years prior thereto maintained a plank crossing or driveway sixteen feet wide across said main tracks. Twenty feet beyond the five main tracks was an old switch track, but the plank crossing did not go over it. Twenty feet southwest from the lower end of the plank crossing was a flagman’s shanty, at which was stationed a flagman appointed and paid by the city of Peoria. The railroads were required to reimburse the city for the services of this and other like flagmen. A switch track turned off to the southwest parallel with the main track at the flagman’s shanty, and passed by certain ware-houses a little further southwest. The main tracks were used by several different railroads. It is stipulated that this plank crossing was open for travel from Cass street toward the river, and was maintained by the railroads using the tracks at that point as private railroad property, and that that condition had existed for a number of years. The condition of this crossing seems to have been similar to that at the foot of another street in said city, described by us in Derges v. C. B. & Q. R. R. Co., 148 Ill. App. 639. The first and fourth counts alleged a duty and a failure to give statutory signals, and no cross errors are assigned upon the action of the court in directing a verdict for appellant on those counts, nor in sustaining a demurrer to the second count charging general negligent operation of the engine. The evidence does not directly show why this plank crossing was maintained by the railroads nor for what purpose people crossed there, but it is a matter of fair inference from the proofs that it was for the purpose of enabling the public having business with the railroad to reach the switches on the lower side of the right of way. Nothing is alleged or proven from which it can be held that this was a public street.

Appellee and his father and others under his father were working further southwest at a building between the railroads and the river. It was a hot day, and the father sent appellee to get a pail of beer at a saloon on the northeast side of Cass street, just beyond the right of way. Appellee came up a path between the old switch track and the main tracks, passed the flagman’s shanty and went upon the plank crossing. On the third track, counting from the lower end of the planking, an engine was pulling a cut of passenger cars southwest. Appellee claims that he passed about a foot beyond the upper rail of the second track and stood there waiting for the passenger cars to go down to the southwest, and that, while standing there, he was struck by the corner of the tender of the engine backing northeast on the second track. He claimed that he looked both ways and did not see the engine coming. The tracks were straight for two blocks, to the southwest, and there were no other cars on the main tracks. Various witnesses testified for appellee that they did not hear a bell rung on that engine, -while they did hear the bell on the engine going southwest ahead of the cut of cars. Appellee testified that he heard a hell ringing southwest of him, hut that it was the hell on the passenger train, and that he did not look when he heard the hell. The engineer of the engine hacking up testified that he gave a whistle as a warning a block or two away and that his hell was ringing continuously. To the same effect was the testimony of the fireman and of the flagman. From a careful reading of this evidence we are of the opinion that the proof that the warnings were given outweigh that which tends to show that they were not given. It was in the line of duty of defendant’s witnesses to know the movements and signals of the trains and engines. The flagman was under no obligation to appellant, and he was positive that the hell was ringing. Appellee’s witnesses were men working near the tracks, and having no occasion to notice the signals. It is a matter of common observation that men who are steadily employed near where railroad trains are very frequently passing, soon become oblivious, not only to the signals, but even to the trains. We should therefore have been better satisfied if there had been a verdict for appellant on the ground that the charge of negligence was not sustained by the proofs; hut we base our decision upon another ground.

It was essential that appellee prove that he was in the exercise of due care for his personal safety. His proof tended to show that the speed of the engine was from six to eight miles per hour. The proof offered by appellant tended to show that its speed was from four to six miles per hour, and the engineer testified (that it did not exceed four miles per hour and gave his reasons. Appellee testified that he stood one foot beyond the farther rail of the second track and that he looked and saw no engine coming. At the hospital at a later day, he told a surgeon and a lawyer that' he did not look in the direction from which, this engine came. He was picked np some distance north, of the plank crossing. Appellant introduced evidence tending to show that appellee undertook to run around the engine as it was approaching him, and went off the plank crossing to the northeast around the end of the engine and diagonally towards the saloon. The flagman testified that as appellee went by him at the flagman’s shanty he told appellee to hold up, that it was dangerous to go across there, and that appellee said: “Oh, pshaw, I am in a hurry, ’ ’ and went on. It matters not which version is true.

Appellee was a bright young man, fully possessed of the senses of sight and hearing. He was acquainted with the locality, having worked in the vicinity for some time. He knew that there were a number of tracks there, and that engines and trains were passing with great frequency. There was nothing in the passing of an engine and two or three passenger cars on the third track to distract his attention from his real situation. He does not claim to have been distracted or misled. He merely claims that he looked and that this engine was not to be seen. The track was straight for two blocks, the engine was moving slowly, and his account is manifestly impossible. If he stood and was hit where he claims he was, he did not look, and ordinary care required that he should do so, there being nothing in the surrounding circumstances to excuse him for not'doing so. C. R. I. & P. Ry. Co. v. Jones, 135 Ill. App. 380. If he did look, he saw the approaching engine, ran off the plank walk and undertook to run around the front end of the engine, and miscalculated the chances of doing so safely. When he got off the plank crossing, he was a trespasser. There was nothing wilful in the conduct of the men in charge of the engine. Whichever view of the proof is taken, it is clear to us that he was not in the exercise of due care for his own safety, and that this unfortunate accident is attributable to his own negligence. He therefore has no canse of action, and the judgment is reversed.

Reversed.

Finding of facts, to he incorporated in the judgment : We find from the evidence that appellee, plaintiff below, was not in the exercise of due care for his own safety and that the injuries for which he sues were caused by his own negligence.


text:
    Henry Joehnk, Administrator, Appellee, v. Charles H. F. Smith et al., Receivers, etc., Appellants.
    Gen. No. 5378.
    Contributory negligence—when person passing between cars guilty of. Held, under the evidence, that the plaintiff’s intestate was guilty of contributory negligence in seeking to pass between two freight cars which formed a part of a string of cars which it was sought to couple by being sharply struck by an engine.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1910.
    Reversed.
    Opinion filed October 18, 1910.
    Rehearing denied April 6, 1911.
    J. B. Stephens, for appellants; John Barton Payne, of counsel.
    S. C. Scott, W. J. Emerson and C. C. McMahon, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On the evening of January 9, 1908, near the village of Myrtle, in Ogle county, on the line of the Chicago Great Western Railway, Frederick Hans Otto, assistant train-master, started to go between two freight cars of a wrecked train while the wreck foreman was trying to have the string of cars coupled np by having them struck sharply by an engine. Otto was caught and crushed between the cars and was so severely injured that he died a few hours later. His administrator brought this suit to recover the loss to his next of kin by his death. The first count of the declaration charged that Otto was assistant train master, and that when ordered by defendants, it was his duty to go to any wreck and to care for and dispose of damaged freight and wounded live stock; that this wreck occurred at Myrtle, and the receivers ordered him to go to the wreck and care for the merchandise and live stock, and that he obeyed said orders and, while caring for said merchandise and live stock, other servants of defendants, not fellow servants of Otto, were placing derailed cars back upon the rails and there was an opening of three feet between two of said cars, which defendants had left for Otto to use as a passage in going back and forth across the track in caring for and disposing of said live stock and merchandise lying along both sides of the track; that while he was in the discharge of his duty as assistant train master in the night time and crossing the track through said passageway to attend to the live stock on the opposite side of the track, and exercising all due care for his own safety, defendants’ servants negligently caused an engine to run against the end of one of said cars with such force that thereby the passageway was closed and Otto was caught and killed; that defendants well knew that Otto was using said passageway at that time, and that it was their duty not to close it while he was using it without giving him warning by ringing the bell or sounding the whistle or warning him of the intention to close the passageway; and that no bell was rung or whistle sounded or warning given Otto of the danger to be caused by the closing of the passageway. A demurrer was sustained to the second count. The third count and an additional count were similar to the first count, except that they did not charge that defendants had left said passageway for the use of Otto. Defendants filed the general issue and a special plea. The latter alleged that Otto was not at and before the time of the accident in the performance of any duty or service for defendants and was not then in the employ of defendants as assistant trainmaster; that the opening between the cars where Otto was injured was not left by defendants for the passage of Otto back and forth across the track; and that Otto was upon the right of way and track while attempting to pass through said opening, without any right or authority from said defendants and not in obedience to any order or duty enjoined upon him by the defendants. Issue was joined on these pleas. Afterwards the first, third and additional counts were amended by striking out the words “for the purpose of attending to said merchandise and live stock on the opposite side of said track,” and equivalent words wherever they occurred in said counts. Plaintiff had a verdict and a judgment and defendants appealed.

This was a stock train bound east. It was wrecked very early in the morning of January 9. Otto was sleeping at a hotel in Byron, a few miles southeast. By direction of the station agent at Byron, Otto was called at 2:30 or 3 o’clock that morning to go to the wreck, and he went. Palmer, the trainmaster, came later. A wrecking train and crew came from the west. There was a locomotive engine and a train crew made up of engineer, fireman, conductor and two brakemen. They had ahead of the engine to the southeast a steam derrick, an idler or car over which the crane hung when not in use, some truck cars loaded with working appliances and a caboose, and a wrecking crew composed of a wrecking foreman, steam derrick engineer and five helpers. The wreck was on the main track and next to it was a passing track. Both tracks were blocked by the wreck. It was decided that the passing track could be more quickly cleared for traffic than the main track, aud this was done. The steam derrick was brought into action, some cars were lifted out of the way, others were straightened and set upon the track. There were a number of carloads of hogs, out of the cars and on the right of way. Most of the uninjured hogs were placed in cars, and several carloads of them were taken to Byron and there unloaded and fed. Quite a number of hogs were on the ground on either side of the track, dead or injured. Early in the afternoon, after the passing track had been cleared for travel, the officers and the crew of the wrecking train went to Byron for dinner. The train returned to the wreck a little after five o’clock p. m. Palmer, who was Otto’s superior, told him that there was no need for them to return to the wreck, as there was nothing for them to do. Otto said he would ride back, and he did so. About seven o’clock in the evening there were seven cars in line along the main track. A part of the 'wheels, at least, were on the ground, which was frozen hard. After Otto returned to the wreck, several farmers from the neighboring country came to the wreck, and Otto proceeded to negotiate with them for the sale of dead and injured hogs on each side of the track. He sold a number to one Rafferty and collected pay therefor, and Rafferty considered that he had bought all that were dead or injured. In fact, the sale of merchandise at a wreck was not within the duty or authority of either the trainmaster, or the assistant trainmaster, but of Wheaton, the freight claim agent, and no one had directed or authorized Otto to do this, and Palmer had refused to make any contract concerning the dead hogs, but had announced that the freight claim agent would be there that night or the next morning and would have charge of that business, and he did arrive some time after Otto was killed. At seven o’clock that evening the seven cars were in line as already stated. There was a wide space between the wrecking train and the first car east of it and another wide space between the first car and the second car, a space of about three feet between the fifth car and the sixth car, and a space of some eight feet between the sixth car and the seventh car, which was the last car to the east. It was dark, and the only light, other than starlight, was caused by such lanterns and torches as the men carried. The wreck foreman had told Otto, while they were coming back from Byron, that he was going to couple up the remaining cars. A little after seven o’clock the wreck foreman was near the east end of the string of cars, and he told Otto that he was going to couple up, and he gave notice in a voice heard by several men standing near Otto to look out or to get away, that they were going to couple up, and then gave an order to the conductor to couple up, and the conductor gave a signal to the engineer to come ahead to the east. ■ They failed to make a coupling. The conductor, by order of the foreman, caused the movement to be repeated, without effect. The foreman then gave an order to have the engine strike the train hard, and that order was given to the engineer and was obeyed, and the fifth and sixth cars were brought together. Shortly before this another farmer had applied to Otto to buy some of the hogs and Otto said he would have to speak to another buyer first, meaning, as is supposed, Bafferty. "When the order to couple up was given, Otto was on the bank some 25 feet south of the train. None of the men in charge of the train knew that he had passed through that opening between the fifth and sixth cars, but he and some of the farmers had, in fact, passed through there. At the instant when the order was given to strike hard, one of the section men saw Otto go in the direction of this opening between the fifth and sixth cars. No one else saw him at all at that time. He got between them just in time to be caught as the cars came together. That this was a proper way to effect a coupling was shown by the fact that after Otto had been released and taken away, a fourth and harder attempt was made and the coupling was accomplished. There was proof that, when one of the men hurried to the engine and told the engineer that he had pinched a man, the engineer said: “What kind of damn signals are you giving me! I went according to the signals, and if they were wrong I can’t help it,” or words to that effect. There was other proof that the engineer made no such statement. If he said so, it did not prove that the signals were wrong. There was proof by several witnesses of things said by Otto before he was re-' leased from his place between the cars and afterwards while he was being taken on a train to Byron, which indicated that Otto considered that he had been negligent in undertaking to pass between those cars at that time. The passageway was very narrow and apparently had been made considerably less than three feet by the first and second efforts to make the coupling, which was before he undertook to pass through. There was a wide space at the rear of that sixth car, and he could have passed around the seventh car without any obstruction. There was no allegation or proof that there was any highway east thereof which made it necessary to give the statutory signals. No bell was rung or whistle sounded when these efforts were made to couple the cars, but the proof was that, in working at a wreck, it was customary not to ring a bell because it created confusion and made it difficult to hear the orders and signals when given by word of mouth. Otto was a man of capacity and intelligence and an experienced man. He had been telegraph operator, station agent, chief train dispatcher and assistant train master, and was thirty-four years of age.

The allegation that this passageway had been opened for Otto’s use was not supported by any proof. The cars stood as they happened to be placed after they had been straightened into line by the use of a derrick. Defendants and their servants owed the duty to Otto not to wilfully injure him, but there is no pretense that that duty was violated. None of the men in charge of any part of the work knew that he had passed through there at all. The farmers knew it, and one section man at the last instant saw him start in that direction. We are unable to see that the defendants and their servants violated any duty which they owed to Otto. He had been given warning just before the accident that the cars were going to be coupled together. That was said to him specially. The an-_ nouncement was then made in a loud voice to look out, to get away, that a coupling was to be made. It was heard by men who stood near him and it must have been heard by Otto. He was an experienced railroad man. In our opinion this unfortunate accident was entirely due to the carelessness and negligence of Otto in attempting to pass through this narrow opening at that critical moment. He did not need to go through at all. He could have gone through the next opening which was wide. He could have gone one car length further and been entirely safe. In a moment of carelessness or thoughtlessness or recklessness he voluntarily stepped into a death trap and lost his life. We are of opinion that his administrator has no cause of action against the defendant. This conclusion makes it unnecessary for us to consider many of the difficult questions presented by the record.

The judgment is therefore reversed.

Reversed.

Finding of facts to be incorporated in the judgment. We find from the evidence that defendants were not guilty of the negligence charged in the declaration, and that plaintiff’s intestate lost his life because of his own lack of due care for his personal safety.


text:
    Mrs. M. Sear, Plaintiff in Error, v. C. C. Emerson & Company and A. W. Hopkins, Garnishee, Defendants in Error.
    Gen. No. 5387.
    1. Justice of the peace—power to order continuance. A justice of the peace has power to take a case under advisement and continue a cause for decision to a definite time.
    2. Justice of the peace—what final judgment in attachment suit. It is not the entry of a default or a conditional judgment against the attachment defendant that fixes the time with respect to the taking of an appeal; the time for the taking of the appeal begins to run from the entry of final judgment upon the merits of the case as between the plaintiff and the attachment defendant.
    3. Justice of the peace—within what time appeal must he taken. An appeal from a judgment in attachment may be taken at any time within twenty days after the rendition of the judgment. It is only where there has been a trial of the right of property where personal property is taken on execution or attachment that the appeal must be perfected within five days.
    Action commenced before justice of the peace. Error to the Circuit Court of Putnam county; the Hon. T. N. Gbeen, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    J. L. Murphy, for plaintiff in error.
    George W. Hunt, for defendants in error.
   Mr. Justice Dibell

delivered the opinion of the court.

This is a writ of error sued out by Mrs. M. Sear to review a judgment of the Circuit Court of Putnam county dismissing an appeal taken by her from the judgment of a justice of the peace in- a suit wherein she was plaintiff, C. C. Emerson & Company were defendants and A. W. Hopkins was garnishee. It is contended that the justice lost jurisdiction by an unauthorized continuance, that the appeal was not taken within five days as it should have been, and that it was not taken within twenty days after a final judgment against C. C. Emerson & Company.

The record shows that Mrs. M. Sear brought this suit in attachment against C. C. Emerson & Company, non-residents; that Hopkins was duly summoned as garnishee; that C. C. Emerson & Company did not appear at the return day and that Hopkins did appear; that the cause was properly continued as to all parties till November 20, 1909, at ten o’clock a. m.; that notices to C. C. Emerson & Company were duly posted; that on November 20, 1909, at ten o’clock a. m. the case was called and plaintiff appeared; that C. C. Emerson & Company were called three times and came not and were defaulted; that evidence was heard and the cause was continued as to all parties till Saturday,

November 27, 1909, at one o’clock p. m. The entry thereafter is as follows:

“Case called at 1:30 p. m., Nov. 27, 1909, as to Garnishee. Conditional judgment in the original suit vacated and set aside. Judgment against the Ptff. for costs of both suits.”

It is contended that when the justice heard the evidence on November 20, it was his duty to enter a judgment, and that the justice was without power to continue the cause to a specified date seven days later, reliance being had on Harrison v. Chipp, 25 Ill. 471 (475). In that case the adjournment was for an indefinite time, and the power of a justice to adjourn a case to some fixed and reasonable time after hearing the evidence and arguments, to enable him to reflect upon the evidence or to examine the law, was settled in Hall v. Reber, 36 Ill. 483, and that decision has been, we believe, universally followed since.

It is contended that the default entered November 20 against C. C. Emerson & Company was a final judgment and, as the appeal by Mrs. M. Sear was not perfected till December 14, 1909, therefore the appeal was too late. The entry of November 20 was a default only, and not a judgment. The justice had not yet determined whether C. C. Emerson & Company were indebted to Mrs. M. Sear nor the amount of such indebtedness. Whether it was necessary for the justice to enter a default need not be determined. The default did no harm. The entry “conditional judgment in the original suit vacated and set aside” in the proceedings of November 27 was meaningless, for there had been no conditional judgment, and the only conditional judgment which could have been entered prior thereto would have been a conditional judgment against the garnishee if he had not appeared. The only judgment was on November 27, and the appeal was perfected less than twenty days thereafter.

An appeal must be perfected in five days from a judgment rendered upon a trial of the right of property, which is where personal property is taken on execution or attachment issued by a justice and the property is claimed by some other person and such claimant gives notice to the constable of his claim. R. S. 1909, chap. 79, Art. 13. This was not a trial of the right of property. The Circuit Court in dismissing the appeal, granted two written motions, filed by Hopkins and set out in the bill of exceptions. In one of these motions Hopkins stated that the Amerian National Bank claimed the entire amount of the funds held by the garnishee and claimed the same by virtue of an assignment of a bill of lading from C. C. Emerson & Company to other parties, and that the justice, at the hearing before him, found that the funds in the hands of Hopkins belonged to' said American National Bank. This motion and statement of alleged fact therein was not sworn to nor supported by any affidavit. In the Circuit Court the American National Bank entered a written appearance, but it was not a party before the justice and it took no steps to make any claim in the Circuit Court. Even if Hopkins did claim before the justice that he owed the money in his hands to the American National Bank and not to C. C. Emerson & Company that only went to the question whether he was liable to his garnishment and did not turn the proceeding before the justice into a trial of the right of property under the statute above referred to, which requires an appeal from a judgment in a trial of the right of property to he perfected within five days.

It was therefore error to dismiss the appeal, and the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Appellee, v. Albert Guentner, Appellant.
    Gen. No. 5393.

      Bastardy—when verdict not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence unless clearly and manifestly against its weight.
    Bastardy proceeding. Appeal from the County Court of Carroll county; the Hon. J. D. Turnbaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Ralph E. Eaton and C. W. Middlekauff, for appellant.
    Franklin J. Stransky, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On November 14, 1909, Freda Walther, unmarried and just past eighteen years of age, gave birth to a child. In this bastardy proceeding a jury found that Albert Guentner was the father of the child and there was a judgment that he pay the sums fixed by statute for its support, from which judgment lie prosecutes this appeal.

Albert Guentner and his mother lived upon a farm about ten miles from the home of Freda Walther. His mother was old and very feeble. He was unmarried and about thirty-four years old. Freda was employed as a domestic in that family from the last of November or the first of December, 1908, till some time in June, 1909. Freda testified that Albert had intercourse with her in his home once during the first week of March, 1909, and again during the first days of April, 1909, each time in the evening and in the absence of his mother, who on those two occasions had gone to the home of her son Levi, several miles away, and that the child was begotten on the first of those occasions and that Albert was the father of the child. Albert denied that he ever had intercourse with the prosecutrix and denied that he was the father of her child. He and his mother each testified that she was not absent from home in March, but that she was absent and at the home of her son Levi, on April 3, shortly after the birth of a child in Levi’s family. Levi testified that his mother was not at his house in March. Mrs. Guentner testified that she was absent from home twice in February and again that she was not absent from home in February. An effort was made by the defense to show that one or two young men, named, had been there to see Freda and had taken her riding during the time when the child might have been conceived, but Mrs. Guentner finally refused to say that such visits might not have been in December, 1908. Freda denied that these young men had visited her or taken her riding during January, February or March, 1909. The yonng men named testified, one of them that he did not go with her during January, February and March, 1909, and the other that he did not go with her after December 4, 1909. It was proved that the usual period of gestation of a human being is two hundred and eighty days, that this child was well developed when horn and wonld not have been so well developed if begotten on April 3, 1909, and wonld not have been likely to live. There was evidence that some time after the birth of the child Albert said he had not enough money but was willing to settle, and other evidence that he did not so state. The evidence tended to show that Freda was exceeding ignorant of sexual matters.

We are not wholly satisfied with the rulings of the court upon the instructions, but we conclude that there is not therein sufficient warrant for disturbing the verdict. The child must have been begotten at about the time testified to by the prosecutrix. She and Albert were together constantly on the farm. The preponderance of the evidence is that during the time when the child could have been begotten she was not with the other young men named. The relations between Albert and Freda were friendly. About once a month he was in the habit of driving her to her father’s home, about ten miles away, and back again, usually on Sunday. He did not deny her testimony that he was in the habit of teasing her and tickling her. Some man was the father of the child and all the circumstances point to Albert. If Mrs. Guentner was away from home twice in February, the first intercourse may have taken place during the last of those occasions, notwithstanding the testimony of the prosecutrix that it was during the first week of March. The trial judge who saw the witnesses, has approved the verdict and we do not feel warranted in disturbing it.

The judgment is therefore affirmed.

Affirmed.


text:
    C. L. and C. E. Sheldon, Appellants, v. Charles C. Eakle et al., Appellees.
    Gen. No. 5397.

      Spendthrifts—section IS of act construed. The statute which provides that the contracts of a spendthrift etc. made 1 during the pendency of an application for the appointment of a conservator may he avoided, gives to the conservator when appointed the right of avoidance irrespective of the contract in question having been induced by fraud. ,
    Foreclosure. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Usury S. and George S. Dixon, for appellants.
    Brooks & Brooks and Kerry C. Warner, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

On June 23, 1909, Charles C. Eakle executed his promissory note of that date to the order of C. L. and C. E. Sheldon for $500 payable sixty days after date, with interest at 6% per annum after maturity, and to secure the same executed a mortgage on certain real estate in Lee county. On September 9,1909, C. L. and C. E. Sheldon filed in the Circuit Court of Lee county a bill to foreclose said mortgage, and afterwards an amended bill, in which they alleged that they were practicing lawyers and that said note and mortgage were given them as security for services already rendered and for money already advanced and for services and expenses which they might render said Eakle in the future. They sought to recover $5 for advice, charged to Ealde on January 1, 1909; $50 charged to Eakle on January 21, 1909, for drawing a bill for partition; $12, charged on January 22, 1909, for money advanced for clerk’s fees; $5 charged on February 20, 1909, for advice and for a motion to strike a petition for a conservator from the files; $1 charged to Eakle the same day for money loaned, and $100 charged to Eakle on February 22 and 23,1909, for services in preparing and trying a case in the county court, including the fees of another attorney, said charges amounting in all to $173. Charles C. Eakle and Henry C. Warner his conservator, were made defendants. A cross bill was filed and answered; the cause was referred to a master to take and report proofs, with his conclusions, and he reported favorably to complainants; and afterwards there was a decree dismissing the bill for want of equity, and granting the prayer of the cross bill, from which decree C. L. and C. E. Sheldon prosecuted this appeal. It is assigned for error that the court erred in sustaining the exceptions to the master’s report, in refusing to approve the same, in dismissing the bill for want of equity and in granting the relief prayed for in the cross bill. It may well be doubted if any of these alleged errors are presented by the abstract. Rule 16 of this court (137 HI. App. 625) requires the party bringing a cause to this court to state in concise form in the abstract so much as may be necessary or important of the pleadings, interlocutory orders, judgment or decree, and to fully present every exception relied upon and every error alleged, and also that part of the record which supports the rulings complained of. The abstract states fully the amended bill. It does not set out the answer to the bill, the cross bill or the answer thereto. It sets out none of the pleadings, except the amended bill. It sets out the favorable report of the master, but it does not set out the objections thereto, nor the fact that the same were renewed as exceptions to the report, nor that said exceptions were sustained by the court. It states nothing of the decree except that it dismissed the bill of complaint for want of equity and granted the prayer of the cross hill, and, as the cross bill is not abstracted, the abstract does not tell us what relief was given to the defendants. We, however, conclude to consider the material questions involved.'

On January 5, 1909, two relatives of Charles C. Eakle filed a petition in the county court of Lee county, stating that said Charles C. Eakle “is or is supposed to be an idiot, an insane, distracted and feeble minded person, drunkard and spendthrift, who by reason of unsoundness of mind is incapable of managing and caring for his own estate;” and that he “by reason of unsoundness of mind is so spending, wasting and lessening his estate as to expose himself to want and suffering and his family, his brothers and sisters, to charge and expense for his support and maintenance and the county and town to his support,” and that his estate was worth about $4,000. On January 18, 1909, a summons was issued for said Charles C. Eakle in said cause, which was served upon him, on January 19, 1909. All this was before the note and mortgage here sought to be foreclosed were executed. At the time appellants took this note and mortgage they knew of the pendency of these proceedings. Thereafter a jury was impaneled, which returned a verdict “that Charles C. Eakle is a spendthrift and in consequence of such disability is incapable of managing and caring for his property and effects,” and that a conservator should" be appointed. Thereafter Henry C. Warner was appointed and qualified as such conservator. The answer and the cross bill attacked said note and mortgage because of the mental condition of Charles C. Eakle and because of the pendency of said proceedings in the county court when said note and mortgage were executed. In Chapter 86 of the Revised Statutes, entitled “An act to Revise the Law in relation to Idiots, Lunatics, Drunkards and Spendthrifts,” section 14 provides that every note, bill, bond, or other contract by a spendthrift, etc., made after the finding of the jury provided for in section 1 of that act shall he void as against the spendthrift, etc., and his estate; and section 15 provides that every contract made with a drunkard or spendthrift, after the application for the appointment of a conservator, may he avoided, except in favor of the person fraudulently making the same. The contract embodied in this note and mortgage was made after the application for the appointment of the conservator, and therefore may be avoided under said section 15. Appellants contend that section 15 intends that such contract may be avoided only if it was fraudulently made, and that these contracts were not fraudulently made. We are of opinion that this provision should not be so restricted. Appellants contend that this construction deprives the person charged with being a spendthrift of the use of his own property wherewith to defend himself against that charge. But the opposite construction would enable the spendthrift to waste all his estate in resisting the application for a conservator. We are not called upon to decide here whether the spendthrift and his estate are liable for any part of these services as necessaries. If the conservator has the right to have this mortgage avoided, that is the end of the present suit. It will be observed that, while the statute above referred to does not require that the party entering into a contract with a spendthrift after the application for the appointment of a conservator has been made shall have notice of such application in order to subject him to the avoidance of the contract, yet in this case appellants did have such notice. Appellants introduced proof tending to show that they gave Eakle legal advice some months before the petition for a conservator was filed, but they cannot recover here for those services for their amended bill limits their charges to matters beginning on January 1, 1909.

Appellants contend that before Eakle or his conservator can avoid his contract, he must tender back what Eakle received thereunder. We think the principle applicable is that stated in Reynolds v. McCurry, 100 Ill. 356, and Wuller v. Chuse Grocery Co., 241 Ill. 398, that a person under disability is not required to return that which he has lost or expended before he may disaffirm his contract. The legal services rendered here were of such a nature that they could not be returned. It is urged that he should have been required to refund the $12. advanced for the clerk’s fees. It does not appear what became of that bill for partition and it may be that that expenditure will be returned to appellants in that proceeding. As to the sum of $1 loaned Eakle a day or two before the jury trial wherein he was adjudged a spendthrift, we think the maxim de minimis non curat lex, is a sufficient answer.

As the court below properly refused to foreclose the mortgage, the decree is affirmed.

Affirmed.


text:
    John C. Scully v. Colean Manufacturing Company. (W. H. Wallace, Appellee, W. H. Colean, Receiver, Appellant.)
    Gen. No. 5400.

      Liens—when fund impressed with. If a certificate gives to the holder the right to a certain amount of the fund when collected providing that such holder be Chargeable with a proportion of the share of the expense of collection, the fund when collected becomes charged with a lien; and if the fund can be traced as having gone into the hands of a receiver of the party who collected the same it may be recovered. If, however, the fund cannot be so traced the holder of such certificate is a mere general creditor. If, however, the receiver made the collection the fact of his having mixed the fund collected with other moneys does not prevent the enforement of a lien against him.
    Bill in equity. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed March 16, 1911.
    Stevens, Miller & Elliott, for appellant.
    Homer Barney, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The Colean Mannfactnring Company, a corporation engaged in the business of manufacturing portable and stationary engines, threshing machinery, etc., in the course of its business issued to W. H. Wallace a paper called here a commission certificate, the body of which was as follows:

“No. 1346 Not Negotiable Peoria Ill. 7-2-1907.
There will be due by Colean Manufacturing Company Thirteen and 33-100 Dollars, to W. H. Wallace of Henry, Ill. payable on return of this certificate, when note No. 4489, given by P. B. & C. L. Sweamgen for $233.00 to Colean Manufacturing Company, dated 2-4-07 and due 10-15-09, shall be fully paid by the maker.
“This obligation being for commission on sale of machinery to makers of above named note, it is accepted with the understanding that it shall not be collectible in case the maker fails to fully pay said note, or extension or renewal thereof. Taking back said machinery or bidding it in shall not be considered a payment. If other machinery or property is bid in, that proportion of the commission shall not be payable until it is sold and the money realized. This certificate shall carry a proportionate share of interest collected on said note and be subject to a proportionate share of costs and expenses of collection or of discount allowed for prepayment.”

It also issued to Wallace six other commissions certificates of the same tenor, except that they were of other dates, for other amounts, and described other notes given by other parties.

On January 20, 1909, John O. Scully filed a hill in equity against the Colean Manufacturing Company, under which a few days later W. H. Colean was appointed receiver of the property and effects of said company. Thereafter Wallace filed an amended motion in said cause, wherein it was asserted that said receiver was in fact trustee for said Wallace as regards the interest of said Wallace under said commission certificates in funds in the hands of said receiver. Said motion was heard, and it was held that the proceeds of said notes should be considered as a trust fund and that the said W. H. Colean, as receiver, should be considered trustee thereof. Payment of the commission certificate above set out was ordered in the following language:

“It is therefore ordered and decreed by the court that out of the money collected by W. H. Colean as receiver when note No. 4489 given by P. E. and C. L. Sweamgen for $233.00 to Colean Manufacturing Company, dated 2-4-07 and due 10-15-09 shall be fully paid by the makers, the said W. H. Colean shall pay to W. H. Wallace the sum of $13.33.”

There was a like order as to the other six commission certificates, followed by an order that upon the collection of said notes and the payment to Wallace of said sums, W. H. Colean, receiver, should be discharged as such trustee. Colean, as receiver, appeals from that order.

Appellant contends that, by the terms of the commission certificate above set out, when the Colean Manufacturing Company collected in full the note described therein it then became the mere debtor of Wallace for the sum of $13.33 and that Wallace had no interest in the money to be collected on the note, and that the Colean Manufacturing Company, when it collected such a note, did not become his trustee for the money agreed to be paid him; while Wallace contends that if it collected the note in full it became his trustee, and that if the receiver collected the note in full he also -would, hold the money in trust. When the entire language of the certificate is considered, we conclude that appellee’s contention is sound. The last sentence of the certificate states that it carries a proportionate share of the interest collected on the note and that it is subject to a proportionate share of the expenses of collection. If then a proportionate share of the interest, when collected, will belong to Wallace, and if he is subject to a proportionate share of the expenses of the collection of the note described, we think it the true meaning of the paper that he is the equitable owner of a proportionate share of the principal of the note as well.

If the Colean Manufacturing Company collected any of the notes in full, described in these seven certificates issued to Wallace, and if the fund could still be traced when the receiver was appointed and came into his hands as receiver, even though the identical bills could not be traced, then the receiver took such fund impressed with the trust in favor of Wallace. The question when funds impressed with a trust can be traced and reached, and when their commingling with other funds or expenditure destroys the right of the cestui que trust to reach the trust funds, is considered and discussed under various aspects in Union National Bank v. Goetz, 138 Ill. 127; Wetherell v. O’Brien, 140 Ill. 146; Mutual Accident Assn. v. Jacobs, 141 Ill. 261; Bayor v. American Trust and Savings Bank, 157 Ill. 62; Clemmer v. Drovers’ Nat. Bank, 157 Ill. 206; Lanterman v. Travous, 174 Ill. 459; Estate of Seiter v. Mowe, 182 Ill. 351; Hauk v. Van Ingen, 196 Ill. 20; and Woodhouse v. Crandall, 197 Ill. 104. If the receiver collected in full the notes or any of them described in these certificates, then he became a trustee for Wallace, and he could not destroy the identity of the fund by mingling it with other moneys held by him as receiver or with his own funds. Kirby v. Wilson, 98 Ill. 240; Halle v. National Park Bank, 140 Ill. 413, 421; Woodhouse v. Crandall, supra, on page 112.

The amended motion by Wallace alleged that the notes described in said certificates had been paid, and that the amount named in said certificates as due Wallace was in the hands of the receiver. There was no proof of these allegations. If the company collected the notes, it was necessary to show that the funds arising therefrom could be traced into the hands of the receiver. If the receiver collected these notes, or any of them, in frill, it was necessary to prove that fact. Several of the notes described in the certificates were due long before the receiver was appointed. The company may have collected them. On the other hand it may be that none of the notes have yet been paid in full. If the order of the court had been, for instance, that out of the money collected by the receiver upon No. 4489, given by P. R. & C. L. Sweamgen, when the note shall be fully paid, the receiver should pay to Wallace $13.33, and there had been a like order as to each of the other notes described in the other certificates, then the money to Wallace would only be payable out of the note described, after it was collected in full by the receiver, and if it was not collected in full by the receiver it would not be payable at all. But this order, as we construe it, means that after the note is fully paid by the makers, whether to the company or to the receiver, then the receiver shall pay the money named, not out of this fund but out of any money in his hands as receiver. We are of opinion therefore that the order is not sufficiently limited.

The order is therefore reversed and the cause is remanded to the Circuit Court, with directions that, if Wallace shall, within a reasonable time after the remanding order is filed, apply to the court therefor, the court shall enter an order substantially in the form of the order appealed from, except that it shall direct that, out of the money collected by Colean as receiver out of each note described in said certificates when paid in full by tbe makers, said receiver shall pay to Wallace tbe sum named in tbe certificate describing that note, thus making tbe payment to Wallace only out of tbe money collected by tbe receiver on tbe note described in tbe certificate when fully paid; and that if said Wallace shall not make such application to tbe court, then that tbe motion be beard again upon such proofs as may be submitted.

Reversed and remanded with directions.


author: Me. Justice Dibell

text:
    John L. Bloomfield, Appellant, v. Wilson Coziah, Appellee.
    Gen. No. 5403.
    Finding of court—when not disturbed as against the evidence. A finding hy the court hearing the case without a jury will not he set aside as against the evidence unless manifestly against its weight.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Knox county; the Hon. R. J. Grier, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    M. J. Daugherty, for appellant.
    Williams, Lawrence, Welsh & Green and F. O. McFarland, for appellee.
   Me. Justice Dibell

delivered tbe opinion of tbe court.

Appellant sued appellee before a justice of tbe peace for trespass to real estate. In tbe Circuit Court, on appeal, tbe cause was tried without a jury and there was a finding and a judgment for defendant below and plaintiff below appeals.

The evidence was voluminous, conflicting and confusing. Many years ago a certain quarter section of land in Knox county was subdivided into eighteen lots of many different sizes and shapes. Lot 8 was in the southeast corner and lot 7 north of it. Lot 9 was next west of lot 8 and lot 6 next west of lot 7. Lot 10 was west of lots 6 and 9 and other lots. Lot 18 was west of the south part of lot 10. Appellant owned lot 7 and a lot-north of it and lot 18. Alden and Seacord owned lots 8 and 9 and the south part of lot 10 and a man named Pittard owned lot 6. There w'as a fence on the south side of lots 6 and 7, (ividing them from lots 8 and 9. Appellant claims that he wished to get a right of way between his lot 7 and his lot 18, and Alden and Seacord desired some concession concerning lot 10, and that an oral trade was made, by which appellant granted the concession desired by Alden and Seacord, and they gave him about a rod of land in width off the north side of lots 8 and 9. The fence which stood on the south side of lots 6 and 7 was then moved south some twelve to sixteen feet. Appellant claims that by virtue of that oral trade be became the owner of so much of that land on the north part of lot 9 as lies north of said fence after it was moved, being a strip about twelve or sixteen feet wide. Thereafter a railroad was constructed which entered the quarter section at about the southeast corner of lot 9 and passed northwesterly over lots 9 and 6 on a curve and passed out of lot 6 at about its northwest corner. Afterwards appellee became the owner of so much of lots 8, 9 and 6 as was east of the railroad, unless he failed to acquire title to this strip between lot 6 and the north fence on lot 9. Appellant put a gate in said fence between lots 6 and 9 east of the railroad and fsrbade appellee to pass through it. When appellee continued to pass through it to go from lots 8 and 9 to lot 6, appellant put a lock upon the gate. Appellee took off the lock and passed through. Appellant then nailed up the gate. Appellee took out the nails and opened the gate and passed through. Each party threatened to decapitate the other. Appellant then brought this suit in trespass for breaking and opening said gate and passing over said strip, and for damages for repairs which appellee made to some of the fences.

This suit having been begun before a justice of the peace, neither the justice nor the Circuit Court on appeal had any jurisdiction to try the title to the disputed strip. Lot 6 owned by appellee, lot 7 owned by appellant, and this disputed strip, are all in one enclosure and always have been since the fence was moved. Appellee is in possession of lot 6, which he owns, and as this strip is in the same enclosure, it cannot be said that appellant has any different possession of the strip than has appellee. The land north of the fence is wooded and is pastured by both parties. It is not disputed also that appellee owns the land south of the gate in lot 9. Appellant therefore has no such possession of the disputed strip, adverse to appellee, as will entitle him to maintain trespass against appellee. The evidence also is very conflicting, and on that account we do not feel authorized to disturb the conclusion of the trial judge, who heard the witnesses testify. No propositions of law were presented and no question of law was preserved for review.

The judgment is therefore affirmed.

Affirmed.


text:
    Paul Kashgarian et al., Appellees, v. Ponmeomian Janjigian, Appellant.
    Gen. No. 5418.
    1. Evidence—when secondary competent. Upon proof of the loss of an original letter oral evidence as to the contents thereof is competent.
    2. Assumpsit—when lies. If the payment of money has been obtained by false pretenses assumpsit lies to recover it back.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. Chaeles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Anderson & Eaton and Charles H. King, for appellant.
    Claire C. Edwards, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

The parties are Armenians. Paul Kashgarian works in the mills at Waukegan. His brother, Peter, travels through the country selling Turkish rugs. Pomneomiau Janjigian lives in Boston and acts as money broker and collecting agent for his countrymen. In 1905, in answer to a letter from Janjigian Paul sent him a sum of money and then forwarded the letter to Peter, who sent Janjigian another sum of money. Afterwards Paul and Peter claimed to have been deceived in the purpose for which the money was asked. Peter visited Janjigian in Boston, and claims that he then demanded back the money they had each paid and that Janjigian refused to refund. Thereafter the brothers sued Janjigian in attachment before a justice in Lake county. Janjigian appeared by attorney, and on an appeal to the Circuit Court the brothers had a judgment against Janjigian for $135, from which he prosecutes this appeal. The argument confines the grounds relied upon for reversal to three: (1) That Paul and Peter have no joint right of action; (2) that the court erred in admitting oral proof of the contents of a certain letter; and (3) that there is no preponderance of evidence that a cause of action exists.

When all the evidence in the record is carefully read we conclude that it shows that Paul and Peter pooled all their earnings, except what they paid out for their living expenses, and put it all into the rug business, and that it was their plan that as soon as the business was sufficiently lucrative Paul should leave the mills and devote his time to the rug business. We conclude that they were -joint owners of all their moneys. If the evidence they gave is true, both remittances were intended by them to be concerning the rug business. We conclude they had a joint right of action for the money if it was wrongfully obtained from them.

The rugs which were to be sold in America by Peter were purchased in Turkey by their agents and sometimes by their father. Their agent would then draw a draft upon them for the purchase price for the rugs. Often these drafts were sent for collection to an Armenian broker in New York, but sometimes they were sent to appellant in Boston, and Paul and Peter had several times remitted to appellant the amounts of drafts drawn upon them. In 1905 they received a letter from appellant. They could not produce the letter. Peter testified 'that he had that letter and other papers pertaining to this case, including an express receipt, in a suit case, and while on the way to Boston with them he stopped to concern himself about the affairs of some emigrant countrymen of his who were being deported by ship; that the ship was much crowded and he left his suit ease for a short time in the custody of a countryman whom he knew, and the countryman disappeared, and he never saw the suit case nor letter again. We conclude that this authorized the admission of secondary evidence of the contents of the letter. The proof for'appellees was that the letter told them that appellant held a draft against them from the old country, the amount of which in American money was $121.50. They assumed that this draft was for rugs shipped to them, like the other drafts which they had paid, and accordingly Paul remitted to appellant one sum and Peter the rest of the amount necessary to make $121.50. They received no draft therefor from appellant, and finally learned from Tiim that it was not a draft at all, but a note which the father of appellees had given to the father of appellant in Armenia some seven or eight years before, and on which they were not liable at all. Peter then visited Boston and demanded the return of the money and it was refused.

Appellant on the other hand testified (by deposition) that in his original letter he told them that this was a note of their father, and that he did not send the note to them because they did not pay the interest, but refused to do so, and he therefore returned the note to the old country; that when Paul visited him in Boston Peter said that they paid the principal of the note for their father because he was sick, but they would not pay any interest. This contradictory evidence raised a disputed question of fact which the jury and the trial judge have determined in favor of appellees. If the testimony given by appellees is true, then appellant wrote them that he had a draft on them, and they remitted the money in reliance on that statement, and the statement was not true, and the money was applied, upon an instrument upon which they were not liable. If these are the facts then, upon learning the truth, they had a right to sue and recover back the money with interest.

The judgment is affirmed.

Affirmed'


text:
    John A. Schreiner, Appellant, v. John Maring, Appellee.
    Gen. No. 5421.

      Verdicts—when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence unless. clearly and manifestly against'its weight.
    Assumpsit. Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Fabrand, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    John D. Turnbaugh, for appellant.
    McMahon & Rogers, for appellee; F. J. Stransky, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Schreiner sued Maring in the Circuit Court and filed the common counts in assumpsit; Maring filed the general issue and a plea of payment; there was a jury trial and a verdict and a judgment for defendant, from which plaintiff appeals. At the close of plaintiff’s term as a tenant in the spring of 1910, he had a field of thirty acres of unhusked corn under a foot of snow. His lease required him to husk this corn and deliver one-half thereof to his landlord. Defendant was to succeed plaintiff as tenant and was moving in. Plaintiff did not wish to come hack to husk this corn after the snow was gone. Plaintiff and defendant made an oral contract by which defendant was to husk all the corn, deliver one half to the landlord and become the owner of the other half. Afterwards they disagreed as to the amount which defendant was to pay plaintiff under this contract. Plaintiff introduced evidence tending to show that after coming down from a higher price plaintiff said lie would take $25 per acre for this com; that defendant asked if that meant $12.50 per acre for his share; that plaintiff replied that it did and that this included husking and cribbing the landlord’s share; and that they made a bargain on the basis that defendant should pay plaintiff $12.50 for plaintiff’s share of each of the thirty acres. Defendant introduced evidence tending to show that the agreement was that he was to pay plaintiff $12.50 per acre for plaintiff’s fifteen acres, and in addition husk and crib the landlord’s fifteen acres.

Defendant’s contention was supported by two witnesses and the plaintiff’s by only one, while the burden of proof was upon the plaintiff to prove the contract he alleged. The jury believed the two witnesses for the defendant rather than the one for the plaintiff, and the trial judge approved that conclusion. We do not feel required to disturb the conclusion of the jury in favor of defendant on this subject, supported by the numerical preponderance of the proof.

If defendant’s version of the price agreed to be paid for the corn is correct, the amount was $187.50. Defendant also owed plaintiff $35 for hay, which would make a total of $222.50. Defendant deposited that sum in a neighboring bank in the name of plaintiff and took a certificate of deposit for that amount payable to plaintiff. The parties met on the highway, figured up the amount due from defendant to plaintiff, found it to be $222.50 and defendant delivered said certificate of deposit to plaintiff and plaintiff accepted it and went on his way. Plaintiff was not obliged to accept a certificate of deposit but could have demanded the cash in legal tender. He did not call for money or object to the certificate of deposit and we do not doubt that he then accepted the certificate as equivalent to cash. After the parties separated plaintiff concluded that he should have received $12.50 for his share in each of the thirty acres, or $375, besides the hay, $35, or a total of $410, and several hours later he telephoned defendant that there was a mistake in figuring, and on the second day thereafter he came to defendant and offered hack the certificate of deposit. Defendant refused to receive it, and plaintiff threw it upon the ground and went away, and the certificate blew into a hedge and apparently has never -since been seen. If the certificate was for too small an amount by mistake, plaintiff had a right to return it, but the verdict of the jury means that it was for the right amount. If it was for the right amount, then plaintiff, having once accepted it as cash, could not afterward compel defendant to take it back. It was not because it was not money that plaintiff offered it back, but because, as he insisted, it was for too small an amount. An officer of the bank testified that the money was still in the bank to the credit of plaintiff. The solvency and responsibility of the bank were not questioned. Plaintiff has only to satisfy the bank that the certificate is not assigned and is lost or destroyed and the deposit is at his disposal. When the jury found that the certificate was for the true amount due, that before this suit was brought it was accepted by plaintiff as payment, and that it was and is in fact good for the mount named therein, a verdict for defendant was the necessary result. We therefore think it unnecessary to discuss the instructions further than to say that in our opinion plaintiff was not injured by any imperfections therein.

The judgment is therefore affirmed.

Affirmed.


text:
    George A. Ditewig, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5424.
    Contributory negligence—when chauffeur injured in collision guilty of. Held, under the evidence, that a chauffeur injured in a collision with a street car was guilty of such contributory negligence as barred his recovery. ___
    Action in case. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed March 16, 1911.
    Pinkney & McRoberts, for appellant.
    Dailey & Miller, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

George A. Ditewig, the appellee, was the owner of the automobile, the injury to which by a collision with a street car of the Peoria Railway Company, the appellant, was described in Walsh v. Peoria Railway Company, 157 Ill. App. 453, wherein we reversed a judgment recovered by Walsh, chauffeur and employe of appellee, for injuries sustained by him in the same collision. That case was tried at the January term 1910, of the Circuit Court. This case was tried at the March term, 1910, of the Circuit Court, and, after a remittitur, appellee had a judgment for $3,761.79 for the injury to the automobile in said collision, and the street car company appeals. The first count of the declaration charged negligence and mismanagement in the driving of the street car. The second count charged a failure to sound a gong for a distance of 100 feet from the intersection of the two streets where the collision occurred, as required by an ordinance. The third count charged failure of appellant to observe an ordinance which required those in charge of a street car to keep a vigilant watch for carriages, etc., on the track, and on the first appearance of danger to stop the car in the shortest time and space possible. As it is claimed that there was more proof heard in this case than in the Walsh case, and that here some witnesses were impeached or contradicted, we deem it proper to discuss the evidence more fully than we did in that case. For brevity, a street car will be called a car and the automobile the auto; and though this record shows Monroe street running northeasterly and southwesterly and Morgan street crossing it at right angles, those directions will be described as north and south and east and west.

Monroe street runs north and south, and north is up hill. Morgan street runs east and west and west is up the bluff. Madison street is next east and Perry street next west of Monroe street and parallel with it. Evans street is next north and Wayne street next south of Morgan street and parallel with it. Appellant operated a double track street railway on Monroe street. The collision occurred at 3:55 p. m. on January 29,1909, during a blizzard or snow storm and high wind. Car No. 229 was going north on Monroe street on the east track, and stopped at the north side of Morgan street or a little further north and all its passengers there alighted. On the east side of the street a funeral procession was going north, and the last carriage passed car 229 while passengers were alighting. Walsh was driving appellee’s auto, and had left appellee at his place of business and was going north on Monroe street for the purpose of going to appellee’s home, which was on Madison street, north of Morgan. When he came nearly to the standing car discharging passengers, he turned west. It is appellee’s claim that he was headed up Morgan street between its curb lines intending to go west to Perry and tben north, taking this roundabout way to go to appellee’s home, and that, while he wás on the intersection of the two streets, appellant’s south bound car No. 232 struck the auto inflicting the injury complained of. It is appellant’s contention that "Walsh did not turn to drive up Morgan street, but that he swung round the rear of the standing car and turned diagonally across the south-bound track, intending to go up Monroe street on the left hand side, in order to get ahead of the standing car and of the funeral procession, and that he ran into the down bound car at the north line of Morgan street or still further north. It is necessary to consider the evidence on this question.

Walsh testified that he never drove by a funeral procession; that though Perry street was the longer way to appellee’s home and though both Madison street and Perry street were asphalted, yet he chose to turn on to Perry because the asphalt was somewhat broken on Madison; that he passed beyond the center of the two streets and then turned west from seven to ten feet behind the standing car and turned up Morgan street, when he was struck by car 232 going down; and that he .had not travelled six feet from the time he turned till the car hit the auto. Ford testified that he was standing on the rear platform of car 229, facing south, and saw Walsh turn the auto up Morgan street and that at the time of the collision Walsh was at or a little below the center of the intersection of Morgan and Monroe. Loomis testified that he was one half block west on Morgan driving a team east and saw the car strike the auto, and that at just about that time the auto was pointed directly towards him, and that when the auto turned towards him it was ten or fifteen feet above the intersection of the streets. Euey, motorman on car 232, testified that when his car was six or eight feet above the north line of Morgan street the auto whipped around the end of the standing car and struck his car before it got to the north line of Morgan. Hitchcock, a passenger on car 233 which was going south about a block ahead of car 232, testified that he was standing on.the rear of car 233 and saw the standing car and the funeral procession and saw this auto, and that the driver of the auto made a double turn; that he first turned up Morgan till he crossed the first track and then he turned diagonally up Monroe street slanting, and that it appeared to the witness that the auto was one half a car’s length above the crossing before the collision took place. Mrs. Gmelieh was a passenger on car 232 and testified that the car had not got as far south as the sidewalk when it was struck by the auto. Taylor, conductor on car 232, testified that the auto came around the angle of car 229 and that the collision occurred about the upper line of Morgan street. Piper was the motorman on car 229. He testified that after the collision he got off his car and saw the tracks of the auto in the snow where it had been pushed sideways by the street car and turned around, and testified that those tracks of the auto ended just above the upper line of Morgan street, which indicated that that was where the northward progress of the auto was arrested. Sprague, conductor on car 229, testified that he was standing in the rear vestibule or south end of his car where it was discharging passengers; that the auto crossed over the tracks five or sis feet behind his car and hit car 232 when it lacked four or five feet of having reached the south end of his car. There was therefore a very clear preponderance of direct testimony that the collision occurred about the north line of Morgan street or still further north. Certain circumstances in proof tend to the same conclusion. The controller in the front vestibule of car 232 was bolted to the floor with two one-half inch bolts and there were two brace irons at the top, one-half an inch wide by a quarter of an inch thick, bolted to the vestibule. The controller weighed between 250 and 300 pounds. The force of the collision knocked down the motorman and knocked the controller loose and it fell on top of the motorman. The car continued in motion because the power was on. The right front wheel of the auto caught in mechanism at the southeast corner of the car and the auto was forced around and dragged along with the car. It was not until the conductor, who was standing in the north end of the car and who was flung headlong to the floor of the car, had arisen and gone to the front and lifted the controller off the motorman that the latter got up and turned off the power at a switch in the top of the vestibule, and it was only then that the car stopped. Many witnesses, some of those named and some we have not named, some employes of appellant and others passengers and still others, men on the street, testified that the car moved 25 to 30 feet after the collision and stopped with its south or front end somewhat north of the center of Morgan street, and that, after its stop, the rear vestibules of the two cars overlapped each other, so that the north end of car 232 was above the north line of Morgan street. Car 232 was 28 feet long from bumper to bumper and each vestibule projected about three feet and two inches beyond the bumper. Morgan street was 79 feet wide and the distance between the curbing of Morgan street at the west line of Monroe street was 30 feet, leaving 49 feet outside of the curbing, or 24% feet from the north curb line of Morgan street to the north line of the street. If Walsh had turned to go up Morgan street he must have been at least 25 feet south of the north line of Morgan street. But it is evident from the length of time the car was in motion after the collision before the power could be cut off, and from the place where it stopped, that the collision did not occur south of that north curb line but must have occurred decidedly north of that curb line, and at the north line of the street or still further north. While there was a little evidence tending to show that the car stopped further south than we have stated, yet that evidence was hut slight and was entirely overborne by the great preponderance of the proof. We are forced to the conclusion that Walsh was not trying to drive his auto west on Morgan street, but that he was driving it up the left side of Monroe street and was crossing the south bound track diagonally, intending to get around the standing car and the funeral procession.

The speed of the auto is material here. Walsh testified that he was driving at from ten to fifteen miles per hour up Monroe street; that when he got near the funeral procession he slowed down to from four to six miles per hour; and that when he crossed the tracks behind car 229 he was not going over five or six miles per hour. But he also stated that his auto had four speeds, number one the lowest and number four the highest, and that it was capable of 12 miles per hour on first speed, of 20 miles per hour on second speed and of 30 miles per hour on third speed, and that he had been running on second speed up Monroe street and also that as he was following the funeral procession he was on third speed. Fuller, conductor on the back end of car 233, running a short distance ahead of car 232, testified that Walsh passed him going north about two-thirds of a block south of Morgan street and that Walsh was driving with his head down and at about 20 or 25 miles per hour. Hitchcock, a passenger standing on the rear of said car 233 and facing north, first saw the auto about the center of the block between Wayne and Morgan, and watched it till the collision occurred and he testified that in his judgment it was running at from 20 to 25 miles per hour from the time he first saw it till it hit the street car. Sprague, conductor on car 229, testified that when the auto turned to cross the tracks back of his car, it was running at from 20 to 25 miles per hour. The fact that the auto was being rnn at great speed is further shown by considering the speed of car 232 with which it collided. Clark, driver of a carriage in the funeral procession, testified that when car 232 passed him it was running three or four times as fast as the funeral procession, but that this was above the center of the block above Morgan and he did not know at what speed it ran after it passed him. Anderson, driver on the third carriage from the rear of the funeral procession, testified that the procession was moving about three miles per hour and that car 232 was going about three times as fast when it passed him about the center of the block. Buey, the motorman on car 232, testified that from Evans street down he was running about four miles per hour and that he slowed up as he approached Morgan street because car 229 was letting off passengers and he was watching to keep from running over passengers who might come around the back end of that car. Mrs. Gmelich, a passenger on car 232, testified that it was going very slowly. Eaton, another passenger thereon, testified that' it was not going over four miles per hour at any time after he got upon the car, and no faster than he could walk. Taylor, conductor on car 232, testified that it had been going about four miles per hour for three or four blocks. Piper, motorman on car 229, testified that he had noticed car 232 about the middle of the block north of Morgan street, that it was then running at from five to six miles per hour, and that before it reached,car 229 it slowed down to about three miles per hour. Whatever may be thought as to the value of such evidence as to the speed of an auto and a car, it is obvious that it is extremely probable that car 232 was brought to very slow speed as it came to car 229, which was standing still and discharging passengers on the east side. Common experience teaches that it would be extremely dangerous to drive a car past a standing car under such circumstances, except at very slow speed and with the car under complete control, so that the motorman could almost instantly stop it if a person came around the rear of the standing car. . But the great destruction wrought to the auto and to the street car shows that one vehicle or the other was going with great force. In view of all this evidence, and of the admissions of Walsh as to the speed at which he had been running and could run, and of the results of the collision we reach the conclusion that he was running at a very high and dangerous rate of speed and on the side of the street where he had no right to be. He was perfectly familiar with all the surroundings. He testified that he had driven up this street six or seven times a day nearly every day for two years; that he knew that street cars went up and down the street every few minutes and that there was likely to be a car going in one direction or the other at any time. He was bound to know that if a car was coming from the north his view of it would be intercepted by the standing street car. If he had been going up Morgan street, he would have been across the tracks entirely before car 232 reached the curb line, but he was seeking to drive diagonally across to the west side of Monroe street without any effort to ascertain whether or not a car was coming down. He claims that the funeral procession in some way intercepted his view of the approaching car, but this is impossible. The procession was over towards the east curb line and the street was straight, while he had his west wheels over the rail of the street car track and was not directly behind the procession. In our opinion the only conclusion to be drawn from this evidence, when it is all considered, is that he failed to exercise ordinary care and that his master’s auto was injured because thereof. This is confirmed by the testimony of his own admissions shortly after the collision. Buey testified that Walsh twice said: “I know it was all my fault.”

Sprague testified to the same effect. Piper testified that Walsh said it was his fault. Eckleberry, an employe of appellant who was walking on the street and came there immediately after the accident, testified that some one asked Walsh: “Did the car hit yon?” and Walsh answered “No, I hit the car.” Walsh denied that he made these statements, and two other men, who were about or near there after the accident, testified that they did not hear him say it.

We do not doubt from the evidence that the gong on car 232 was sounded for the 35 or 40 feet next north of the north line of Morgan street. Whether it was sounded while the car was passing over the first part of the 100 feet next north of Morgan street is not so clear. There is positive testimony by two witnesses that it was and negative testimony and impeaching testimony tended to show that it was not. But we are so clearly of opinion that the driver of the auto was guilty of such negligence as precludes a recovery, regardless of that question, that we deem it unnecessary to discuss the evidence on that question in detail.

The judgment is therefore reversed.

Reversed.

Finding of facts to be incorporated in the judgment: We find that appellee’s servant was negligent in the manner in which he drove appellee’s auto and that such negligence contributed to cause the collision in which appellee’s auto received the injuries for which this suit was brought.